Moyer v. Nebraska Dept. of Motor Vehicles

688 	275 Nebraska reports
sAm l. moyer , Appellee , v . neBrAskA depArtment
of motor veHiCles , AppellAnt .
747 N.W.2d 924
Filed May 9, 2008. 	No. s-07-884.
1. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error.
Whether the sworn report of a law enforcement officer is sufficient to confer juris-
diction of the Department of Motor Vehicles is a question of law, and an appellate
court reaches a conclusion independent of that reached by the lower court.
2. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Affidavits: Words and Phrases. sworn reports in administrative license revoca-
tion proceedings are, by definition, affidavits.
3. Affidavits: Words and Phrases. an affidavit is a written or printed declaration
or statement of facts, made voluntarily, and confirmed by the oath or affirmation
of the party making it, taken before a person having authority to administer such
oath or affirmation.
4. Affidavits: Proof: Public Officers and Employees. an affidavit must bear on its
face, by the certificate of the officer before whom it is taken, evidence that it was
duly sworn to by the party making the same.
5. ____: ____: ____. an affidavit does not require a notary to confirm the truth of the
facts stated in the affidavit; rather, the certificate, also known as a jurat, confirms
only that the affiant appeared before the notary, attested to the truth of his or her
statements, and signed the affidavit.
6. Affidavits: Oaths and Affirmations: Police Officers and Sheriffs: Proof. oaths
to affidavits ordinarily are not required to be administered with any particular cere-
mony, but the affiant must perform some corporal act before the officer whereby
the affiant consciously takes upon himself or herself the obligation of an oath. the
signature of the officer is a corporal act which is generally sufficient to meet the
requirement of execution under oath.
appeal from the District Court for Hamilton County: miCHAel
J. owens, Judge. reversed.
Jon bruning, attorney General, and kevin J. edwards for
appellant.
arthur s. Wetzel, of anderson, Vipperman, kovanda &
Wetzel, for appellee.
H eAviCAn, 	C.J., 	wriGHt, 	C onnolly, 	G errArd, 	stepHAn,
mCC ormACk, and miller -lermAn, JJ.
H eAviCAn, C.J.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

INtroDuCtIoN
the sole question presented by this appeal is whether the
Nebraska Department of Motor Vehicles (DMV) had jurisdic-
tion to revoke the driver’s license of sam L. Moyer when the
arresting officer was not placed under oath prior to signing
the sworn report initiating the administrative license revoca-
tion process.
FaCts
the underlying facts of this case are not in dispute. on
February 9, 2007, Deputy sheriff thea edmunds responded to
a motor vehicle accident in Hamilton County, Nebraska. upon
arriving at the scene, edmunds encountered Moyer. edmunds
detected the odor of alcohol on Moyer and requested that he
take a preliminary breath test. Moyer refused. Moyer was then
arrested for driving under the influence and was transported to
the Hamilton County sheriff’s office, where he was asked to
take a breath test. Moyer again refused.
after Moyer refused to submit to the breath test, edmunds
filled out a sworn report pursuant to Neb. rev. stat. § 60-498.01
(reissue 2004). edmunds completed the form, which provided
in relevant part:
the undersigned officer(s) hereby swear(s) that the
above-named individual was arrested pursuant to Neb.
rev. stat. § 60-6,197, and the reasons for the arrest are:
I responded to an accident where . . . Moyer was the driver.
a strong odor of alcohol came from his person. Moyer
refused pbt as well as chem. test of his breath from
the DataMaster.
edmunds checked the box on the report which indicated that
Moyer had “[r]efused to submit to the test.” the report also
contains edmunds’ signature, as well as a notation stating that
the signature was “acknowledged” before a notary public. this
report was then forwarded to the DMV.
Moyer requested an administrative hearing, which was held
on March 5, 2007. at that hearing, edmunds testified regarding
the events surrounding Moyer’s arrest. the following exchange
was had between edmunds and Moyer’s counsel regarding
edmunds’ signature on the sworn report:
Moyer v. Nebraska Dept. oF Motor VeHICLes 	689
Cite as 275 Neb. 688

690 	275 Nebraska reports
[Moyer’s counsel:] When you signed that copy, did [the
notary public] place you under oath? . . .
. . . .
[edmunds:] No.
Q Now, when you signed that document, you didn’t
— you weren’t acknowledging an oath either, were you?
you were simply signing that in the presence of the notary,
is that correct?
a I guess . . . . I guess we take that for granted. I don’t
know, but all she is stating is that that is my signature.
Q right. and there was nothing about your signing of
that that indicated that you were going to take an oath.
It’s simply that you were signing it in her presence, is
that correct?
a I believe so.
Following the hearing, Moyer’s driver’s license was revoked.
Moyer appealed the revocation to the district court, which
reversed the revocation and ordered the DMV to reinstate
Moyer’s license. the district court reasoned that “the sworn
report was never sworn because the notary public did not put
the arresting officer under oath.” as such, the district court con-
cluded that the sworn report did not confer jurisdiction on the
DMV to revoke Moyer’s license. the district court ordered the
DMV to reinstate Moyer’s license. the DMV appeals.
assIGNMeNt oF error
on appeal, the DMV contends that the district court erred in
finding that the report detailing Moyer’s arrest was not sworn
under § 60-498.01 and was therefore insufficient to confer juris-
diction on the DMV to revoke Moyer’s license.
staNDarD oF reVIeW
[1] Whether the sworn report of a law enforcement officer
is sufficient to confer jurisdiction on the DMV is a question of
law, and an appellate court reaches a conclusion independent of
that reached by the lower court.1
1 see Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d
570 (2007).

aNayLsIs
DMV’s Argument on Appeal.
on appeal, the DMV contends that the district court erred
in concluding that edmunds needed to be placed under oath
before signing the sworn report. the question presented by
this assignment of error is whether a sworn report complied
with § 60-498.01 and vested the DMV with jurisdiction when
the arresting officer’s signature was “acknowledged” rather
than “sworn.”
[2-6] this court has previously noted that sworn reports in
administrative license revocation proceedings are, by defini-
tion, affidavits.2 an affidavit is a written or printed declaration
or statement of facts, made voluntarily, and confirmed by the
oath or affirmation of the party making it, taken before a person
having authority to administer such oath or affirmation.3 an
affidavit must bear on its face, by the certificate of the officer
before whom it is taken, evidence that it was duly sworn to by
the party making the same.4 an affidavit does not, however,
require a notary to confirm the truth of the facts stated in the
affidavit; rather, the certificate, also known as a jurat, confirms
only that the affiant appeared before the notary, attested to the
truth of his or her statements, and signed the affidavit.5 oaths to
affidavits ordinarily are not required to be administered with any
particular ceremony, but the affiant must perform some corporal
act before the officer whereby the affiant consciously takes upon
himself or herself the obligation of an oath.6 the signature of
the officer is a corporal act which is generally sufficient to meet
the requirement of execution under oath.7
In this case, edmunds signed the report and the report was
notarized. edmunds testified that she signed the report in the
2 Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003).
3 Id.
4 Id.
5 see id.
6 see, Moore v. Peterson, 218 Neb. 615, 358 N.W.2d 193 (1984); State v.
Howard, 184 Neb. 274, 167 N.W.2d 80 (1969).
7 see Moore, supra note 6.
Moyer v. Nebraska Dept. oF Motor VeHICLes 	691
Cite as 275 Neb. 688

692 	275 Nebraska reports
presence of the notary. No other action was required by either
edmunds or the notary. the notary was not required to confirm
the truth of the statements; the very fact that edmunds signed
the report in the presence of a notary and that her signature was
in fact notarized was sufficient as an oath or affirmation.
Moyer argues that edmunds’ testimony indicates that at the
time edmunds signed the report, “she did not have any conscious
notion that she was ‘swearing’ to the contents of the document
or that she was taking an oath of any sort.”8 We disagree with
Moyer’s characterization of edmunds’ testimony. Moreover, we
note that the report itself states that “[t]he undersigned officer(s)
hereby swear(s) . . . .” such is a clear and objective indication
that edmunds was aware at the time she signed the report that
she was swearing to the contents of the report.
We have previously addressed the converse argument to the
one presented by this case. In In re Interest of Fedalina G.,9
the state argued that a “poverty affidavit was defective because
the acknowledgment recited that the affidavit was ‘subscribed
and sworn’ to before the notary, and not ‘acknowledged.’”
this court rejected that argument, concluding that an affida-
vit was a written declaration made under oath and that the
notary’s certificate “confirms that the affiant appeared before
the notary, attested to the truth of his or her statements, and
signed the affidavit.”10
We therefore conclude that the district court erred by finding
that because the report stated the notary acknowledged edmunds’
signature rather than swearing and subscribing that signature,
the DMV lacked jurisdiction to revoke Moyer’s license.
Moyer’s Purported Cross-Appeal.
In his brief, Moyer argues that “edmunds’ report did not
contain sufficient reasoning to justify edmunds’ request that
Moyer submit to a test of his blood-alcohol level.”11 However,
8 brief for appellee at 8.
9 In re Interest of Fedalina G., 272 Neb. 314, 319, 721 N.W.2d 638, 643
(2006).
10 Id.
11 brief for appellee at 13.

we decline to reach that argument, as Moyer failed to properly
assert a cross-appeal in this case. Contrary to Neb. Ct. r. of
prac. 9D(4) (rev. 2006), Moyer’s brief fails to note any cross-
appeal on the cover of his brief, nor is his argument set forth in
a separate division of the brief. Moreover, his brief includes no
assignments of error.
CoNCLusIoN
We conclude that the district court erred in finding that the
DMV lacked jurisdiction to revoke Moyer’s license. We there-
fore reverse the order of the district court and remand the cause
with directions to reinstate the administrative revocation of
Moyer’s driver’s license.
reversed .
Moyer v. Nebraska Dept. oF Motor VeHICLes 	693
Cite as 275 Neb. 688