Wilson v. Neth

Jerad Wilson, appellant, v. Beverly neth , director ,
state of neBraska , department of
motor vehicles , appellee .
773 N.W.2d 183
Filed September 22, 2009. 	No. A-08-1268.
1. Administrative Law: Motor Vehicles: Judgments: Appeal and Error. Deci-
sions of the director of the Department of Motor Vehicles, pursuant to Nebraska’s
administrative revocation statutes, are appealed under the Administrative
Procedure Act.
2. Administrative Law: Final Orders: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to the
Administrative Procedure Act may be reversed, vacated, or modified by an appel-
late court for errors appearing on the record.
3. Administrative Law: Judgments: Appeal and Error. When reviewing an order
of a district court under the Administrative Procedure Act for errors appearing on
the record, the inquiry is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
4. Administrative Law: Statutes: Appeal and Error. The meaning and interpreta-
tion of statutes and regulations are questions of law for which an appellate court
has an obligation to reach an independent conclusion irrespective of the decision
made by the court below.
5. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Jurisdiction. Nebraska law grants the director of the Department of Motor
Vehicles jurisdiction to administratively revoke the license of a person found to
be driving under the influence of alcohol.
6. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Jurisdiction. In an administrative license revoca-
tion proceeding, the sworn report of the arresting officer must, at a minimum,
contain the information specified in the applicable statute in order to con-
fer jurisdiction.
7. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Blood, Breath, and Urine Tests. Neb. Rev. Stat. § 60-498.01(3) (Reissue 2004)
requires a sworn report in an administrative license revocation proceeding to
state that the person was arrested as described in Neb. Rev. Stat. § 60-6,197(2)
(Reissue 2004), the reasons for such arrest, that the person was requested to
submit to the required test, that the person submitted to a test, the type of test to
which the person submitted, and that such test revealed the presence of alcohol in
a concentration specified in Neb. Rev. Stat. § 60-6,196 (Reissue 2004).
8. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Jurisdiction. The test used to determine whether an omission from a sworn
report in an administrative license revocation proceeding becomes a jurisdictional
defect, as opposed to a technical one, is whether, notwithstanding the omission,
the sworn report conveys the information required by the applicable statute.
9. Trial: Waiver: Appeal and Error. Failure to make a timely objection waives the
right to assert prejudicial error on appeal.
WIlSoN v. NeTh 	41
Cite as 18 Neb. App. 41
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:12 AM CST

10. Administrative Law: Appeal and Error. In an appeal under the Administrative
Procedure Act, an appellate court will not consider an issue on appeal that was
not presented to or passed upon by the administrative agency.
Appeal from the District Court for Box Butte County: leo
doBrovolny, Judge. Affirmed.
Bell Island, of Island, huff & Nichols, P.C., l.l.o., for
appellant.
Jon Bruning, Attorney General, Milissa Johnson-Wiles, and
Andee G. Penn for appellee.
irWin, carlson, and moore, Judges.
moore, Judge.
INTRoDUCTIoN
After a June 2008 hearing, Beverly Neth, the director of
the Nebraska Department of Motor Vehicles (Department),
revoked Jerad Wilson’s driving privileges for 1 year pursu-
ant to Neb. Rev. Stat. § 60-498.01 (Reissue 2004). Wilson
appealed to the district court for Box Butte County, which
affirmed the Department’s revocation order. Wilson appeals
from the district court’s affirmance of the revocation of his
license by the Department, challenging the sufficiency of the
sworn report to confer jurisdiction and the authority of the
hearing officer to receive evidence. Pursuant to Neb. Ct. R.
App. P. § 2-111(B)(1), this case was ordered submitted without
oral argument. For the reasons that follow, we affirm the dis-
trict court’s order.
BACKGRoUND
on May 4, 2008, two officers with the Alliance Police
Department found Wilson passed out behind the steering
wheel of his vehicle, which was parked in the middle of a
roadway. After an officer woke him, Wilson admitted to drink-
ing too much. Wilson smelled of alcohol and had bloodshot
eyes and a flushed face, and his speech and movements were
slow. Wilson showed impairment on field sobriety tests, and
a preliminary breath test showed .184 of a gram of alcohol
per 210 liters of breath. Wilson was arrested, and a chemical
42 	18 NeBRASKA APPellATe RePoRTS

blood test was performed at the hospital which revealed a
blood alcohol content of .169 of a gram of alcohol per 100
milliliters of blood.
A “Notice/Sworn Report/Temporary license” form (sworn
report) was completed, signed by the two arresting officers
in the presence of a notary, and received by the Department.
The sworn report was received as an exhibit at the hearing.
The sworn report shows the reasons for arrest were as fol-
lows: “Vehicle parked in middle of the road, driver passed
out behind the wheel, driver addmitted [sic] to drinking too
much, could not perform field sobriety tests as instructed, PBT
result of .184.” The portion of the sworn report that Wilson
challenges as defective states: “The individual was directed to
submit to a chemical test, and he or she: (Check appropriate
box.)” Underneath that statement is a box next to each choice
of “Refused to submit to the test,” “Submitted to a breath
test that indicated a BAC of 0.08 or more,” and “Submitted
to a blood test that indicated a BAC of 0.08 or more.” Under
each of the last two choices are spaces to insert the result of
the test and the name of the testing operator. on Wilson’s
sworn report, the box next to “Submitted to a blood test” is
not checked; however, the test information is completed under
that heading, showing, “Result: .169 gram of alcohol per 100
ml of blood.” In addition, the “blood tested by” blank is filled
in with a name and the “date blood test results received” blank
was completed.
Wilson 	filed 	a 	petition 	requesting 	an 	administrative
hearing before the Department and received a notice that
the hearing would be held on June 12, 2008, before Judy
Vitamvas. Thomas M. Wakeley actually presided over the
hearing. Following the hearing, Wakeley recommended to the
Department’s director that Wilson’s driver’s license should
be administratively revoked. The director adopted Wakeley’s
recommendation and ordered that Wilson’s driver’s license be
revoked for the statutory period. Wilson appealed to the dis-
trict court, which affirmed the revocation order. Wilson timely
filed this appeal.
WIlSoN v. NeTh 	43
Cite as 18 Neb. App. 41

ASSIGNMeNTS oF eRRoR
Wilson asserts that the district court erred in failing to
reverse the revocation because (1) the sworn report fails to
show what chemical test Wilson submitted to and (2) the hear-
ing officer was not properly appointed.
STANDARD oF ReVIeW
[1-4] Decisions of the director of the Department, pursuant
to Nebraska’s administrative revocation statutes, are appealed
under the Administrative Procedure Act (APA). Neb. Rev. Stat.
§ 60-498.04 (Reissue 2004). A judgment or final order rendered
by a district court in a judicial review pursuant to the APA may
be reversed, vacated, or modified by an appellate court for
errors appearing on the record. Betterman v. Department of
Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007). When
reviewing an order of a district court under the APA for errors
appearing on the record, the inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id. The mean-
ing and interpretation of statutes and regulations are questions
of law for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by
the court below. Id.
ANAlYSIS
Is Sworn Report Sufficient
to Confer Jurisdiction?
[5-8] Wilson argues that the failure of the officer to check
the box demonstrating the type of test the motorist submitted
to renders the sworn report insufficient to confer jurisdiction
for the revocation. Nebraska law grants the director of the
Department jurisdiction to administratively revoke the license
of a person found to be driving under the influence of alcohol.
§ 60-498.01. The sworn report of the arresting officer must, at
a minimum, contain the information specified in the applicable
statute in order to confer jurisdiction. Hahn v. Neth, 270 Neb.
164, 699 N.W.2d 32 (2005). As Wilson correctly points out,
§ 60-498.01(3) requires a sworn report to state that the person
was arrested as described in Neb. Rev. Stat. § 60-6,197(2)
(Reissue 2004), the reasons for such arrest, that the person
44 	18 NeBRASKA APPellATe RePoRTS

was requested to submit to the required test, that the person
submitted to a test, the type of test to which the person sub-
mitted, and that such test revealed the presence of alcohol in a
concentration specified in Neb. Rev. Stat. § 60-6,196 (Reissue
2004). The test used to determine whether an omission from
a sworn report becomes a jurisdictional defect, as opposed to
a technical one, is whether, notwithstanding the omission, the
sworn report conveys the information required by the appli-
cable statute. See, Betterman v. Department of Motor Vehicles,
supra; Hahn v. Neth, supra.
Wilson argues that Hahn is factually similar and provides
authority for a reversal in the instant case. In Hahn, the
description of the sworn report form indicates that it was dif-
ferent from the form used in the present case. In Hahn, the
officer checked a box noting that the driver “‘submitted to a
chemical test which indicated an alcohol concentration of 0.08
or more,’” but failed to check a box stating that the driver
“‘was requested to submit to the required test.’” 270 Neb. at
167, 699 N.W.2d at 36. The officer filled out a portion of the
form noting that the test results were “‘0.148’” and that the
“‘Instrument Type’” was “‘5000,’” but neglected to indicate
whether the chemical test was of the driver’s blood or breath.
Id. Because the sworn report form did not indicate that the
driver “‘was requested’” to submit to the required test or “‘the
type of test’” to which he submitted, which information was
statutorily required, the Nebraska Supreme Court in Hahn, 270
Neb. at 171, 699 N.W.2d at 38, concluded that the director
did not acquire jurisdiction to administratively revoke hahn’s
operator’s license.
In the present case, the form does not contain a box next to
the statement that “[t]he individual was directed to submit to
a chemical test”; rather, it contains this statement as a positive
assertion. Therefore, this “defect” from Hahn is not present
in this case. The present form goes on to include the three
options described above—refused to submit, submitted to a
breath test, or submitted to a blood test. Despite the officer’s
failure to check the box next to “Submitted to a blood test,”
the information contained under this heading clearly shows that
a blood test was performed and that the results of the blood
WIlSoN v. NeTh 	45
Cite as 18 Neb. App. 41

test revealed a blood alcohol concentration above the statutory
amount; the form thus conveys the information required by
§ 60-498.01(3).
These facts are also distinguishable from those of Hahn
because in Hahn, it was not discernible from other informa-
tion provided in the sworn report whether the chemical test
was of the blood or breath. In the present case, it is clear that
a chemical blood test was performed, as the sworn report
states the result of the blood test, the name of the person who
tested the blood, and the date on which the blood test results
were received.
The district court found that the sworn report in this case
contained all of the requisite recitations and that the Department
properly obtained jurisdiction. The district court in the present
case found that viewing the form as a whole, the information
that was filled in provided a legitimate inference that Wilson
submitted to a blood test and that a blood test was performed.
The court concluded that the failure to check the box was a
technical defect, not a jurisdictional one.
Recognizing that we review jurisdictional questions inde-
pendently, we conclude that the district court did not err in
its determination. The sworn report, when viewed as a whole,
contained the required recitations that Wilson was directed
to submit to a chemical test, that he did so, and that the
result of his blood test was .169 of a gram of alcohol per
100 milliliters of blood. As such, this assignment of error is
without merit.
Hearing Officer.
Wilson next argues that a hearing officer who is not appointed
by the director is not authorized to receive evidence. In this
case, the notice of hearing indicated that the appeal would
be heard before Vitamvas. however, the hearing officer who
actually heard the appeal was Wakeley. Wilson argues that
the regulations require a hearing officer to be appointed by
the director in writing and that Vitamvas, not Wakeley, was
appointed. Wilson argues that since Wakeley was not properly
appointed, he had no authority to receive evidence or make a
recommendation to the director. In the absence of a properly
46 	18 NeBRASKA APPellATe RePoRTS

appointed hearing officer, Wilson argues, the Department is
without jurisdiction to revoke his license.
[9,10] Wilson’s argument fails for several reasons. Wilson
did not object to Wakeley’s presiding as the hearing officer at
the time of the administrative hearing or otherwise raise the
issue of whether the Department lacked jurisdiction because
Wakeley was not properly appointed as the hearing officer.
Generally, failure to make a timely objection waives the right
to assert prejudicial error on appeal. See Hass v. Neth, 265
Neb. 321, 657 N.W.2d 11 (2003). Further, in an appeal under
the APA, an appellate court will not consider an issue on appeal
that was not presented to or passed upon by the administrative
agency. Id.
Nevertheless, Wilson did raise the issue of the hearing
officer’s appointment before the district court, and the district
court addressed it. The district court rejected the argument,
finding that there was no evidence to show that Wakeley was
not an appointed hearing officer as provided in the Nebraska
Administrative Code.
To the extent that the district court treated this argument
as a jurisdictional one which can be raised at any time, see
Betterman v. Department of Motor Vehicles, 273 Neb. 178,
728 N.W.2d 570 (2007), we find no error in the district court’s
resolution of the issue. Wilson presented no evidence that
Wakeley was not properly appointed and no authority which
states that the appointment of the hearing officer must be
made a part of the record in order to confer jurisdiction on the
Department. The Nebraska Administrative Code provides that
a hearing officer is an individual appointed by the director to
preside at an administrative hearing. 247 Neb. Admin. Code,
ch. 1, § 002.04 (2005). hearing officers shall be appointed
by the director in writing, and such appointment shall be of
public record in the director’s office. 247 Neb. Admin. Code,
ch. 1, § 003.01 (2005). There is no evidence that Wakeley was
not appointed pursuant to these regulations. Also, as the dis-
trict court noted, the Nebraska Administrative Code does not
require that the hearing be conducted by the hearing officer
named in the notice of hearing. See 247 Neb. Admin. Code, ch.
1, § 001 et seq. (2005).
WIlSoN v. NeTh 	47
Cite as 18 Neb. App. 41

We find this assignment of error to be without merit.
CoNClUSIoN
Accordingly, we conclude that the district court did not
clearly err when it determined that the Department had juris-
diction to administratively revoke Wilson’s driver’s license, and
we therefore affirm.
affirmed.
48 	18 NeBRASKA APPellATe RePoRTS