Law v. Nebraska Dept. of Motor Vehicles

Parker J. L aw, aPPeLLee , v. Nebraska D ePartmeNt
of motor vehicLes , aPPeLLaNt.
777 N.W.2d 586
Filed January 19, 2010. 	No. A-09-332.
1. Administrative Law: Judgments: 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 appellate court for
errors appearing on the record. 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.
2. Administrative Law: Motor Vehicles: Jurisdiction: Proof: Appeal and Error.
Whether the sworn report of a law enforcement officer is sufficient to confer
jurisdiction on 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.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Jurisdiction. A sworn report that fails to fully comply with the requirements
of the administrative license revocation statutes does not confer jurisdiction
upon the director of the Department of Motor Vehicles to revoke a motor-
ist’s license.
4. ____: ____: ____: ____: ____. In determining whether an omission on a sworn
report is a jurisdictional defect, as opposed to a technical one, the test is whether,
notwithstanding the omission, the sworn report conveys the information required
by the applicable statute.
5. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Jurisdiction: Police Officers and Sheriffs. Where a sworn report identifies two
arresting officers and, as submitted, conveys the information required by the
applicable statute, the omission of the second arresting officer’s signature on the
report is a technical deficiency that does not deprive the Department of Motor
Vehicles of jurisdiction.
Appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J. 	michaeL 	coffey, 	Judge. 	Reversed 	and 	remanded 	with
directions.
Jon Bruning, Attorney General, and Milissa Johnson-Wiles
for appellant.
No appearance for appellee.
iNboDy, Chief Judge, and irwiN and carLsoN, Judges.
lAW v. NeBRAskA DePt. oF MotoR VehICles 	237
Cite as 18 Neb. App. 237
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

iNboDy, Chief Judge.
INtRoDUCtIoN
the Nebraska Department of Motor Vehicles (DMV) appeals
the decision of the district court for Douglas County reversing
the DMV’s revocation of Parker J. law’s driving privileges for
1 year. the DMV contends that the district court erred in deter-
mining that the sworn report was defective because it contained
signatures for only one of the two arresting officers listed on
the sworn report.
stAteMeNt oF FACts
After law was arrested for driving under the influence of
alcohol, omaha police officer Joe eischeid submitted a sworn
report to the director of the DMV. the sworn report was
submitted within 10 days of law’s arrest and listed officer
eischeid and another officer as arresting officers; however,
only officer eischeid’s signature appeared on the sworn report.
the sworn report set forth that law had been arrested pursu-
ant to Neb. Rev. stat. § 60-6,197 (Reissue 2004) and listed the
reasons for the arrest as follows: “subject involved in a domes-
tic disturbance. subject drove vehicle into victim’s vehicle.
subject showed signs of impairment, bloodshot & watery eyes,
strong odor of alcohol & unsteady on feet. Refused Fst, PBt
& chemical test.” the sworn report further set forth that law
was directed to submit to a chemical test and refused to submit
to the requested test.
Following an administrative hearing, the director of the
DMV administratively revoked law’s driving privileges for
1 year. law appealed to the district court pursuant to the
Administrative Procedure Act. the district court determined
that the sworn report did not comply with relevant adminis-
trative rules and regulations, because it did not contain the
notarized signatures of both arresting officers. the court found
that the DMV lost the benefit of the sworn report establish-
ing the DMV’s prima facie case and that no other admis-
sible evidence established grounds for the revocation of law’s
license. Consequently, the court reversed and vacated the order
revoking law’s driving privileges. the DMV has appealed to
this court.
238 	18 NeBRAskA APPellAte RePoRts

AssIGNMeNt oF eRRoR
the DMV contends, summarized and restated, that the dis-
trict court erred in finding that the sworn report was defective
for failing to have the signatures of both arresting officers
listed on the report.
stANDARD oF ReVIeW
[1] 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 appellate court
for errors appearing on the record. When reviewing an order
of a district court under the Administrative Procedure Act for
errors appearing on the record, the inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable. Thomsen
v. Nebraska Dept. of Motor Vehicles, 16 Neb. App. 44, 741
N.W.2d 682 (2007).
[2] 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. Johnson v. Neth, 276 Neb. 886,
758 N.W.2d 395 (2008); Moyer v. Nebraska Dept. of Motor
Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008).
ANAlYsIs
[3] the issue presented to this court deals with the suf-
ficiency of the sworn report where the report identifies two
arresting officers, but contains the signature of only one of
those officers. this question is important because a sworn
report that fails to fully comply with the requirements of the
administrative license revocation statutes does not confer juris-
diction upon the director of the DMV to revoke a motorist’s
license. Johnson v. Neth, supra.
Neb. Rev. stat. § 60-498.01(2) (Reissue 2004) provides, in
part, that if an officer arrests an individual for driving under the
influence and the individual refuses to submit to the required
chemical test of blood, breath, or urine,
[t]he arresting peace officer shall within ten days forward
to the director a sworn report stating (a) that the person
lAW v. NeBRAskA DePt. oF MotoR VehICles 	239
Cite as 18 Neb. App. 237

was arrested as described in subsection (2) of section
60-6,197 and the reasons for such arrest, (b) that the per-
son was requested to submit to the required test, and (c)
that the person refused to submit to the required test.
the state argues that § 60-498.01(2) does not require the
signatures of all officers listed on the sworn report. the state
contends that such a statutory construction imposes a juris-
dictional requirement which is not mandated by the statu-
tory language.
Although the Nebraska supreme Court has not addressed
the particular issue of whether all arresting officers listed on
a sworn report must sign the report, the court has held that an
arresting officer is an officer who is present at the scene of
the arrest for purposes of assisting in it; consequently, more
than one officer can qualify as an “arresting” officer. see
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
N.W.2d 570 (2007). For example, in Betterman, three officers
were identified as arresting officers and each signed the sworn
report. however, the issue was not raised whether having all
three arresting officers identified on the report sign the report
was a jurisdictional requirement.
[4] Clearly, when two arresting officers are identified on the
sworn report and only one arresting officer signs the report,
a deficiency or omission is present. however, the question is
whether the omission on the sworn report constitutes a juris-
dictional defect or a mere technical defect. see, Betterman,
supra; Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005).
In determining whether an omission on a sworn report is a
jurisdictional defect, as opposed to a technical one, the test
is whether, notwithstanding the omission, the sworn report
conveys the information required by the applicable statute.
Betterman, supra; Hahn, supra.
[5] In this case, the sworn report completed and signed by
officer eischeid, who is identified as one of the arresting offi-
cers, contained the information required by § 60-498.01(2):
that law was arrested as described in § 60-6,197 and the
reasons for such arrest, that law was requested to submit
to the required test, and that law refused to submit to the
required test. since the sworn report, as submitted, conveys
240 	18 NeBRAskA APPellAte RePoRts

that information required by the applicable statute—in this
case, § 60-498.01(2)—we find that the omission of the second
arresting officer’s signature on the report is a technical defi-
ciency that did not deprive the DMV of jurisdiction.
CoNClUsIoN
We conclude that the sworn report in this case complied
with the statutory requirements of § 60-498.01(2) and that
thus, the omission of the second arresting officer’s signature on
the sworn report was a technical defect and the sworn report
conferred jurisdiction on the DMV. therefore, the decision of
the district court is reversed and the cause is remanded with
directions to the district court to enter an order affirming the
decision of the DMV in all respects as originally entered by
the DMV.
reverseD aND remaNDeD with DirectioNs.
state of Nebraska , aPPeLLee , v. aLfreDo ramirez ,
aLso kNowN as aLfreDo stroNg , aLso kNowN
as fast freDDy, aPPeLLaNt.
777 N.W.2d 337
Filed January 19, 2010. 	No. A-09-537.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
state, is sufficient to support the conviction.
2. Directed Verdict: Evidence: Appeal and Error. When a motion for directed
verdict made at the close of all the evidence is overruled by the trial court,
appellate review is controlled by the rule that a directed verdict is proper only
where reasonable minds cannot differ and can draw but one conclusion from the
evidence, and the issues should be decided as a matter of law.
3. Criminal Law: Directed Verdict. In a criminal case, a court can direct a verdict
only when there is a complete failure of evidence to establish an essential element
of the crime charged or the evidence is so doubtful in character, lacking probative
value, that a finding of guilt based on such evidence cannot be sustained.
stAte v. RAMIRez 	241
Cite as 18 Neb. App. 241