Thomsen v. Nebraska Dept. of Motor Vehicles

be obtained. However, on the state of the record before us, there
is no basis to state that personal jurisdiction over Greenwood
could not have been obtained. The record shows no attempt
to effect service of process upon Greenwood, and it has not
entered any voluntary appearance. We cannot assume from a
silent record that personal jurisdiction over Greenwood could
not be obtained.
CONCLUSION
At the time of filing of FNB South Dakota’s notice of appeal,
Greenwood remained a party to the interpleader action, and its
interests had not been, and could not have been, determined
by the district court’s May 16, 2007, order. Thus, the district
court’s order was not final because it did not finally determine
the rights of all parties to the action. This court lacks jurisdic-
tion over this appeal and properly dismissed the appeal.
M otion for rehearing overruled .
K elly S. thoMSen , appellee , v . nebraSKa departMent
of M otor vehicleS, appellant .
741 N.W.2d 682
Filed October 23, 2007. 	No. A-05-1570.
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. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
3. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Blood, Breath, and Urine Tests: Time. Neb. Rev.
Stat. § 60-498.01(3) (Reissue 2004) provides that the arresting peace officer shall
within 10 days forward to the director a sworn report stating (a) that the person
was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue 2004) and the
reasons for such arrest, (b) that the person was requested to submit to the required
test, and (c) that the person submitted to a test, the type of test to which he or she
submitted, and that such test revealed the presence of alcohol in a concentration
specified in Neb. Rev. Stat. § 60-6,196 (Reissue 2004).
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www.nebraska.gov/apps-courts-epub/
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4. Administrative Law: Jurisdiction: Motor Vehicles: Licenses and Permits:
Revocation. Technical deficiencies in a sworn report do not defeat administra-
tive jurisdiction.
5. ____: ____: ____: ____: ____. In determining the point at which an omission on
a sworn report becomes a jurisdictional defect, the test should be whether, not-
withstanding the omission, the sworn report conveys the information required by
the applicable statute.
6. Administrative Law: Drunk Driving: Licenses and Permits: Revocation:
Time. The 10-day time limit set forth in Neb. Rev. Stat. § 60-498.01(3) (Reissue
2004) is directory rather than mandatory.
Appeal from the District Court for Dodge County: J ohn e.
S aMSon, Judge. Reversed and remanded with directions.
Jon Bruning, Attorney General, and edward G. Vierk for
appellant.
Adam J. Sipple, of Johnson & Mock, for appellee.
S ieverS, carlSon, and caSSel, Judges.
caSSel, Judge.
INTRODUCTION
The district court for Dodge County reversed the administra-
tive revocation of kelly S. Thomsen’s motor vehicle operator’s
license because the Nebraska Department of Motor Vehicles
(DMV) did not receive the sworn report from the arresting
officer within the statutory time limit—10 days from the date
of arrest. DMV appeals. We determine that the statutory time
limit is directory rather than mandatory and reverse the judg-
ment below.
BACkGROUND
We limit our recitation of facts to those relevant to the nar-
row issue presented. On July 8, 2005, a Nebraska State Patrol
officer arrested Thomsen for driving under the influence of
alcohol. After observing the result of a breath test administered
by a local corrections officer, the arresting officer completed
a sworn report; signed the report in the presence of a notary
public; read the verbal notice portion of the report, which noti-
fied Thomsen that his operator’s license would automatically
be revoked 30 days after the date of his arrest but that he had
THOMSeN v. NeBRASkA DePT. OF MOTOR VeHICLeS 	45
Cite as 16 Neb. App. 44

the right to contest the revocation; gave Thomsen a copy of a
temporary license; and “cause[d] the original . . . to be sent to
[DMV].” DMV received the sworn report on July 19. On cross-
examination during an administrative license revocation (ALR)
hearing, the arresting officer admitted that he had no explana-
tion for why DMV did not receive the report within 10 days of
the arrest. He testified that he “had to submit [the sworn report]
to a supervisor” on the night of the arrest and admitted that he
“d[id]n’t know what happened from there.”
After 	the ALR 	hearing, 	the 	director 	of 	DMV 	revoked
Thomsen’s operator’s license and privilege to operate a motor
vehicle in the State of Nebraska for 90 days. Thomsen chal-
lenged the revocation in the district court.
Relying upon two decisions of the Nebraska Supreme Court,
which decisions we discuss in the analysis section below, the
district court concluded that the arresting officer “must strictly
comply with the requirements of [Neb. Rev. Stat.] § 60-498.01
[(Reissue 2004)].” The court concluded, “Due to the fact that
the [d]irector of [DMV] did not timely receive the arresting
officer’s sworn report, . . . the final decision of the [d]irector was
not supported by competent evidence and the revocation should
be reversed.”
DMV timely appeals.
ASSIGNMeNT OF eRROR
We consolidate DMV’s three assignments of error to one: The
district court erred in determining that because DMV did not
receive the sworn report within 10 days of the date of arrest, the
revocation must be reversed.
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 decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Chase 3000,
46 	16 NeBRASkA APPeLLATe RePORTS

Inc. v. Nebraska Pub. Serv. Comm., 273 Neb. 133, 728 N.W.2d
560 (2007).
[2] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. Burns
v. Nielsen, 273 Neb. 724, 732 N.W.2d 640 (2007).
ANALYSIS
[3] Neb. Rev. Stat. § 60-498.01(3) (Reissue 2004) pertains to
arrests of motorists who submit to a chemical test that discloses
the presence of alcohol. Section 60-498.01(3) states, in perti-
nent part:
The arresting peace officer shall within ten days forward
to the director a sworn report stating (a) that the person
was arrested as described in subsection (2) of section
60-6,197 and the reasons for such arrest, (b) that the
person was requested to submit to the required test, and
(c) that the person submitted to a test, the type of test to
which he or she submitted, and that such test revealed the
presence of alcohol in a concentration specified in sec-
tion 60-6,196.
In Forgey v. Nebraska Dept. of Motor Vehicles, 15 Neb. App.
191, 724 N.W.2d 828 (2006), this court held that the 10-day
time limit set forth in § 60-498.01(2), which addresses license
revocations of motorists who refuse to submit to a chemical
test of their blood, breath, or urine, is directory rather than
mandatory. Thus, the violation of such time limit did not invali-
date the ALR proceedings. The 10-day time limit set forth in
§ 60-498.01(2) is similar to the time limit in § 60-498.01(3) set
forth above. DMV contends that our decision in Forgey controls
the result of the case before us.
Thomsen does not attempt to distinguish the instant case from
Forgey based on the differences between § 60-498.01(2) and
(3). He contends that the decisions of the Nebraska Supreme
Court in Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005),
and Arndt v. Department of Motor Vehicles, 270 Neb. 172, 699
N.W.2d 39 (2005), contradict our decision in Forgey and sup-
port the district court’s decision in the instant case. We observe
that the district court’s decision came before the release of our
opinion in Forgey.
THOMSeN v. NeBRASkA DePT. OF MOTOR VeHICLeS 	47
Cite as 16 Neb. App. 44

DMV also argues that § 60-498.01(3) does not require that
DMV receive the report within 10 days of arrest, but, rather, that
the arresting officer “forward” the report within that time. Brief
for appellant at 10. DMV argues that its receipt of the report on
the 11th day “gives rise to the logical inference that the sworn
report was forwarded . . . no later than [the 10th day after the
arrest].” Id. at 11. However, there is no evidence in the record of
the means used to transport the sworn report. An equally logical
inference is that some person, either the arresting officer’s super-
visor or another person, personally delivered the sworn report
to DMV on the date of receipt and after the expiration of the
10-day period. We therefore turn to an examination of the cases
upon which Thomsen relies.
In Arndt v. Department of Motor Vehicles, supra, the first
law enforcement officer on the scene conducted the traffic
stop; observed the motorist’s intoxication; conducted the field
sobriety tests, including a preliminary breath test; and placed
the motorist under arrest. The law enforcement officer who
submitted the sworn report arrived after the arrest to transport
the motorist to the county jail and observe the administration of
a breath test. Because the second officer was not present at the
scene of the arrest for purposes of assisting in it, the Arndt court
determined that the sworn report had not been submitted by the
“arresting peace officer” within the meaning of § 60-498.01(3).
In the case before us, the arresting peace officer was the person
who completed and submitted the sworn report. Thus, the Arndt
decision provides no answer to the specific question before us.
The other case cited by Thomsen, however, does address prin-
ciples which apply to the instant case.
In Hahn v. Neth, supra, the arresting peace officer neglected
to indicate in the sworn report whether the chemical test admin-
istered was of the motorist’s blood or breath. The Hahn court
noted the express requirement of the then-effective statute that
the sworn report state the type of test to which the motorist
submitted. The court affirmed the district court’s determination
that the director of DMV did not acquire jurisdiction to admin-
istratively revoke the motorist’s operator’s license. Thomsen’s
argument seems to rely upon the court’s statement that “‘when
the applicable rules and regulations are not strictly complied
48 	16 NeBRASkA APPeLLATe RePORTS

with, [DMV] cannot obtain the benefit of a presumption that
all facts recited in the sworn report are true.’” Hahn v. Neth,
270 Neb. 164, 168-69, 699 N.W.2d 32, 37 (2005), quoting
Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647
N.W.2d 644 (2002).
[4,5] Significantly, however, the Hahn court also stated that
“technical deficiencies in the sworn report do not defeat admin-
istrative jurisdiction.” 270 Neb. at 170, 699 N.W.2d at 38. The
court recognized the difficulty in defining the point at which an
omission on a sworn report becomes a jurisdictional defect, as
opposed to a technical one. The court concluded that “the test
should be whether, notwithstanding the omission, the sworn
report conveys the information required by the applicable stat-
ute.” Id. at 171, 699 N.W.2d at 38.
In the case before us, the sworn report admittedly contains
all of the required information. Thomsen’s jurisdictional claim
relies solely upon the time component of the statute. In Forgey
v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 191, 724
N.W.2d 828 (2006), this court concluded that the time limita-
tion in § 60-498.01(2) was not essential to the main objective
of the ALR statutes, which objective is to protect the public
from the health and safety hazards of drunk driving by quickly
getting offenders off the road. We set forth a lengthy exposi-
tion of the law used to determine whether a statutory provision
is mandatory or directory. The reasoning in Forgey is equally
applicable to the time limitation in § 60-498.01(3).
Finally, Thomsen quarrels with our determination in Forgey
that there is no sanction attached to an arresting officer’s failure
to file the sworn report with DMV within 10 days. He relies
upon § 60-498.01(5)(a), which states:
If the results of a chemical test indicate the presence of
alcohol in a concentration specified in section 60-6,196,
the results are not available to the arresting peace officer
while the arrested person is in custody, and the notice of
revocation has not been served as required by subsection
(4) of this section, the peace officer shall forward to the
director a sworn report containing the information pre-
scribed by subsection (3) of this section within ten days
after receipt of the results of the chemical test. If the sworn
THOMSeN v. NeBRASkA DePT. OF MOTOR VeHICLeS 	49
Cite as 16 Neb. App. 44

report is not received within ten days, the revocation shall
not take effect.
The last sentence of § 60-498.01(5)(a) clearly modifies only
the preceding sentence and does not apply to the other subsec-
tions. DMV argues, and we agree, that under § 60-498.01(5)(a),
motorists do not receive notice at the time of arrest of the inten-
tion to confiscate and revoke, in contrast to the notice provided
to motorists in situations controlled by § 60-498.01(3). DMV
concedes that sound policy reasons exist for requiring the
time provision of § 60-498.01(5)(a) to be mandatory. Thomsen
provides no such reasons to support his argument regarding
§ 60-498.01(3).
CONCLUSION
[6] 	We 	hold 	that 	the 	10-day 	time 	limit 	set 	forth 	in
§ 60-498.01(3) is directory rather than mandatory. The district
court erred in determining that the violation of the time limit
invalidated Thomsen’s ALR proceedings. We reverse the judg-
ment of the district court and remand the cause to that court
with directions to reinstate the administrative revocation of
Thomsen’s operator’s license.
reverSed and reManded with directionS.
S tate of nebraSKa , appellee , v .
M ichael g. veatch , appellant .
740 N.W.2d 817
Filed October 23, 2007. 	No. A-06-738.
1. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the power and duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether the issue is raised by
the parties.
2. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final judgment or final order entered by
the tribunal from which the appeal is taken.
3. Constitutional Law: Statutes: Jurisdiction: Time: Appeal and Error. The
appellate jurisdiction of a court is contingent upon timely compliance with con-
stitutional or statutory methods of appeal.
50 	16 NeBRASkA APPeLLATe RePORTS