Barnett v. Department of Motor Vehicles

to recommit Sylvester to YRTC under these new allegations.
That is not what happened in the instant case. By sending
Sylvester back to YRTC on a motion for new disposition
while Sylvester was on parole, the juvenile court in effect
revoked Sylvester’s parole.
[3] The Nebraska statutes make it clear that only OJS has the
authority to revoke Sylvester’s parole. And because the juvenile
court revoked Sylvester’s parole, rather than OJS, Sylvester
was not granted all of the rights to which he was entitled. For
these reasons, we reverse and vacate the juvenile court’s order
recommitting Sylvester to YRTC.
CONCLUSION
After reviewing the record, we conclude that the juvenile
court lacked authority to recommit Sylvester to YRTC pursuant
to a motion for new disposition while Sylvester was already on
parole. Therefore, we reverse and vacate the juvenile court’s
order recommitting Sylvester to YRTC.
R eveRsed and vacated.
I nbody, Chief Judge, participating on briefs.
JaRyd d. baRnett, appellant, v. depaRtment of motoR
vehIcles of the state of nebRaska , appellee .
770 N.W.2d 672
Filed July 28, 2009. 	No. A-08-211.
1. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Evidence: Jurisdiction. The sworn report of the arresting officer is received
into the record by the hearing officer as the jurisdictional document of a license
revocation hearing, and upon receipt of the sworn report, the order of revocation
by the director of the Department of Motor Vehicles has prima facie validity.
2. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs. The Department of Motor Vehicles makes a prima
facie case for license revocation once the department establishes that the arresting
officer provided his or her sworn report containing the required recitations to the
director of the department.
3. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Police Officers and Sheriffs: Drunk Driving: Blood, Breath, and Urine Tests.
Under Neb. Rev. Stat. § 60-498.01(2) (Reissue 2004), the required recitations
in the sworn report in an administrative license revocation proceeding are that
BARNeTT v. DepARTMeNT OF MOTOR VehICLeS 	795
Cite as 17 Neb. App. 795
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:14 AM CST

(1) the person was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue
2004)—reasonable grounds to believe such person was driving under the influ-
ence—and the reasons for such arrest, (2) the person was requested to submit to
the required test, and (3) the person refused to submit to the required test.
4. Administrative Law: Motor Vehicles: Licenses and Permits: Revocation:
Statutes: Appeal and Error. The administrative license revocation statutes and
the proceedings thereunder are tightly scrutinized by the appellate courts.
Appeal from the District Court for Adams County: teRRI s.
haRdeR, Judge. Reversed and remanded with directions.
Gregory G. Jensen, p.C., L.L.O., for appellant.
Jon Bruning, Attorney General, and Andee G. penn for
appellee.
IRwIn, caRlson, and mooRe, Judges.
IRwIn, Judge.
I. INTRODUCTION
pursuant to this court’s authority under Neb. Ct. R. App. p.
§ 2-111(B)(1), this case was ordered submitted without oral
argument. Jaryd D. Barnett appeals an order of the district
court for Adams County, Nebraska, which affirmed an order
of the director of the Nebraska Department of Motor Vehicles
(Department) 	revoking 	Barnett’s 	motor 	vehicle 	operator’s
license. On appeal, Barnett challenges the sufficiency of the
sworn report offered at his administrative hearing to establish
a prima facie case for administrative license revocation and to
confer jurisdiction on the Department, and also asserts that the
court erred in finding that he failed to disprove any prima facie
case established by the sworn report. We find that the sworn
report in this case was insufficient to confer jurisdiction on the
Department, and we reverse, and remand with directions.
II. BACKGROUND
On May 12, 2007, the arresting officer assisted in the
investigation of a single-vehicle motor vehicle accident and
ultimately arrested Barnett for suspicion of driving under the
influence and for refusal to submit to a preliminary breath test.
The vehicle involved in the accident apparently belonged to
Barnett. The arresting officer testified that he did not observe
796 	17 NeBRASKA AppeLLATe RepORTS

Barnett driving the vehicle, seated in the vehicle, or with any
keys to the vehicle. According to the arresting officer, when
he arrived on the scene, there was an additional vehicle pres-
ent that had not been involved in the accident. The arresting
officer testified that Barnett advised him “numerous times”
that Barnett had not been driving the vehicle involved in the
accident and testified that Barnett indicated that he had arrived
at the scene as a passenger in the second vehicle.
The arresting officer testified that he observed that Barnett
had bloodshot and watery eyes, slurred speech, and a strong
odor of an alcoholic beverage. During the arresting officer’s
investigation of the single-vehicle accident, he asked Barnett
to submit to field sobriety tests, which Barnett refused. Barnett
also refused to submit to a blood alcohol test and a urine
sample test.
The arresting officer completed a “Notice/Sworn Report/
Temporary License” form (hereinafter Sworn Report). The
form includes the preprinted language that “[t]he 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:” and then includes approximately 21⁄2 blank
lines where the officer is to include the reasons for arresting
Barnett. On those blank lines, the arresting officer wrote: “1
vehicle accident, odor of Alcoholic beverage Bloodshot watery
eyes, Slurred Speech, Refused Field Sobriety. Refused pBT
Refused Legal Blood, Refused Urine sample test.”
On June 6, 2007, a hearing was held before a hearing offi-
cer. When the Department offered the arresting officer’s Sworn
Report, Barnett objected on the basis that the Sworn Report
contained no statement indicating that Barnett had been the
driver or had been in actual physical possession or operation
of the vehicle. The hearing officer overruled the objection and
received the Sworn Report.
On June 7, 2007, the hearing officer issued proposed find-
ings and a recommendation that Barnett’s operator’s license be
revoked. The hearing officer found that the Sworn Report “was
complete on its face” and found that Barnett had failed to prove
that the recitations in the Sworn Report were false. The hearing
officer recommended revocation of Barnett’s operator’s license.
BARNeTT v. DepARTMeNT OF MOTOR VehICLeS 	797
Cite as 17 Neb. App. 795

On June 11, the director of the Department adopted the hearing
officer’s proposed findings and recommendation and revoked
Barnett’s operator’s license for 1 year.
Barnett appealed the revocation of his operator’s license
to the district court. Before the district court, Barnett argued,
again, that the Sworn Report offered by the Department had
been insufficient. he argued that the arresting officer is required
to include facts demonstrating the defendant was driving or in
physical control of the vehicle and that the arresting officer
in the present case failed to do so. Barnett argued that the
Department lacked jurisdiction to proceed without a sufficient
Sworn Report. Barnett also argued that he had sufficiently
rebutted the allegations of the Sworn Report. On February
7, 2008, the district court entered an order affirming the
Department’s revocation of Barnett’s operator’s license. This
appeal followed.
III. ASSIGNMeNTS OF eRROR
Barnett has assigned four errors on appeal in which he chal-
lenges the sufficiency of the Sworn Report to confer jurisdiction
on the Department and challenges the Department’s conclusion
that he had failed to rebut any prima facie case established by
the Sworn Report.
IV. ANALYSIS
The primary issue raised by Barnett, and the one upon which
we resolve this appeal, is that the factual information provided
by the arresting officer on the Sworn Report was insufficient
to confer jurisdiction on the Department to revoke Barnett’s
motor vehicle operator’s license. After reviewing the Sworn
Report and comparing the factual information provided therein
to the information discussed in established case law, we con-
clude that the arresting officer failed to allege sufficient facts
to allow an inference that Barnett had been driving or in physi-
cal control of the vehicle involved in the accident and that the
Sworn Report is, therefore, insufficient to confer jurisdiction
on the Department.
[1-3] The sworn report of the arresting officer is received
into the record by the hearing officer as the jurisdictional docu-
ment of the hearing, and upon receipt of the sworn report, the
798 	17 NeBRASKA AppeLLATe RepORTS

director’s order of revocation has prima facie validity. 247 Neb.
Admin. Code, ch. 1, § 006.01 (2005); Yenney v. Nebraska Dept.
of Motor Vehicles, 15 Neb. App. 446, 729 N.W.2d 95 (2007).
The Department makes a prima facie case for license revoca-
tion once it establishes that the arresting officer provided his
or her sworn report containing the required recitations. Yenney
v. Nebraska Dept. of Motor Vehicles, supra. The required
recitations in the sworn report are that (1) the person was
arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Reissue
2004)—reasonable grounds to believe such person was driving
under the influence—and the reasons for such arrest, (2) the
person was requested to submit to the required test, and (3) the
person refused to submit to the required test. Neb. Rev. Stat.
§ 60-498.01(2) (Reissue 2004); Yenney v. Nebraska Dept. of
Motor Vehicles, supra.
The appellate courts in Nebraska have recently addressed
the first required recitation and elaborated on what the arrest-
ing officer must include for the sworn report to be suffi-
cient to confer jurisdiction on the Department. See, Snyder
v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d
731 (2007); Betterman v. Department of Motor Vehicles, 273
Neb. 178, 728 N.W.2d 570 (2007); Yenney v. Nebraska Dept. of
Motor Vehicles, supra.
In Betterman v. Department of Motor Vehicles, supra, the
Nebraska Supreme Court noted that the sworn report of the
arresting officer must, at a minimum, contain the information
specified in the applicable statute to confer jurisdiction on the
Department. In that case, the handwritten list of reasons for
the arresting officer’s arrest of W. patrick Betterman stated:
“‘[R]eckless driving. Driver displayed signs of alcohol intoxi-
cation. Refused all SFST and later breath test.’” Id. at 182, 728
N.W.2d at 578. The Supreme Court concluded that the allega-
tions were sufficient to establish a valid reason for the stop
of Betterman’s vehicle and to allege that Betterman had been
driving while under the influence.
In Yenney v. Nebraska Dept. of Motor Vehicles, 15 Neb. App.
at 451, 729 N.W.2d at 99, this court addressed the sufficiency
of a sworn report wherein the handwritten list of reasons for
the arrest stated: “‘[p]assed out in front of [the gas] Station,
BARNeTT v. DepARTMeNT OF MOTOR VehICLeS 	799
Cite as 17 Neb. App. 795

near front doors. Signs of alcohol intoxication.’” (emphasis
omitted.) This court concluded that the allegations were insuf-
ficient to confer jurisdiction on the Department, because the
stated reasons for the arrest included no facts allowing an
inference that Steven R. Yenney had driven to the location in a
drunken condition; the allegations did not even allege the pres-
ence of a motor vehicle, let alone that Yenney was located in or
near the vehicle at the time of the arresting officer’s arrival.
In Snyder v. Department of Motor Vehicles, 274 Neb. at
169, 736 N.W.2d at 733, the handwritten list of reasons for the
arrest stated: “‘Speeding (20 OVeR)/D.U.I.’” The Nebraska
Supreme Court concluded that the handwritten allegations were
sufficient to explain an initial traffic stop but did not, standing
alone, constitute a reason for the arrest. The Supreme Court
concluded that the allegations were insufficient to provide
factual reasons upon which the arresting officer’s suspicion of
driving under the influence was based.
[4] We have noted that the administrative license revoca-
tion statutes and the proceedings thereunder have been tightly
scrutinized by the appellate courts. Yenney v. Nebraska Dept. of
Motor Vehicles, 15 Neb. App. 446, 729 N.W.2d 95 (2007). The
Nebraska Supreme Court has noted that completion of a 1-page
sworn report form is not an onerous task. Snyder v. Department
of Motor Vehicles, supra. With that in mind, and in light of the
relatively recent discussions of the requirements in the cases
just discussed, we conclude that the handwritten reasons for the
arrest in the present case are insufficient.
Like the handwritten notations in Yenney v. Nebraska Dept.
of Motor Vehicles, supra, the arresting officer’s notations in
the present case do not indicate, or allow an inference, that
Barnett was ever operating a motor vehicle. The arresting offi-
cer indicated that he responded to a single-vehicle accident,
but made no factual allegation suggesting that Barnett was the
driver of that vehicle. In contrast, the handwritten assertions in
Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728
N.W.2d 570 (2007), indicated that the officer actually made a
traffic stop of Betterman for reckless driving and noted that
the driver displayed signs of intoxication. Similarly, in Snyder
v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d
800 	17 NeBRASKA AppeLLATe RepORTS

731 (2007), the handwritten assertions indicated that the offi-
cer made a traffic stop of the driver for speeding, but failed to
sufficiently indicate what caused the officer to suspect intoxi-
cation. In the present case, the arresting officer did not make
a traffic stop and failed to include sufficient factual allegations
in the Sworn Report to indicate an allowable inference that
Barnett, of the people on the scene at the time of the officer’s
arrival, was the one who had been driving the vehicle. As such,
the Sworn Report in the present case was insufficient to con-
fer jurisdiction on the Department, and we need not address
Barnett’s remaining assignments of error.
V. CONCLUSION
We find that the Sworn Report in this case was insufficient
to confer jurisdiction on the Department to revoke Barnett’s
operator’s license. We reverse the decision of the district court
and remand the matter with directions to reverse the order of
the director.
R eveRsed and Remanded wIth dIRectIons.
dennIs p. mccaul , appellant, v.
bRandIe n. mccaul , appellee .
771 N.W.2d 222
Filed July 28, 2009. 	No. A-08-615.
1. Judgments: Jurisdiction: Appeal and Error. When a jurisdictional question
does not involve a factual dispute, its determination is a matter of law, which
requires an appellate court to reach a conclusion independent of the decisions
made by the lower courts.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders which may be reviewed on appeal are (1) an
order which affects a substantial right in an action and which in effect determines
the action and prevents a judgment, (2) an order affecting a substantial right made
during a special proceeding, and (3) an order affecting a substantial right made on
summary application in an action after a judgment is rendered.
4. Actions: Statutes. Special proceedings entail civil statutory remedies not encom-
passed in chapter 25 of the Nebraska Revised Statutes.
McCAUL v. McCAUL 	801
Cite as 17 Neb. App. 801