DeBoer v. Nebraska Dept. of Motor Vehicles

650 N.W.2d 766 (2002). There was no reason to give the
instruction, and unless special circumstances in a particular
case require such instruction, I respectfully suggest that a trial
judge should not do so.
teD D e B oer , appellee , v . neBrasKa D epartMent
of M otor vehICles , appellant .
751 N.W.2d 651
Filed June 3, 2008. 	No. A-07-874.
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.
2. ____: ____: ____. 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 not arbitrary, capricious, or unreasonable.
3. Administrative Law: Final Orders: Courts: Appeal and Error. In reviewing
final administrative orders under the Administrative Procedure Act, the district
court functions not as a trial court but as an intermediate court of appeals.
4. Administrative Law: Appeal and Error. Pursuant to Neb. Rev. Stat. § 84-917(5)(a)
(Cum. Supp. 2006) of the Administrative Procedure Act, the district court reviews
an agency decision de novo on the record of the agency.
5. ____: ____. In a true de novo review, the district court’s decision is to be made
independently of the agency’s prior disposition and the district court is not required
to give deference to the findings of fact and the decision of the agency hear-
ing officer.
6. Administrative Law: Evidence: Words and Phrases. For purposes of reviewing
an order of an administrative agency, competent evidence means evidence which
tends to establish the fact in issue.
Appeal from the District Court for Hall County: teresa K.
luther, Judge. Affirmed.
Jon Bruning, Attorney General, Andee G. Penn, and edward
G. Vierk for appellant.
No appearance for appellee.
I nBoDy, Chief Judge, and M oore and C assel, Judges.
760 	16 NeBRASKA APPeLLATe RePORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

C assel, Judge.
INTRODUCTION
The Nebraska Department of Motor Vehicles (the Department)
appeals the judgment of the district court for Hall County,
which reversed an order of the Department revoking the driver’s
license of Ted DeBoer for 90 days. We find competent evidence
in the record to support the district court’s determination that
contrary to regulation, the officer who performed a breath test
of DeBoer on which the revocation was based failed to observe
DeBoer for 15 minutes before conducting the test. We affirm the
judgment of the district court.
BACKGROUND
On March 30, 2007, elliott Gray, an officer with the Grand
Island Police Department, stopped DeBoer’s vehicle. Gray
requested DeBoer to perform field sobriety tests, which DeBoer
did unsuccessfully. DeBoer subsequently failed a preliminary
breath test. At that point, Gray placed DeBoer under arrest
for driving under the influence of alcohol and transported him
to the “Public Safety Center” in Grand Island. DeBoer then
submitted to a chemical breath test, which disclosed a breath
alcohol content (BAC) of .142 grams of alcohol per 210 liters
of breath. Gray completed a “Notice/Sworn Report/Temporary
License” form (sworn report), which indicated the reasons for
DeBoer’s arrest and that DeBoer submitted to a breath test that
indicated a BAC of .08 or more. The sworn report specifically
stated that DeBoer’s BAC was .142. The sworn report was for-
warded to the Department.
DeBoer requested an administrative license revocation hear-
ing. At the hearing, Gray’s sworn report was received into evi-
dence. A “DATAMASTeR Checklist Technique” form signed
by Gray was also entered into evidence, which form by regula-
tion must be completed by an officer when conducting a breath
test. See 177 Neb. Admin. Code, ch. 1, § 007.02C (2004). The
checklist includes several directions that the officer must follow
when administering a breath test, including a direction requir-
ing the officer to “[o]bserve [the] subject for 15 minutes prior
to testing.” That direction also requires the officer to record
the time observation began and contains a blank line where the
DeBOeR v. NeBRASKA DePT. OF MOTOR VeHICLeS 	761
Cite as 16 Neb. App. 760

officer is to write the time. Gray entered “2326” as the time the
observation period began. Next to each direction on the check-
list is a box that the officer is to check off upon completion of
each respective direction. Gray checked all of the boxes, indicat-
ing that he had completed each direction.
The test result printout from DeBoer’s breath test was also
entered into evidence. This document is printed out by the
breath testing machine upon completion of a test and states
the test results and the time the test was conducted. As the
regulations refer to this document as the “test record card,” we
will use such description. The test record card indicated that
DeBoer’s breath test occurred at “23:39.”
At the hearing, Gray testified that he observed DeBoer for
15 minutes prior to administering the breath test to DeBoer.
Gray testified that he used his own watch to time the 15-minute
period. Gray testified that according to his watch, the observa-
tion period began at 23:26 (11:26 p.m.) and DeBoer submit-
ted to the breath test at 23:42 (11:42 p.m.). Gray also testified
that he followed the checklist in accordance with title 177 and
observed a 15-minute waiting period.
On May 8, 2007, the hearing officer recommended that
DeBoer’s license be revoked for the statutory period. On May
9, the director of the Department adopted the hearing officer’s
recommendation and revoked DeBoer’s driver’s license for 90
days. DeBoer appealed the decision to the district court, which
reversed the director’s decision, finding that DeBoer met his
burden to disprove the Department’s prima facie case. The dis-
trict court found that the checklist and the test record card show
noncompliance with 177 Neb. Admin. Code, ch. 1, § 002.01e
(2004), because the two documents indicate that DeBoer was
not observed for the required 15 minutes before the breath test
was administered.
The Department appeals. Pursuant to authority granted to
this court under Neb. Ct. R. of Prac. 11B(1) (rev. 2006), this
case was ordered submitted without oral argument.
ASSIGNMeNTS OF eRROR
On appeal, the Department assigns that the district court
erred in finding a lack of compliance with § 002.01e and in
762 	16 NeBRASKA APPeLLATe RePORTS

finding that the Department’s prima facie case was rebutted as
a result.
STANDARD OF ReVIeW
[1,2] 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. Hahn v. Neth, 270 Neb. 164,
699 N.W.2d 32 (2005). When reviewing an order of a district
court under the Administrative Procedure Act for errors appear-
ing on the record, the inquiry is whether the decision conforms
to the law, is supported by competent evidence, and is not arbi-
trary, capricious, or unreasonable. Id.
ANALYSIS
We begin by observing that at the hearing before the district
court, DeBoer was permitted to offer exhibits separately from
the agency record. The Department stated that it had no objec-
tion to the separate exhibits. The separate exhibits, however,
merely duplicated identical exhibits already contained in the
agency record.
[3] The court should not have received the separate exhib-
its. In Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d
818 (1997), the Nebraska Supreme Court explained that in
reviewing final administrative orders under the Administrative
Procedure Act, the district court functions not as a trial court
but as an intermediate court of appeals. The Supreme Court held
that in reviewing a final decision of an administrative agency
in a contested case pursuant to the Administrative Procedure
Act, a court may not take judicial notice of an adjudicative fact
which was not presented to the agency, because the taking of
such evidence would impermissibly expand the court’s statutory
scope of review—de novo on the record of the agency. Thus,
the only evidence which should have been allowed by the dis-
trict court consisted of the agency record, composed of the tran-
script of filings before the agency and the verbatim transcript
of the agency hearing. The district court’s judgment noted the
duplication of the pertinent documents by references to both the
separate exhibit and the exhibit in the agency record.
DeBOeR v. NeBRASKA DePT. OF MOTOR VeHICLeS 	763
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Because the separate exhibits duplicated content in the
agency record, any error in receiving such evidence was harm-
less. error without prejudice provides no ground for appellate
relief. Betterman v. Department of Motor Vehicles, 273 Neb.
178, 728 N.W.2d 570 (2007). Moreover, the Department raised
no objection to the duplicate exhibits. A party cannot com-
plain of error which that party has invited the court to com-
mit. Damrow v. Murdoch, 15 Neb. App. 920, 739 N.W.2d 229
(2007). One cannot silently tolerate error, gamble on a favor-
able result, and then complain that one guessed wrong. Id. We
therefore turn to the issue raised by the Department on appeal
to this court.
In the instant case, the sworn report prepared by Gray was
entered into evidence and complied with the requirements set
forth in Neb. Rev. Stat. § 60-498.01 (Reissue 2004). Once the
Department establishes that the officer provided a sworn report
containing the recitations required by statute, it has made a
prima facie case for license revocation, and the director is not
required to prove that the recitations are true. See, Hahn v.
Neth, supra; Valeriano-Cruz v. Neth, 14 Neb. App. 855, 716
N.W.2d 765 (2006). Rather, it becomes the motorist’s burden
to prove that one or more of the recitations in the sworn report
are false. Id. The Department established a prima facie case for
revocation of DeBoer’s license, and the burden then shifted to
DeBoer to show that one or more of the recitations in the sworn
report were false. The district court found that DeBoer met his
burden because the checklist and test record card, when read
together, show a lack of compliance with § 002.01e, thereby
invalidating the breath test and making the breath test result on
the sworn report false.
Section 002.01e requires that “testing records must show
adherence to the approved method, and techniques.” The test-
ing records consist of two items, the checklist and the test
record card. The district court found that the checklist and the
test record card show a 13-minute observation period, rather
than the required 15-minute period, and, thus, that the test-
ing records show noncompliance with the “approved methods
and techniques.”
764 	16 NeBRASKA APPeLLATe RePORTS

[4,5] Pursuant to Neb. Rev. Stat. § 84-917(5)(a) (Cum.
Supp. 2006) of the Administrative Procedure Act, the district
court reviews an agency decision “de novo on the record of the
agency.” In a true de novo review, the district court’s decision
is to be made independently of the agency’s prior disposition
and the district court is not required to give deference to the
findings of fact and the decision of the agency hearing officer.
Langvardt v. Horton, 254 Neb. 878, 581 N.W.2d 60 (1998);
Slack Nsg. Home v. Department of Soc. Servs., 247 Neb.
452, 528 N.W.2d 285 (1995), disapproved on other grounds,
Betterman v. Department of Motor Vehicles, supra.
[6] An appellate court reviews the district court’s decision for
errors appearing on the record. See, Neb. Rev. Stat. § 84-918(3)
(Reissue 1999); Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32
(2005). As such, our review is limited to whether the district
court’s decision conforms to the law, is supported by competent
evidence, and is not arbitrary, capricious, or unreasonable. See
Hahn v. Neth, supra. For purposes of reviewing an order of
an administrative agency, competent evidence means evidence
which tends to establish the fact in issue. In re Application of
Jantzen, 245 Neb. 81, 511 N.W.2d 504 (1994).
In the instant case, the testing records present evidence
which, if believed, is sufficient to rebut the presumption aris-
ing from the sworn report. Gray indicated on the checklist that
the 15-minute observation period began at “2326,” and the test
record card shows that the test occurred at 23:39. Thus, the
face of the testing records shows an elapsed time of only 13
minutes, contrary to the 15-minute period required by the regu-
lation. Although Gray testified that he observed DeBoer for the
required 15 minutes prior to administering the breath test and
used his own watch to do so, the district court in its de novo
review was permitted to resolve conflicts in the evidence and
was not required to accept Gray’s testimony.
We conclude that the district court’s factual finding that
the testing records fail to adhere to the approved methods and
techniques, specifically that the 15-minute observation period
was not met, is supported by competent evidence. Accordingly,
we cannot conclude that the district court erred in determining
DeBOeR v. NeBRASKA DePT. OF MOTOR VeHICLeS 	765
Cite as 16 Neb. App. 760

that DeBoer met his burden to disprove the Department’s prima
facie case.
CONCLUSION
We conclude there is competent evidence to support the
district court’s findings that the testing records did not com-
ply with the approved methods and techniques as required
by 	§ 	002.01e 	and, 	therefore, 	that 	DeBoer 	disproved 	the
Department’s prima facie case. Accordingly, we affirm the
judgment of the district court.
affIrMeD.
766 	16 NeBRASKA APPeLLATe RePORTS