Johnson v. Neth
| Decision Date | 12 December 2008 |
| Docket Number | No. S-07-530.,S-07-530. |
| Citation | 276 Neb. 886,758 N.W.2d 395 |
| Parties | Jeremiah C. JOHNSON, appellee, v. Beverly NETH, director, Department of Motor Vehicles of the State of Nebraska, appellant. |
| Court | Nebraska Supreme Court |
Jon Bruning, Attorney General, and Milissa Johnson-Wiles for appellant.
Greg C. Harris, Kearney, for appellee.
The director of the Nebraska Department of Motor Vehicles (DMV) appeals from the judgment of the Buffalo County District Court which vacated the director's order revoking the driver's license of Jeremiah C. Johnson. The court found that because the notary failed to insert the name of the acknowledging party in the attestation clause on the sworn report, the DMV did not have jurisdiction to proceed with the administrative license revocation procedures. We affirm.
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. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008).
On December 17, 2006, Johnson was stopped by Sgt. Colin Wilke, a police officer with the Kearney Police Department, after Johnson made an improper U-turn. Upon contacting Johnson, Wilke noticed that the odor of an alcoholic beverage was coming from the vehicle and that Johnson's eyes were glassy and watery. Wilke asked Johnson to submit to field sobriety tests. While Wilke was explaining the "one-leg stand," Johnson repeatedly picked up his foot, even after Wilke told him to wait for the explanation. On the nine-step, heel-to-toe test, Johnson took nine steps in each direction, but Wilke said Johnson did not turn as asked and did not touch heel-to-toe at least two or three times. Johnson was able to correctly recite the alphabet.
Based on Johnson's driving, the appearance of his eyes, the field sobriety tests, and the odor of alcohol, Wilke asked Johnson to submit to a preliminary breath test and explained that if Johnson refused, he would be arrested. Johnson refused. Wilke arrested Johnson, read the postarrest chemical advisement form, and asked him to submit to a blood test. Wilke explained that refusal to submit to a blood test would result in a separate charge. Johnson indicated that he understood, and he refused to submit to the test. Wilke took Johnson to jail.
Wilke completed a "Notice/Sworn Report/Temporary License" (sworn report). He testified that he signed it in the presence of a notary. The notary placed her seal on the original. Wilke read the verbal notice of revocation to Johnson and placed a copy of the sworn report with Johnson's property at the jail. The sworn report was received by the DMV within the 10-day statutory timeframe.
Johnson filed a petition for an administrative hearing, at which hearing the sworn report was received into evidence. It indicates that Johnson was arrested because he made an improper U-turn, smelled of alcoholic beverage, failed field sobriety tests, and refused preliminary breath and blood tests. The form also indicates that Johnson refused to submit to a chemical test and was read the verbal notice of revocation. The attestation block states:
This foregoing instrument was acknowledged before me
this 17 day of Dec , 2006 by
-----------------------------------------------------
Peace Officer name and badge number
-----------------------------------------------------
Peace Officer name and badge number
NOTARY PUBLIC'S SIGNATURE /s/ Robbi L. DeWeese
The notary seal is stamped beneath the signature and states that her commission expires October 20, 2008.
The hearing officer recommended that the director revoke Johnson's driver's license for the statutory period. The director adopted the recommendation and ordered Johnson's license revoked for 1 year, effective January 16, 2007.
Johnson appealed from the order of revocation to the Buffalo County District Court. He alleged that the officer lacked probable cause to require him to submit to a chemical test or to arrest him. Johnson also alleged that the sworn report was not completed in conformity with the statutory laws applicable to notarized documents.
During the administrative hearing, the DMV offered the testimony of Wilke, the arresting officer, who testified that he was physically in the presence of the notary when he signed the sworn report. The district court found that although Wilke stated that the notary acknowledged his signature, the notary made no specific reference to the person who appeared before her. The court concluded that without the testimony of the notary, the State was, in effect, offering evidence that allowed Wilke to serve as his own notary. "It is the officer testifying as to the acts and intents of the notary and not the notary." It found that the failure to properly complete the notary requirements was not a minor error. The court vacated the director's order revoking Johnson's driving privileges, and the director appeals.
The director assigns as error the district court's vacating the order revoking Johnson's driving privileges.
The issue is whether the sworn report was properly acknowledged, because the notary did not insert the acknowledging party's name in the attestation clause.
A sworn report must be forwarded to the director by the arresting officer if a person who has consented to chemical testing is found to be under the influence of alcohol or if a person refuses to consent to chemical testing. See Neb.Rev.Stat. § 60-498.01 (Reissue 2004). The sworn report must state that the person was arrested pursuant to Neb.Rev.Stat. § 60-6,197(2) (Reissue 2004) and the reason for the arrest, that the person was requested to submit to the required test, and either that the person submitted to the required test and the results of the test or that the person refused to submit to the required test. See § 60-498.01.
In an administrative license revocation proceeding, 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). Johnson argued, and the district court agreed, that the report was not properly sworn because it did not state that Wilke had acknowledged it before the notary.
Sworn reports in administrative license revocation proceedings are, by definition, affidavits. Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 924 (2008). An affidavit is a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it. Id. An affidavit must bear on its face, by the certificate of the officer before whom it is taken, evidence that it was duly sworn to by the party making the same. Id. However, an affidavit does not require a notary to confirm the truth of the facts stated in the affidavit; rather, the certificate, also known as a jurat, confirms only that the affiant appeared before the notary, attested to the truth of his or her statements, and signed the affidavit. Id. See, also, In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d 638 (2006). The certification of a notary public's official duties, over his or her signature and official seal, is received by the courts as presumptive evidence of the facts certified therein. Hass v. Neth, 265 Neb. 321, 657 N.W.2d 11 (2003). See, also, Neb.Rev. Stat. § 64-107 (Reissue 2003).
In Moyer, supra, the district court determined that the "sworn report" was never sworn because the notary did not place the arresting officer under oath. This court held that the signature of the arresting officer and the notarization of the signature were sufficient to make the sworn report valid. We noted that the arresting officer signed the report and testified it was signed in the presence of a notary and that the report was notarized.
No other action was required by either [the arresting officer] or the notary. The notary was not required to confirm the truth of the statements; the very fact that [the arresting officer] signed the report in the presence of a notary and that her signature was in fact notarized was sufficient as an oath or affirmation.
Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. at 692, 747 N.W.2d at 927.
The case at bar presents a different question: Did the failure to include the name of Wilke as the acknowledging party invalidate the sworn report? We conclude that it did. Wilke signed the report, as did the notary. The notary affixed a stamp indicating her name and the expiration date of her commission. She indicated that the "foregoing instrument was acknowledged before me this 17 day of Dec, 2006 by." Between the acknowledgment phrase and the notary's signature are two lines which are labeled "Peace Officer name and badge number." These lines are blank.
A sworn report that fails to fully comply with the requirements of the administrative license revocation statutes does not confer jurisdiction upon the director to revoke a motorist's license. See Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005). There, the arresting officer did not check the box stating that the driver was requested to submit to the required test and we found that the report did not comply with the requirements of Neb.Rev. Stat. § 60-6,205(3) (Cum. Supp. 2002) (now at § 60-498.01). In considering at what point an omission on a sworn report becomes a jurisdictional defect, as opposed to a technical one, we concluded that "the test should be whether, notwithstanding the omission, the sworn report conveys the information required by the applicable statute." Hahn v. Neth, 270 Neb. at 171, 699 N.W.2d at 38. Therefore, the sworn report must, at a minimum, contain...
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