Pope v. Dep't of Motor Vehicles of Neb.
| Decision Date | 18 February 2022 |
| Docket Number | No. S-21-206.,S-21-206. |
| Citation | 310 Neb. 971,969 N.W.2d 903 |
| Parties | Colt M. POPE, appellant, v. DEPARTMENT OF MOTOR VEHICLES of the State of Nebraska, appellee. |
| Court | Nebraska Supreme Court |
T. Charles James, of Langvardt, Valle & James, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Milissa Johnson-Wiles, Lincoln, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.
The district court affirmed the order of the Department of Motor Vehicles (Department) revoking Colt M. Pope's operator's license. Pope appeals. We affirm.
On July 11, 2020, Pope was the subject of a traffic stop after he was witnessed committing a traffic infraction. Following the stop, he was arrested on suspicion of driving under the influence and was transported to the local police department, where he refused a chemical test of his breath.
The arresting officer completed a sworn report regarding the administrative revocation of Pope's operator's license. A copy of that report was given to Pope at the time of his arrest, and another copy was submitted to the Department and received on or about July 20, 2020. Pope's copy of that report was not notarized, but was signed by the arresting officer. The copy received by the Department included a second signature of the arresting officer, as well as the signature and stamp of a notary. The primary issue is whether this sworn report was sufficient to provide the Department with jurisdiction to revoke Pope's license.
An administrative license revocation hearing was held on August 11, 2020. On August 17, the Department filed a second notice for hearing. In that notice, the Department indicated that another hearing had been scheduled due to the inability of the hearing officer to hold a hearing on August 11 (this, despite the fact that the record shows that a hearing occurred on that date). On that same date, August 17, the hearing officer entered a separate order holding the record open and granting a continuance. Notice of both the Department's and the hearing officer's orders was served on Pope.
The second hearing was held on August 25, 2020. During that hearing, the hearing officer questioned the arresting officer about the sworn report. In his testimony, the arresting officer explained that his signature on the right side of the document, next to the notary block, had been signed in the presence of a notary.
Following this second hearing, the hearing officer recommended, and the Department entered, an order revoking Pope's operator's license. Pope appealed to the district court, which affirmed. Pope now appeals to this court.
Pope assigns that the district court erred in (1) finding that the Department had jurisdiction to revoke his operator's license where the report submitted did not establish a prima facie case for revocation because it was not properly sworn to by the arresting officer; (2) finding that the Department properly continued the hearing, which was in violation of his due process rights; and (3) affirming the revocation after the Department exceeded its authority under its enabling legislation by ordering the hearing officer to reopen the hearing.
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.1 Whether a decision of the district court conforms to the law is a question of law, for which an appellate court will reach its own independent conclusion.2 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.3
This case involves the administrative license revocation process. The Legislature has noted:
(1) Because persons who drive while under the influence of alcohol present a hazard to the health and safety of all persons using the highways, a procedure is needed for the swift and certain revocation of the operator's license of any person who has shown himself or herself to be a health and safety hazard (a) by driving with an excessive concentration of alcohol in his or her body or (b) by driving while under the influence of alcohol.4
Pope's primary argument is that the sworn report submitted to the Department was defective, because the officer did not originally sign the report before a notary, and was therefore insufficient to confer jurisdiction on the Department to revoke his operator's license.
As relevant to this appeal, § 60-498.01 provides:
We turn first to Pope's primary argument—that the Department did not have jurisdiction to revoke his operator's license. In Hahn v. Neth ,5 we held that in order to confer jurisdiction on the Department, the sworn report of an arresting officer must, at a minimum, contain the information specified in the applicable statute (currently codified at § 60-498.01 and reprinted in part above).
We have held that an arresting officer may not testify at the hearing in an attempt to supplement information otherwise lacking in the report in order that the Department might gain jurisdiction.6 But we have held that the Department may seek a supplemental sworn report in order to obtain jurisdiction where a report might otherwise fail to confer it.7
With respect to the sworn report, we have noted that the sworn report is, by definition, an affidavit.8 We held in Moyer v. Nebraska Dept. of Motor Vehicles9 that the signature of the arresting officer and the notarization of the signature were sufficient to make the sworn report valid, and the statute did not require the notary to place the officer under oath. In Johnson v. Neth ,10 we held that the failure of a report to include the printed name and badge number of the arresting officer in the provided area between the acknowledgment language and the notary's signature was insufficient to confer jurisdiction because it did not substantially comply with Nebraska law.
Pope was arrested for driving under the influence and refused to submit to a chemical test. On appeal, Pope argues that the report provided to him at the time of his arrest was signed only by the arresting officer and did not include the signature of a notary. This was undisputed.
But we are not persuaded that such is dispositive here. While the copy of the report initially provided to Pope was not notarized, the report submitted to the Department in conformity with § 60-498.01 was signed by the officer, albeit in a...
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Pope v. Dep't of Motor Vehicles of Neb.
...case is before us on a motion for rehearing filed by the appellant, Colt M. Pope, concerning our opinion in Pope v. Department of Motor Vehicles , 310 Neb. 971, 969 N.W.2d 903 (2022).We overrule the motion, but modify the opinion as follows:In the analysis section, under the subheading "OTH......