Nelson v. Lahm , 32 Neb. Ct. App. 35 ( 2023 )

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www.nebraska.gov/apps-courts-epub/
06/20/2023 09:06 AM CDT
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NELSON V. LAHM
Cite as 32 Neb. App. 35Michael Ryan Nelson, appellant, v.
Rhonda K. Lahm, director, State
of Nebraska, Department of
Motor Vehicles, appellee.
___ N.W.2d ___
Filed June 13, 2023. No. A-22-669.
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 sup-
ported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Judgments: Appeal and Error. Whether a decision conforms to law is
by definition a question of law. An appellate court determines questions
of law independently of the lower court.
4. Administrative Law: Motor Vehicles: Licenses and Permits:
Revocation: Police Officers and Sheriffs: Jurisdiction. In an admin-
istrative 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.
5. Administrative Law: Motor Vehicles: Licenses and Permits:
Revocation: Evidence: Jurisdiction. In an administrative license revo-
cation proceeding, the sworn report of the arresting officer is received
into the record by the hearing officer as the jurisdictional document of
the hearing, and upon receipt of the sworn report, the order of revoca-
tion by the director of the Department of Motor Vehicles has prima
facie validity.
6. Administrative Law: Motor Vehicles: Licenses and Permits:
Revocation: Police Officers and Sheriffs. In an administrative
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NELSON V. LAHM
Cite as 32 Neb. App. 35license revocation proceeding, the Department of Motor Vehicles
makes a prima facie case for license revocation once it establishes
that the arresting officer provided a sworn report containing the
required recitations.
7. Administrative Law: Motor Vehicles: Licenses and Permits:
Revocation: Police Officers and Sheriffs: Proof. Once the Department
of Motor Vehicles makes a prima facie case for a license revocation,
the burden of proof rests solely with the motorist, who must show by a
preponderance of the evidence that the requirements of revocation are
not satisfied.
8. Drunk Driving: Arrests: Proof. There are two components to the rea-
sons for arrest which must be included in a sworn report: (1) driving or
actual physical control of a motor vehicle and (2) doing so while under
the influence of alcohol or drugs.
Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Darrin F. Schultz
for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Michael Ryan Nelson sought judicial review of an order by
the director of the Nebraska Department of Motor Vehicles
(DMV) revoking his driver’s license for 1 year for refusing to
submit to a chemical test when arrested pursuant to Neb. Rev.
Stat. § 60-6,197 (Reissue 2021) for driving or being in actual
physical control of a motor vehicle while under the influence
of alcoholic liquor or drugs. The Sheridan County District
Court affirmed the DMV’s decision. We affirm.
BACKGROUND
On April 30, 2022, Deputy Cameron Lehr with the
Sheridan County sheriff’s office completed a “Sworn Report
Notice of Revocation and Temporary License,” which was
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NELSON V. LAHM
Cite as 32 Neb. App. 35subsequently received by the DMV on May 6, 2022. In the
sworn report, “Nelson, Michael, R” is handwritten under the
heading “Driver Name” and the “Date of Arrest” and “Time
of Arrest (Military Time)” is shown as April 30 at “0137.”
The form contains the following preprinted text: “The under-
signed officer(s) hereby swear(s) that the above-named driver
was arrested pursuant to Neb.Rev.Stat. §60-6,197 and the
reasons for arrest are,” which is followed by a lined space
for the officer to set forth the reasons. (Emphasis in original.)
The following reasons were provided: “Nelson was observed
inside of his vehicle on 200th Ln. near the intersection of 750th
Rd. Upon Deputy Lehr’s arrival the individual had mumbled
speech, bloodshot, watery eyes, and an odor of an alcoholic
beverage. Nelson refused a PBT and DataMaster test.” A box
is checked that indicates the driver was directed to submit to
a chemical test and “[r]efused to submit to the chemical test.”
(Emphasis omitted.) The form represents that a verbal notice
of revocation was read to the driver. Under a heading titled
“Notice of Administrative License Revocation (ALR),” it pro-
vides that Neb. Rev. Stat. § 60-498.01 (Reissue 2021)
requires the Nebraska DMV to automatically revoke
your operator’s license and/or operating privilege in this
state if you were in operation or physical control of
a motor vehicle and: (1) If you refused a chemical
test for alcohol or drugs, or (2) If you submitted to a
chemical test for alcohol and the test revealed an alco-
hol concentration of 0.08 or more gram/100 ml blood or
gram/210 L breath.
Notice is hereby given that your motor vehicle opera-
tor’s license . . . will be administratively revoked in 15
days for a period of:
....
. . . One year, if you refused a chemical test for alco-
hol or drugs.
(Emphasis omitted.) The sworn report was signed by Deputy
Lehr before a notary public.
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NELSON V. LAHM
Cite as 32 Neb. App. 35On May 19, 2022, Nelson filed a “Petition for Administrative
Hearing” with the DMV. On June 28, an informal Administrative
License Revocation (ALR) hearing was held by teleconference.
The hearing officer stated:
Now, the purpose of the hearing today is to determine
whether . . . Nelson’s operator’s license should be revoked
based on the sworn report sent to the DMV by the arrest-
ing officer. The burden of proof is on the appellant to
show why his or her license should not be revoked. By
statute, there’s only two issues I can consider: whether the
officer had reason to believe the appellant was operating
or in actual physical control of the vehicle while intoxi-
cated and whether the appellant refused the chemical test
or the test result was over .08 grams.
Nelson was not present at the hearing, but his attorney
appeared on his behalf. The hearing officer identified exhibit
2 as the sworn report, and Nelson’s attorney objected on the
grounds that exhibit 2 was “insufficient to convey jurisdic-
tion on the [DMV].” The hearing officer admitted the sworn
report over Nelson’s objection. Nelson’s attorney then argued
that the sworn report “fails to vest jurisdiction in the [DMV]”
because it does not contain an “indication that there was
some type of driving.” Rather, the document only contained
an “indication [that] Nelson was observed in a vehicle near
an intersection.”
On June 29, 2022, the hearing officer rendered its
“Proposed Findings of Fact, Proposed Conclusions of Law,
and Recommended Order of Revocation.” The hearing officer
found that Deputy Lehr observed Nelson inside his vehicle
“on 200th Lane near the intersection of 750th Road” and that
Nelson had “mumbled speech, bloodshot, watery eyes, and
an odor of an alcoholic beverage.” Further, Nelson “refused
a preliminary breath test and a DataMaster test.” Referring to
§ 60-498.01(6)(c), the hearing officer set forth two questions
to be considered:
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NELSON V. LAHM
Cite as 32 Neb. App. 351. Did the law enforcement officer have probable cause
to believe the person was operating or in actual physi-
cal control of a motor vehicle in violation of section
60-6,196 . . . ;
2. Was the person operating or in actual physical con-
trol of a motor vehicle while having an alcohol concentra-
tion in violation of section 60-6,196.
In addressing the above questions and recommending that
Nelson’s driver’s license be revoked for the statutory period,
the hearing officer explained that it was the State’s burden to
make a prima facie case for revocation, which is accomplished
once the arresting officer’s sworn report is provided to the
DMV. “If the sworn report contains the required recitations,
then no other evidence need be introduced to sustain the case
for revocation.” The burden then shifts to the “Appellant” to
“introduce some evidence to disprove the recitations.” The
hearing officer concluded that Nelson did not meet “his burden
of proof” as to the first question regarding operating or being
in physical control of the motor vehicle.
Regarding the second question noted above, the hearing
officer stated that Nelson “did not argue this issue.” We
observe here that the hearing officer erroneously considered
the second question found at § 60-498.01(6)(c)(ii) instead of
the second question under § 60-498.01(6)(c)(i), which consid-
ers whether “the person refuse[d] to submit to or fail[ed] to
complete a chemical test after being requested to do so by
the peace officer.” We find this error to be harmless, since
the hearing officer made a finding that Nelson had “refused
a preliminary breath test and a DataMaster test.” Further,
Nelson did not challenge this portion of the hearing officer’s
recommendation to the director, nor the director’s adoption of
the same.
On June 30, 2022, the DMV director adopted the recom-
mended order of the hearing officer and revoked Nelson’s
driver’s license for a period of 1 year. The same day, Nelson
filed an “Appeal Under the Administrative Procedures
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Cite as 32 Neb. App. 35Act” in the district court. On August 17, Nelson submitted a
written argument to the court.
On September 6, 2022, the district court entered an order
affirming the DMV director’s order revoking Nelson’s driver’s
license for 1 year. The court pointed out that the “sole issue
raised by [Nelson] is the jurisdictional sufficiency of the sworn
report,” namely, that “the ‘reasons for arrest’ are insufficient
to show that [Nelson] was driving.” After referencing Teeters
v. Neth, 18 Neb. App. 585, 790 N.W.2d 213 (2010), for this
court’s holding that “the ‘reasons for arrest’ section of the
sworn report need only allow an inference that the individual
was driving,” the district court concluded:
[W]hen the sworn report is considered in its entirety in
this case, it is apparent that [Nelson] was the driver of
the vehicle in question. Deputy Lehr signed the sworn
report which specifically referred to [Nelson] twice as
the “driver” that was arrested pursuant to Neb. Rev. Stat.
Sec. 60-6,197. His hand-written reasons make it clear
that [Nelson] was inside the vehicle. It can be inferred
from the totality of the sworn report that [Nelson]
was driving and/or in actual physical control of the
motor vehicle.
Nelson now appeals the district court’s order affirming his
driver’s license revocation.
ASSIGNMENT OF ERROR
Nelson assigns that the district court erred in finding the
sworn report conveyed jurisdiction upon the DMV to revoke
his driver’s license.
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. Travis v. Lahm,
306 Neb. 418, 945 N.W.2d 463 (2020). When reviewing an
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NELSON V. LAHM
Cite as 32 Neb. App. 35order of a district court under the 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 arbi-
trary, capricious, nor unreasonable. Id.[3] Whether a decision conforms to law is by definition a
question of law. Id. An appellate court determines questions of
law independently of the lower court. Id.ANALYSIS
[4] Under Nebraska statute, any person who operates a
motor vehicle is deemed to have given his or her consent to
submit to a chemical test of his or her blood, breath, or urine
for the purpose of determining the concentration of alcohol
or the presence of drugs. Travis v. Lahm, supra (referencing
§ 60-6,197(1) (Cum. Supp. 2018)). If a person arrested under
§ 60-6,197 (Reissue 2021) refuses to submit to a chemi-
cal test of blood, breath, or urine, the arresting officer shall
verbally notify the arrested person of the intention to imme-
diately confiscate and revoke the operator’s license and that
the revocation will be automatic 15 days after the date of
arrest. See § 60-498.01(2). Once that occurs, § 60-498.01(2)
further provides:
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 per-
son was requested to submit to the required test, and (c)
that the person refused to submit to the required test.
The sworn report of the arresting officer must, at a mini-
mum, contain the information specified in the applicable stat-
ute in order to confer jurisdiction. Betterman v. Department
of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
If the person whose driver’s license has been confiscated
desires an ALR hearing, a petition must be filed within 10
days after the mailing of the notice of revocation, and a
hearing shall be conducted within 20 days after the petition
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Cite as 32 Neb. App. 35is received by the director. See § 60-498.01(6)(a) and (b).
Section 60-498.01(6)(c) states:
At hearing the issues under dispute shall be limited to:
(i) In the case of a refusal to submit to a chemical test
of blood, breath, or urine:
(A) Did the peace officer have probable cause to
believe the person was operating or in the actual physical
control of a motor vehicle in violation of section 60-6,196
[under influence of alcoholic liquor or any drug;] and
(B) Did the person refuse to submit to or fail to com-
plete a chemical test after being requested to do so by the
peace officer[.]
As noted previously, Nelson did not challenge the second
issue of whether he refused to submit or failed to complete a
chemical test. Rather, the sole issue Nelson has challenged at
each level of appeal is whether the reasons for Nelson’s arrest,
as listed on the sworn report, are sufficient to indicate that
Nelson was driving or in physical control of the vehicle. There
is no dispute as to the information contained in the sworn
report. Therefore, we consider only whether the sworn report
of the arresting officer provided the required statutory informa-
tion necessary to confer jurisdiction on the DMV director to
revoke Nelson’s driver’s license. See Teeters v. Neth, 18 Neb.
App. 585, 790 N.W.2d 213 (2010).
[5-7] In an ALR proceeding, the sworn report of the arrest-
ing officer is received into the record by the hearing officer as
the jurisdictional document of the hearing, and upon receipt
of the sworn report, the director’s order of revocation has
prima facie validity. Barnett v. Department of Motor Vehicles,
17 Neb. App. 795, 770 N.W.2d 672 (2009). The DMV makes
a prima facie case for license revocation once it establishes
that the arresting officer provided a sworn report contain-
ing the required recitations. See id. Thereafter, the burden
of proof rests solely with the motorist, who must show by
a preponderance of the evidence that the requirements of
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Cite as 32 Neb. App. 35revocation are not satisfied. Travis v. Lahm, 306 Neb. 418,
945 N.W.2d 463 (2020).
As set forth above, in cases where the arrested individual
refuses to submit to a chemical test, the recitations in the
sworn report must represent: that the person was arrested
as described in § 60-6,197(2) (upon reasonable grounds
to believe person was driving or in actual physical control
of motor vehicle while under influence of alcoholic liquor
or drugs, officer may require person to submit to chemical
test or tests of blood, breath, or urine to determine concentra-
tion of alcohol or presence of drugs), and the reasons for the
arrest, and that the arrested person was requested to submit
to the required test but refused to do so. See § 60-498.01(2).
There are two components to the reasons for arrest which must
be included in a sworn report: (1) driving or actual physical
control of a motor vehicle and (2) doing so while under the
influence of alcohol or drugs. Hoppens v. Nebraska Dept. of
Motor Vehicles, 288 Neb. 857, 852 N.W.2d 331 (2014) (hold-
ing sworn report need not describe requisites of valid arrest
nor state or support inference that arrested individual drove
or controlled motor vehicle on property open to public access
to confer jurisdiction on DMV; reasons for arrest need only
support officer’s suspicion that arrested individual drove or
physically controlled motor vehicle while under influence of
alcohol or drugs).
In the present matter, the district court concluded that “when
the sworn report is considered in its entirety . . . , it is appar-
ent that [Nelson] was the driver of the vehicle in question.”
Further, “Deputy Lehr signed the sworn report which spe-
cifically referred to [Nelson] twice as the ‘driver’ that was
arrested” and the deputy’s “hand-written reasons make it clear
that [Nelson] was inside the vehicle.” The court concluded that
it “can be inferred from the totality of the sworn report that
[Nelson] was driving and/or in actual physical control of the
motor vehicle.”
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Cite as 32 Neb. App. 35However, Nelson contends that the sworn report failed
to convey jurisdiction upon the DMV to revoke his driver’s
license because the sworn report did not include “reasons
stated that would allow an inference that [Nelson] was the
driver.” Brief for appellant at 9. He argues that the “sworn
report only states [Nelson] was observed in the vehicle, not
that he was driving or in actual physical control,” and “[t]here
is no statement that he was behind the wheel, that he had the
car running, or . . . any other [fact] suggesting he was oper-
ating or in actual physical control” of the vehicle. Id. at 8.
Nelson claims he “was observed inside his vehicle, nothing
more,” and the sworn report “fails to contain a fact showing
. . . Nelson committed a traffic offense, which would be an
indication he was driving.” Id. at 9.
There are several Nebraska cases that have addressed what
the arresting officer must include related to the arrested per-
son’s driving or being in actual physical control of a motor
vehicle for the sworn report to be sufficient to confer juris-
diction on the DMV. See, Betterman v. Department of Motor
Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007); Teeters v.
Neth, supra; Barnett v. Department of Motor Vehicles, supra;Yenney v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446,
729 N.W.2d 95 (2007).
This court concluded in Teeters v. Neth, supra, that a sworn
report which indicated that the arresting officer made a traffic
stop after observing a traffic violation was sufficient to allow
an inference that the arrested individual was the driver of the
stopped vehicle. There, the reasons for arrest were as follows:
“‘[O]bserved a vehicle violate the centerline three different
times. Performed a traffic stop and detected the odor of alco-
holic beverage on Teeter’s [sic] breath. Teeters showed impair-
ment during sobrieties.’” Teeters v. Neth, 18 Neb. App. 585,
586, 790 N.W.2d 213, 215 (2010). This court also noted:
[T]he top portion of the sworn report identifies “Teeters,
Roger D.” as the individual arrested and states that
“the above-named individual was arrested pursuant to
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Cite as 32 Neb. App. 35Neb. Rev. Stat. § 60-6,197, and the reasons for the arrest
are,” which is followed by the reasons filled in by the
arresting officer as stated above. While the “reasons for
the arrest” portion does not specifically state that Teeters
was the driver of the vehicle that violated the centerline,
when the sworn report is considered in its entirety, it is
apparent that Teeters was the driver of the vehicle.
Teeters v. Neth, 18 Neb. App. at 591, 790 N.W.2d at 218
(emphasis omitted).
In Betterman v. Department of Motor Vehicles, the listed
reasons for the arrest were: “‘[R]eckless driving. Driver dis-
played signs of alcohol intoxication. Refused all SFST and
later breath test.’” 273 Neb. at 182, 728 N.W.2d at 578. The
Nebraska Supreme Court concluded that the sworn report con-
veyed the information required by statute because “‘[r]eckless
driving’” was a valid reason for a stop of the vehicle, and
because the arrested person “‘displayed signs of alcohol intoxi-
cation,’” the officer had cause to allege the driver was driving
a motor vehicle while under the influence of alcoholic liquor.
Id. at 186, 728 N.W.2d at 581.
Nelson likens this case to Yenney v. Nebraska Dept. of Motor
Vehicles, supra, and Barnett v. Department of Motor Vehicles,
17 Neb. App. 795, 770 N.W.2d 672 (2009). In Yenney, this
court addressed the sufficiency of a sworn report, stating:
In the instant case, the officers’ sworn report stated
that Yenney was directed to submit to a chemical test
and that he refused such test. The sworn report form also
stated: “The undersigned officer(s) hereby swear(s) that
the above-named individual was arrested pursuant to . . .
§ 60-6,197, and the reasons for the arrest are: passed out
in front of [the gas] Station, near front doors. Signs of
alcohol intoxication.” (The underscored portion indicates
the officers’ comments handwritten on the blank lines
provided on the form.) . . . . The reasons recited for
the arrest merely state that he was passed out near the
front doors of the gas station, which could mean that
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Cite as 32 Neb. App. 35Yenney was passed out on the sidewalk or driveway rather
than in a motor vehicle, and the stated reasons include no
facts showing how he got there or allowing an inference
that he drove there in a drunken condition.
15 Neb. App. at 451, 729 N.W.2d at 99-100. This court con-
cluded that the allegations were insufficient to confer jurisdic-
tion on the DMV.
In Barnett v. Department of Motor Vehicles, supra, the
arrested individual argued that the sworn report was insuf-
ficient because it contained no statement indicating that he
had been the driver of the vehicle involved in a single motor
vehicle accident. Although the vehicle belonged to the arrested
person, the officer did not observe that person driving or sitting
in the vehicle. There was another vehicle present that had not
been involved in the accident, and there were apparently other
people at the scene by the time the arresting officer arrived.
The sworn report included preprinted language that
“‘[t]he undersigned officer(s) hereby swear(s) that the
above-named individual was arrested pursuant to . . .
§ 60-6,197, and the reasons for the arrest are:’ and then
[on] 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.’”
Barnett v. Department of Motor Vehicles, 17 Neb. App. at 797,
770 N.W.2d at 674. This court concluded in Barnett:
Like the handwritten notes in Yenney . . . , the arrest-
ing officer’s notations in the present case do not indicate,
or allow an inference, that [the arrested person] was ever
operating a motor vehicle. The arresting officer indicated
that he responded to a single-vehicle accident, but made
no factual allegation suggesting that [the arrested person]
was the driver of that vehicle.
17 Neb. App. at 800, 770 N.W.2d at 676. The sworn report was
insufficient to confer jurisdiction because
the arresting officer did not make a traffic stop and
failed to include sufficient factual allegations in the
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Cite as 32 Neb. App. 35Sworn Report to indicate an allowable inference that
[the arrested person], of the people on the scene at the
time of the officer’s arrival, was the one who had been
driving the vehicle.
Id. at 801, 770 N.W.2d at 676.
The DMV argues that this case is distinguishable from
Yenney and Barnett because the sworn report states that
Nelson was “observed inside his vehicle while on the road
near an intersection.” Brief for appellee at 13. We agree this
case is distinguishable. Neither of the sworn reports in Yenney
or Barnett identified the individual arrested as a driver, nor
did they indicate the individual arrested was actually inside
a vehicle. Deputy Lehr handwrote “Nelson, Michael, R” in
the box at the top of the form designated “Driver Name,” and
the preprinted text states that “the above-named driver was
arrested pursuant to Neb.Rev.Stat. §60-6,197.” Deputy Lehr’s
reasons for arrest indicate that Nelson was inside his own
vehicle when Deputy Lehr “observed” him “on 200th Ln. near
the intersection of 750th Rd.”
Notably, the preprinted text on the sworn report form
has been modified since some of the earlier cases described
above. The preprinted text on the sworn report now indicates
“Driver Name” and that the “undersigned officer(s) hereby
swear(s) that the above-named driver was arrested” rather
than the “above-named individual was arrested” as quoted
above in Teeters v. Neth, 18 Neb. App. 585, 790 N.W.2d 213(2010); Barnett v. Department of Motor Vehicles, 17 Neb.
App. 795, 770 N.W.2d 672 (2009); and Yenney v. Nebraska
Dept. of Motor Vehicles, 15 Neb. App. 446, 729 N.W.2d
95 (2007). The district court specifically noted Nelson was
referred to “twice as the ‘driver’ that was arrested,” and
that, along with the handwritten reasons, made “it clear that
[Nelson] was inside the vehicle” and resulted in the inference
that Nelson “was driving and/or in actual physical control of
the motor vehicle.” Nelson argues that the “[f]ailure of the
officer to include facts inferring the person was driving or
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Cite as 32 Neb. App. 35in actual physical control cannot be assumed by other pre-
printed information on the form.” Brief for appellant at 7.
However, he derives support for his argument from cases that
predate the change in the sworn affidavit which now identi-
fies the person arrested as the “named driver.” This change
in the form, identifying Nelson as the “driver” and not just
an “individual,” along with the facts included by the arrest-
ing officer that Nelson was found “inside of his vehicle” at a
street intersection, allows one to reasonably infer that Nelson
drove or was in physical control of a motor vehicle.
Considering the sworn report in its totality, we find that
a reasonable inference can be made from the sworn report
that Nelson operated or was in actual physical control of his
vehicle while intoxicated at “200th Ln. near the intersection of
750th Rd.” Accordingly, we find the district court did not err in
finding that the sworn report conveyed jurisdiction upon the
DMV to revoke Nelson’s driver’s license.
CONCLUSION
For the reasons set forth above, we affirm the district
court’s September 6, 2022, order affirming Nelson’s license
revocation.
Affirmed.