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Nebraska Court of Appeals Advance Sheets

33 Nebraska Appellate Reports

LIBRA V. LAH

Cite as 33 Neb. App. 1

Francis J. Libra, Jr., appellant, v. 

Rhonda K. Lahm, director, Nebraska 

Department of Motor Vehicles, appellee.

___ N.W.3d ___

Filed June 11, 2024. No. A-23-478.

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 neither arbitrary, capricious, nor unreasonable.

3. Judgments. Whether a decision conforms to law is by definition a question of law.

4. Judgments: Appeal and Error. An appellate court determines questions of law independently of the lower court.

5. Administrative Law: Motor Vehicles: Licenses and Permits: 

Revocation: Police Officers and Sheriffs. In an administrative license 

revocation hearing, 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.

6. Administrative Law: Motor Vehicles: Licenses and Permits: 

Revocation: Police Officers and Sheriffs: Proof. After the Department 

of Motor Vehicles makes a prima facie case for 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.

7. Appeal and Error. When a party raises an issue for the first time on 

appeal, an appellate court will disregard it because a lower court cannot 

commit error in resolving an issue never presented and submitted to it 

for disposition.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/10/2024 06:09 PM CDT
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8. Witnesses: Testimony. The credibility of a witness is a question for the 

trier of fact, and it is within its province to credit the whole of the witness’ testimony, or any part of it, which seemed to it to be convincing, 

and reject so much of it as in its judgment is not entitled to credit.

9. Trial: Expert Witnesses. A trier of fact is not bound to accept expert 

opinion testimony.

10. Administrative Law: Judgments: Appeal and Error. Although a district court in its de novo review of agency determinations is not required 

to give deference to the findings of fact by the agency hearing officer, 

it may consider the fact that the hearing officer, sitting as the trier of 

fact, saw and heard the witnesses and observed their demeanor while 

testifying and may give weight to the hearing officer’s judgment as 

to credibility.

Appeal from the District Court for Buffalo County: Ryan C. 

Carson, Judge. Affirmed.

Coy T. Clark, Elizabeth J. Klingelhoefer, and Samantha J. 

Merrill, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., 

for appellant.

Michael T. Hilgers, Attorney General, and Kenneth A. Yoho 

for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Francis J. Libra, Jr., appeals from a Buffalo County District 

Court order affirming the revocation of his driver’s license for 

driving under the influence. We find the district court’s decision was not contrary to law and was supported by competent 

evidence. Therefore, we affirm.

BACKGROUND

In the early morning of October 30, 2022, Libra was driving a vehicle when a police officer performed a traffic stop. 

According to the officer’s sworn report, Libra’s vehicle was 

speeding and swerving. Upon approaching the vehicle, the 
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officer observed that Libra had “[r]ed, watery eyes, slurred 

speech, and [the officer] detected the odor of alcoholic [b]everage.” Libra admitted to drinking and consented to standard 

field sobriety tests and a preliminary breath test, which showed 

he was impaired. The officer arrested Libra for driving under 

the influence and directed him to submit to a chemical test at 

the police station. Libra submitted to a breath test that indicated a breath alcohol content of .202 of a gram of alcohol per 

210 liters of breath.

The officer gave Libra a notice of revocation and temporary license, which informed him that his license would be 

revoked by the Department of Motor Vehicles (DMV) in 15 

days and how to request an administrative license revocation 

(ALR) hearing. The officer also submitted his sworn report to 

the DMV.

Libra filed a petition with the DMV that requested an ALR 

hearing, which was held on November 29, 2022. At the hearing, he argued that the DataMaster device used to test his 

breath the night he was arrested was not working properly. The 

DMV offered several exhibits that were received as evidence, 

including the officer’s sworn report and a copy of Libra’s 

breath test results. The police officer who arrested Libra and 

prepared the sworn report was not subpoenaed and did not testify at the hearing.

Libra testified that he had a history of indigestion problems 

that started in the late 1990s and continued to be an issue for 

him. He testified he had been diagnosed with gastroesophageal reflux disease (GERD) and offered a medical record 

indicating he was first diagnosed with GERD on November 9, 

2022. Libra stated that on the night of his arrest he was having indigestion symptoms, which included feeling bloated and 

having hiccups “here and there” that pushed phlegm up into 

his throat and mouth. He stated that these symptoms occurred 

prior to taking the breath test at the police station.

Libra testified that he had been drinking prior to being 

pulled over by the police officer on October 30, 2022. When 
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asked how much he drank, he stated, “a few probably,” and 

then he stated he had been drinking beer.

Ronald E. Henson, Ph.D., was called as a witness by Libra. 

Henson is an independent consultant and qualified expert in 

drug and alcohol related matters, including the validity of 

breath tests for alcohol content. He was familiar with the 

DataMaster testing device used to test Libra’s breath. Henson 

testified that in his expert opinion Libra’s test result was not 

valid. His opinion was based on the histogram associated 

with Libra’s breath alcohol test result. He explained that the 

histogram is a line graph generated by the DataMaster based 

upon data points. The histogram from Libra’s test had a 

“negative slope” in the concentration curve. He testified that 

there should not be a negative or downward slope for a valid 

sample and that because there was, the device should have 

triggered an “invalid sample” result but did not. Based on 

his further analysis of the device, he testified that the negative slope was not caused by an “instrumentation issue” and 

confirmed that the DataMaster device appeared to be working properly. He testified the negative slope was more likely 

caused by a biological issue or something in Libra’s mouth 

when providing the breath sample. Henson testified that he 

inquired of Libra’s counsel whether Libra had been diagnosed 

with any type of acid reflux or if he had bleeding gums or 

some other related issue, which could explain the negative 

slope. Henson further testified that additional testing of the 

device would be required to determine the reason why the 

device did not trigger an invalid sample on the test printout. 

Henson added that possibly one of the algorithms was not set 

correctly and that there would need to be further investigation 

of the actual device. He again stated that although the device 

did not register Libra’s test as an invalid sample, the histogram clearly identified Libra’s test as invalid.

On cross-examination, Henson testified that with DataMaster 

devices in general, there have been instances where two 

electronic communications collide with each other at the 
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microprocessor and it does not trigger an invalid sample. He 

was then asked why Libra’s GERD was an issue if he believed 

there was a problem with the DataMaster device, and he 

stated, “I don’t think it’s necessarily a device problem. I’m 

just saying that, why didn’t it kick it out as an invalid sample, 

that would need further investigation.” He again stated that 

the DataMaster device was operating properly based on a 

regular-interval check of the device conducted on October 24, 

2022, which showed that the histogram profiles were as they 

should be.

Following the hearing, the hearing officer entered a recommended order finding that Henson’s testimony did not prove 

by a preponderance of the evidence that the test result was 

invalid. It further noted:

[Libra] admitted he had been drinking, showed evidence of impairment, and failed a [preliminary breath 

test]. His test result may not have been perfectly precise 

by Dr. Henson’s standards but it does indicate beyond a 

reasonable doubt that he had a BAC well above the legal 

limit of .08 gram of alcohol per 210 liters of breath. 

While [Libra] may have been suffering a GERD episode 

at the time of his arrest, he has not shown that it was 

so severe as to impact, much less interfere with, the 

Datamaster test result. . . .

[Libra] has not met his burden of proof.

The hearing officer recommended that Libra’s license be 

revoked for the statutory period, and the Director of the DMV 

accepted the recommendation and revoked Libra’s license.

Libra appealed the revocation of his license to the district 

court. The court took judicial notice of the administrative 

record, including the transcript and bill of exceptions. The 

court found that Henson’s opinions were contradictory, speculative, and not based on “‘good grounds.’” It concluded that 

Libra failed to overcome the presumptive validity of the director’s order of revocation and affirmed the DMV’s decision.
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LIBRA V. LAH

Cite as 33 Neb. App. 1

ASSIGNMENTS OF ERROR

Libra assigns, restated, the following errors: (1) The officer’s sworn report did not strictly comply with DMV rules 

and regulations because the officer recorded an invalid result 

from his DataMaster test, (2) the district court erred in applying the incorrect burden of proof because the officer’s sworn 

report did not establish a prima facie case, (3) the district 

court erred in finding that Libra failed to demonstrate that the 

requirements of revocation were not satisfied, (4) the district 

court erred in finding that Henson’s opinions were speculative 

and not based on good grounds, and (5) the district court erred 

in not giving appropriate weight to uncontradicted evidence 

that Libra had chronic GERD disease and was experiencing 

GERD symptoms at the time he took the DataMaster test.

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 order 

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 arbitrary, 

capricious, nor unreasonable. Id.

[3,4] 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

Libra assigns that the arresting officer’s sworn report did 

not comply with DMV rules and regulations because the officer recorded an invalid result from the DataMaster device. He 

further assigns that because the sworn report was not compliant 

with DMV rules and regulations, the DMV did not establish 

a prima facie case and the district court erred in shifting the 

burden to him.
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[5,6] In an ALR hearing, the DMV makes a prima facie 

case for license revocation once it establishes that the arresting officer provided a sworn report containing the required 

recitations. Nelson v. Lahm, 32 Neb. App. 35, 992 N.W.2d 508 

(2023). Thereafter, 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. Travis v. 

Lahm, supra; Nelson v. Lahm, supra.

Libra argues that the arresting officer’s sworn report does 

not comply with DMV rules and regulations and, therefore, the 

DMV was not entitled to the benefit of a presumption that all 

the facts in the sworn report are true.

[7] The arresting officer’s sworn report was received by 

the hearing officer at the ALR hearing. Libra did not object 

to the sworn report. At the hearing, he only argued that the 

DataMaster device did not work properly when it tested his 

breath. Similarly, his petition in the district court only raised 

issues with the administration of the breath test and the result 

obtained. He did not raise any issue with the sworn report’s 

compliance with DMV rules and regulations. As a result, we 

decline to consider Libra’s first two assignments of error, as 

they are raised for the first time on appeal. See First Express 

Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013) 

(when party raises issue for first time on appeal, appellate 

court will disregard it because lower court cannot commit 

error in resolving issue never presented and submitted to it 

for disposition).

Libra next assigns that even if the sworn report was adequate and shifted the burden, the district court erred in finding he failed to meet his burden to prove the requirements 

of revocation were not satisfied. See Nelson v. Lahm, supra.

He argues that he sufficiently proved that the DataMaster test 

result recorded on the sworn report was invalid. In conjunction with this assignment of error, he assigns that the district 

court erred in finding Henson’s opinions were speculative 

and not based on good grounds and erred in not giving 
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appropriate weight to uncontradicted evidence that Libra had 

chronic GERD and was experiencing symptoms at the time 

the test was taken.

We first address Libra’s argument that Henson’s testimony 

and opinions sufficiently proved that the DataMaster test result 

was invalid. Henson testified that the DataMaster should have 

produced an “invalid sample” result based on the negative 

slope on the histogram. He testified that the negative slope 

was not caused by an “instrumentation issue” and confirmed 

that the DataMaster device appeared to be working properly. 

He testified the negative slope was more likely caused by a 

biological issue, such as Libra’s GERD, or something in his 

mouth when providing the breath sample. Henson further testified that additional testing of the device would be required to 

determine the reason why the device did not trigger an invalid 

sample on the test printout.

Henson also testified that with DataMaster devices in general, there have been instances where two electronic communications collide with each other at the microprocessor and it 

does not trigger an invalid sample when it should. However, 

he did not testify that this had ever happened with the specific 

DataMaster used to test Libra’s breath. Further, even after 

his explanation, he again stated, “I don’t think [the negative 

slope is] necessarily a device problem. I’m just saying that, 

why didn’t it kick it out as an invalid sample, that would need 

further investigation.”

The hearing officer found: “[Henson’s] testimony — that 

the device was working properly but it shouldn’t have printed 

out the test result that it did — does not actually prove by a 

preponderance of the evidence that the test result provided is 

invalid.” Henson could not provide an explanation as to why 

there was a negative sloped histogram indicating an invalid 

result, but the DataMaster device did not produce an invalid 

result. The hearing officer rejected Henson’s opinion that the 

test result was invalid and found that Libra failed to meet his 

burden to show by a preponderance of the evidence that the 
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requirements of revocation were not satisfied. See Nelson v. 

Lahm, 32 Neb. App. 35, 992 N.W.2d 508 (2023).

[8-10] The credibility of a witness is a question for the 

trier of fact, and it is within its province to credit the whole 

of the witness’ testimony, or any part of it, which seemed to it 

to be convincing, and reject so much of it as in its judgment 

is not entitled to credit. Benjamin v. Bierman, 305 Neb. 879, 

943 N.W.2d 283 (2020). A trier of fact is not bound to accept 

expert opinion testimony. Id. The hearing officer was free to 

accept the DataMaster’s valid test result over Henson’s testimony that the negative slope on the histogram equated to an 

invalid test. The district court agreed with the hearing officer 

that Henson could only speculate as to why the DataMaster 

failed to produce an invalid test result, and it accepted the 

device’s result over Henson’s testimony. The review of agency 

actions “shall be conducted by the court without a jury de 

novo on the record of the agency. The court may affirm, 

reverse, or modify the decision of the agency or remand the 

case for further proceedings.” Neb. Rev. Stat. § 84-917(5)(a) 

(Cum. Supp. 2022). Although a district court in its de novo 

review of agency determinations is not required to give deference to the findings of fact by the agency hearing officer, it 

may consider the fact that the hearing officer, sitting as the 

trier of fact, saw and heard the witnesses and observed their 

demeanor while testifying and may give weight to the hearing officer’s judgment as to credibility. Nebraska Account. 

& Disclosure Comm. v. Skinner, 288 Neb. 804, 853 N.W.2d 

1 (2014). Because Henson could not explain the reason the 

DataMaster failed to produce an invalid result, the district 

court was not willing to accept Henson’s testimony that the 

negative slope indicated an invalid test over the DataMaster 

device, which indicated a valid test result. Accordingly, the 

district court agreed with the hearing officer that Libra failed 

to overcome the presumption in favor of the State.

A judgment or final order rendered by a district court in a 

judicial review pursuant to the Administrative Procedure Act 
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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 order 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 arbitrary, 

capricious, nor unreasonable. Id.

Because Libra failed to prove why the DataMaster failed 

to indicate an invalid sample result, the district court was 

free to accept the results from the DataMaster over Henson’s 

testimony. We determine that the district court’s finding that 

Libra failed to overcome the presumption in favor of the State 

conforms to the law, is supported by competent evidence, and 

is neither arbitrary, capricious, nor unreasonable.

Libra also assigns the district court erred in failing to give 

appropriate weight to uncontradicted evidence that he had 

chronic GERD and was experiencing symptoms at the time 

the test was taken. Libra testified that he had a history of 

indigestion problems that continued to be an issue for him. 

He had been diagnosed with GERD, but not until November 

9, 2022, 10 days after his arrest. He testified that on the night 

of his arrest, he had indigestion symptoms, and he indicated 

that he was having symptoms prior to taking the breath test 

at the police station. He did not specifically testify that he 

experienced symptoms at the time the test was taken, as he 

contends. The district court clearly considered the evidence 

regarding Libra’s GERD as it set forth Libra’s testimony 

regarding his history of indigestion issues and his GERD 

diagnosis in its order. As previously discussed, Henson testified that the negative slope on the histogram may have been 

caused by a biological issue, such as Libra’s GERD. However, 

whether Libra’s GERD symptoms caused the negative slope 

on the histogram or the negative slope was caused by something else is of no consequence. The issue is whether the 

negative slope should have resulted in the DataMaster’s producing an invalid test result. As explained above, the district 
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court did not err in concluding Libra did not overcome his 

burden of showing the test was invalid. As such, what caused 

the negative slope is of no consequence, as whatever caused 

it was not sufficient to invalidate the test. This assignment of 

error fails.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

May 30, 2023, order affirming Libra’s license revocation.

Affirmed.