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Nebraska Supreme Court Advance Sheets

310 Nebraska Reports

POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

Colt M. Pope, appellant, v. Department 

of Motor Vehicles of the State 

of Nebraska, appellee.

___ N.W.2d ___

Filed February 18, 2022. No. S-21-206.

1. Administrative Law: Judgments: Appeal and Error. 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.

2. Judgments: Appeal and Error. 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.

3. Judgments: Jurisdiction: Appeal and Error. 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.

Appeal from the District Court for Clay County: Stephen R. 

Illingworth, Judge. Affirmed.

T. Charles James, of Langvardt, Valle & James, P.C., L.L.O., 

for appellant.

Douglas J. Peterson, Attorney General, and Milissa JohnsonWiles for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Nebraska Supreme Court Online Library

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

03/25/2022 08:06 AM CDT
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

Heavican, C.J.

INTRODUCTION

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.

BACKGROUND

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 
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

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.

ASSIGNMENTS OF ERROR

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.

STANDARD OF REVIEW

[1-3] 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

1 Travis v. Lahm, 306 Neb. 418, 945 N.W.2d 463 (2020).

2 See id.

3 Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 

570 (2007).
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310 Nebraska Reports

POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

ANALYSIS

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:

(2) If a person arrested as described in subsection (2) 

of section 60-6,197 refuses to submit to the chemical test 

of blood, breath, or urine required by section 60-6,197 

. . . the arresting peace officer, as agent for the director, shall verbally serve notice to the arrested person of 

the intention to immediately confiscate and revoke the 

operator’s license of such person and that the revocation 

will be automatic fifteen days after the date of arrest. 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 person was 

requested to submit to the required test, and (c) that the 

person refused to submit to the required test. . . .

. . . .

(4) On behalf of the director, the arresting peace officer submitting a sworn report under subsection (2) or 

4 Neb. Rev. Stat. § 60-498.01 (Cum. Supp. 2020).
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(3) of this section shall serve notice of the revocation on 

the arrested person, and the revocation shall be effective 

fifteen days after the date of arrest. The notice of revocation shall contain a statement explaining the operation of 

the administrative license revocation procedure. . . . A 

petition for an administrative license revocation hearing 

must be completed and delivered to the [D]epartment or 

postmarked within ten days after the person’s arrest or 

the person’s right to an administrative license revocation 

hearing to contest the revocation will be foreclosed. . . .

If the person has an operator’s license, the arresting 

peace officer shall take possession of the license and issue 

a temporary operator’s license valid for fifteen days. . . .

. . . .

(6)(a) An arrested person’s operator’s license confiscated pursuant to subsection (4) of this section shall 

be automatically revoked upon the expiration of fifteen 

days after the date of arrest, and the petition requesting the hearing shall be completed and delivered to the 

[D]epartment or postmarked within ten days after the 

person’s arrest. An arrested person’s operator’s license 

confiscated pursuant to subsection (5) of this section shall 

be automatically revoked upon the expiration of fifteen 

days after the date of mailing of the notice of revocation 

by the director, and the arrested person shall postmark or 

return to the director a petition within ten days after the 

mailing of the notice of revocation if the arrested person 

desires an administrative license revocation hearing. The 

petition shall be in writing and shall state the grounds on 

which the person is relying to prevent the revocation from 

becoming effective. . . .

(b) The director shall conduct the hearing within 

twenty days after a petition is received by the director. 

Upon receipt of a petition, the director shall notify the 

petitioner of the date and location for the hearing by mail 
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

postmarked at least seven days prior to the hearing date. 

The filing of the petition shall not prevent the automatic 

revocation of the petitioner’s operator’s license at the 

expiration of the fifteen-day period. A continuance of the 

hearing to a date beyond the expiration of the temporary 

operator’s license shall stay the expiration of the temporary license when the request for continuance is made by 

the director.

Department’s Jurisdiction to Revoke

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 Vehicles 9 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 

5 Hahn v. Neth, 270 Neb. 164, 699 N.W.2d 32 (2005).

6 See id.

7 See Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010).

8 See Johnson v. Neth, 276 Neb. 886, 758 N.W.2d 395 (2008).

9 Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688, 747 N.W.2d 

924 (2008).
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

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 different 

location on the report, and was signed and stamped by a notary. 

That copy was later provided to Pope. Because jurisdiction 

is determined based upon the sworn report at the time of the 

hearing, the lack of a notary’s signature on Pope’s copy does 

not affect jurisdiction, especially where Pope received a copy 

containing the notary’s signature prior to the hearing.

Pope also argues that the officer’s name and badge information was provided in the same hand as the arresting officer, and Pope suggests that this is proof that the notary did 

not actually acknowledge the officer’s signature. He cites to 

Johnson to support this assertion. While Johnson, in reliance 

on Nebraska’s statute regarding a proper acknowledgment, 11

requires that information to be included, there is nothing in 

Johnson that requires the notary to fill out the officer’s name 

and badge information, only that the notary acknowledge the 

officer’s signature. The notary’s signature below this information demonstrates that this occurred.

10 Johnson v. Neth, supra note 8.

11 Neb. Rev. Stat. § 64-206 (Reissue 2018).
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

In order to confer jurisdiction, the sworn report must include 

the information set forth in the statute at the time it is submitted. This report contained all the necessary information 

at the relevant time and was sufficient to confer jurisdiction 

on the Department. We find no merit to Pope’s assertions to 

the contrary.

Other Assignments of Error

In his second and third assignments of error, Pope takes issue 

with several actions taken by the Department during the course 

of revoking his operator’s license. First, Pope argues that there 

is no statute or regulation which would allow the Department 

to reopen the hearing and that his due process rights were violated when the Department “compell[ed]” the hearing officer 

to do so. 12 Second, Pope contends the Department violated 

existing law and ignored its own regulations when it deprived 

him of the opportunity to be heard regarding the reopening 

of the hearing, failed to make a timely decision, and failed to 

stay the revocation of his license during the pendency of the 

continuance. In sum, Pope argues that rather than attempting 

to supplement the record, the Department should have simply 

appealed from the hearing officer’s determination.

As an initial matter, in arguing that the Department should 

have appealed from the decision of the hearing officer, Pope 

misunderstands the authority of the hearing officer. That officer 

is hired by the Department to make findings of fact and conclusions of law. 13 The hearing officer does not have the authority 

to revoke an operator’s license, but merely makes recommendations to the Department. The power to revoke a license lies 

with the director of the Department. 14 As such, the director was 

not bound by the recommendations of the hearing officer, but 

was free to revoke Pope’s license regardless of the hearing 

12 Brief for appellant at 16.

13 See § 60-498.01(9).

14 See Neb. Rev. Stat. § 60-498.02 (Cum. Supp. 2020).
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

officer’s recommendations. It is not accurate to conclude that 

the Department should have appealed from the recommendations of the hearing officer.

Nor were Pope’s rights—due process or otherwise—violated 

when the hearing was “reopened.” 15 With the exception of 

Pope’s allegation regarding the “behind closed door” meeting between the hearing officer and an unknown Department 

employee, Pope does not dispute that he had notice of all hearings and had the ability to be heard and participate at those 

hearings. 16 As for the “behind closed door” meeting, we find 

no authority, nor does Pope direct us to any, holding that Pope 

was entitled to notice of such a meeting. Thus, we confine 

our analysis to that alleged communication and the continuance and associated injuries that allegedly resulted from that 

communication.

First, Pope has not shown that the alleged “behind closed 

door” meeting between the Department and the hearing officer resulted in the Department’s telling the hearing officer 

what decision should be reached, nor has Pope presented any 

other evidence of bias. Rather, the record shows only that the 

Department sought the inclusion of evidence in the record that 

would clarify that, in fact, the sworn report did initially confer 

jurisdiction on the Department.

Second, while Pope’s assertion that there was no authority 

in the applicable statutes and regulations to reopen a hearing might be accurate, it is incomplete as it overlooks certain 

regulatory powers of the hearing officer and the director. The 

hearing officer has the power to hold the record open, without 

regard for which party might desire such an action 17; the director has the authority to order a continuance. 18

15 Brief for appellant at 16 (internal quotation marks omitted).

16 Id.

17 See 247 Neb. Admin. Code, ch. 1, § 038.05H (2011) (applicable to driving 

under influence arrests after January 1, 2012).

18 See id., § 048.05.
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

Pope also alleges that the director’s decision was not made 

within 7 days of the conclusion of the hearing as is required 

by § 60-498.01(9). Pope is calculating that time period 

beginning on the date of the first hearing, August 11, 2020. 

But because the 7-day period is imposed upon the director, it 

would be illogical and contrary to the hearing officer procedure 

to have that period begin in advance of the filing of the hearing 

officer’s recommendations. Because those recommendations 

were ultimately not filed until August 26, the director’s order 

of revocation on August 27 was timely.

Finally, Pope contends that the director was required to stay 

the revocation of his operator’s license during the pendency of 

the continuance. Section 60-498.01(6)(b) provides in part:

The filing of a petition shall not prevent the automatic 

revocation of the petitioner’s operator’s license at the 

expiration of the fifteen-day period. A continuance of the 

hearing to a date beyond the expiration of the temporary 

operator’s license shall stay the expiration of the temporary license when the request for continuance is made by 

the director. 19

We disagree with Pope’s interpretation of this statutory language. Pope’s operator’s license had already been revoked as a 

matter of law on July 26, 2020, which was 16 days prior to his 

first hearing. We read § 60-498.01(6)(b) to act as an incentive 

to the Department to not unnecessarily delay hearings and not 

as a windfall to motorists whose licenses have already been 

automatically revoked as part of the administrative license 

revocation process.

We take a moment to comment upon the August 17, 2020, 

order stating that no hearing occurred on August 11, when 

the record is clear that a hearing did take place on August 

11. Our record does not include any information as to why 

this plainly incorrect order was issued. While the issuance of 

this order does not affect our disposition here, we remind the 

19 § 60-498.01(6)(b).
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POPE v. DEPARTMENT OF MOTOR VEHICLES

Cite as 310 Neb. 971

Department that its orders are relied upon by those appearing 

before the Department and its hearing officers and, as a result, 

accuracy is paramount.

There is no merit to Pope’s assignments of error regarding the reopening of his hearing and the consequences of that 

reopening.

CONCLUSION

We affirm the decision of the district court affirming the 

Department’s revocation of Pope’s operator’s license.

Affirmed.