Pope v. Department of Motor Vehicles
310 Neb. 971
| Neb. | 2022Background
- July 11, 2020: Pope was stopped, arrested for suspected DUI, and refused a breath chemical test.
- Arresting officer completed an administrative sworn report; Pope was given a copy signed by the officer but not notarized.
- The Department received a copy of the report that included the officer’s signature and a notary’s signature and stamp; that notarized copy was provided to Pope before the hearing.
- An administrative license revocation hearing occurred (initially held Aug 11, 2020); the hearing record was later held open and a continuance occurred with a second hearing on Aug 25, 2020.
- Hearing officer recommended revocation; the Department (director) revoked Pope’s license Aug 27, 2020; the district court affirmed, and Pope appealed to the Nebraska Supreme Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Department had jurisdiction because the sworn report given to Pope lacked a notary signature | Pope: Report initially provided to him was not notarized, so it failed to confer jurisdiction | Department: Jurisdiction is based on the report before the Department at hearing; Department received a notarized copy before the hearing | Court: Held Department had jurisdiction; notarized copy in Department’s file (and provided to Pope) satisfied statutory requirements |
| Whether reopening/continuance violated due process or exceeded Department authority | Pope: Department improperly compelled reopening, denied notice of behind‑closed‑door communication, and violated due process | Department: Hearing officer may hold record open; director may order continuance; Pope had notice and opportunity to be heard at hearings | Court: No due process violation; reopening/continuance permitted under hearing officer rules and director authority; no evidence of bias |
| Whether the director’s revocation order was untimely (7‑day rule) | Pope: 7‑day decision period began after first hearing (Aug 11), so director missed deadline | Department: 7‑day period runs from receipt of hearing officer’s recommendations; recommendations filed Aug 26, director acted Aug 27 | Court: Director’s order was timely given the recommendations’ filing date |
| Whether the revocation should have been stayed during continuance | Pope: Continuance should have stayed the license revocation | Department: Statute stays expiration only when continuance is requested by director; automatic revocation occurs after 15 days and continuance rule is an incentive against delay | Court: No stay required; license already automatically revoked by operation of law before continuance; statute not a motorist windfall |
Key Cases Cited
- Travis v. Lahm, 306 Neb. 418 (standards for Administrative Procedure Act review)
- Betterman v. Department of Motor Vehicles, 273 Neb. 178 (jurisdictional questions involving no factual dispute are matters of law)
- Hahn v. Neth, 270 Neb. 164 (sworn report must contain statutory information to confer jurisdiction)
- Murray v. Neth, 279 Neb. 947 (Department may seek supplemental sworn report to obtain jurisdiction)
- Johnson v. Neth, 276 Neb. 886 (failure to include required officer info can defeat jurisdiction when statutory form requirements not substantially complied with)
- Moyer v. Nebraska Dept. of Motor Vehicles, 275 Neb. 688 (officer signature plus notarization suffices; statute does not require notary to place officer under oath)