NebApp upholds license suspension over objection that policeman making initial stop did not testify

Nebraska Court of Appeals holds that a properly prepared sworn report from the arresting officer presents prima facie case for license suspension and even if rules of evidence applied to admin revocation hearing the driver must rebut report. NebApp reverses Douglas County ruling that reinstated drivers licenseScott v. State, 13 Neb. App. 867 Filed September 6, 2005. No. A-04-710. Omaha Police officer stopped the defendant for erratic driving. The officer requested another policeman complete the DWI arrest so he could respond to an assault call. The second officer prepared the sworn report necessary to revoke the driver's license. The driver requested a hearing with evidence rules to apply and lost. The District Court reversed stating the first officer should have testified as to the drivers intoxication. The Court of appeals reverses: "The sworn report of the arresting officer shall be received into the record by the hearing officer as the jurisdictional document of a license revocation hearing, and upon receipt of the sworn report, the director of the Department of Motor Vehicles’ order of revocation has prima facie validity."the offer by the Department of Motor Vehicles of a sworn report at a license revocation hearing establishes the department’s prima facie case and the burden shifts to the driver to refute such evidence.The sworn report offered at a license revocation hearing must state (1) that the person whose license is at issue was arrested as described in Neb. Rev. Stat. § 60-6,197(2) (Supp. 2003) (upon reasonable grounds to believe such person was driving under the influence), and the reasons for such arrest; (2) that the person was requested to submit to the required test; and (3) that the person submitted to a test, the type of test to which he or she submitted, and that such test revealed the presence of alcohol in a concentration of .08 of 1 gram or more per 100 milliliters of blood or per 210 liters of breath.