Saturday, March 10, 2007

Omaha attorney loses his appeal from a one year license revocation for refusing an alcohol test even though the Douglas county court eventually acquitted him of refusing to take a breath test. Betterman v. Department of Motor Vehicles, S-05-638, S-06-823 , 273 Neb. 178 . the appellant is pro se and an attorney who brings many issues up on this license appeal, all of which he loses. Still someone liked him because he was acquitted of the same charges in county court; only the administrative revocation stuck. Appellant wanted to challenge on appeal the partiality of the administrative hearing officer who would be an employee of the DMV. Attorney failed to challenge this at the hearing but sought to offer judicial notice of the hearing officer's status at the District Court. Supreme Court agrees that even with notice of adjudicative facts, the appellant may not supplement the record at District court if he did not offer it at the administrative hearing. Further the appellants acquittal, even if this would be newly discovered evidence against his revocation does not affect the administrative license revocation for refusing to test. "Assuming that the court could take judicial notice of the hearing officer's employment as an adjudicative fact, (the supreme court) would not take judicial notice of it. See Wolgamott v. Abramson, 253 Neb. 350, 570 N.W.2d 818 (1997): in a contested case under the APA, a court may not take judicial notice of an adjudicative fact that was not presented to the agency, because the taking of such evidence would impermissibly expand the court’s statutory scope of review de novo on the record of the agency. The APA does not authorize a district court reviewing the decision of an administrative agency to receive additional evidence, whether by judicial notice or other mean. To the extent Vinci v. Nebraska Dept. of Corr. Servs., 253 Neb. 423, 437, 571 N.W.2d 53, 62 (1997). See, also, Slack Nsg. Home v. Department of Soc. Servs., 247 Neb. 452, 528 N.W.2d 285 (1995) suggested otherwise, the court disapproves of them. In the present case, even if evidence of Betterman’s acquittal in the criminal case were to be admitted in a new ALR hearing, its admission would not affect the outcome. Therefore, the district court did not err in refusing to reverse the director’s order.

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