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Ramos v. Neth10/28/2003
(not designated for permanent publication)
INTRODUCTION
Ramon A. Ramos appeals from an order of the district court for Johnson County affirming the order of the director of the Department of Motor Vehicles, which revoked his operator's license pursuant to the administrative license revocation (ALR) procedures found in Neb. Rev. Stat. §§ 60-6,205 through 60-6,209 (Reissue 1998).
FACTUAL BACKGROUND
On July 30, 2000, Officer Kaleb A. Bruggeman of the Johnson County sheriff's office was driving northbound on Highway 50 in an unmarked patrol unit when he spotted a vehicle driving southbound in the northbound lane. Bruggeman followed the vehicle and contacted the Tecumseh Police Department to notify them of a possible drunk driver. An officer of the Tecumseh Police Department stopped the vehicle, and Bruggeman arrived shortly thereafter. The driver was identified as Ramos. Bruggeman testified that he could smell the odor of an alcoholic-type beverage coming from the vehicle and that Ramos' eyes were bloodshot and watery. Bruggeman then administered field sobriety tests, which tests included reciting the alphabet, counting backward, and performing the one-legged stand test and the walk-and-turn test. Ramos had difficulty with the field sobriety tests, so Bruggeman asked him to submit to a preliminary breath test, and Ramos agreed. Bruggeman testified that he observed the other officer administer the test and that the correct procedures were followed. Ramos failed the preliminary breath test and was asked to submit to a blood test, to which he also agreed. Ramos was then read the chemical test advisement form, placed under arrest for driving under the influence (DUI), and transported to the hospital. Blood test results revealed an alcohol concentration of .124 grams per 100 milliliters of blood. Consequently, Bruggeman initiated ALR proceedings, filled out a sworn report, and provided it to the Department of Motor Vehicles (hereinafter DMV).
PROCEDURAL BACKGROUND
On August 22, 2000, Ramos filed a petition with the DMV for a hearing regarding his license revocation under § 60-6,205. A notice of hearing, dated August 29, 2000, was sent to Ramos advising him that a hearing would take place on September 8. On August 25, Ramos filed a motion for discovery for statements, documents, and other materials related to his arrest and blood test results. The DMV filed a response and sent it to Ramos' counsel on August 30. This response indicated that materials could be reviewed at the Johnson County Attorney's office. On September 6, Ramos' counsel went to the Johnson County Attorney's office during normal working hours and requested the records. The county attorney's office advised that the records could not be located at that office.
At the beginning of the hearing on September 8, 2000, Ramos delivered to the hearing officer a motion to compel discovery, and it was introduced into evidence without objection. The ALR hearing proceeded to conclusion on September 8. At the hearing, when asked to submit preliminary motions, Ramos' counsel requested to "reserve . . . Ramos's rights under his Motion for Discovery that's dated August 24, 2000, and the Motion to Compel that's dated September 7, 2000, for the reasons stated within the Motion to Compel, and we're not waiving our rights under either motion." The ALR hearing officer's order dated September 12, 2000, found that because Ramos failed to file a waiver regarding the 45-day time limit in which to hold a hearing, there was no more time in which to act on his motion to compel. Thus, there was no ruling on it. The hearing officer concluded that Ramos did not offer any evidence to indicate there w
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