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Ramos v. Neth10/28/2003
blish a prima facie case by other means, even if the sworn report contained an inadequate factual showing of probably cause. See, Morrissey v. Department of Motor Vehicles, supra (prima facie case established by sworn report and officer's testimony); Taylor v. Wimes, 10 Neb. App. 432, 632 N.W.2d 366 (2001) (prima facie case established by sworn report and admission of probable cause form). The DMV's other means of establishing probable cause was the testimony of Bruggeman, who participated in the stop. Bruggeman testified that Ramos drove left of the centerline, stumbled getting out of the vehicle, had bloodshot eyes, failed the field sobriety tests, and failed the preliminary breath test. Bruggeman also testified that the smell of alcohol emanated from the vehicle. We find no error in accepting the testimony of Bruggeman in addition to the sworn report as prima facie evidence of Bruggeman's having probable cause to believe Ramos was operating or in the actual physical control of the motor vehicle while having an alcohol concentration in violation of § 60-6,196. Therefore, there was sufficient evidence to shift the burden of proof to Ramos, and because he did not carry that burden of proof, his license was properly revoked.
CONCLUSION
Because the 45-day time limit is directory, Ramos had to either insist on a ruling or ask for a continuance if discovery was necessary to carry his burden of proof. His failure to do so precludes appellate review of his claim that he was denied discovery and the opportunity to introduce evidence. Ramos failed to present any evidence to dispute the DMV's prima facie case, and we affirm the revocation.
Affirmed.
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