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Searcey v. Nebraska Dep't of Motor Vehicles4/27/2004
ted by the DMV or by the motorist. Treating mere existence of a sworn report as a showing of "substantial injustice" would automatically support any continuance requested by the DMV. According a sworn report such weight also presumes that the motorist will not meet his or her "burden to establish by a preponderance of the evidence grounds upon which the operator's license revocation should not take effect." § 60-6,205(7).
The language of § 010.06, requiring denial of an insufficient motion for continuance "unless substantial injustice would result," uses the future tense. (Emphasis supplied.) Thus, a decision of the director of the DMV to grant or deny continuance must be viewed upon the record as it exists at the time the director rules upon the motion. Because no showing of substantial injustice appeared on the record before the director in the case at bar, I conclude that the director erred in granting the continuance. Based upon the candid response of the DMV's counsel at oral argument, I doubt that a motorist's motion for continuance with similar, insufficient content would receive such favorable consideration.
Nonetheless, because I agree with the majority's further explanation that Searcey was not prejudiced by the continuance, I conclude that such error was harmless. Before a state may deprive a motorist of his or her driver's license, that state must provide a forum for the determination of the question and a meaningful hearing appropriate to the nature of the case. Marshall v. Wimes, 261 Neb. 846, 626 N.W.2d 229 (2001) (citing Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed. 2d 90 (1971)). In proceedings before an administrative agency or tribunal, procedural due process requires notice, identification of the accuser, factual basis for the accusation, reasonable time and opportunity to present evidence concerning the accusation, and a hearing before an impartial board. Marshall v. Wimes, supra. The record shows that the continued hearing provided such process in all respects and that the continuance imposed no disadvantage on Searcey other than the loss of a mere technical claim. While in my view, the continuance was erroneous, it did not affect a substantial right. Accordingly, I concur.
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