Libra v. Lahm

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
Francis J. Libra, Jr., appellant, v.
Rhonda K. Lahm, director, Nebraska
Department of Motor Vehicles, appellee.
___ N.W.3d ___
Filed June 11, 2024. 	No. A-23-478.
1. Administrative Law: Judgments: Appeal and Error. A judgment or
final order rendered by a district court in a judicial review pursuant to
the Administrative Procedure Act may be reversed, vacated, or modified
by an appellate court for errors appearing on the record.
2. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
3. Judgments. Whether a decision conforms to law is by definition a ques-
tion of law.
4. Judgments: Appeal and Error. An appellate court determines ques-
tions of law independently of the lower court.
5. Administrative 	Law: 	Motor 	Vehicles: 	Licenses 	and 	Permits:
Revocation: Police Officers and Sheriffs. In an administrative license
revocation hearing, the Department of Motor Vehicles makes a prima
facie case for license revocation once it establishes that the arresting
officer provided a sworn report containing the required recitations.
6. Administrative 	Law: 	Motor 	Vehicles: 	Licenses 	and 	Permits:
Revocation: Police Officers and Sheriffs: Proof. After the Department
of Motor Vehicles makes a prima facie case for license revocation, the
burden of proof rests solely with the motorist, who must show by a
preponderance of the evidence that the requirements of revocation are
not satisfied.
7. Appeal and Error. When a party raises an issue for the first time on
appeal, an appellate court will disregard it because a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:29 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
8. Witnesses: Testimony. The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole of the wit-
ness’ testimony, or any part of it, which seemed to it to be convincing,
and reject so much of it as in its judgment is not entitled to credit.
9. Trial: Expert Witnesses. A trier of fact is not bound to accept expert
opinion testimony.
10. Administrative Law: Judgments: Appeal and Error. Although a dis-
trict court in its de novo review of agency determinations is not required
to give deference to the findings of fact by the agency hearing officer,
it may consider the fact that the hearing officer, sitting as the trier of
fact, saw and heard the witnesses and observed their demeanor while
testifying and may give weight to the hearing officer’s judgment as
to credibility.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Affirmed.
Coy T. Clark, Elizabeth J. Klingelhoefer, and Samantha J.
Merrill, of Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O.,
for appellant.
Michael T. Hilgers, Attorney General, and Kenneth A. Yoho
for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Francis J. Libra, Jr., appeals from a Buffalo County District
Court order affirming the revocation of his driver’s license for
driving under the influence. We find the district court’s deci-
sion was not contrary to law and was supported by competent
evidence. Therefore, we affirm.
BACKGROUND
In the early morning of October 30, 2022, Libra was driv-
ing a vehicle when a police officer performed a traffic stop.
According to the officer’s sworn report, Libra’s vehicle was
speeding and swerving. Upon approaching the vehicle, the

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
officer observed that Libra had “[r]ed, watery eyes, slurred
speech, and [the officer] detected the odor of alcoholic [b]ever-
age.” Libra admitted to drinking and consented to standard
field sobriety tests and a preliminary breath test, which showed
he was impaired. The officer arrested Libra for driving under
the influence and directed him to submit to a chemical test at
the police station. Libra submitted to a breath test that indi-
cated a breath alcohol content of .202 of a gram of alcohol per
210 liters of breath.
The officer gave Libra a notice of revocation and tempo-
rary license, which informed him that his license would be
revoked by the Department of Motor Vehicles (DMV) in 15
days and how to request an administrative license revocation
(ALR) hearing. The officer also submitted his sworn report to
the DMV.
Libra filed a petition with the DMV that requested an ALR
hearing, which was held on November 29, 2022. At the hear-
ing, he argued that the DataMaster device used to test his
breath the night he was arrested was not working properly. The
DMV offered several exhibits that were received as evidence,
including the officer’s sworn report and a copy of Libra’s
breath test results. The police officer who arrested Libra and
prepared the sworn report was not subpoenaed and did not tes-
tify at the hearing.
Libra testified that he had a history of indigestion problems
that started in the late 1990s and continued to be an issue for
him. He testified he had been diagnosed with gastroesopha-
geal reflux disease (GERD) and offered a medical record
indicating he was first diagnosed with GERD on November 9,
2022. Libra stated that on the night of his arrest he was hav-
ing indigestion symptoms, which included feeling bloated and
having hiccups “here and there” that pushed phlegm up into
his throat and mouth. He stated that these symptoms occurred
prior to taking the breath test at the police station.
Libra testified that he had been drinking prior to being
pulled over by the police officer on October 30, 2022. When

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
asked how much he drank, he stated, “a few probably,” and
then he stated he had been drinking beer.
Ronald E. Henson, Ph.D., was called as a witness by Libra.
Henson is an independent consultant and qualified expert in
drug and alcohol related matters, including the validity of
breath tests for alcohol content. He was familiar with the
DataMaster testing device used to test Libra’s breath. Henson
testified that in his expert opinion Libra’s test result was not
valid. His opinion was based on the histogram associated
with Libra’s breath alcohol test result. He explained that the
histogram is a line graph generated by the DataMaster based
upon data points. The histogram from Libra’s test had a
“negative slope” in the concentration curve. He testified that
there should not be a negative or downward slope for a valid
sample and that because there was, the device should have
triggered an “invalid sample” result but did not. Based on
his further analysis of the device, he testified that the nega-
tive slope was not caused by an “instrumentation issue” and
confirmed that the DataMaster device appeared to be work-
ing properly. He testified the negative slope was more likely
caused by a biological issue or something in Libra’s mouth
when providing the breath sample. Henson testified that he
inquired of Libra’s counsel whether Libra had been diagnosed
with any type of acid reflux or if he had bleeding gums or
some other related issue, which could explain the negative
slope. Henson further testified that additional testing of the
device would be required to determine the reason why the
device did not trigger an invalid sample on the test printout.
Henson added that possibly one of the algorithms was not set
correctly and that there would need to be further investigation
of the actual device. He again stated that although the device
did not register Libra’s test as an invalid sample, the histo-
gram clearly identified Libra’s test as invalid.
On cross-examination, Henson testified that with DataMaster
devices in general, there have been instances where two
electronic communications collide with each other at the

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Nebraska Court of Appeals Advance Sheets
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LIBRA v. LAHM
Cite as 33 Neb. App. 1
microprocessor and it does not trigger an invalid sample. He
was then asked why Libra’s GERD was an issue if he believed
there was a problem with the DataMaster device, and he
stated, “I don’t think it’s necessarily a device problem. I’m
just saying that, why didn’t it kick it out as an invalid sample,
that would need further investigation.” He again stated that
the DataMaster device was operating properly based on a
regular-interval check of the device conducted on October 24,
2022, which showed that the histogram profiles were as they
should be.
Following the hearing, the hearing officer entered a recom-
mended order finding that Henson’s testimony did not prove
by a preponderance of the evidence that the test result was
invalid. It further noted:
[Libra] admitted he had been drinking, showed evi-
dence of impairment, and failed a [preliminary breath
test]. His test result may not have been perfectly precise
by Dr. Henson’s standards but it does indicate beyond a
reasonable doubt that he had a BAC well above the legal
limit of .08 gram of alcohol per 210 liters of breath.
While [Libra] may have been suffering a GERD episode
at the time of his arrest, he has not shown that it was
so severe as to impact, much less interfere with, the
Datamaster test result. . . .
[Libra] has not met his burden of proof.
The hearing officer recommended that Libra’s license be
revoked for the statutory period, and the Director of the DMV
accepted the recommendation and revoked Libra’s license.
Libra appealed the revocation of his license to the district
court. The court took judicial notice of the administrative
record, including the transcript and bill of exceptions. The
court found that Henson’s opinions were contradictory, specu-
lative, and not based on “‘good grounds.’” It concluded that
Libra failed to overcome the presumptive validity of the direc-
tor’s order of revocation and affirmed the DMV’s decision.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
ASSIGNMENTS OF ERROR
Libra assigns, restated, the following errors: (1) The offi-
cer’s sworn report did not strictly comply with DMV rules
and regulations because the officer recorded an invalid result
from his DataMaster test, (2) the district court erred in apply-
ing the incorrect burden of proof because the officer’s sworn
report did not establish a prima facie case, (3) the district
court erred in finding that Libra failed to demonstrate that the
requirements of revocation were not satisfied, (4) the district
court erred in finding that Henson’s opinions were speculative
and not based on good grounds, and (5) the district court erred
in not giving appropriate weight to uncontradicted evidence
that Libra had chronic GERD disease and was experiencing
GERD symptoms at the time he took the DataMaster test.
STANDARD OF REVIEW
[1,2] A judgment or final order rendered by a district court
in a judicial review pursuant to the Administrative Procedure
Act may be reversed, vacated, or modified by an appellate
court for errors appearing on the record. Travis v. Lahm, 306
Neb. 418, 945 N.W.2d 463 (2020). When reviewing an order
of a district court under the act for errors appearing on the
record, the inquiry is whether the decision conforms to the law,
is supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id.
[3,4] Whether a decision conforms to law is by definition a
question of law. Id. An appellate court determines questions of
law independently of the lower court. Id.
ANALYSIS
Libra assigns that the arresting officer’s sworn report did
not comply with DMV rules and regulations because the offi-
cer recorded an invalid result from the DataMaster device. He
further assigns that because the sworn report was not compliant
with DMV rules and regulations, the DMV did not establish
a prima facie case and the district court erred in shifting the
burden to him.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
[5,6] In an ALR hearing, the DMV makes a prima facie
case for license revocation once it establishes that the arrest-
ing officer provided a sworn report containing the required
recitations. Nelson v. Lahm, 32 Neb. App. 35, 992 N.W.2d 508
(2023). Thereafter, the burden of proof rests solely with the
motorist, who must show by a preponderance of the evidence
that the requirements of revocation are not satisfied. Travis v.
Lahm, supra; Nelson v. Lahm, supra.
Libra argues that the arresting officer’s sworn report does
not comply with DMV rules and regulations and, therefore, the
DMV was not entitled to the benefit of a presumption that all
the facts in the sworn report are true.
[7] The arresting officer’s sworn report was received by
the hearing officer at the ALR hearing. Libra did not object
to the sworn report. At the hearing, he only argued that the
DataMaster device did not work properly when it tested his
breath. Similarly, his petition in the district court only raised
issues with the administration of the breath test and the result
obtained. He did not raise any issue with the sworn report’s
compliance with DMV rules and regulations. As a result, we
decline to consider Libra’s first two assignments of error, as
they are raised for the first time on appeal. See First Express
Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 (2013)
(when party raises issue for first time on appeal, appellate
court will disregard it because lower court cannot commit
error in resolving issue never presented and submitted to it
for disposition).
Libra next assigns that even if the sworn report was ade-
quate and shifted the burden, the district court erred in find-
ing he failed to meet his burden to prove the requirements
of revocation were not satisfied. See Nelson v. Lahm, supra.
He argues that he sufficiently proved that the DataMaster test
result recorded on the sworn report was invalid. In conjunc-
tion with this assignment of error, he assigns that the district
court erred in finding Henson’s opinions were speculative
and not based on good grounds and erred in not giving

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
appropriate weight to uncontradicted evidence that Libra had
chronic GERD and was experiencing symptoms at the time
the test was taken.
We first address Libra’s argument that Henson’s testimony
and opinions sufficiently proved that the DataMaster test result
was invalid. Henson testified that the DataMaster should have
produced an “invalid sample” result based on the negative
slope on the histogram. He testified that the negative slope
was not caused by an “instrumentation issue” and confirmed
that the DataMaster device appeared to be working properly.
He testified the negative slope was more likely caused by a
biological issue, such as Libra’s GERD, or something in his
mouth when providing the breath sample. Henson further testi-
fied that additional testing of the device would be required to
determine the reason why the device did not trigger an invalid
sample on the test printout.
Henson also testified that with DataMaster devices in gen-
eral, there have been instances where two electronic commu-
nications collide with each other at the microprocessor and it
does not trigger an invalid sample when it should. However,
he did not testify that this had ever happened with the specific
DataMaster used to test Libra’s breath. Further, even after
his explanation, he again stated, “I don’t think [the negative
slope is] necessarily a device problem. I’m just saying that,
why didn’t it kick it out as an invalid sample, that would need
further investigation.”
The hearing officer found: “[Henson’s] testimony — that
the device was working properly but it shouldn’t have printed
out the test result that it did — does not actually prove by a
preponderance of the evidence that the test result provided is
invalid.” Henson could not provide an explanation as to why
there was a negative sloped histogram indicating an invalid
result, but the DataMaster device did not produce an invalid
result. The hearing officer rejected Henson’s opinion that the
test result was invalid and found that Libra failed to meet his
burden to show by a preponderance of the evidence that the

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
requirements of revocation were not satisfied. See Nelson v.
Lahm, 32 Neb. App. 35, 992 N.W.2d 508 (2023).
[8-10] The credibility of a witness is a question for the
trier of fact, and it is within its province to credit the whole
of the witness’ testimony, or any part of it, which seemed to it
to be convincing, and reject so much of it as in its judgment
is not entitled to credit. Benjamin v. Bierman, 305 Neb. 879,
943 N.W.2d 283 (2020). A trier of fact is not bound to accept
expert opinion testimony. Id. The hearing officer was free to
accept the DataMaster’s valid test result over Henson’s testi-
mony that the negative slope on the histogram equated to an
invalid test. The district court agreed with the hearing officer
that Henson could only speculate as to why the DataMaster
failed to produce an invalid test result, and it accepted the
device’s result over Henson’s testimony. The review of agency
actions “shall be conducted by the court without a jury de
novo on the record of the agency. The court may affirm,
reverse, or modify the decision of the agency or remand the
case for further proceedings.” Neb. Rev. Stat. § 84-917(5)(a)
(Cum. Supp. 2022). Although a district court in its de novo
review of agency determinations is not required to give defer-
ence to the findings of fact by the agency hearing officer, it
may consider the fact that the hearing officer, sitting as the
trier of fact, saw and heard the witnesses and observed their
demeanor while testifying and may give weight to the hear-
ing officer’s judgment as to credibility. Nebraska Account.
& Disclosure Comm. v. Skinner, 288 Neb. 804, 853 N.W.2d
1 (2014). Because Henson could not explain the reason the
DataMaster failed to produce an invalid result, the district
court was not willing to accept Henson’s testimony that the
negative slope indicated an invalid test over the DataMaster
device, which indicated a valid test result. Accordingly, the
district court agreed with the hearing officer that Libra failed
to overcome the presumption in favor of the State.
A judgment or final order rendered by a district court in a
judicial review pursuant to the Administrative Procedure Act

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
may be reversed, vacated, or modified by an appellate court
for errors appearing on the record. Travis v. Lahm, 306 Neb.
418, 945 N.W.2d 463 (2020). When reviewing an order of a
district court under the act for errors appearing on the record,
the inquiry is whether the decision conforms to the law, is
supported by competent evidence, and is neither arbitrary,
capricious, nor unreasonable. Id.
Because Libra failed to prove why the DataMaster failed
to indicate an invalid sample result, the district court was
free to accept the results from the DataMaster over Henson’s
testimony. We determine that the district court’s finding that
Libra failed to overcome the presumption in favor of the State
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable.
Libra also assigns the district court erred in failing to give
appropriate weight to uncontradicted evidence that he had
chronic GERD and was experiencing symptoms at the time
the test was taken. Libra testified that he had a history of
indigestion problems that continued to be an issue for him.
He had been diagnosed with GERD, but not until November
9, 2022, 10 days after his arrest. He testified that on the night
of his arrest, he had indigestion symptoms, and he indicated
that he was having symptoms prior to taking the breath test
at the police station. He did not specifically testify that he
experienced symptoms at the time the test was taken, as he
contends. The district court clearly considered the evidence
regarding Libra’s GERD as it set forth Libra’s testimony
regarding his history of indigestion issues and his GERD
diagnosis in its order. As previously discussed, Henson testi-
fied that the negative slope on the histogram may have been
caused by a biological issue, such as Libra’s GERD. However,
whether Libra’s GERD symptoms caused the negative slope
on the histogram or the negative slope was caused by some-
thing else is of no consequence. The issue is whether the
negative slope should have resulted in the DataMaster’s pro-
ducing an invalid test result. As explained above, the district

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
LIBRA v. LAHM
Cite as 33 Neb. App. 1
court did not err in concluding Libra did not overcome his
burden of showing the test was invalid. As such, what caused
the negative slope is of no consequence, as whatever caused
it was not sufficient to invalidate the test. This assignment of
error fails.
CONCLUSION
For the reasons set forth above, we affirm the district court’s
May 30, 2023, order affirming Libra’s license revocation.
Affirmed.