title-250•Neb. Admin. Code tit. 250 — Department of Motor Vehicles
Neb. Admin. Code tit. 250 — Department of Motor Vehicles
title-250Neb. Admin. Code tit. 250Regulation
Chapter 1 Rules and Regulations of the Department of Motor Vehicles Regarding the Approval and Installation of Ignition Interlock Devices and Administration of the Ignition Interlock Permit Program
Neb. Admin. Code tit. 250, ch. 1 Rules and Regulations of the Department of Motor Vehicles Regarding the Approval and Installation of Ignition Interlock Devices and Administration of the Ignition Interlock Permit Program {#sec-250-nac-1 omnilex-key=us-ne-regs-official--title-250--250 NAC 1}
001 PURPOSE . The purpose of these rules and regulations is to promulgate performance standards for the approval and the installation of ignition interlock devices (also known as Breath Alcohol Ignition Interlock Device or BAIID) and administration of the ignition interlock permit program.
002 INTERPRETATION . These rules shall be interpreted so as to favor the safety of the public and the findings of the legislature that ignition interlock devices are designed to supplement other conditions of probation, reprieve, or punishment of those convicted of driving while intoxicated or driving under the influence. References to statutory standards, regulations, or governmental agencies shall be read as referring to and including any amendments. In the absence of a rule specifically addressing a particular matter, there shall be applied reasonable, just and equitable procedures and substantive decisions which are predictable from the spirit and intent of the legislative enactment and these rules.
003 DEFINITIONS
003.01 Alcohol means ethanol or ethyl alcohol (C2H5OH).
003.02 ALR means administrative license revocation pursuant to Neb.Rev.Stat. § 60-498.01 to 60-498.04.
003.03 BrAC means the breath alcohol concentration in a given amount of breath, expressed a weight by volume (w/v) based upon grams of alcohol per 210 liters of breath (2100: 1 ratio).
003.04 Board means the Nebraska Board of Pardons.
003.05 Breath sample means a normal expired human breath primarily containing alveolar or end-expiratory breath that is analyzed for alcohol concentration (BrAC).
003.06 Circumvention means to bypass the proper operation of an ignition interlock device by the use of an altered breath sample, by starting the motor vehicle without using the ignition switch, or by any other means without first providing a valid breath sample.
003.07 Court means the judge who sentences a driver convicted of operating or being in the actual physical control of any motor vehicle while intoxicated or driving under the influence, or who refuses a chemical test, and as a condition of probation or sentence, imposes the use of an ignition interlock device. This definition also means any district probation offices or court administrative officers assigned to the case of a driver limited to operation of a motor vehicle equipped with an ignition interlock device.
003.08 Department means the Nebraska Department of Motor Vehicles.
003.09 Director means the Director of the Nebraska Department of Motor Vehicles or his or her designee.
003.10 Driver means a person who has been convicted under Neb. Rev. Stat. §60-6,196 or 60-6,197 and has been ordered by the court or by the Board of Pardons that he or she not operate a motor vehicle during the time period stated in the order unless his or her motor vehicle is equipped with a functioning and approved ignition interlock device and the person has obtained the required license or permit. Driver also means any person who applies to the Department for issuance of an Ignition Interlock Permit for use during a period of administrative license revocation.
003.11 Eligible means that an operator's license is not subject to any other suspension, cancellation, impoundment, no-driving period, or period of revocation; and the person has successfully completed the ignition interlock permit application process, served any applicable no-drive period; and:
003.11A. Is subject to an administrative license revocation pursuant to Neb. Rev. Stat. §§ 60-498.01 through 60-498.04 and has waived his or her right to an administrative license revocation hearing; or
003.11B. Is subject to a court order for an Ignition Interlock Permit as part of a sentence pursuant to Neb. Rev. Stat. §§ 60-6,196, 60-6,197.01, 60-6,197.03, 60-6,197.06, 28-306(3)(b) or (c), 28-394(3)(b) or (c); or
003.11C. Has an order from the Board for an Ignition Interlock Permit.
003.12 Ignition interlock device, or (breath alcohol ignition interlock device, or BAIID) means a device that is designed to allow a driver to start a motor vehicle if the driver's BrAC is below the set point and to prevent the driver from starting the motor vehicle if the driver's BrAC is at or above the set point. The purpose of the ignition interlock device is to measure the BrAC of the driver, to prevent the motor vehicle from being started if the BrAC exceeds a pre-set limit, to deter and to record circumvention or tampering with the device.
003.13 Ignition Interlock Fund means the fund to be used by the Department of Motor Vehicles to pay for the cost of installation, removal, and maintenance of the ignition interlock device for any person the Department has determined to be indigent and incapable of paying as provided in Neb. Rev. Stat. §.60-6,211.05(8)(b).
003.14 Ignition Interlock Permit (IIP) means a permit issued to a driver which allows the driver to operate a motor vehicle which is equipped with an ignition interlock device. The permitted uses of the driver's IIP shall be printed on the back of the IIP. An IIP will not confer CDL privileges.
003.15 Interlock Data Logger means a device within an ignition interlock device that records all pertinent events and times during the period of installation and use of an ignition interlock device.
003.16 Lockout or lockout mode means the ignition interlock device shall cause the ignition system of the motor vehicle to be disabled, thereby preventing the motor vehicle from starting, or, if in motion, preventing further tests from being introduced once the engine is turned off.
003.17 NHTSA means the National Highway Traffic Safety Administration.
003.18 Operator's license means any license or permit to operate a motor vehicle issued under the laws of this state, including:
(1) Any replacement or duplicate license or instruction permit;
(2) The privilege of any person to drive a motor vehicle whether such person holds a valid license;
(3) Any nonresident's operating privilege which means the privilege conferred upon a nonresident by the laws of this state pertaining to the operation of a motor vehicle in this state by such person or the use in this state of a motor vehicle owned by such person;
(4) An employment driving permit issued as provided by section 60-4, 129 and 60-4,130; and
(5) A medical hardship driving permit issued as provided by sections 60-4, 130.01 and 60-4, 130.02.
003.19 Provider means an approved vendor, distributor, or supplier of an ignition interlock device. The provider shall have installer sites to act as the provider's agent throughout Nebraska. The provider is responsible to the department for the actions or inactions of its installers.
003.20 Retest means two additional opportunities to provide a breath sample below the alcohol set point when the initial test failed before the vehicle will enter a temporary lockout.
003.21 Running retest means a subsequent breath test that must be initiated within five minutes after starting the vehicle and randomly during each subsequent thirty minute time period thereafter while the vehicle is in operation;
003.22 Set point means the Breath Alcohol Concentration (BrAC) at which a BAIID is set to prevent a vehicle from starting. In Nebraska, the set point is .03 BrAC.
003.23 Tampering means to physically disable, disconnect, adjust, or otherwise alter the proper operation of an ignition interlock device in any way that allows the motor vehicle to be started without the driver providing his or her own breath sample into the ignition interlock device, or allows a driver with a BrAC at or above the set point to start the engine.
003.24 Test fail or failed test means the ignition interlock device has not received a valid sample under the alcohol set point within 15 minutes of the initial test or 15 minutes of a rolling retest.
003.25 Valid Sample means a breath sample below the .03 BrAC set point so that the ignition interlock device will enable the vehicle to start.
004 IGNITION INTERLOCK DEVICE PERFORMANCE STANDARDS . An ignition interlock device must meet the following criteria to be approved for use in Nebraska:
004.01 NHTSA Standards. The breath alcohol ignition interlock device must be accompanied by a certificate of an independent testing laboratory indicating that the device meets or exceeds the performance standards of the National Highway Traffic Safety Administration for such devices as published in Model Specifications for Breath Alcohol Ignition Interlock Devices, (BAIID), Federal Register, Volume 78 , No. 89, Page 26849 et seq. on May 8, 2013, as amended, and which are incorporated with these rules and regulations as Attachment 1. A complete and certified copy of the testing protocol and the results thereof of the independent testing laboratory shall also accompany the breath alcohol ignition interlock device specifications submitted for approval.
004.02 Current Ignition lnterlock Devices. Any ignition interlock device approved by the Department prior to the effective date of these rules and regulations may continue to be used in Nebraska and may be recertified until December 31, 2017 without meeting 004.01 provided the device and provider meet all other requirements in these rules and regulations. Beginning January 1, 2018, all interlocks must conform completely to these rules and regulations.
004.03 Camera. The submitted ignition interlock device must have a camera; and the digital images taken shall capture a wide-angle view of the area around the steering wheel and front cabin;
004.04 Safe Operation. The ignition interlock device shall offer safe operation of the motor vehicle in which the device is installed;
004.05 No Tampering. The ignition interlock device shall offer protection against tampering and preservation of evidence of such tampering;
004.06 No Circumvention. The ignition interlock device shall be able to detect and be resistant to circumvention;
004.07 Reliable. The ignition interlock device shall work reliably and accurately in an unsupervised environment and, if the ignition interlock device cannot operate properly the device will lockout. If fault is found with the ignition interlock device, the costs for repair or replacement shall be borne by the provider and manufacturer.
004.08 Restart. The ignition interlock device shall be able to initiate a "restart" of the motor vehicle's ignition within two minutes after the ignition has been turned off without requiring another breath alcohol analysis so long as the driver has not registered a BrAC fail or is not in the process of completing a retest;
004.09 Fuel Cell. The ignition interlock device shall use an alcohol specific fuel cell technology and shall be designed and constructed to measure a driver's breath alcohol concentration from a deep lung breath sample blown directly into the device;
004.10 Three Attempts. The ignition interlock device shall permit the driver three attempts to provide a valid sample in 15 minutes. The device will require at least 3 minutes before accepting the next sample. When first starting the vehicle, the ignition interlock device will lockout temporarily for 30 minutes if no valid sample is provided within 15 minutes.
004.11 Permanent Lockout Warning. The ignition interlock device shall provide a warning for five days before the ignition system of the motor vehicle is permanently locked for any of the following:
A. After a temporary lockout;
B. After circumvention or tampering with a device; or
C. Time for calibration, download, or service.
004.12 Data Logger. The ignition interlock device shall record each time the motor vehicle is started, the time of each start, how long the motor vehicle was operated, and any instances of tampering or circumvention of the unit;
004.13 Running Retest. The ignition interlock devices shall require running retests. The running retest shall take place within the first five minutes of starting operation of the motor vehicle. After the initial running retest, the ignition interlock device shall require the driver to perform another randomly timed running retest during each following 30-minute interval of operation until the motor vehicle is turned off.
004.13A. In order to alert the driver that a running retest is required, a warning light and/or tone shall come on. After the warning is activated, the driver shall have five minutes to safely provide a valid sample. If the sample fails, the driver shall have an additional five minutes to provide a valid breath sample for the retest. The motorist will have three opportunities in total to provide a valid sample before the ignition interlock device enters lockout mode and will temporarily lockout when the ignition is turned off.
004.14 Visible Cautions. The ignition interlock device shall visibly and/or audibly indicate the following to the driver and any qualified person:
004.14A. the device is on;
004.14B. the device has enabled the ignition system of the motor vehicle in which it is installed;
004.14C. the device is in need of service or calibration at least five days before the end of the calibration interval;
004.14D. the failure to provide a valid sample and the number of remaining retests permitted before a temporary lockout;
004.14E. A test or running retest failure;
004.14F. A failure to take a test or running retest when required;
004.14G. A circumvention; or
004.14H. A tampering.
004.15 Options. An ignition interlock device may have a detachable sensor to allow mail-in service to customers. An ignition interlock device may include advanced technologies, e.g., real time reporting or GPS.
005 PROVIDERS QUALIFICATIONS AND YEARLY RECERTIFICATION
005.01 Installers are Agents. The provider may designate representatives to install ignition interlock devices. The installers are direct agents of the provider, and the provider is responsible for the actions of the installers. The installers must adhere to these rules and regulations in the same manner as the provider, and the provider is responsible for training and instructing the installers in the requirements of these rules and regulations. A provider may be removed from the list of approved ignition interlock devices for the action or inaction of the provider's installer.
005.02 Required Locations of Ignition Interlock Device Installation Facilities. The provider must have at least one designated representative installer physical location in each of the 12 probation districts in Nebraska. Each physical location must be a full service facility that can install, calibrate, service and remove ignition interlock devices. Although mobile service may be offered in Nebraska, it shall not be a substitute for the 12 physical locations.
005.03 Addresses and Contact Information for Installation Facilities. The provider shall provide a list of addresses and contact information of the provider's installers to the Department and to the Nebraska Supreme Court Office of Probation Administration, P.O. Box 98910, Lincoln, NE 68509 by January 15 of each year. The addresses and/or contact information may be changed as necessary but notice of any change or changes shall be sent to the Department and Office of Probation Administration prior to the effective date of the change or changes.
005.04 Fee Schedule. The provider shall provide a schedule of fees for services to the Department. Such fee information shall be sent to the Department by January 15 of each year or upon any changes. This schedule will be used to calculate reimbursements from the indigent fund.
005.05 Insurance. The provider shall have and maintain general business insurance and product liability insurance for the ignition interlock device for which approval is sought. The provider shall require each of its installers to have and maintain general liability insurance, and may require other insurance.
005.06 Indemnification. The provider shall agree to indemnify the State of Nebraska, its employees, agents, assignees, and legal representative with respect to any liabilities, demands, claims, suits, losses, damages, causes of action, fines or judgments and expenses related thereto which may in any manner accrue or be asserted against the State, the Department, its employees, agents, assignees and legal representatives that arise in connection with installation and/or use of an ignition interlock device and shall hold the State harmless.
005.07 Inspection. Representatives of the Department shall have the right to inspect the premises of any location within the State of Nebraska where the provider installs ignition interlock devices, to test devices, and to audit drivers' records.
005.08 Cooperation with State and Subdivisions of Government. Every provider shall cooperate with and report to the Department, the courts, district probation offices, and the Board in this state in the manner as may be required by such agencies. Whenever it comes to the attention of the Director that a provider has failed to cooperate with authorities or to comply with any rule or requirement of the Department, the courts, district probation offices, or Board, such failure will be grounds for removing the provider from the list of approved ignition interlock devices. Receipt of timely information by the Department that the issue has been resolved may avoid removal of the provider from the approved list.
005.09 Electronic Report. The provider shall electronically report to the Department hourly. The Department's electronic database of these reports will be accessible to the court, district probation office, and the Board. The following occurrences shall be reported:
005.09A Lockouts. A lockout except, for circumvention or tampering the report is unnecessary if the driver provides receipts from a licensed automotive facility, including the date, which indicates that mechanical service was performed on the motor vehicle which caused the circumvention or tamper.
005.09B Installation. Installation of an ignition interlock device, including the specific vehicle and driver.
005.09C Removal. Removal of the ignition interlock device.
005.10 Verify Motorists Eligibility for Interlock Permit. Prior to installation of an interlock device, the provider shall verify that the motorist is eligible for an IIP by using the Department's internet site Click OMV, Driver License Services, Check Ignition Interlock Eligibility. If the motorist is ineligible, no interlock device will be installed.
005.10A. Anyone with a valid license, even if not required to have an IIP, may voluntarily put an ignition interlock device on his vehicle.
005.11 Provide Reports upon Request. The provider shall provide copies of all records for any driver/client to law enforcement officers or representatives of the Department, a court, district probation office, or the Board, upon request. This shall include, but is not limited to, records of installation, calibration, maintenance checks, usage records, disclaimer forms, images, and incident reports of any driver or drivers or any or all of their ignition interlock devices placed in service in Nebraska. A provider shall retain all of a driver's ignition interlock records for at least one year after the ignition interlock device has been removed from the driver's motor vehicle or motor vehicles.
005.12 Permit access to Provider's Nebraska Database. The provider shall provide continuing access to its own database of Nebraska drivers to law enforcement, the Department, a court, district probation office, or the Board, upon request by the Department.
005.13 Digital Image.
005.13A. At installation the provider must take a digital reference image of the driver with the camera. The image shall capture a wide-angle view of the area around the steering wheel and front cabin. The reference image shall be retained by the provider for identification of the person receiving the equipment.
005.13B. The ignition interlock device camera shall have sufficient storage for all digital images taken until the date of the next calibration at which point images may be downloaded and stored by the provider.
005.13B1. Images shall be retained by the provider in electronic format sufficient to allow the provider to find, select, and provide specific images of events upon request by the OMV, a court, a probation office or the Board of Pardons.005.13B2 Images recorded pursuant to this section may be disposed of one year after the ignition interlock has been removed from the motor vehicle.
005.13C. At minimum an image shall be taken when there is a test fail, a failure to take a test when required, a rolling retest failure, or a failure to complete a rolling retest.
005.14 Department Notice. The Department shall give written notice to the provider if the Department identifies any action or inaction that violates 005.01, 005.02, or 005.08, supra. The provider shall have 30 days from the mailing of the notice to comply or cure the defect or implement a corrective action plan with a timeline approved by the Department. The provider will provide written notification to the Department specifying the course of corrective action.
006 Ignition Interlock Device Approval and Removal of Approval by the Department
006.01 Certificate of Approval. Upon the demonstration by the provider that a device meets the criteria outlined in these rules and regulations, the Department may issue a certificate of approval for use of the ignition interlock device in Nebraska.
006.02 Removal of Approval. The Department shall maintain a list of approved ignition interlock devices, providers, and their manufacturers. The Department has the sole discretion to approve ignition interlock devices for use in this state or remove such devices from the approved list for failure to comply with these regulations or other good cause shown. If an ignition interlock device is removed from NHTSA's Conforming Product's List, that shall also be grounds for the Department to remove ignition interlock devices from the list of approved interlock devices in this state.
006.03 Webpage. A randomly ordered list of providers with approved ignition interlock devices for use in Nebraska will be posted on the Department's webpage. It shall be the responsibility of the provider to notify the Department with updated contact information for the webpage.
006.04 Independent Checks on Ignition Interlock Devices. The Department may conduct, or have conducted, independent checks on any of the approved ignition interlock devices to determine if the devices are operating within these rules and regulations. If the independent check indicates that the rules and regulations are not being followed, the Department shall require the provider to correct any abnormality found in the installation, calibration, maintenance checks, or usage records of the device. The provider shall report in writing to the Department within 30 days after receiving notification of the abnormality. The Department has the authority to remove any provider or device not found to be in compliance with these rules and regulations from the list of approved ignition interlock devices.
007 INSTALLATION, CALIBRATION, AND REMOVAL
007.01 An ignition interlock device, required by an administrative license revocation, probation order, sentence, or Board order, shall be a device approved by the Department and installed by the provider in conformance with the directions of the manufacturer. A device must be installed by an installer at the provider's physical location or by a provider's mobile installation service.
007.02 Instruction. The provider shall instruct the driver in the operation of the ignition interlock device, safe operation of a motor vehicle while the ignition interlock device is installed, and compliance with required procedures, including but not limited to responding to a signal from the device to report to the provider for service. The driver shall be instructed that he or she must contact the provider to have the interlock data logger downloaded within five days of receipt of a message for service. The driver shall be instructed that failure to arrange and complete such download or service within five days will result in a lockout.
007.03 Required Calibration. The ignition interlock device shall signal a need for calibration at 30 days. If the calibration is not checked by the provider prior to the 36th day, on the 36th day the ignition interlock device shall prevent the motor vehicle from being started. The ignition interlock device may be calibrated using either a wet alcohol standard or a compressed gas standard. The ignition interlock may be calibrated by the provider using a mailing service. The calibration record shall be maintained by the provider and a copy shall be given to the driver. The calibration record shall include:
007.03A. The name of the person performing the calibration;
007.03B. The date;
007.03C. The value and type of standard used;
007.03D. The unit type and identification number(s) of the ignition interlock device checked; and
007.03E. The description of the motor vehicle in which the ignition interlock device is installed, including plate number and state, make, model, year, and color.
007.04 Removal of Ignition Interlock Device
007.04B Removal of Ignition Interlock Device Prior and Legal Requirement for Ignition Interlock Device. An ignition interlock device may be removed by the provider upon a driver's request. A driver who has an ignition interlock device removed prior to the expiration date of the IIP or Class O interlock shall be cautioned that he or she cannot legally operate a motor vehicle until his or her period of revocation has passed and he or she has been issued a new driver license. An ignition interlock device may also be removed for any reason specified in the contract between the driver and the provider.
007.04C Electronic Removal Report. Removal of an ignition interlock device shall be electronically reported to the Department as provided in these regulations.
007.04D Transfer of Title. If a motor vehicle equipped with an ignition interlock device is sold or otherwise transferred as provided in Neb. Rev. Stat. § 60-395, the ignition interlock device must be removed from the motor vehicle before transfer of title or payment of any refund of registration fees, motor vehicle fees, or motor vehicle taxes. An owner may be required to present evidence of removal of the ignition interlock device prior to payment of any refund.
008 ISSUANCE OF THE IGNITION INTERLOCK PERMIT (IIP) . Any driver subject to an order of administrative license revocation from the Department or who has an order for an IIP and ignition interlock device from a court or the Board may apply for an IIP.
008.01 Eligibility. The Applicant will verify eligibility for an ignition interlock device through Click DMV, Driver License Services, Check Ignition Interlock Eligibility or by calling the Financial Responsibility Division at 402-471-3985.
008.02 Application. The Department will provide an online application for issuance on the Department webpage at www.dmv.nebraska.gov. A paper application form will also available upon request. The application shall contain a statement from the applicant for an IIP that he or she acknowledges that he or she understands that he or she will have his or her license administratively revoked pursuant to Neb. Rev. Stat. §§ 60-498.01 and 60-493.02, that he or she waives his or her right to a hearing to contest the revocation, and that he or she understands that he or she is required to have an ignition interlock permit to legally operate a motor vehicle for the period of the revocation and may be subject to no-driving periods as specified in statute before the IIP may be issued.
008.03 Authorization for IIP. The Department of Motor Vehicles will authorize issuance of an IIP to a driver who, after he or she has submitted an order for an IIP from a court or the Board of Pardons or submitted an application for an IIP white subject to an administrative license revocation, has met all requirements, and is not ineligible for an IIP for any reason. After authorization, as set forth below, the IIP applicant shall apply for the IIP.
008.03A IIP Order from Court or Board of Pardons. The Department must receive 1) sufficient evidence of installation of the ignition interlock device, 2) a certified abstract of a court order for an IIP or an order from the Board allowing the driver to operate a motor vehicle with an ignition interlock device, before authorizing the issuance of the IIP. The driver must serve any required no-drive period and be determined to be eligible prior to authorization for an IIP. The driver must surrender his or her driver license to the Department. Drivers shall be subject to the law in place on the date of arrest.
008.03B Administrative License Revocation. To obtain an IIP for use during a period of administrative license revocation, an arrested driver shall complete the IIP application, install an ignition interlock device, and surrender his operator's license. The Department shall allow the driver to be issued an IIP for use during a period of administrative license revocation if the driver is determined to be eligible and the driver has served any required no-drive period. Drivers are subject to the law in place on the date of arrest.
008.04 Determination of IIP Eligibility. Prior to issuance of an IIP, the Department shall review its records of any driver who applies for an IIP allowing operation of a motor vehicle equipped with an ignition interlock device to determine (a) the applicant's eligibility for an IIP; (b) the applicant's previous convictions under Neb. Rev. Stat. § 60-6,196, 60-6,197, or 60-6,197.06 or any previous administrative license revocation within any preceding 15 years, if any; (c) if the applicant is subject to any required no-drive periods before the IIP may be issued; and (d) the permitted driving uses to be allowed to that driver on his or her IIP. The Department will determine the eligibility of the driver, and apply any credit the driver may have for revocation dates served or no-driving days served before issuing the IIP to the driver. A driver shall contact the Department to determine their eligibility for an ignition interlock device prior to having a device installed.
008.05 Obtaining an IIP. After authorization, an IIP may be obtained at a Department licensing station in Nebraska or through an online issuance process.
008.06 Applicable No-Driving Periods.
008.06A No Priors. Any driver who is subject to an administrative license revocation and who has no such prior revocations within the preceding 15-year period who has not petitioned for an administrative hearing may immediately apply for an IIP to use for operation of a motor vehicle during the 180-day period of revocation so long as he or she is otherwise eligible for such permit.
008.06B Prior Revocations. Any driver who is subject to an administrative license revocation and has one or more prior such revocations within the preceding 15 years, who submitted to a chemical test pursuant to Neb. Rev. Stat. § 60-6,197, and who has not petitioned for an administrative hearing may apply for an IIP to use during the one-year period of revocation after serving a 45-day period with no driving so long as he or she is otherwise eligible for such permit.
008.06C Refusal. Any driver subject to an administrative license revocation for refusal of a chemical test, and who has not petitioned for an administrative hearing may apply for an IIP to use during the one year after serving a 90-day period with no driving so long as he or she is otherwise eligible.
008.06D Reprieve from Board of Pardons. Any driver subject to an order from the Board requiring use of an ignition interlock device for operation of a motor vehicle must use the device and comply with the requirement of the IIP for the time period designated by the Board in its order, subject to any conditions which may be ordered by the Board as soon as the driver completes the application process.
008.06E Alcohol-Related Offenses. A court may only issue an order for an IIP to a driver subject to a driver license revocation and sentenced pursuant to Neb. Rev. Stat.§ 28-306(3)(b) or (c}, 28-394(3)(b) or (c), 60-6,196, 60-6,197, 60-6,197.06, or 28-1254. The Department will determine the eligibility of the driver, and apply any credit the driver may have for revocation days served or no-driving days served pursuant to Neb. Rev. Stat. §§ 60-498.01 through 60-498.02 before issuing the IIP to the driver. If the driver does not have sufficient credit, he or she will have to serve any remaining no-driving days and period of revocation as may be required by the court and applicable statutes.
008.07 Limitations on Driving Privileges. Ignition interlock driving privileges with an IIP for new or repeat offenders shall be subject to driving restrictions as required by Nebraska statute at the time the permit was issued. Any applicable driving restrictions will be printed on the reverse of the IIP.
008.08 Legal Operation of a Motor Vehicle Equipped with an Ignition Interlock Device. A person who is subject to a revocation of his or her driver license may not legally operate a motor vehicle equipped with an ignition interlock device until he or she has been issued an IIP. The IIP may be renewed if the permit expires prior to the end of any revocation period the driver has been ordered to serve. The fees for such license or permit shall be as provided in Neb. Rev. Stat. § 60-4, 115 and shall be paid at the time the IIP is issued.
008.09 Extension of Requirement for IIP. Whenever it comes to the attention of the Director that a person has tampered with or circumvented an ignition interlock device installed pursuant to Neb. Rev. Stat. §§ 60-498.01 through 60-498.04 or operated a motor vehicle not equipped with a functioning ignition interlock device required pursuant to such sections or otherwise violated allowed purposes for operation indicated on the IIP under such sections shall, in addition to any possible criminal charges, have his or her revocation period and IIP extended for six months beyond the end of the original revocation period.
008.10 Commercial Motor Vehicles. An IIP shall not be issued for the operation of a commercial motor vehicle.
008.11 Applicability of Law. IIPs shall be available to drivers according to Nebraska statutes in place on the date of the driver's arrest.
008.12 Reinstatement or Renewal Requirement. A driver who has completed his or her period of revocation cannot drive legally until he or she completes the reinstatement process with the Department and has been issued a new driver license. A driver subject to a period of revocation may need to renew the IIP if his or her period of driver license revocation exceeds five years.
008.13 Lockouts and Driver's Responsibilities. A driver required to have an IIP and ignition interlock device must contact the device's provider to have the interlock data logger downloaded within five days of an occurrence listed below. Failure of the driver to arrange and complete such download or service within five days shall cause the motor vehicle to permanently lockout.
008.13A. A test fail after three invalid samples in 15 minutes;
008.13B. A failure to take a retest after an initial invalid sample;
008.13C. A running retest failure after three invalid samples in 10 minutes;
008.13D. A failure to complete a running retest after an invalid sample.
008.13E. After a circumvention or tampering.
009 IGNITION INTERLOCK COSTS . The costs associated with ignition interlock device requirements shall be paid by the driver directly to the provider of the ignition interlock device. Such costs shall include, but are not limited to, refundable deposit, installation, maintenance, and removal of an ignition interlock device.
009.01 Refundable Deposit Fee. A provider may charge a driver a deposit fee prior to the installation of an ignition interlock device. If a provider requires payment of a deposit prior to installation, such fee must be required of all drivers and shall not be charged selectively. The amount of the deposit fee charged shall be uniform for all drivers and may not exceed the amount of the installation fee charged for an ignition interlock device.
009.01A Deposit and Refund. The deposit amount may be used by the provider to offset unpaid costs owed to the provider by the driver, including damages to the ignition interlock device. The provider shall give the driver an itemized statement of any costs that were deducted from the refund amount. The provider shall keep a copy of that itemized statement.
009.01B Indigent Deposit. A provider may require payment of a refundable deposit for the installation of an ignition interlock device for a driver who has been determined to be indigent. The Ignition Interlock Fund shall not be used to pay the cost of any deposit. The refundable deposit fee shall be paid for by the indigent driver and shall be refunded to the indigent driver when the device is removed by the provider. A provider who receives reimbursement for installation, maintenance, and removal of an iginition interlock device from the Department of Motor Vehicles Ignition Interlock Fund shall not offset any installation, maintenance, or removal costs from the refund of deposit fee to an indigent driver upon return of the device, but may deduct other unpaid or damages from the refund. The provider shall give the driver an itemized statement of any deductions from the refund amount. The provider shall keep a copy of that itemized statement.
009.02 Indigent Drivers
009.02A. Application. The Department shall post an affidavit for determination of indigency online on the Department's webpage at www.dmv.ne.gov or make such affidavit available to individuals upon request. A driver claiming indigence shall send a completed, notarized affidavit or provide equivalent information to the Department for review.
009.02B Approval and Denial. Upon receipt of an affidavit for determination of indigency, the Department will review the affidavit to determine the applicant driver's indigency status and verify the applicant's eligibility for an IIP. The Department may deny a driver's affidavit if the information is incomplete, or if it does not show the applicant is indigent.
009.02C Determination of lndigency. An applicant applying for assistance from the Department of Motor Vehicles Ignition Interlock Fund shall meet 150 percent or less of the federal poverty guidelines published in the Federal Register pursuant to 45 CFR Part 1611.3 setting out Income Level for Individuals Eligible for Assistance to qualify as indigent. The Department may also consider the income, expenses, and assets as reported by the driver in his or her affidavit. Applicants shall provide documentation of current income with a pay stub, most recent W2, most recent tax return, or statement from an employer with the application. The Department will document its decision and provide a copy to the driver.
009.02D Installation. An applicant determined to be indigent may apply for installation of an approved ignition interlock device. The driver shall show the provider the documentation showing approval for assistance by the Department of Motor Vehicles Ignition Interlock Fund as part of the process for installing the ignition interlock device.
009.03 Provider Reimbursement
009.03A Monthly Statement. Providers who wish to receive reimbursement for installation, maintenance, or removal of ignition interlock devices for drivers qualified as indigent shall enter into a written contract with the Department. Providers shall present a monthly bill to the Department listing the drivers served and itemizing the services for which reimbursement is claimed. Reimbursable costs are limited to fees for installation, maintenance, and removal of an ignition interlock device.
009.03B Final Bill Due. When an ignition interlock device is removed from the motor vehicle of a driver qualified as indigent, within 30 days the provider shall send a final itemized statement to the Department which documents the removal of the device for that driver and return of any deposit fee, if applicable.
009.03C Statement Form. A reimbursement form shall be available on the Department webpage for use by providers. The reimbursable fees charged by a provider to an indigent driver for use of an ignition interlock device shall not exceed the fees for such services charged to other customers for an ignition interlock device.
009.03D Payment. Upon review of the statement for accuracy, such costs shall be paid to the provider on a monthly basis by the Department out of the Department of Motor Vehicles Ignition Interlock Fund, to the extent such funds are available. There shall be no provider reimbursement if there are no monies in the Fund. The Department reserves the right to deny payment for insufficient or incomplete statements, untimely statements, or any claims submitted that are not supported by the records of the Department upon review of the statement.
History
- Effective 2016-11-23
Chapter 2 Rules and Regulations Governing Requests for and Release of Personal Information Contained in Motor Vehicle Records Pursuant to the Uniform Motor Vehicle Records Disclosure Act, Neb. Rev. Stat. §§ 60-2901 Through 60-2912
Neb. Admin. Code tit. 250, ch. 2 Rules and Regulations Governing Requests for and Release of Personal Information Contained in Motor Vehicle Records Pursuant to the Uniform Motor Vehicle Records Disclosure Act, Neb. Rev. Stat. §§ 60-2901 Through 60-2912 {#sec-250-nac-2 omnilex-key=us-ne-regs-official--title-250--250 NAC 2}
001 SCOPE . These rules and regulations govern practice and procedure of the Department of Motor Vehicles of the State of Nebraska pursuant to the Uniform Motor Vehicle Records Disclosure Act, Neb. Rev. Stat. §§ 60-2901 through 60-2912. These rules and regulations shall be interpreted to include any amendments to the Uniform Motor Vehicle Records Disclosure Act the Legislature may enact from time to time.
002 FORMS . All named forms referred to in these rules and regulations may be found on the Department of Motor Vehicles’ web page, www.dmv.ne.gov. Forms may be downloaded, completed and returned to the Department. The forms may also be obtained by calling the phone number listed for the Driver and Vehicle Records Division on the website.
003 DEFINITIONS .
003.01 Authorized agent means any state or county official/employee authorized to issue a motor vehicle operator’s or driver’s license or permit, motor vehicle registration, motor vehicle certificate of title, motorboat certificate of title, or state identification card.
003.02 Authorized recipient means any person who receives personal information or sensitive personal information contained in a motor vehicle record pursuant to the Uniform Motor Vehicle Records Disclosure Act.
003.03 Bulk record, bulk distribution or multiple record means any request for, disclosure of, or redisclosure of personal information or sensitive personal information from more than one motor vehicle record.
003.04 Department means the Nebraska Department of Motor Vehicles or the duly authorized agents or contractors of the Department responsible to compile and maintain motor vehicle records.
003.05 Disclose means to engage in any practice or conduct to make available and make known personal information or sensitive personal information contained in a motor vehicle record about a person to any other person, organization, or entity by any means of communication.
003.06 Driving record means any record that pertains to a motor vehicle operator’s or driver’s license or permit, or state identification card issued by the Department or any other state or local agency authorized to issue any of such forms of credentials.
003.07 Driver identification number means a driver’s license number, a title number, or a license plate number.
003.08 Individual record means a motor vehicle record containing personal information or sensitive personal information about a designated person who is the subject of the record identified in a request.
003.09 Motor vehicle record means any record that pertains to a motor vehicle operator’s or driver’s license or permit, motor vehicle registration, motor vehicle certificate of title, motorboat certificate of title, or state identification card issued by the Department or any other state or local agency authorized to issue any of such forms of credentials.
003.10 Person means an individual, organization, or entity.
003.11 Personal information means information that identifies a person, including an individual’s driver identification number, name, address excluding zip code, and telephone number but does not include information on vehicular accidents, driving or equipment-related violations, and driver’s license or registration status.
003.12 Record holder means any person whose personal information or sensitive personal information appears on a motor vehicle record.
003.13 Redisclose means the disclosure of personal information contained in a motor vehicle record by a person who has received that information pursuant to a request made to the Department or an authorized agent of the Department.
003.14 Requestor means any person requesting disclosure of personal information or sensitive personal information contained in a motor vehicle record either through examination of a record displayed on a computer monitor or through receipt of a copy of a record in printed or electronic form.
003.15 Sensitive personal information means an individual’s operator’s license photograph or computerized image, social security number, and medical or disability information.
003.16 Unauthorized disclosure means any disclosure of, access by, or release of data by any unauthorized person/s or to any unauthorized person/s. Unauthorized disclosure also means unauthorized access to, disclosure of, or release of data by any person, including an authorized receiver, its employees, contractors and agents, to the extent such disclosure, access or release is contrary to the terms of a contract or the applicable law.
003.17 Vehicle record means any record that pertains to a motor vehicle registration, motor vehicle certificate of title, or motorboat certificate of title issued by the Department or any other state or local agency authorized to issue any of such forms of credentials.
004 DISCLOSURE OF PERSONAL INFORMATION CONTAINED IN MOTOR VEHICLE RECORDS .
004.01 Disclosure Prohibited, Exceptions. Notwithstanding any other provision of state law to the contrary, the Department and any officer, employee, authorized agent, or contractor of the Department shall not disclose personal information or sensitive personal information about any person obtained by the Department in connection with a motor vehicle record, except as provided in these rules and regulations.
004.01A If an officer, employee, authorized agent or contractor of the Department acts to disclose personal information or sensitive personal information contained in a motor vehicle record, the officer, employee, authorized agent or contractor of the Department shall disclose such personal information only upon completion of each of the steps listed in sections 004.03 and 004.04 of these rules and regulations.
004.01B In no event shall any authorized agent or contractor of the Department disclose any personal information or sensitive personal information contained in a motor vehicle record without first having executed and filed with the Department a Memorandum of Understanding.
004.01C Prior to the disclosure of any personal information or sensitive personal information contained in a motor vehicle record by any officer or employee of the Department, that officer or employee must meet the requirements listed in section 006.06 of these rules and regulations.
004.02 Compliance with Federal Law or Regulation. Personal information shall be disclosed by the Department or any officer, employee, agent, or contractor of the Department to carry out the purposes of Titles I and IV of the Anti-Car Theft Act of 1992, 15 U.S.C. 2021 et seq., the Automobile Information Disclosure Act, 15 U.S.C. 1231 et seq., the Clean Air Act, 42 U.S.C. 7401 et seq., and 49 U.S.C. chapters 301, 305, and 321 to 331, as amended, and all federal regulations enacted or adopted to implement such federal laws.
004.03 Disclosure, Procedure for Verifying Identity of Requestor. Personal information contained in a motor vehicle record may only be disclosed as follows:
004.03A No personal information from any motor vehicle record identified under section 004 of these rules and regulations shall be disclosed without the consent of the record holder unless the identity of the requestor is verified and the purpose of the requestor is verified and is a purpose identified under section 004.04 of these rules and regulations.
004.03A1 The request must be made on a form prepared by the Department under section 002 of these rules and regulations and all of the required sections must be completed.
004.03A2 The identity of the requestor must be verified as follows:
004.03A2a The identity of a person who is making a request in person shall be verified by examination of either a driver’s license with a photograph, a Nebraska state identification card with a photograph, a United States passport, a certified United States birth certificate, a professional license with photograph, or a Nebraska state employee identification card with photograph.
004.03A2b The identity of a person who is making a request by mail shall be verified by receipt of an Application for Copy of Driving Record form, an Application for Copy of Vehicle Record form, an Application for Multiple Driving Records form, or an Application for More Than One Vehicle Record form, with a completed notarization section whereby a notary public, by signature and seal, acknowledges that the request was acknowledged by the requestor in their presence.
004.03A3 The purpose of the requestor shall be verified by receipt of the signed statement of the requestor on the Application for Copy of Driving Record form, an Application for Copy of Vehicle Record form, an Application for Multiple Driving Records form, or an Application for More Than One Vehicle Record form, used to make the request.
004.04 Mandatory Disclosure. Upon the verification of the identity and purpose of a requestor pursuant to sections 004.03A2 and 004.04A-P of these rules and regulations, the Department and any officer, employee, agent, or contractor of the Department having custody of a motor vehicle record, shall disclose and make available the requested motor vehicle record, including the personal information contained in the record, for the following purposes:
004.04A For use by any federal, state, or local governmental agency, including any court or law enforcement agency, in carrying out the agency’s functions or by a private person or entity acting on behalf of a governmental agency in carrying out the agency’s functions;
004.04B For use in connection with matters of motor vehicle or driver safety and theft; motor vehicle emissions; motor vehicle product alterations, recalls, or advisories; performance monitoring of motor vehicles, motor vehicle parts, and dealers; motor vehicle market research activities, including survey research; and removal of non-owner records from the original owner records of motor vehicle manufacturers;
004.04C For use in the normal course of business by a legitimate business or its agents, employees, or contractors but only:
004.04C1 To verify the accuracy of personal information submitted by the individual to the business or its agents, employees, or contractors; and
004.04C2 If such information as so submitted is not correct or is no longer correct, to obtain the correct information, but only for the purposes of preventing fraud, by pursuing legal remedies against, or recovering on a debt or security interest against, the individual.
004.04D For use in connection with any civil, criminal, administrative or arbitral proceeding in any federal, state, or local court or governmental agency or before any self-regulatory body, including service of process, investigation in anticipation of litigation, and execution or enforcement of judgments and orders, or pursuant to an order of a federal, state, or local court, an administrative agency, or a self-regulatory body;
004.04E For use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals;
004.04F For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, anti-fraud activities, rating, or underwriting;
004.04G For use in providing notice to the owners of abandoned, towed, or impounded vehicles;
004.04H For use only for a purpose permitted under this section either by a private detective, plain clothes investigator, or private investigative agency licensed under Neb. Rev. Stat. §§ 71-3201 through 71-3213;
004.04I For use by an employer or the employer’s agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under the Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. 31301 et seq., or pursuant to Neb. Rev. Stat. §§ 60-4,132 and 60-4,141;
004.04J For use in connection with the operation of private toll transportation facilities;
004.04K For bulk distribution for surveys of, marketing to, or solicitations of persons who have expressly consented to such disclosure if the requestor has obtained the notarized written consent of the individual who is the subject of the personal information being requested and has provided proof of receipt of such written consent to the Department or an officer, employee, agent, or contractor of the Department on a form prescribed by the Department;
004.04L For any use if the requestor has obtained the notarized written consent of the individual who is the subject of the personal information being requested and has provided proof of receipt of such written consent to the Department or an officer, employee, agent, or contractor of the Department;
004.04M For use, including redisclosure through news publication, of a member of a medium of communication as defined in Neb. Rev. Stat. § 20-145 who requests such information in connection with preparing, researching, gathering, or confirming news information involving motor vehicle or driver safety or motor vehicle theft;
004.04M1 Example. A local nonprofit organization publishes a listing of all license plate numbers and their owners in their county as a fund raising activity. This publication does not qualify as a media exemption because it does not involve motor vehicle or driver safety or motor vehicle theft.
004.04M2 Example. A credit bureau makes available a listing of new title holders for consumer credit purposes. This activity does not qualify as a media exemption because it does not involve motor vehicle or driver safety or motor vehicle theft.
004.04N For use by the federally designated organ procurement organization in Nebraska to establish and maintain the Donor Registry of Nebraska as provided in Neb. Rev. Stat. § 71-4822;
004.04O For any other use specifically authorized by law that is related to the operation of a motor vehicle or public safety;
004.04P For any use if the request for the record is made by the record holder.
004.05 Payment of Fees. Disclosure of personal information required or permitted under these rules and regulations shall be subject to payment by the requestor to the Department of all fees for the information prescribed by statute.
004.06 Request Maintained. The Department and any officer, employee, authorized agent, or contractor of the Department that receives a request under section 004.03A2 of these rules and regulations shall keep the original of that request or a copy thereof for a period of not less than five years.
004.07 Denial of Request, Procedure. If any request submitted under section 004.03A2 of these rules and regulations is not met, in whole or in part, the requestor shall receive notice by letter from the Department or authorized agent of the Department acting on that request.
004.07A Said notice shall include:
004.07A1 A description of the contents of the motor vehicle record(s) withheld and a statement of the specific reasons for the denial, correlating specific portions of the records to specific reasons for the denial, including citations to the particular statute and subsection thereof;
004.07A2 The name of the officer, employee or authorized agent of the Department responsible for the decision to deny the request.
004.07B The Department, if the notice is issued by an officer or employee thereof, or other public body, if notice is issued by an authorized agent, shall maintain a file of all letters of denial of requests for motor vehicle records. This file shall be made available to any person on request.
004.08 Redisclosure of Personal Information Contained in Motor Vehicle Records. Any person receiving personal information contained in a motor vehicle record or records pursuant to section 004.02 or 004.04 of these rules and regulations may redisclose or resell that information only to the extent allowed in this section.
004.08A An authorized recipient of personal information disclosed under section 004.02 or 004.04 of these rules and regulations, except a recipient under section 004.04K of these rules and regulations, may resell or redisclose the information only for the uses permitted under section 004.04 of these rules and regulations, but not including the use for bulk distribution for surveys, marketing, or solicitations as set forth in section 004.04K of these rules and regulations.
004.08B An authorized recipient of personal information for bulk distribution for surveys, marketing, or solicitations under section 004.04K of these rules and regulations may resell or redisclose personal information only in accordance with the terms of such section concerning the right of individuals who have so consented to such disclosure.
004.08C An authorized recipient who resells or rediscloses personal information shall:
004.08C1 Make and keep for a period of not less than five years records identifying each person who received personal information from the authorized recipient and the permitted purpose for which it was obtained; and
004.08C2 Make such records available for inspection and copying by a representative of the Department upon request.
004.08C3 Have a written contract with every customer to which it transfers personal information. Such contract shall require that the customer limit disclosure as required by Neb. Rev. Stat. § 60-2910. The customer shall maintain a record of all disclosures of personal information and reasons for disclosure for not less than five years. The authorized recipient shall provide a list of all customers and copies of signed contracts to the Department upon request.
004.08C4 Strictly limit Internet distribution of personal information by an authorized recipient to end users through secure private channels, for properly identified customers of the authorized recipient.
004.08C5 Shall agree to a biennial independent cyber security audit at the recipient’s cost. The audit shall investigate the security of the authorized recipient’s information storage and distribution systems and records of disclosure of personal information as required by the Uniform Motor Records Disclosure Act, Neb. Rev. Stat. § 60-2910. A cyber security audit shall be conducted within four months of the approval of the application for information unless the recipient provided the Department with information showing that the recipient has a current detailed information security plan and is currently certified by an independent cyber security analyst. The recipient shall provide the Department with its biennial certification by an independent cyber security analyst or a copy of the cyber security audit report.
004.08D Any personal information contained in a motor vehicle record that is made part of a court file or otherwise becomes part of a judicial record of a court shall be considered a public record and re-disclosure shall be at the discretion of the court.
004.08E An authorized recipient of personal information is required to overlay and update all previously acquired personal information when it receives updated transmissions from the Department. Upon completion of such overlay, the data having been overlaid shall not be redisclosed for any purpose except as follows:
004.08E1 Any audits to be performed.
004.08E2 For use in connection with a civil, criminal, administrative or arbitral proceeding in any federal, state or local court.
004.08E3 As specifically required by federal or state law, including manufacturer recalls.
004.08E4 Records of any disclosure of overlaid data under subsections 004.08E1, 2 and 3 above shall be kept for five years pursuant to section 004.08C1.
004.08F Failure of the requestor to comply with the requirements of these sections shall be grounds for termination of any contract.
005 DISCLOSURE OF SENSITIVE PERSONAL INFORMATION .
005.01 Prior to the release of any sensitive personal information, the Department and any officer, employee, agent or contractor of the Department having custody of a motor vehicle record shall comply with the provisions of section 004.01.
005.02 The Department and any officer, employee, agent, or contractor of the Department having custody of a motor vehicle record shall, upon the verification of identity and purpose of a requestor, disclose and make available the requested motor vehicle record, including the sensitive personal information in the record, other than the social security number, for the following purposes:
005.02A For use by the federal, state, or local governmental agency, including any court or law enforcement agency, in carrying out the agency’s functions or by a private person or entity acting on behalf of a governmental agency in carrying out the agency’s functions;
005.02B For use in connection with any civil, criminal, administrative, or arbitral proceeding in any federal, state, or local court or governmental agency or before any self-regulatory body, including service of process, investigation in anticipation of litigation, and execution or enforcement of judgments and orders, or pursuant to an order of a federal, state, or local court, an administrative agency, or a self-regulatory body;
005.02C For use by any insurer or insurance support organization, or by a self-insured entity, or its agents, employees, or contractors, in connection with claims investigation activities, anti-fraud activities, rating, or underwriting; and
005.02D For use by an employer or the employer’s agent or insurer to obtain or verify information relating to a holder of a commercial driver’s license that is required under the Commercial Motor Vehicle Safety Act of 1986, 49 U.S.C. 31301 et seq., or pursuant to Neb. Rev. Stat. §§ 60-4,132 and 60-4,141.
005.03 Pursuant to Neb. Rev. Stat. § 60-484.02(3) no digital images or signatures may be released except to a federal, state or local law enforcement agency or the driver licensing agency of another state.
005.04 Pursuant to Neb. Rev. Stat. § 60-2909.01 no social security numbers may be released except under the provisions of Neb. Rev. Stat. § 60-484.
006 PROCEDURE FOR REQUESTING DISCLOSURE OF PERSONAL INFORMATION CONTAINED IN MOTOR VEHICLE RECORDS .
006.01 Request for Personal Information in a Motor Vehicle Record, Requirements. Any request for disclosure of personal information contained in a motor vehicle record must be made as follows:
006.01A The request must be made on either an Application for Copy of Driving Record form, an Application for Copy of Vehicle Record form, an Application for Multiple Driving Records form, or an Application for More Than One Vehicle Record form, and must contain a signed statement of the requestor whereby the requestor certifies that the information contained on the motor vehicle record(s) received will only be used as authorized by the Uniform Motor Vehicle Records Disclosure Act and acknowledges that the request is made with the understanding that any person making such a request who misrepresents either their identity or the purpose for the which the information is requested shall be guilty of a Class IV felony. The appropriate form may be obtained from the Department of Motor Vehicles’ web site pursuant to section 002 in these regulations.
006.01B Any person requesting the disclosure of personal information contained in a motor vehicle record must furnish proof of identity as provided in section 004.03A2 of these rules and regulations.
006.02 Request for Individual Record, Requirements. Any request for disclosure of personal information contained in an individual motor vehicle record must be made in writing on a form provided by the Department.
006.02A Driving Records. A request for disclosure of personal information contained in a driving record must be made on an Application for Copy of Driving Record form (see section 002 of these rules and regulations) and must contain the following information:
006.02A1 The name of the person who is the subject of the driving record, as it appears on that person’s operator’s license, permit or state identification card, and that person’s date of birth and/or Nebraska driver’s license number;
006.02A2 The purpose for which the personal information contained in the driving record requested will be used; and
006.02A3 The requestor’s name, business name, and address.
006.02B Vehicle Records. A request for disclosure of personal information contained in a vehicle record must be made on an Application for Copy of Vehicle Record form (see section 002 of these rules and regulations) and must contain the following information:
006.02B1 The Vehicle Identification Number (VIN), the license plate number, or the name of the owner of the vehicle that is the subject of the request;
006.02B2 The purpose for which the personal information contained in the vehicle record requested will be used; and
006.02B3 The requestor’s name, business name, and address.
006.02C Request for Disclosure of Personal Information in a Motor Vehicle Record with the Consent of the Record Holder. A person requesting disclosure of personal information contained in a motor vehicle record who has obtained the consent of the individual who is the subject of that record shall submit proof of that consent as follows:
006.02C1 Consent of the record holder shall be indicated in writing on the appropriate section of either the Application for Copy of Driving Record or Application for Copy of Vehicle Record form on which the request is made. (See section 002 of these rules and regulations.)
006.02C2 The consent section of the Application for Copy of Driving Record or Application for Copy of Vehicle Record form must bear the signature of the record holder. (See section 002 of these rules and regulations.)
006.02C3 The consent section must bear the signature and seal of a notary public whereby said notary public acknowledges that the section was acknowledged by the record holder in the presence of the notary public.
006.02D Request for Disclosure of Personal Information in a Motor Vehicle Record Not Subject to Disclosure. In the event that the Department receives a request for personal information, which is not subject to disclosure in accordance with sections 004.01 and 004.02 of these regulations, and which is not accompanied by a consent from the record holder, the Department may mail a copy of that request to each person who is the subject of the request, informing each such individual of the request, together with a statement to the effect that disclosure is prohibited and will not be made unless the individual affirmatively elects to waive his or her right to privacy under the Uniform Motor Vehicle Records Disclosure Act, Neb. Rev. Stat. § 60-2909.
006.03 Multiple Record Request, Requirements. Any request for disclosure of personal information contained in more than one motor vehicle record must be made in writing on an Application for Multiple Driving Records form or an Application for More Than One Vehicle Record form. (See section 002 of these rules and regulations.)
006.03A Driving Records. A request for disclosure of personal information contained in more than one driving record must be made on an Application for Multiple Driving Records form (see section 002 of these rules and regulations) and must contain the following information:
006.03A1 The name of each person for whom a driving record is requested, as it appears on that person’s operator’s license, permit or state identification card, and that person’s date of birth and/or Nebraska driver’s license number;
006.03A2 The purpose for which the personal information contained in the driving records requested will be used; and
006.03A3 The requestor’s name, business name, and address.
006.03B Vehicle Records. A request for disclosure of personal information contained in more than one vehicle record must be made on an Application for More Than One Vehicle Record form (see section 002 of these rules and regulations) and must contain the following information:
006.03B1 The purpose for which the personal information contained in the vehicle record will be used;
006.03B2 The requestor’s name, business name, and address; and
006.03B3 The specific vehicle records requested, identified as follows:
006.03B3a A request for more than one specific vehicle record must include the Vehicle Identification Number (VIN), the license plate number, or the name of the owner of each vehicle included in the request;
006.03B3b A request for multiple vehicle records or information on non-specific motor vehicles must include information that identifies the type of vehicle in question.
006.04 Receipt of Records by Contract. Motor vehicle records may be received on a regular basis under a contract with the Department provided that the use is allowed in section 004.04 and if the terms of that contract expressly define the purpose for which the personal information contained in the motor vehicle records will be used, and establish a requirement that the recipient under the contract will keep a record of each person or entity to whom the recipient discloses personal information received from the Department for five years which shall be made available to the Department upon request.
006.04A Companies contracting with the Department for multiple records may, at the discretion of the Department, be required to post and file with the Department a continuous surety bond in an amount based on the volume of records requested of the Department, but no less than Ten Thousand Dollars ($10,000.00). Such bond shall be in a form approved by the Department and written by a company approved to do business in this state. This bond shall be for the protection of the record holders and the State.
006.04B In the event of the discovery of an unauthorized disclosure of any record originating in the Department’s database in that company’s possession, the company in question shall notify the Department within 24 hours of the discovery of the disclosure.
006.04C Upon receipt of information of the discovery of an unauthorized disclosure, the Department may immediately terminate any contract with the subject company according to the terms of the contract and may not authorize another contract until such company has shown to the Department’s satisfaction that sufficient security measures have been implemented to prevent and/or detect such unauthorized disclosures in the future.
006.04D The Department shall provide guidelines for applications for companies requesting contracts for the prospective purchase of records. The Department shall review all applications for contracts for disclosure of records and reserves the right to impose any contract condition it finds reasonable and necessary to protect the privacy of individuals and security of the information contained in the Department’s database. Such conditions may include, but are not limited to, requests for copies of contracts for the resale of records to third parties, information concerning the requestor’s security plan, information concerning the requestor’s business and need for the requested information, and access by the Department to all the requestor’s records relevant to contract provisions for purposes of audit.
006.04E The Department may summarily rescind or terminate the contract of any company for the following reasons:
006.04E1 The company misrepresented its purpose or identity for the purpose of obtaining personal or sensitive personal information from the Department’s records.
006.04E2 At any time the Department learns that there was an unauthorized breach of the company’s cyber security system by an outside party.
006.04E3 The company or any employee, contractors or agent thereof which engaged in any act prohibited under section 004 of these rules and regulations. Such companies may also be subject to criminal penalties pursuant to Neb. Rev. Stat. § 60-2912.
006.04E4 At any time in which the Department is restrained or enjoined by a court of competent jurisdiction from performing any obligation established by a contract with a requesting party or upon the effective date of an act by the Nebraska Legislature restricting or removing the Department’s authority to perform an obligation agreed upon by contract.
006.04E5 For reasons of governmental convenience or necessity.
006.05 County Clerks, County Treasurers and County Sheriffs. Access to the Department’s records by county clerks, county treasurers or county sheriffs is conditioned upon the execution of a Memorandum of Understanding by the county clerk, county treasurer or county sheriff.
006.06 Department Employees. Access to the Department’s records by employees of the Department is conditioned upon the execution of the Security and Privacy Requirements form. Such form shall be re-executed periodically and shall be kept in the Department’s Human Resources file for the officer or employee.
006.07 Misrepresentation in Request for Disclosure of Personal Information or Sensitive Personal Information Contained in a Motor Vehicle Record, Penalty. Any person requesting the disclosure of personal information or sensitive personal information from Department records who misrepresents his or her identity or makes a false statement to the Department on any application required to be submitted pursuant to the Uniform Motor Vehicle Record Disclosure Act shall be guilty of a Class IV felony.
History
- Effective 2012-10-15
Chapter 3 Rules and Regulations Governing Department of Motor Vehicles Approval of Driver’s Safety Training Programs as Pretrial Diversion Pursuant to Neb. Rev. Stat. §§ 29-3601 Through 29-3609
Neb. Admin. Code tit. 250, ch. 3 Rules and Regulations Governing Department of Motor Vehicles Approval of Driver’s Safety Training Programs as Pretrial Diversion Pursuant to Neb. Rev. Stat. §§ 29-3601 Through 29-3609 {#sec-250-nac-3 omnilex-key=us-ne-regs-official--title-250--250 NAC 3}
001 SCOPE . These rules and regulations govern Department of Motor Vehicles approval of driver’s safety training programs as pretrial diversion pursuant to Neb. Rev. Stat. §§ 29-3601 through 29-3609. These rules and regulations apply to diversion programs offered to persons charged with minor traffic violations as an alternative to traditional justice proceedings for such minor traffic violations.
002 DEFINITIONS . For the purposes of these rules and regulations:
002.01 Contested case means a proceeding before an agency in which the legal rights, duties, or privileges of specific parties are required by law or constitutional right to be determined after an agency hearing.
002.02 County attorney means a prosecuting attorney for any county or city authorized to establish pretrial diversion programs pursuant to Neb. Rev. Stat. §§ 29-104 and 29-3602.
002.03 Department means the Nebraska Department of Motor Vehicles.
002.04 Director means the Director of the Nebraska Department of Motor Vehicles or his or her designee.
002.05 Driver’s Safety Training Program or program means a pretrial diversion curriculum for minor traffic violations, sometimes referred to as Safety Training Option Programs (STOP).
002.06 Instructor means any person who teaches, conducts classes, gives demonstrations, or supervises instruction of a driver’s safety training program.
002.07 Jurisdiction means any county or city authorized to establish pretrial diversion programs pursuant to Neb. Rev. Stat. § 29-3602.
002.08 Minor traffic violation means infractions as provided in Neb. Rev. Stat. § 60-682 but shall not include leaving the scene of an accident, driving under the influence of alcoholic liquor or drugs, reckless driving or willful reckless driving, participating in a speed competition, operating a motor vehicle to avoid arrest, refusing a breath or blood test, driving on a suspended or revoked operator’s license, speeding twenty (20) or more miles per hour over the speed limit, operating a motor vehicle without insurance or other financial responsibility in violation of the Motor Vehicle Safety Responsibility Act, any injury accident, or any violation which is classified as a misdemeanor or a felony.
002.09 Plan means the county or city attorney’s plan for pretrial diversion as provided in Neb. Rev. Stat. § 39-3606 which includes a driver’s safety training program for diversion of minor traffic offenses.
002.10 Provider means any organization (commercial, non-profit, public, or private) that offers a driver’s safety training program.
003 REQUIREMENTS FOR A DRIVER’S SAFETY TRAINING PROGRAM CERTIFICATION; APPROVAL, DENIAL, CANCELLATION . A provider shall apply to the Department of Motor Vehicles in writing for approval of a driver’s safety training program for diversion of minor traffic violations. Failure to provide the required information shall be grounds for denial of the application. The application form for program approval is found as Attachment 1 of these rules and regulations. The application shall contain or be accompanied by all of the following information and documentation:
(Who is a provider who needs to apply for program certification? A provider may be any organization that offers a driver’s safety training program. For example, a specific jurisdiction, county or city, may be the provider if that jurisdiction develops and offers its own program. The jurisdiction must then apply for certification of the program offered in that specific jurisdiction. If on the other hand, a jurisdiction, contracts with another organization, commercial, private, or non-profit, that organization is the provider that must apply for certification of the program.)
003.01 Curriculum. A written curriculum of driver’s safety training designed to educate persons committing minor traffic violations and to deter future violations. The curriculum shall provide for a minimum four hours of instruction time, not including breaks. This subsection shall be effective as provided in Neb. Rev. Stat. § 84-906. Any provider may elect to retain a currently certified eight-hour course until the next certification renewal. After the effective date of this regulation, any provider with a certified eight-hour program in any jurisdiction may elect to provide four-hour classes instead of eight-hour classes but shall provide the Department with documentation verifying that the city or county attorney and the applicable governing body of a city or county board have been notified of the change to a four-hour class. Such verification must be provided to the Department not less than five working days before the four-hour class begins. The curriculum shall contain instruction including, but not limited to, the following elements:
003.01A General driver attitude improvement;
003.01B Education on alcohol and drugs and relationship and effect of alcohol or drug use to impaired driving and driving under the influence;
003.01C Occupant restraints systems and safety devices including but not limited to correct use of safety belts, child restraints, booster seats, and airbags;
003.01D Safe driving instruction, which shall include but is not limited to instruction on:
003.01D1 The Nebraska Rules of the Road including but not limited to signs, signals and markings, construction and school zones and other speeding violations, vehicle operating tasks, establishing vehicle position, lane use, parking, traffic flow tasks, and differing driving environments, and awareness of other roadway users.
003.01D2 Human functions during driving including visual scanning, detection/perception, evaluation, risk assessment, decision-making, and motor skills, and factors which affect driver performance.
003.01D3 Various causes and types of traffic accidents and crashes and methods to avoid involvement in traffic accidents and crashes.
003.01D4 Methods to minimize the impact and damage if involved in a traffic accident or crash.
003.01D5 Legal responsibilities of drivers and vehicle owners if involved in a traffic accident or crash and Financial Responsibility law for motor vehicles.
003.01D6 Information concerning the driving privilege and legal status of a driver’s license.
003.02 Successful Completion Standard. The application shall include a description of standards or measurements used to determine the success or failure of persons who attend the program, an example of instruments used to make such determination, and any other standards, if any, which must be met by an individual to successfully complete the program. An attendee must score at least eighty percent (80%) on a test instrument in order to have successfully completed the program.
003.03 Uniform Fee. An application for certification of a program shall provide the following information with regard to the fee paid by an individual for participation in a program. A jurisdiction shall charge a uniform fee for participation in a driver’s safety training program regardless of the traffic violation for which the applicant (individual taking the class) was cited. The fee shall be composed of the following elements:
003.03A Provider’s Fee. A provider’s application for certification shall state the uniform fee to be paid by the applicant for diversion of the minor traffic violation that is reasonable and appropriate to defray the provider’s cost of the presentation of the program. The provider’s fee may include any costs reasonable and appropriate to defray the provider’s cost of presentation of the program. The application shall include an itemized breakdown of the provider’s fee including cost germane to the specific program, and which adhere to generally accepted accounting principles; and;
003.03B Fees Charged by Jurisdiction. In addition the application shall state the fee charged by a jurisdiction for an individual’s participation in the program. An application for program approval shall contain an itemized breakdown of all costs necessary to present the program, which may include costs germane to the specific program in the jurisdiction and which adhere to generally accepted accounting principles. (See 004 of these regulations.)
(Fees charged by the jurisdiction may include but are not limited to such items as court costs, or other costs necessary for the jurisdiction’s operation of a plan for diversion of minor traffic offenses.)
003.03C Fees Received by Jurisdiction. If the jurisdiction utilizes fees received from offering a program to pay for the costs of administering and operating such program, to promote driver safety, and to pay for the costs of administering and operating other safety and educational programs within the jurisdiction, the application shall state how such fees are utilized. An application for program approval shall contain an itemized breakdown of all costs necessary to present the program/s, which may include costs germane to the specific program and which adhere to generally accepted accounting principles. (See 004 of these regulations.)
(If the jurisdiction does not utilize the fees received to promote driver safety and pay for the costs of administering and operating other safety and educational programs, the applicant for certification does not need to provide an itemized breakdown of how such fees are utilized.)
003.04 Record Maintenance and Transmittal. The application shall include a description of the method and an example of all records, which will be kept by the provider of individuals that attend a program in the jurisdiction for which the provider seeks approval.
003.04A The application for approval shall include an explanation and description of the method the provider will employ to ensure that no individual takes any approved course more than once in any three-year (3-year) period in Nebraska from the date of citation for which the individual previously attended a program to defer a minor traffic violation.
003.04B The application for approval shall include the plan the provider will follow to ensure that no attendee who holds a commercial driver’s license is allowed to participate in a program if such participation would be in non-compliance with federal law or regulation and subject the state to possible loss of federal funds.
003.04C The application shall include a description and example of the provider’s plan for sharing records of individuals taking the provider’s program in the jurisdiction with other similar programs. Such information shall be accessible to providers of all similar programs in other jurisdictions in Nebraska. Such information shall be electronically transmitted and available to providers of other similar programs in Nebraska within twenty-four (24) hours from an individual’s registration for a provider’s program.
003.05 Instructors. The application shall include a list of instructor/s and the instructors’ qualifications for certification as required in these regulations.
003.05A The application may have attached application/s for certification of new instructors. If using previously certified instructor/s, the application shall list the instructor/s and the date of certification by the Department.
003.05B The application shall state that if any instructor violates the provisions of these rules and regulations, the provider agrees to remove him or her from the program immediately whenever it comes to the provider’s attention and the provider shall notify the Department in writing not more than five (5) days of the provider’s discovery of the violation. The Department will revoke the instructor’s certification on notice from a provider.
003.06 Location and Contact Individual. The application shall include the physical and mailing address of the provider and shall specify the physical address/s where the classes will be taught. The application shall include the name, address, and phone number for an authorized contact person to respond to any inquiries about the provider’s program.
003.07 Signature. The application shall by signed by an authorized representative of the provider, shall give the title of the representative, and shall be a certification that the information provided in and included with the application is true and correct.
003.08 Application Fee. The application shall be accompanied by a fee of fifty dollars ($50.00). If the fee is paid by check that is returned unfunded, the application shall be denied. The provider shall submit a separate application for each jurisdiction in which it provides a program for diversion of minor traffic offenses.
003.09 Certification, Approval or Denial. The Department shall issue an approval or denial of the application for certification. An approved certification shall expire one (1) year from the date of issuance. If the certification is denied, the application fee shall not be returned. An application shall be denied as provided in these rules and regulations.
003.10 Cancellation. Certification of a program shall be cancelled upon the request of the provider when the program is no longer offered or if the provider fails to renew by the expiration date of certification or by agreement between the provider and the Department. Programs that are cancelled are still subject to the record keeping provisions of 008 of these regulations.
003.11 Display. The provider shall display its certificate and that of any certified instructors, or copies of such certificate/s in a prominent place at all location/s where the program is offered.
003.12 Assumption of Liability and Proof of Insurance. The provider shall agree to assume all liability for any actions related to its program activities, or activities of its instructors related to such program, and maintain insurance for all such activities. The provider shall further agree to hold the State of Nebraska and the Nebraska Department of Motor Vehicles harmless for any losses or damages which the provider or its instructors may incur for activities related to offering a program. The provider shall provide documentation that it has secured insurance for the certification year to carry out its activities and the activities of its instructors related to the program with the application. In lieu of insurance, a provider may demonstrate that it is self-insured and that it has sufficient resources to meet any and all liability that may arise from the program activities or activities of the instructors related to the program.
004 COUNTY OR CITY ATTORNEY’S PLAN FOR A JURISDICTION . The county attorney, as provided in Neb. Rev. Stat. §§ 29-104 and 29-3604, may establish a pretrial diversion program. The county attorney shall be responsible for the plan required by Neb. Rev. Stat. § 29-3606 for pretrial diversion for minor traffic offenses in a specific jurisdiction.
004.01 A county attorney may select one (1) or more providers to offer a program in a jurisdiction, but any provider selected must be certified by the Department prior to offering a program to any individuals seeking to defer minor traffic offenses. If there are multiple providers selected by the county attorney in a jurisdiction, each provider must charge a uniform fee to all program participants in that jurisdiction. A county attorney who establishes a plan for pretrial diversion of minor traffic offenses in a jurisdiction shall provide an itemized breakdown of fees charged by a jurisdiction and fees received by a jurisdiction (see 003.03 of these regulations for details) to any provider seeking certification of a program, as follows:
004.01A An itemized breakdown of fees charged by the jurisdiction shall contain all costs necessary to the presentation of the program, which may include costs germane to the specific program and which adhere to generally accepted accounting principles.
004.01B An itemized breakdown of any fees received by the jurisdiction utilized to pay for the costs of administering and operating the program, to promote driver safety, and to pay for the costs of administering and operating other safety and educational programs within such jurisdiction, which may include costs germane to the specific program and which adhere to generally accepted accounting principles. This section only applies to jurisdictions which utilize fees received to promote driver safety or pay for other safety and educational programs.
004.02 Neb. Rev. Stat. § 29-3602 requires concurrence of the governing body of the jurisdiction. The county attorney shall be responsible for securing the concurrence of the governing body of the jurisdiction to establish a plan for diversion of minor traffic offenses.
005 ANNUAL RENEWAL . An approved certification shall expire one (1) year from the date of issuance. The provider shall apply annually for renewal of the certification by the Department as provided in this section. The application for renewal shall be accompanied by a fee of fifty dollars ($50.00). If the fee is paid by check that is returned unfunded, the application shall be denied. A provider shall apply for renewal of the certification sixty (60) days before the expiration date of the previous year’s certification. Failure to timely renew the certification shall be grounds for cancellation of the certification. Programs that are not renewed are still subject to the record keeping provisions of 008 of these regulations.
006 INSTRUCTOR CERTIFICATION; REQUIREMENTS FOR INSTRUCTORS; APPROVAL; CANCELLATION .
006.01 Application. An application for instructor certification shall include the following information about the applicant. The application form appears as Attachment 2 to these rules and regulations and may be accompanied by additional documents. The written application may be submitted by an individual or as part of a provider’s application for certification of a program. The application shall require the name, home address, date of birth, and driver’s license number of the applicant. The applicant shall:
006.01A be at least twenty-one (21) years of age; and
006.01B be of good moral character; and,
006.01C have a valid driver’s license and shall:
006.01C1 have held a valid driver’s license for at least two (2) years preceding the date of application; and,
006.01C2 within the last five (5) years, have no violations on his or her driving record for which five (5) or more points might be assessed as set out in Neb. Rev. Stat. § 60-4,182 or equivalent from another jurisdiction. The driving record must not have any violations for DWI or any alcohol related or drug offense, or occupant restraint or motorcycle helmet violation within the last five (5) years; and,
006.01C3 have no suspensions or revocations on his or her driving record within the last five (5) years unless the applicant provides suitable evidence that there is a mistake or error on the record.
006.01D have a high school diploma or its equivalent; and
006.01E provide description or summary of the applicant’s training and/or work experience that qualifies the applicant to be an instructor. Acceptable training may include successful completion of a nationally recognized instructor development program.
006.02 Approval. If an application for instructor certification is approved the Department shall issue a certificate which shall be non-expiring so long as the certified instructor remains in compliance with these regulations.
006.03 Cancellation. An instructor’s certification may be cancelled upon the instructor’s request or by agreement of the instructor and the Department.
006.04 Immediate Disclosure. The application shall state that the applicant for instructor certification agrees to notify the provider immediately if he or she receives any citation or conviction for violation of any motor vehicle related law of this state or any other jurisdiction.
006.05 Non-resident of Nebraska. If the applicant for instructor certification is not a resident of Nebraska, the application for instructor certification shall include a separate notarized waiver signed by the applicant for instructor certification document, which waives the instructor’s privacy and will allow another jurisdiction to transmit the applicant’s driver license record to the State of Nebraska.
006.06 Signature. The application for instructor certification shall be signed by the person who is applying for instructor certification.
007 PROVIDER’S RESPONSIBILITY TO NOTIFY THE DEPARTMENT . Each provider shall notify the Department, in writing, within the specified period of any of the following:
007.01 Name Change. Any change in the provider’s authorized contact person or the provider’s name, legal status, or address shall be provided to the Department in writing ten (10) days prior to its occurrence.
007.02 Instructor Change. Any addition or deletion of a certified instructor or changes in his or her driving status within ten (10) days of the date of occurrence. The provider shall notify the Department of any change in an instructor’s driving status or any conviction for violation of a motor vehicle law of this state or any other jurisdiction received by any instructor the next working day, whenever it comes to the attention of the provider.
007.03 Program Closure. If a program ceases to operate, the provider shall notify the Department ten (10) days prior to the date operation ceases. The provider shall arrange for retention of program records as required by the regulations and shall notify the Department of those arrangements and how the department’s inspectors or auditors may gain access to such records.
007.04 Insurance Cancellation or Change. If the provider’s insurance for program activities is cancelled or altered by the insurer, or if the provider changes insurance carriers, the provider shall notify the Department within ten (10) working days.
007.05 Curriculum Change. If there is any change in the curriculum, or locations of the program, the provider shall notify the Department not less than ten (10) days prior to the change.
008 REQUIRED RECORD KEEPING AND TRANSMISSION OF RECORDS . Each certified provider shall keep the following records at the authorized contact person location. These records shall be open to inspection by the Department’s auditors. Such records shall be maintained for a period of not less than three (3) years from the date of the individual’s attendance at a program in the jurisdiction for individual’s records and three (3) years from the date of annual certification for other program records. Such records may be computerized but required certificates and copies of final examinations shall be readily accessible or stored in a digitized format.
008.01 List of Instructors. All instructors who have taught or are teaching certified programs, and a copy of the driving record abstract of each instructor updated annually.
008.02 Instructor Certification. Copy of the certification of each instructor teaching and who has taught certified programs for the provider.
008.03 Attendance Records. Record of every individual who has attended the provider’s program, including the name, address, date of birth, and driver’s license number of individuals who successfully completed the program and individuals who did not, and the time and place of the individual’s attendance of the program, the charge sought to be diverted, and a record of the result of a final examination or equivalent for each attendee.
008.04 Curriculum Approval. Copy of the current curriculum for the program and copy of the Department’s certification.
008.05 Insurance. Documentation of the provider’s current insurance for program related activities, and instructors’ program related activities.
008.06 Records of attendees at driver’s safety training programs shall not be considered public records as defined in Neb. Rev. Stat. § 84-712.01.
008.07 Transmission of Attendance Records. Other than transmission of attendance records as required by these rules and regulations and compliance with audits, providers shall strive to keep individual records confidential.
008.07A A provider shall keep documentation of each transmission of a report of each attendee at the provider’s programs to all other similar programs in the state designed to ensure that no individual takes an approved program course more than once within any three-year (3-year) period in Nebraska.
008.07B The records listed in 008.03 shall be transmitted electronically and made available to all other providers in the State of Nebraska through a data base which shall be established by the various providers in the State of Nebraska. The data base developed by the providers shall be approved by the Department, and shall be easily accessible to all certified providers.
009 INSPECTIONS .
009.01 Audits and Inspections. The Department may conduct random inspections and audits of the provider’s approved program at the location of the provider’s program and/or the location of the provider’s authorized contact person. A provider shall upon demand produce all records, instructional aides, and facilities to the Department’s auditors that are necessary to the inspection and audit. The Department will provide three (3) working days notice for an audit.
009.02 Results. The Department shall prepare written report of the results of each inspection and audit. A copy of the report shall be provided to the program provider.
010 PROHIBITED PRACTICES . Under any circumstances, a provider shall not:
010.01 Allow any individual to attend a driver’s safety training program, if the individual holds a commercial driver’s license as provided in the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) as amended by the Motor Carrier Safety Improvement Act of 1999 (MCSIA), and federal regulations issued pursuant to such acts found in 49 CFR Parts 350, 383, 384 and 390.
(49 CFR § 384.226 Prohibition on masking convictions. The State must not mask, defer imposition of judgment, or allow an individual to enter into a diversion program that would prevent a CDL driver’s conviction for any violation, in any type of motor vehicle, of a State or local traffic control law (except a parking violation) from appearing on the driver’s record, whether the driver was convicted for an offense committed in the State where the driver is licensed or another State.)
010.02 Allow any individual to attend a driver’s safety training program, if the individual seeks to divert any offense other than a minor traffic offense as defined in these rules and regulations.
010.03 Allow any individual to attend a driver’s safety training program without first checking the provider’s own records and the records of other providers in Nebraska to determine if the individual has previously attended a driver’s safety training program within a three-year (3-year) period prior to the date of the driver’s citation for which the driver previously attended a program. The provider shall not allow the individual to attend if he or she has previously attended a driver’s safety training program within the three-year (3-year) period.
010.04 A provider shall not conduct any diversion programs for minor traffic violations outside of programs approved by these rules and regulations and shall report any unapproved programs to the Department immediately.
010.05 Violations shall be reported to the Attorney General of the State of Nebraska.
011 DENIALS, REFUSAL TO RENEW, OR REVOCATION OF CERTIFICATION OF A DRIVER’S SAFETY TRAINING PROGRAM . Whenever it comes to the attention of the Department that the provider is not in compliance with these regulations, the Department will deny certification or renewal, or revoke a program’s certification for any of the following:
011.01 Engaging in or attempting to engage in administration of a program without a certificate;
011.02 Fraud, forgery, or misrepresentation in an application;
011.03 Failure to provide notice to the Department as required by these rules and regulations;
011.04 Failure to permit on-site inspections or audits or produce records as required by these rules and regulations;
011.05 Failure to pay the fee as required by these rules and regulations;
011.06 Failure at any time to comply with the Motor Vehicle Operator’s License Act or the rules and regulations adopted and promulgated by the Department under that Act;
011.07 Lack of business stability;
011.08 Corruption, bribery, fraud, forgery, or falsification of any documents relating to the school, program attendees, instructors, test score sheets;
011.09 Employing an instructor who has a conviction for driving a motor vehicle under the influence within the previous five (5) years of the date of application;
011.10 Employing an instructor who has a suspended or revoked driver’s license within the previous five (5) years of the date of application, or who has a five-point (5-point) or more driving violation, or who does not meet the requirements of 006 of these regulations;
011.11 Failure to share records of program attendees with other approved providers in a timely fashion as required by 008 and 003.05;
011.12 Allowing any individual to attend an approved program more than once in a three-year (3-year) period in Nebraska;
011.13 Failure to provide certified instructors;
011.14 Discontinuation of a certified program in a specific jurisdiction by a jurisdiction’s county attorney and/or decision not to end a program in that jurisdiction, and/ or a decision by the governing body of a jurisdiction to withdraw its concurrence;
011.15 Allowing an individual holding a commercial driver’s license to participate in a program in violation of federal law as provided in Neb. Rev. Stat. § 29-3608;
011.16 Allowing any individual to attend a program for violation other than minor traffic violations as defined in Neb. Rev. Stat. § 29-3605; or
011.17 Good cause shown.
012 DENIAL, REFUSAL TO RENEW, OR REVOCATION OF CERTIFICATION OF AN INSTRUCTOR’S CERTIFICATE . Whenever it comes to the attention of the Department that an instructor is not in compliance with these regulations, the Department will deny certification or renewal, or revoke an instructor’s certification for any of the following:
012.01 No longer meets the requirements for certification;
012.02 Has an accumulation of five (5) or more points as provided in Neb. Rev. Stat. § 60-4,182 within the last five (5) years;
012.03 Has any convictions for violations for DWI, or for any drug or alcohol related offense, or for occupant restraint, or for motorcycle helmet violation within the last five (5) years;
012.04 Has engaged in corruption, bribery, fraud, forgery or falsification of driver’s safety training program records of any kind;
012.05 Has knowingly allowed a driver to attend an approved program more than once in a three-year (3-year) period in Nebraska;
012.06 Has knowingly allowed a driver holding a commercial driver’s license to participate in a program in violation of federal law; or
012.07 Good cause shown.
013 APPEAL .
013.01 Notice. Instructors or providers shall be notified of any denial, refusal to renew, or revocation in writing.
013.02 Request for Hearing. Upon written notice of revocation, or denial of issuance of a new or renewed certificate, the provider or instructor may request a hearing. A request for hearing shall be in writing and must be postmarked or received by the Department within thirty (30) days of the date of issuance of the written notice.
013.03 Stay. Upon receipt of a written request for stay and good cause shown by the provider or instructor, the Director may, at his or her discretion, stay an administrative order denying, or revoking the certificate of any provider or instructor pending completion of an investigation or administrative hearing on the matter.
013.04 Administrative Procedures Act. Hearings shall conform to the Administrative Procedures Act.
014 NOTICE; HEARING REQUEST; PROCEDURE .
014.01 Notice. Upon revocation or denial of the issuance of a new or a renewal of certificate, the Director of the Department shall notify such provider or instructor in writing.
014.01A Address. Written notice shall be sent by certified mail to the party’s last-known address as shown in the records of the Department; and
014.01B Request for Hearing. The notice shall state that the party may request a hearing by submitting a written request for a hearing to the Department which must be postmarked or received within thirty (30) days of the date of issuance of the notice.
014.02 Notice of Date of Hearing. Upon receipt of a written request for a hearing, the Director will set a hearing date at a time and location designated by the Director, and notify the party. Written notice of the hearing shall be sent by certified mail, to the party’s last-known address as shown in the records of the Department at least fifteen (15) days prior to the hearing.
014.03 Pleadings. Pleading shall include any written document filed in a proceeding before the agency, including the request for hearing. Any pleading shall contain a heading specifying the name of the agency and the title or nature of the pleading, shall state material factual allegations and shall state concisely the action the agency is being requested to take. The pleading shall contain the name and address of the petitioner and shall be signed by the party filing the pleading, or when represented by an attorney, the signature of that attorney.
014.03A Attorneys shall also include their address, telephone number and bar number.
014.03B The initial petition or request for hearing shall also contain the name and address of the person or entity requesting the hearing.
014.03C All pleadings shall be made on letter sized (8 1/2 x 11 inches) white paper, and shall be legibly typewritten, photo statically reproduced, printed or handwritten. If handwritten, the pleading must be in ink.
014.03D All pleadings shall be filed with the Department at 301 Centennial Mall South, 1st Floor, in Lincoln, Nebraska, during regular business hours, or by mail to the Legal Division, Department of Motor Vehicles, P.O. Box 94699, Lincoln, NE 68509-4699, or by facsimile transmission to the Department. Any filing which arrives outside of the normal business hours of the Department shall be deemed received the next business day.
014.04 Parties to a Hearing. The parties to a hearing shall be the Department and the person or entity notified of impending denial of certification or renewal, or revocation.
014.05 Hearing Officer. The hearing shall be conducted by the Director or his or her designated hearing officer, who will open the proceedings; enter into the record the notice of hearing; rule on the admissibility of exhibits, take appearances, act on pleadings not previously filed; hear evidence as provided for in these rules and regulations, rule on motions and objections, issue subpoenas, order briefs; cross-examine any witnesses and close the proceedings. Hearing officers shall provide a recommended order to the Director.
014.06 Continuances. Continuances may be granted at the discretion of the Director for good cause shown, or on his or her own motion. A party may request a continuance in the following manner:
014.06A Any party who desires a continuance shall file a written request with the Department stating in detail the reasons why such continuance is necessary.
014.06B Requests for continuance shall be received by the Department no later than five (5) days prior to hearing.
014.07 Official Record. The Department shall prepare an official record in all hearings in the form of a tape recording. If a court reporter is provided for the hearing, the court reporter’s record shall be the official record of the hearing. A court reporter will not be provided except as provided in 013.11 of these regulations the Administrative Procedure Act, Neb. Rev. Stat. § 24-914.
014.08 Representation by Counsel. Either party may be represented at the hearing by counsel admitted to the practice of law in the State of Nebraska.
014.09 Summary Revocation. The Department may summarily revoke the certificate of a program or instructor, provided that the Department finds that the public safety requires emergency action and incorporates in its written notice of revocation, findings to that effect.
014.10 Teleconference Hearings. The hearing officer may conduct the hearing by telephone, television, or other electronic means if each participant in the hearing has an opportunity to participate in, to hear, and if technically feasible, to see the entire proceeding while it is taking place.
014.11 Informal Disposition. Informal disposition may also be made of any contested case by stipulation, or agreed settlement, consent order, or default.
014.12 Reinstatement of Certification. The Director may summarily reinstate the certificate of a provider or of an instructor if the provider or instructor provides proof of compliance with these rules and regulations.
015 INTERVENTION .
015.01 Petitions for Intervention. Petitions for Intervention must comply with the following requirements:
015.01A Form. The petition must:
015.01A1 be in a legible form showing the caption, Before the Director of the Department of Motor Vehicles, and entitled as Petition for Intervention;
015.01A2 specify intervenor’s legal rights, duties, privileges, immunities, or other legal interests justifying their participation in any proceeding in which intervention is sought;
015.01A3 state the names of the interested parties likely to be affected by the intervenor’s petition;
015.01A4 state sufficient facts upon which the Director or hearing officer can rely to render a well-reasoned decision; and
015.01A5 be subscribed by the intervenor or by a duly authorized officer of the intervenor, if the intervenor is a corporation, organization, other legal entity, or the attorney for the intervenor. The petition must include the attorney’s name, bar number, address and telephone number.
015.01B Filing Petition. The petition must be filed with the Department, with copies of the Petition for Intervention received by all parties named in the notice of hearing, at least five (5) days before a hearing.
015.01C Consideration of a Petition. Petitions for Intervention will ordinarily be considered solely on the face of the petition and without hearing.
015.02 Mandatory Vs. Discretionary Intervention. There shall be mandatory and discretionary intervention as set forth below:
015.02A Mandatory Intervention. The Director shall grant a Petition for Intervention if all of the following occurs:
015.02A1 The petition is submitted in writing to the Director, with copies mailed to all parties named in the notice of the hearing, at least five (5) days before the hearing;
015.02A2 The petition states facts demonstrating that the petitioner’s legal rights, duties, privileges, immunities, or other legal interests may be substantially affected by the proceeding or that the petitioner qualifies as an intervenor under the provision of law; and
015.02A3 The Director or hearing officer determines that the interest of justice and the orderly and prompt conduct of the proceedings will not be impaired by allowing the intervention.
015.02B Discretionary Intervention. The Director or hearing officer may grant a Petition for Intervention at any time upon determining that the intervention sought is in the interests of justice and will not impair the orderly and prompt conduct of the proceedings.
015.03 Conditions and Privileges of Intervention.
015.03A Conditions. When granting a Petition for Intervention, the Director or hearing officer may impose conditions upon the intervenor’s participation in the proceedings, either at the time intervention is allowed, or at any subsequent time. Conditions may include: Limiting the intervenor’s participation to designated issues in which the intervenor has a particular interest demonstrated by the petition; limiting the intervenor’s use of discovery, cross-examination, and other procedures so as to promote the orderly and prompt conduct of the proceedings; and requiring two (2) or more intervenors to combine their presentation of evidence and argument, cross-examination, discovery, and other participation in a proceeding.
015.03B Privileges. Unless the order granting a Petition for Intervention limits an intervenor’s participation with condition, intervenors will be permitted to participate in any proceeding as if they were an original party.
015.04 Orders. The Director or hearing officer shall issue an order granting or denying each pending Petition for Intervention at least twenty-four (24) hours before a hearing. The order shall specify any conditions imposed on the intervenor’s participation, and shall state the reasons for the decision. The Director or hearing officer may modify an order granting or denying a Petition for Intervention at any time, and the order of modification shall state the reasons for modification.
015.05 Appeal. Appeals of any order granting, denying, or modifying a Petition for Intervention or imposing limitations on an intervenor by condition shall be made in accordance with the Administrative Procedure Act.
016 EVIDENCE .
016.01 Admissible Evidence. Any evidence shall be deemed admissible in a hearing that would be admissible in civil proceedings under the laws of the State of Nebraska. In addition, the hearing officer may, within his or her discretion, admit evidence possessing probative value in any form commonly accepted by reasonably prudent men in the conduct of their affairs.
016.01A Secondary Evidence. Pursuant to the foregoing provision, secondary evidence or copies of documents may be admitted.
016.01B Privileged Evidence. In all such hearings, effect shall be given to the rules of privilege recognized by the District Courts of the State of Nebraska.
016.01C Incompetent or Irrelevant Evidence; Exceptions. Incompetent, irrelevant, cumulative, or immaterial evidence may be excluded. Where proper objection is made to the admission of any evidence, the party making the objection shall be deemed to have taken exception to any adverse ruling and formal exceptions are not necessary.
016.02 Records of Department. Records and documents in the possession of the Department may be received in evidence in the form in which the same are kept, and without certification. The records and documents shall be afforded in evidence and made a part of the record in the case.
016.03 Cross-examination. Each party shall have a right of cross-examination of all witnesses who testify.
016.04 Official Notice. In the conduct of a hearing, the hearing officer may take official notice of such facts as would be so noticed by the District Courts of Nebraska, and may take notice of general technical or scientific facts within the specialized knowledge of the Department and Rules and Regulations promulgated by agencies of the State of Nebraska.
016.04A Notice of Technical or Scientific Facts. Parties to the proceedings shall be notified before or during the hearing of specialized technical or scientific facts to be so noticed, and opportunity afforded to contest such noticed facts.
016.05 Informal Hearings/Rules of Evidence. Hearings shall be conducted informally unless a party makes a written request that the rules of evidence be applied in the conduct of the hearing. The written request for the application of the rules of evidence shall comply with Neb. Rev. Stat. § 84-914 and shall be received by the Department at least three (3) days before the holding of the hearing. In its request the party requesting the rules of evidence shall agree to be liable for payment of the costs incurred thereby, including the cost of a court reporting service which the requesting party shall procure for the hearing.
017 CALCULATION OF TIME . In computing time, days will be computed by excluding the day of the act or event and including the last day of the period. If the last day of the period falls on a Saturday, Sunday, or State holiday, the period shall include the next working day. If documents are faxed to the Department outside of business hours, the date of receipt shall be the next business day.
018 DECISIONS AND FINAL ORDERS .
018.01 Written Order Required, Contents. Where a decision or order is rendered by the Director adverse to any party in the proceedings, the order shall be in writing or set forth in the record, and accompanied by findings of fact and conclusions of law.
018.02 Decision and Transmittal. The Director’s order shall be delivered to the party requesting the hearing by certified mail at the last known address of the party in the records of the Department. A copy will be sent to his or her attorney of record.
019 APPEALS AFTER HEARING . Any party aggrieved bya final decision or order of the Director, made pursuant to these rules and the applicable statute, may appeal such decision or order in the manner provided in the Administrative Procedure Act for contested cases as provided in Neb. Rev. Stat. § 84-917.
020 CONTINUATION OF PRETRIAL DIVERSION PROGRAMS IN EXISTENCE ON DECEMBER 31, 2002 . If a jurisdiction has a pretrial diversion program for minor traffic offenses in existence on December 31, 2002, such program may continue in operation until June 30, 2003. Not later than March 15, 2003, any provider who has a pretrial diversion program for minor traffic offenses in existence in any jurisdiction in this state shall submit an application for certification of a program to the Department consistent with these rules and regulations for every jurisdiction in which the provider intends to offer a program. Any provider continuing to operate a program in any jurisdiction pursuant to this section who does not submit an application for certification consistent with these rules and regulations by March 15, 2003 shall cease operation after March 15, 2003.
Attachments 1 and 2
History
- Effective 2011-12-21
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