dissenting.
I respectfully dissent.
In McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995), and, subsequently, in State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996), we addressed the role of the sworn report of the arresting officer in administrative revocation proceedings conducted by the Department of Motor Vehicles and concluded that, in such proceedings, the State establishes its prima facie case for license revocation by submitting the arresting officer’s sworn report. We also held that the director of the department is not required to prove that the recitations contained in the sworn report are true; instead, following the admission of the sworn report, the burden of proof rests solely with the motorist, who must show by a preponderance of the evidence that the requirements for an administrative license revocation were not satisfied.
I disagree with the conclusion of the majority that McGuire met his burden of proving that the arresting officer lacked the requisite permit from the Department of Health to administer the breath test which established McGuire’s blood alcohol content. It is important to note that during the hearing, McGuire did riot specifically contend that the officer lacked this permit. McGuire’s counsel generally contended that there had not been compliance with statutory and regulatory requirements with respect to the breath test, but when asked by the hearing officer to be more specific, he responded: “I’m not going to disclose that at this time. I’ll do that in the District Court.”
During her direct examination, the arresting officer gave an affirmative response when asked if she was “certified in the administration of the intoxilizer test.” During cross-examination on the sáme topic, she gave an affirmative response to the question, “And that’s all you have is a certification?” She was never specifically asked, either on direct examination or cross-examination, whether she possessed a “valid permit” issued by the Department of Health authorizing her to administer the test.
In my view, this testimony does not prove that the officer lacked the permit, as the majority concludes. There is no evi*99dence in the record establishing that being certified to administer the test is different from holding a valid permit to do so. Thus, a reasonable inference can be drawn that the officer understood “certification” to be synonymous with “permit” in the context of the questions she was asked. McGuire’s brief cross-examination on this subject may have raised some degree of doubt as to whether the officer held the permit, but in my view it did not establish by a preponderance of the evidence that she did not. At most, the officer’s testimony created ambiguity on this point, which could have been easily resolved if McGuire had asked the officer whether she had the permit. McGuire did not ask that question or produce any other evidence showing that the officer lacked the permit.
The majority concludes that “[i]f [the arresting officer] was indeed confused, it was the department’s responsibility to make the proper record for review.” This statement seems contrary to our reasoning in McPherrin and Young in that it suggests that the State bears the burden of proving the truth of the matters contained in the officer’s sworn report, when in fact it is the burden of the motorist to disprove such matters. Clearly, the officer should have been asked whether her “certification” to administer the test included a valid permit issued by the Department of Health. Any doubt or confusion resulting from the failure to ask this question should, in my opinion, be resolved against McGuire as the party who had the burden of proving that the officer lacked the permit.
For these reasons, I do not regard the evidence adduced by McGuire to be sufficient to meet his burden of proving that the test results and his arrest were invalid. As I view the record, McGuire did not rebut the department’s prima facie case showing that his operator’s license should be administratively revoked, and there is competent evidence to support the administrative action taken by the department. I would, therefore, affirm the judgment of the district court.
Wright and Connolly, JJ., join in this dissent.