Nebraska Administrative Code
Topic - MOTOR VEHICLES, DEPARTMENT OF
Title 247 - NEBRASKA ADMINISTRATIVE CODE, NEBRASKA DEPARTMENT OF MOTOR VEHICLES
Chapter 1 - NEBRASKA DEPARTMENT OF MOTOR VEHICLES
Section 247-1-015 - DISCOVERY AND SUBPOENA

Universal Citation: 247 NE Admin Rules and Regs ch 1 ยง 015

Current through September 17, 2024

015.01 Discovery Limitations. No depositions, requests for admissions, or interrogatories may be filed in this administrative license revocation special proceeding. Any deposition notices, requests for admissions, or interrogatories received are denied and may be unanswered.

015.02 Discovery Motions, Prosecutor Copy. The Appellant will provide a copy of every motion for discovery and praecipe for subpoena to the prosecutor in the jurisdiction in which the petitioner was arrested. Any motion for discovery and praecipe for subpoena filed by the petitioner shall entitle the prosecutor to receive full statutory discovery from the petitioner upon a prosecutor's request to the relevant court pursuant to Neb. Rev. Stat. § 29-1912 in any criminal proceeding arising from the same arrest.

015.03 Incomplete Discovery. Incomplete discovery shall not stay the hearing unless the petitioner requests a continuance.

015.04 Filing Timeline. Motions for discovery must be received by the Department no fewer than five days prior to the date scheduled for hearing. Praecipes for subpoena must be received by the Department with sufficient time for the Department to respond and the Appellant to serve.

015.05 Service. The Appellant has the responsibility of service. A subpoena issued pursuant to these rules and regulations shall be served either (1) personally, or (2) by mailing a copy thereof by either registered or certified mail, return receipt requested, not less than six days before the hearing day that the witness is required to attend. The person making such service shall make a return thereof showing the manner of service.

015.06 Department Subpoenas. At its discretion, the Department may informally request a witness' appearance or request a subpoena in the manner provided for in these regulations.

015.07 Motion to Quash. A motion to quash a subpoena may be filed with the Department. The Department will consider the motion, and may have a brief hearing if necessary.

015.08 Discoverable Material in Possession of the Department or a State Agency. The Department will, upon receipt of a timely and proper discovery motion, (a) provide the Appellant a copy of all non-privileged material, not filed by the Appellant, which is in the Appellant's case file at the Department, and (b) provide access to non-privileged documents in possession or control of another state agency relevant to the issues for the Appellant's hearing as provided in Neb. Rev. Stat. § 60-498.01(6)(c).

015.08A Statement. Every discovery motion shall contain a statement that the Appellant has provided a copy of the motion to the prosecutor in the jurisdiction of arrest.

015.09 Motion to Produce Blood Sample, Content. If the Appellant files a motion to produce a blood sample, the motion must provide the address of the laboratory which has custody of the Appellant's blood sample and must provide the address of a laboratory facility where the Appellant wants the blood sample sent for further testing. The Appellant shall be responsible for providing the laboratory sufficient waivers or other necessary documentation to allow the laboratory to share protected private information as required by law.

015.10 Subpoena for Discoverable Material Not in the Possession or Control of the Department. The Appellant may request a Subpoena for Production of Documents and/or Things that are relevant and material to the issues in the administrative proceeding. Provided the request complies with these rules and regulations, a subpoena will be issued by the Director, directing the custodian to make the requested items available for inspection and copying prior to the date of the hearing. Custodians may set reasonable fees and require payment for copies of documents, or audio or video recordings. To be considered, the praecipe must state all of the following for each subpoena requested.

015.10A The identification of the specific item or items desired;

015.10B The custodian of the item(s);

015.10C The address at which the subpoena will be served;

015.10D The facts expected to be established for a reasoned determination of relevance and materiality by the Director;

015.10E A showing of how the specified item or items will aid the Appellant in meeting his or her burden of proof;

015.10F A statement that a copy of the praecipe is being provided to the prosecutor;

015.10G A statement that Appellant understands that the prosecutor is entitled to full statutory discovery upon filing of the praecipe at the Department; and

015.10H A statement that custodians of discoverable materials may set reasonable fees and require pre-payment for copies of documents, or audio or video recordings.

015.11 Arresting Officer or other Witness Subpoena Requests, Content. To be considered a praecipe for subpoena for a witness must state all of the following for each subpoena requested.

015.11A The identification of the person desired;

015.11B The address at which the subpoena will be served;

015.11C A statement that the person has personal knowledge of the case;

015.11D The facts expected to be established for a reasoned determination of materiality by the Director;

015.11E A showing of how the requested person will aid the Appellant in meeting his or her burden of proof; and

015.11F A statement that the Appellant shall be responsible for the payment of witness fees as provided in Neb. Rev. Stat. § 33-139 and mileage as provided in Neb. Rev. Stat. § 81-1176, for any witness the Appellant subpoenas, including the fees and expenses of expert witnesses the Appellant calls. The request for a subpoena must be accompanied by a copy of the certified check or money order in the amount sufficient to cover witness fees and mileage. The check for witness fees shall be made out to the subpoenaed witness and not to the Department.

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