28-905. Operating a motor vehicle or a vessel to avoid arrest; penalty; revocation or impoundment of operator's license.

(1) Any person who operates any motor vehicle to flee in such vehicle in an effort to avoid arrest or citation commits the offense of operation of a motor vehicle to avoid arrest.

(2)(a) Except as otherwise provided in subsection (3) of this section, any person who violates subsection (1) of this section shall be guilty of a Class I misdemeanor.

(b) The court may, as part of the judgment of conviction under subdivision (a) of this subsection, order that the operator's license of such person be revoked or impounded for a period of not more than one year and order the person not to drive any motor vehicle for any purpose in the State of Nebraska for a like period. The revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

(3)(a) Any person who violates subsection (1) of this section shall be guilty of a Class IV felony if, in addition to the violation of subsection (1) of this section, one or more of the following also applies:

(i) The person committing the offense has previously been convicted under this section;

(ii) The flight to avoid arrest results directly and proximately in the death of or injury to any person if such death or injury is caused directly and proximately by the vehicle being driven by the person fleeing to avoid arrest; or

(iii) The flight to avoid arrest includes the willful reckless operation of the motor vehicle.

(b) The court shall, as part of the judgment of conviction under subdivision (a) of this subsection, order that the operator's license of such person be revoked or impounded for a period of two years and order the person not to drive any motor vehicle for any purpose in the State of Nebraska for a like period. The revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

(4)(a) Any person who operates a vessel as defined in section 37-1203 to flee in such vessel in an effort to avoid arrest or citation for the violation of any statute punishable as a misdemeanor or any city or village ordinance shall be guilty of misdemeanor operation of a vessel to avoid arrest.

(b) Any person violating subdivision (a) of this subsection shall be guilty of a Class I misdemeanor. Upon conviction thereof the court shall, as part of the judgment of conviction, order such person not to operate any vessel for any purpose for a period of one year.

(5)(a) Any person who operates a vessel as defined in section 37-1203 to flee in such vessel in an effort to avoid arrest for the violation of any statute punishable as a felony shall be guilty of felony operation of a vessel to avoid arrest.

(b) Any person violating subdivision (a) of this subsection shall be guilty of a Class IV felony. Upon conviction thereof the court shall, as part of the judgment of conviction, order such person not to operate any vessel for any purpose for a period of two years.

(6) An order of the court under subsection (4) or (5) of this section prohibiting operation of a vessel shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

Source

Annotations

This section does not require that the jury have a separate instruction for an attempt to arrest or issue a citation. This element is inherent in the criminal offense as provided in this section. State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).

An attempt to arrest is an essential element of the offense of fleeing in a motor vehicle to avoid arrest, but proof that the defendant actually committed the law violation for which the arrest was attempted is not required. State v. Claussen, 276 Neb. 630, 756 N.W.2d 163 (2008).

An attempt to arrest or cite the defendant is an essential element of the offense of fleeing in a motor vehicle to avoid arrest. State v. Armagost, 22 Neb. App. 513, 856 N.W.2d 156 (2014).

The evidence was sufficient to convict the defendant under subsection (1) of this section where the defendant fled in his vehicle after an officer questioned him about an argument with his wife and ordered him to exit his vehicle while the officer's patrol car's emergency lights were engaged and where the defendant admitted to the officer after the ensuing chase that he had feared being arrested. State v. Ellingson, 13 Neb. App. 931, 703 N.W.2d 273 (2005).

An attempt to arrest is an essential element of the offense of fleeing in a motor vehicle to avoid arrest, but proof that the defendant actually committed the law violation for which the arrest was attempted is not required. State v. Carman, 10 Neb. App. 373, 631 N.W.2d 531 (2001).