60-6,197.02. Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; terms, defined; prior convictions; use; sentencing provisions; when applicable.

(1) A violation of section 60-6,196 or 60-6,197 shall be punished as provided in sections 60-6,196.01 and 60-6,197.03. For purposes of sentencing under sections 60-6,196.01 and 60-6,197.03:

(a) Prior conviction means a conviction for a violation committed within the fifteen-year period prior to the offense for which the sentence is being imposed as follows:

(i) For a violation of section 60-6,196:

(A) Any conviction for a violation of subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, or 60-6,198;

(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197; or

(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, or 60-6,198; or

(ii) For a violation of section 60-6,197:

(A) Any conviction for a violation of subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, or 60-6,198;

(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197; or

(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, or 60-6,198;

(b) Prior conviction includes any conviction under subdivision (3)(b) or (c) of section 28-306, subdivision (3)(b) or (c) of section 28-394, or section 28-1254, 60-6,196, 60-6,197, or 60-6,198, or any city or village ordinance enacted in conformance with section 60-6,196 or 60-6,197, as such sections or city or village ordinances existed at the time of such conviction regardless of subsequent amendments to any of such sections or city or village ordinances; and

(c) Fifteen-year period means the period computed from the date of the prior offense to the date of the offense which resulted in the conviction for which the sentence is being imposed.

(2) In any case charging a violation of section 60-6,196 or 60-6,197, the prosecutor or investigating agency shall use due diligence to obtain the person's driving record from the Department of Motor Vehicles and the person's driving record from other states where he or she is known to have resided within the last fifteen years. The prosecutor shall certify to the court, prior to sentencing, that such action has been taken. The prosecutor shall present as evidence for purposes of sentence enhancement a court-certified copy or an authenticated copy of a prior conviction in another state. The court-certified or authenticated copy shall be prima facie evidence of such prior conviction.

(3) For each conviction for a violation of section 60-6,196 or 60-6,197, the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person's prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.

(4) A person arrested for a violation of section 60-6,196 or 60-6,197 before January 1, 2012, but sentenced pursuant to section 60-6,197.03 for such violation on or after January 1, 2012, shall be sentenced according to the provisions of section 60-6,197.03 in effect on the date of arrest.

Source

Annotations

1. Enhancement

2. Offense

3. Sufficiency of the evidence

4. Miscellaneous

1. Enhancement

"Conviction" means a finding of guilt by a jury or a judge, or a judge's acceptance of a plea of guilty or no contest. State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).

For the purpose of sentence enhancement, a suspended imposition of a sentence from Missouri qualified as a "prior conviction" where the Missouri judgment indicated that the defendant pled guilty to driving while intoxicated in a Missouri court and the judge accepted the plea. State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016).

The plain and ordinary meaning of this section does not require the State to prove the exact date of the prior offense. State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).

A defendant's conviction in Colorado for driving while ability impaired could not be used to enhance his conviction in Nebraska for driving under the influence. State v. Mitchell, 285 Neb. 88, 825 N.W.2d 429 (2013).

"Prior conviction" for purposes of enhancing a conviction for driving under the influence is defined in terms of other laws regarding driving under the influence, while a "prior conviction" for purposes of enhancing a conviction for refusing a chemical test is defined in terms of refusal laws. There is no crossover between driving under the influence and refusal convictions for purposes of sentence enhancement. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

It was not the Legislature's intent to prohibit the consideration of prior out-of-state driving under the influence convictions simply because differing elements of the offense or differing quantums of proof make it merely possible that the defendant's behavior would not have resulted in a violation of section 60-6,196, had it occurred in Nebraska. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).

The prosecution presents prima facie evidence of a prior driving under the influence conviction by presenting a certified copy of the conviction and evidence that it was counseled; the burden then shifts to the defendant to rebut the presumption that the documents reflect that an "offense for which the person was convicted would have been a violation of section 60-6,196." State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).

This section (formerly subsection (2) of section 60-6,196) authorizes a trial court to consider prior convictions of a defendant for driving under the influence of alcoholic liquor or drug within the 12 years prior to the offense for which a defendant currently stands trial and is not ex post facto as to a conviction prior to its passage, since an offender subject to enhancement of punishment under this statute is not receiving additional punishment for his or her previous convictions but is being penalized for an offense committed after its passage. This section deals with offenses committed after its passage, permits an inquiry into a defendant's previous convictions, and in fixing the penalty, does not punish the defendant for previous offenses but for persistence in violating this section. State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (2000).

The language of this section permits a defendant to challenge the validity of a prior driving under the influence conviction offered for purposes of enhancement on the ground that it was obtained in violation of the defendant's Sixth Amendment right to counsel. State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).

Subsection (3) of this section does not provide that mitigating facts presented by the defendant would be considered by the court in determining whether otherwise valid prior convictions should be used to enhance a defendant's sentence. State v. Brooks, 22 Neb. App. 598, 858 N.W.2d 267 (2014).

Under the plain language of this section, when sentencing for a driving under the influence conviction, a previous refusal to submit to chemical testing conviction is not in the list of convictions that are prior convictions for the purpose of enhancement, and when sentencing for a refusal conviction, a previous driving under the influence conviction is not in the list of prior convictions which can be used to enhance the refusal conviction. State v. Hansen, 16 Neb. App. 671, 749 N.W.2d 499 (2008).

Legislative amendments to the length of the cleansing period provided by this section will not implicate vested due process rights of individuals with prior convictions used for enhancement. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).

Prior driving under the influence convictions are not necessary elements of a subsequent driving under the influence charge, but, rather, are used to determine the sentence to be imposed for a later driving under the influence conviction. Thus, the district court did not violate the Double Jeopardy Clause when it remanded a conviction for second-offense driving under the influence to the county court with directions to enter a judgment finding the defendant guilty of third-offense driving under the influence and to sentence her accordingly. State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).

2. Offense

In a prosecution under this section (formerly subsection (6) of section 60-6,196) for driving when one's operator's license has been revoked pursuant to subdivision (2)(c) of this section, proof of the prior conviction under subdivision (2)(c) is an essential element of the offense, and thus, the State has the burden to prove the prior conviction. A prior third-offense drunk driving conviction may be used as an element of a violation under this section (formerly subsection (6) of section 60-6,196) even though the prior conviction is not subject to a collateral attack. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).

This section is a continuance and affirmation of the previous section 39-669.07. Convictions under section 39-669.07 can be used for the purpose of sentence enhancements under this section. State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).

3. Sufficiency of the evidence

Subsection (c) of this section (formerly section 39-669.07 (Reissue 1988)) limits the proof which can be used to establish the defendant's prior driving while under the influence convictions. State v. Jenson, 236 Neb. 869, 464 N.W.2d 326 (1991).

4. Miscellaneous

The time limitations for the use of prior driving under the influence convictions set forth in this section do not apply to the use of prior driving under the influence convictions to section 28-306. State v. Tlamka, 7 Neb. App. 579, 585 N.W.2d 101 (1998).