28-101. Code, how cited.

Sections 28-101 to 28-1357, 28-1601 to 28-1603, and 28-1701 shall be known and may be cited as the Nebraska Criminal Code.

Source:Laws 1977, LB 38, § 1; Laws 1980, LB 991, § 8; Laws 1982, LB 465, § 1; Laws 1985, LB 371, § 1; Laws 1985, LB 406, § 1; Laws 1986, LB 956, § 12; Laws 1986, LB 969, § 1; Laws 1987, LB 451, § 1; Laws 1988, LB 170, § 1; Laws 1988, LB 463, § 41; Laws 1989, LB 372, § 1; Laws 1990, LB 50, § 10; Laws 1990, LB 571, § 2; Laws 1990, LB 1018, § 1; Laws 1991, LB 135, § 1; Laws 1991, LB 477, § 2; Laws 1992, LB 1098, § 5; Laws 1992, LB 1184, § 8; Laws 1994, LB 988, § 1; Laws 1994, LB 1035, § 1; Laws 1994, LB 1129, § 1; Laws 1995, LB 371, § 1; Laws 1995, LB 385, § 11; Laws 1996, LB 908, § 2; Laws 1997, LB 90, § 1; Laws 1997, LB 814, § 6; Laws 1998, LB 218, § 2; Laws 1999, LB 6, § 1; Laws 1999, LB 49, § 1; Laws 1999, LB 163, § 1; Laws 1999, LB 511, § 1; Laws 2002, LB 276, § 1; Laws 2002, LB 824, § 1; Laws 2003, LB 17, § 1; Laws 2003, LB 43, § 8; Laws 2003, LB 273, § 2; Laws 2004, LB 943, § 1; Laws 2006, LB 57, § 1; Laws 2006, LB 287, § 4; Laws 2006, LB 1086, § 6; Laws 2006, LB 1199, § 1; Laws 2007, LB142, § 1; Laws 2008, LB764, § 1; Laws 2008, LB1055, § 1; Laws 2009, LB63, § 2; Laws 2009, LB97, § 9; Laws 2009, LB155, § 1; Laws 2010, LB252, § 1; Laws 2010, LB594, § 1; Laws 2010, LB894, § 1; Laws 2010, LB1103, § 11; Laws 2011, LB20, § 1; Laws 2011, LB226, § 1; Laws 2011, LB667, § 1; Laws 2013, LB3, § 1; Laws 2013, LB44 § 1; Laws 2014, LB403, § 1; Laws 2014, LB863, § 15; Laws 2015, LB390, § 1; Laws 2016, LB136, § 1; Laws 2016, LB934, § 1; Laws 2016, LB1009, § 1; Laws 2016, LB1106, § 3; Laws 2017, LB289, § 2; Laws 2017, LB487, § 2; Laws 2018, LB931, § 1; Laws 2018, LB990, § 1; Laws 2019, LB7, § 1; Laws 2019, LB519, § 4; Laws 2019, LB686, § 1; Laws 2020, LB814, § 1; Laws 2020, LB881, § 6; Laws 2020, LB1152, § 14; Laws 2022, LB519, § 2; Laws 2022, LB922, § 5; Laws 2023, LB77, § 6.
Effective Date: September 2, 2023

28-102. Purposes; principles of construction.

The general purposes of the provisions governing the definition of offenses are:

(1) To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;

(2) To subject to public control persons whose conduct indicates that they are disposed to commit crimes;

(3) To safeguard conduct that is without fault and which is essentially victimless in its effect from condemnation as criminal;

(4) To give fair warning of the nature of the conduct declared to constitute an offense; and

(5) To differentiate on reasonable grounds between serious and minor offenses.

Source:Laws 1977, LB 38, § 2.

28-103. Restrictions on applicability.

(1) The provisions of this code shall not apply to any offense committed prior to January 1, 1979. Such an offense shall be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted.

(2) For the purposes of this section, an offense shall be deemed to have been committed prior to January 1, 1979, if any element of the offense occurred prior thereto.

(3) This code shall not bar, suspend or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action.

Source:Laws 1977, LB 38, § 3.

28-104. Offense; crime; synonymous.

The terms offense and crime are synonymous as used in this code and mean a violation of, or conduct defined by, any statute for which a fine, imprisonment, or death may be imposed.

Source:Laws 1977, LB 38, § 4; Laws 2015, LB268, § 5; Referendum 2016, No. 426.

Note: The changes made to section 28-104 by Laws 2015, LB 268, section 5, have been omitted because of the vote on the referendum at the November 2016 general election.

28-105. Felonies; classification of penalties; sentences; where served; eligibility for probation.

(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, felonies are divided into ten classes which are distinguished from one another by the following penalties which are authorized upon conviction:

Class I felony Death

Class IA felony Life imprisonment

Class IB felony Maximum—life imprisonment

Minimum—twenty years imprisonment

Class IC felony Maximum—fifty years imprisonment

Mandatory minimum—five years imprisonment

Class ID felony Maximum—fifty years imprisonment

Mandatory minimum—three years imprisonment

Class II felony Maximum—fifty years imprisonment

Minimum—one year imprisonment

Class IIA felony Maximum—twenty years imprisonment

Minimum—none

Class III felony Maximum—four years imprisonment and two years

post-release supervision or

twenty-five thousand dollars fine, or both

Minimum—none for imprisonment and nine months

post-release supervision if imprisonment is imposed

Class IIIA felony Maximum—three years imprisonment

and eighteen months post-release supervision or

ten thousand dollars fine, or both

Minimum—none for imprisonment and nine months

post-release supervision if imprisonment is imposed

Class IV felony Maximum—two years imprisonment and twelve

months post-release supervision or

ten thousand dollars fine, or both

Minimum—none for imprisonment and none for

post-release supervision

(2) All sentences for maximum terms of imprisonment for one year or more for felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. All sentences for maximum terms of imprisonment of less than one year shall be served in the county jail.

(3) Nothing in this section shall limit the authority granted in sections 29-2221 and 29-2222 to increase sentences for habitual criminals.

(4) A person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation.

(5) All sentences of post-release supervision shall be served under the jurisdiction of the Office of Probation Administration and shall be subject to conditions imposed pursuant to section 29-2262 and subject to sanctions authorized pursuant to section 29-2266.02.

(6) Any person who is sentenced to imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony and sentenced concurrently or consecutively to imprisonment for a Class III, IIIA, or IV felony shall not be subject to post-release supervision pursuant to subsection (1) of this section.

(7) Any person who is sentenced to imprisonment for a Class III, IIIA, or IV felony committed prior to August 30, 2015, and sentenced concurrently or consecutively to imprisonment for a Class III, IIIA, or IV felony committed on or after August 30, 2015, shall not be subject to post-release supervision pursuant to subsection (1) of this section.

(8) The changes made to the penalties for Class III, IIIA, and IV felonies by Laws 2015, LB605, do not apply to any offense committed prior to August 30, 2015, as provided in section 28-116.

Source:Laws 1977, LB 38, § 5; Laws 1989, LB 592, § 1; Laws 1995, LB 371, § 2; Laws 1997, LB 364, § 1; Laws 1998, LB 900, § 1; Laws 1998, LB 1266, § 1; Laws 2002, Third Spec. Sess., LB 1, § 1; Laws 2011, LB12, § 1; Laws 2015, LB268, § 6; Laws 2015, LB605, § 6; Laws 2016, LB1094, § 2; Referendum 2016, No. 426; Laws 2019, LB686, § 2.

Annotations

1. Sentencing

2. Miscellaneous

1. Sentencing

The statutory provisions of section 29-2204.02 and this section relating to post-release supervision are mandatory, and a sentence that fails to impose post-release supervision when required is an appropriate matter for an appellate court's discretionary plain error review. State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022).

A person convicted of a felony for which a mandatory minimum sentence is prescribed is not eligible for probation. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in section 28-319.01(2) and "minimum" as used in this section in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

A sentence of imprisonment for a term of 60 years to life for second degree murder is not excessive in the absence of an abuse of judicial discretion. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).

When a flat sentence of "life imprisonment" is imposed and no minimum sentence is stated, by operation of law, the minimum sentence for parole eligibility purposes is the minimum imposed by law under the statute. State v. Gray, 259 Neb. 897, 612 N.W.2d 507 (2000).

The Nebraska sentencing statutes do not require that the minimum sentence be for a different term than the maximum sentence. State v. Cook, 251 Neb. 781, 559 N.W.2d 471 (1997).

County jail was not under the jurisdiction of the Department of Correctional Services; therefore, it was plain error for district court to sentence defendant convicted of Class III felony to term in county jail. State v. Wilcox, 239 Neb. 882, 479 N.W.2d 134 (1992).

Pursuant to subsection (2) of this section, the district court lacks statutory authority to sentence a defendant convicted of a Class III felony to a term of imprisonment in the county jail. State v. Wren, 234 Neb. 291, 450 N.W.2d 684 (1990).

Under the provisions of this section and section 28-304(2), a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987).

Where an indeterminate sentence is pronounced, the minimum limit fixed by the court shall not be less than the minimum provided by law nor more than one-third of the maximum term. Where maximum allowable sentence is five years, an indeterminate sentence of two to five years is excessive and must be modified to a sentence of not less than one year eight months nor more than five years. State v. Bosak, 207 Neb. 693, 300 N.W.2d 201 (1981).

A defendant's sentence on a Class IIIA felony needed to be an indeterminate sentence pursuant to subsection (4) of section 29-2204.02, because the defendant was also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).

Under subsection (2) of this section, sentences of less than 1 year shall be served in the county jail, whereas sentences of 1 year or more for Class IIIA felonies shall be served in institutions under the jurisdiction of the Department of Correctional Services. State v. Minnick, 22 Neb. App. 907, 865 N.W.2d 117 (2015).

2. Miscellaneous

The nonretroactive provision of subsection (7) of this section applies to the changes made by 2015 Neb. Laws, L.B. 605, to penalties for Class IV felony convictions under section 29-2204.02. State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).

The Legislature lacked constitutional authority to amend the language of the statutory penalty for a Class IA felony by inserting the phrase "without parole" after "life imprisonment" during the 2002 special session. State v. Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).

The change of the minimum penalty for first degree murder from life imprisonment to life imprisonment without parole is presumed to be an increase in the minimum penalty that cannot be applied to acts committed prior to the change without violating constitutional ex post facto principles. State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).

This section does not impose a mandatory minimum term of incarceration for persons convicted of a Class II felony. State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).

A defendant found guilty of a Class III felony does not have an equal protection right to a Specialized Substance Abuse Supervision evaluation when such defendant fails to show that he was similarly situated to felony drug offenders who were eligible for the program. State v. Borges, 18 Neb. App. 322, 791 N.W.2d 336 (2010).

The geographic limitations on the Specialized Substance Abuse Supervision program do not violate the Equal Protection Clause because the program is rationally related to the State's interests. State v. Borges, 18 Neb. App. 322, 791 N.W.2d 336 (2010).

28-105.01. Death penalty imposition; restriction on person under eighteen years; restriction on person with intellectual disability; sentencing procedure.

(1) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person who was under the age of eighteen years at the time of the commission of the crime.

(2) Notwithstanding any other provision of law, the death penalty shall not be imposed upon any person with an intellectual disability.

(3) As used in subsection (2) of this section, intellectual disability means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior. An intelligence quotient of seventy or below on a reliably administered intelligence quotient test shall be presumptive evidence of intellectual disability.

(4) If (a) a jury renders a verdict finding the existence of one or more aggravating circumstances as provided in section 29-2520 or (b)(i) the information contains a notice of aggravation as provided in section 29-1603 and (ii) the defendant waives his or her right to a jury determination of the alleged aggravating circumstances, the court shall hold a hearing prior to any sentencing determination proceeding as provided in section 29-2521 upon a verified motion of the defense requesting a ruling that the penalty of death be precluded under subsection (2) of this section. If the court finds, by a preponderance of the evidence, that the defendant is a person with an intellectual disability, the death sentence shall not be imposed. A ruling by the court that the evidence of diminished intelligence introduced by the defendant does not preclude the death penalty under subsection (2) of this section shall not restrict the defendant's opportunity to introduce such evidence at the sentencing determination proceeding as provided in section 29-2521 or to argue that such evidence should be given mitigating significance.

Source:Laws 1982, LB 787, § 23; Laws 1998, LB 1266, § 2; Laws 2002, Third Spec. Sess., LB 1, § 2; Laws 2013, LB23, § 3; Laws 2015, LB268, § 35; Referendum 2016, No. 426.

Note: The repeal of section 28-105.01 by Laws 2015, LB 268, section 35, is not effective because of the vote on the referendum at the November 2016 general election.

Annotations

The phrase "notwithstanding any other provision of law" in this section neither impacts nor overrides the procedural and time limitations applicable to postconviction motions under the Nebraska Postconviction Act. State v. Lotter, 311 Neb. 878, 976 N.W.2d 721 (2022).

This section is based on the determination that mentally retarded persons who meet the law's requirements for criminal responsibility should be tried and punished when they commit crimes, but because of their disabilities in areas of reasoning, judgment, and control of their impulses, they do not act with the level of moral culpability that characterizes the most serious adult criminal conduct. This section prohibits the execution of mentally retarded persons because of a widespread judgment about the relative culpability of mentally retarded offenders, and the relationship between mental retardation and the penological purposes served by the death penalty. State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).

28-105.02. Class IA felony; person under eighteen years; maximum sentence; court consider mitigating factors.

(1) Notwithstanding any other provision of law, the penalty for any person convicted of a Class IA felony for an offense committed when such person was under the age of eighteen years shall be a maximum sentence of not greater than life imprisonment and a minimum sentence of not less than forty years' imprisonment.

(2) In determining the sentence of a convicted person under subsection (1) of this section, the court shall consider mitigating factors which led to the commission of the offense. The convicted person may submit mitigating factors to the court, including, but not limited to:

(a) The convicted person's age at the time of the offense;

(b) The impetuosity of the convicted person;

(d) The convicted person's ability to appreciate the risks and consequences of the conduct;

(e) The convicted person's intellectual capacity; and

(f) The outcome of a comprehensive mental health evaluation of the convicted person conducted by an adolescent mental health professional licensed in this state. The evaluation shall include, but not be limited to, interviews with the convicted person's family in order to learn about the convicted person's prenatal history, developmental history, medical history, substance abuse treatment history, if any, social history, and psychological history.

Source:Laws 2013, LB44, § 2.

Annotations

A sentence of 70 years' to life imprisonment was not excessive or a de facto life sentence for an offender who, at age 14, murdered his younger sister. State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).

A sentence of 110 to 126 years' imprisonment for a murder committed at age 17 was not excessive or a de facto life sentence; the court considered the relevant sentencing factors along with the offender's youth and attendant characteristics and the fact that the offender would be eligible for parole at age 72. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018).

The defendant's resentencing of 60 to 80 years' imprisonment with credit for time served for murder committed as a juvenile offender did not violate Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), where the defendant was not sentenced to life imprisonment without parole and instead had the opportunity for parole in just under 14 years, a full mitigation hearing was held before his sentencing at which both the State and the defendant were given an opportunity to present evidence, and the court stated that it had to consider the fact that a jury convicted the defendant of murder in the first degree but also had to consider the mitigating factors under this section, as well as a psychological evaluation. State v. Jackson, 297 Neb. 22, 899 N.W.2d 215 (2017).

Subsection (1) of this section does not apply to persons who committed a Class IA felony offense when they were 18 years of age. State v. Wetherell, 289 Neb. 312, 855 N.W.2d 359 (2014).

Where a defendant had been sentenced to life imprisonment without the possibility of parole for a crime he committed while under the age of 18 years and that sentence was later determined to be unconstitutional, this section applied to his resentencing. State v. Taylor, 287 Neb. 386, 842 N.W.2d 771 (2014).

28-106. Misdemeanors; classification of penalties; sentences; where served.

(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, misdemeanors are divided into seven classes which are distinguished from one another by the following penalties which are authorized upon conviction:

Class I misdemeanor........ Maximum — not more than one year

imprisonment, or one thousand dollars

fine, or both

Minimum — none

Class II misdemeanor....... Maximum — six months imprisonment, or

one thousand dollars fine, or both

Minimum — none

Class III misdemeanor...... Maximum — three months imprisonment,

or five hundred dollars fine, or both

Minimum — none

Class IIIA misdemeanor..... Maximum — seven days imprisonment, five

hundred dollars fine, or both

Minimum — none

Class IV misdemeanor....... Maximum — no imprisonment, five

hundred dollars fine

Minimum — none

Class V misdemeanor........ Maximum — no imprisonment, one

hundred dollars fine

Minimum — none

Class W misdemeanor....... Driving under the influence or implied

consent

First conviction

Maximum — sixty days imprisonment and

five hundred dollars fine

Mandatory minimum — seven days

imprisonment and five hundred dollars

fine

Second conviction

Maximum — six months imprisonment and

five hundred dollars fine

Mandatory minimum — thirty days

imprisonment and five hundred dollars

fine

Third conviction

Maximum — one year imprisonment and

one thousand dollars fine

Mandatory minimum — ninety days

imprisonment

and one thousand dollars fine

(2) Sentences of imprisonment in misdemeanor cases shall be served in the county jail, except that such sentences may be served in institutions under the jurisdiction of the Department of Correctional Services if the sentence is to be served concurrently or consecutively with a term for conviction of a felony and the combined sentences total a term of one year or more. A determinate sentence shall be imposed for a misdemeanor if the sentence is to be served concurrently or consecutively with a determinate sentence for a Class III, IIIA, or IV felony.

Source:Laws 1977, LB 38, § 6; Laws 1982, LB 568, § 1; Laws 1986, LB 153, § 1; Laws 1992, LB 291, § 1; Laws 1998, LB 309, § 1; Laws 2002, LB 82, § 3; Laws 2005, LB 594, § 1; Laws 2011, LB675, § 1; Laws 2015, LB605, § 7; Laws 2016, LB1094, § 3.

Annotations

A determinate sentence, as used in subsection (2) of this section, is imposed when the defendant is sentenced to a single term of years. State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).

The proper determination of punishment for fourth offense driving under the influence of an alcoholic liquor or drug is governed by subsection (1) of this section and not by section 28-107(3). State v. Schultz, 252 Neb. 746, 566 N.W.2d 739 (1997).

For a Class III misdemeanor, a sentence of five days in jail with a fine of three hundred dollars is within the statutory maximum and will not be disturbed on appeal absent an abuse of discretion. State v. Rosenberry, 209 Neb. 383, 307 N.W.2d 823 (1981).

A defendant's sentences on various misdemeanors needed to be indeterminate sentences pursuant to subsection (5) of section 29-2204.02, because the defendant was also sentenced on Class II felonies. State v. Wells, 28 Neb. App. 118, 940 N.W.2d 847 (2020).

28-107. Felony or misdemeanor, defined outside of code; how treated.

(1) Any felony or misdemeanor defined by state statute outside of this code without specification of its class shall be punishable as provided in the statute defining it, or as otherwise provided by law outside of this code, except as provided in subsections (2) and (3) of this section.

(2) A felony defined by statute outside this code, without classification, the sentence for which exceeds the sentence authorized in this code for a Class III felony, shall constitute for sentencing purposes a Class III felony. A person adjudged guilty under such law is deemed to be convicted of a Class III felony and shall be sentenced for a felony of that class in accordance with this code.

(3) A misdemeanor defined by a statute outside this code, the sentence for which exceeds the sentence authorized in this code for a Class I misdemeanor, shall constitute for sentencing purposes a Class I misdemeanor. A person adjudged guilty under such law is deemed to be convicted of a Class I misdemeanor and shall be sentenced for a Class I misdemeanor in accordance with this code.

Source:Laws 1977, LB 38, § 7.

Annotations

The proper determination of punishment for fourth offense driving under the influence of an alcoholic liquor or drug is governed by section 28-106(1) and not subsection (3) of this section. State v. Schultz, 252 Neb. 746, 566 N.W.2d 739 (1997).

28-108. Subsequent enactment of criminal laws.

Criminal laws enacted after January 1, 1979, shall be classified for sentencing purposes in accordance with section 28-105 or 28-106.

Source:Laws 1977, LB 38, § 8.

28-109. Terms, defined.

For purposes of the Nebraska Criminal Code, unless the context otherwise requires:

(1) Act shall mean a bodily movement, and includes words and possession of property;

(2) Aid or assist shall mean knowingly to give or lend money or credit to be used for, or to make possible or available, or to further activity thus aided or assisted;

(3) Benefit shall mean any gain or advantage to the beneficiary including any gain or advantage to another person pursuant to the desire or consent of the beneficiary;

(4) Bodily injury shall mean physical pain, illness, or any impairment of physical condition;

(5) Conduct shall mean an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions;

(6) Conveyance shall mean a mode of transportation that includes any vehicle, aircraft, or watercraft;

(7) Deadly physical force shall mean force, the intended, natural, and probable consequence of which is to produce death, or which does, in fact, produce death;

(8) Deadly weapon shall mean any firearm, knife, bludgeon, or other device, instrument, material, or substance, whether animate or inanimate, which in the manner it is used or intended to be used is capable of producing death or serious bodily injury;

(9) Deface shall mean to alter the appearance of something by removing, distorting, adding to, or covering all or a part of the thing;

(10) Dwelling shall mean a building or other thing which is used, intended to be used, or usually used by a person for habitation;

(11) Government shall mean the United States, any state, county, municipality, or other political unit, any branch, department, agency, or subdivision of any of the foregoing, and any corporation or other entity established by law to carry out any governmental function;

(12) Governmental function shall mean any activity which a public servant is legally authorized to undertake on behalf of government;

(13) Motor vehicle shall mean every self-propelled land vehicle, not operated upon rails, except self-propelled chairs used by persons who are disabled, electric personal assistive mobility devices as defined in section 60-618.02, and bicycles as defined in section 60-611;

(14) Omission shall mean a failure to perform an act as to which a duty of performance is imposed by law;

(15) Peace officer shall mean any officer or employee of the state or a political subdivision authorized by law to make arrests, and shall include members of the National Guard on active service by direction of the Governor during periods of emergency or civil disorder;

(16) Pecuniary benefit shall mean benefit in the form of money, property, commercial interest, or anything else, the primary significance of which is economic gain;

(17) Person shall mean any natural person and where relevant a corporation or an unincorporated association;

(18) Public place shall mean a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities;

(19) Public servant shall mean any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses;

(20) Recklessly shall mean acting with respect to a material element of an offense when any person disregards a substantial and unjustifiable risk that the material element exists or will result from his or her conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation;

(21) Serious bodily injury shall mean bodily injury which involves a substantial risk of death, or which involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body;

(22) Tamper shall mean to interfere with something improperly or to make unwarranted alterations in its condition;

(23) Thing of value shall mean real property, tangible and intangible personal property, contract rights, choses in action, services, and any rights of use or enjoyment connected therewith; and

(24) Voluntary act shall mean an act performed as a result of effort or determination, and includes the possession of property if the actor was aware of his or her physical possession or control thereof for a sufficient period to have been able to terminate it.

Source:Laws 1977, LB 38, § 9; Laws 1993, LB 370, § 8; Laws 2002, LB 1105, § 427; Laws 2015, LB95, § 1; Laws 2016, LB1106, § 4.

Annotations

Under this section, "serious bodily injury" means bodily injury which involves a (1) substantial risk of death, (2) substantial risk of serious permanent disfigurement, or (3) protracted loss or impairment of the function of any part or organ of the body. State v. Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).

The statutory test for recklessness pursuant to subdivision (19) of this section is purely objective, rendering testimony as to the subjective state of mind of the defendant irrelevant. State v. Kistenmacher, 231 Neb. 318, 436 N.W.2d 168 (1989).

Knife wounds which cause the victim to bleed so badly that she passes out and which require thirteen stitches create a substantial risk of death and, therefore, constitute serious bodily injury. State v. Schuette, 223 Neb. 777, 393 N.W.2d 718 (1986).

Definition of "thing of value" appearing in this section applicable to prosecution under section 28-611(1). State v. Spaulding, 211 Neb. 575, 319 N.W.2d 449 (1982).

Protracted or permanent hearing loss constitutes a serious bodily injury. State v. Thomas, 210 Neb. 298, 314 N.W.2d 15 (1981).

Evidence indicated that shooting was intentional and not reckless. While every shooting does not automatically inflict a serious bodily injury, when one is shot in the chest above the heart and the bullet is surgically removed, the statutory definition of serious bodily injury is met. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).

The record supported that a shoulder injury was a serious bodily injury where the victim had to be anesthetized twice in emergency room before the dislocated shoulder could be put back into place, was administered pain medication, required physical therapy and subsequent shoulder surgery, was placed on light-duty work after the injury, and was not yet fully healed at the time of testimony. State v. Kearns, 29 Neb. App. 648, 956 N.W.2d 739 (2021).

The trial court did not err in declining to use the defendant's proposed jury instruction defining "recklessly" which mirrored the language of subsection (19) of this section where trial court gave pattern jury instruction definition of "reckless." State v. Walls, 17 Neb. App. 90, 756 N.W.2d 542 (2008).

28-110. Statement of rights.

A person in the State of Nebraska has the right to live free from violence, or intimidation by threat of violence, committed against his or her person or the destruction or vandalism of, or intimidation by threat of destruction or vandalism of, his or her property regardless of his or her race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability.

Source:Laws 1997, LB 90, § 2.

28-111. Enhanced penalty; enumerated offenses.

Any person who commits one or more of the following criminal offenses against a person or a person's property because of the person's race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the person's association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability shall be punished by the imposition of the next higher penalty classification than the penalty classification prescribed for the criminal offense, unless such criminal offense is already punishable as a Class IB felony or higher classification: Manslaughter, section 28-305; assault in the first degree, section 28-308; assault in the second degree, section 28-309; assault in the third degree, section 28-310; terroristic threats, section 28-311.01; stalking, section 28-311.03; kidnapping, section 28-313; false imprisonment in the first degree, section 28-314; false imprisonment in the second degree, section 28-315; sexual assault in the first degree, section 28-319; sexual assault in the second or third degree, section 28-320; sexual assault of a child, sections 28-319.01 and 28-320.01; arson in the first degree, section 28-502; arson in the second degree, section 28-503; arson in the third degree, section 28-504; criminal mischief, section 28-519; unauthorized application of graffiti, section 28-524; criminal trespass in the first degree, section 28-520; or criminal trespass in the second degree, section 28-521.

Source:Laws 1997, LB 90, § 3; Laws 2006, LB 1199, § 2; Laws 2009, LB63, § 3.

Annotations

The phrase "because of" requires the State to prove some causal connection between the victim's association with a person of a certain sexual orientation and the criminal act. State v. Duncan, 293 Neb. 359, 878 N.W.2d 363 (2016).

28-112. Allegations set forth in indictment or information; burden of proof.

The allegations stating that the underlying offense was committed because of the person's race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the person's association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability shall be set forth in the indictment or information. It is the burden of the prosecuting attorney to prove such allegations beyond a reasonable doubt to the judge or jury in the state's case in chief.

Source:Laws 1997, LB 90, § 4; Laws 2004, LB 270, § 1.

28-113. Civil action authorized; statute of limitations; proof required.

(1) A person against whom a violation of section 28-111 has been committed may bring a civil action for equitable relief, general and special damages, reasonable attorney's fees, and costs.

(2) A civil action brought pursuant to this section must be brought within four years after the date of the violation of section 28-111.

(3) In a civil action brought pursuant to this section, the plaintiff shall establish by a preponderance of the evidence that the defendant committed the criminal offense against the plaintiff or the plaintiff's property because of the plaintiff's race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the plaintiff's association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability.

Source:Laws 1997, LB 90, § 5.

28-114. Nebraska Commission on Law Enforcement and Criminal Justice; duties.

The Nebraska Commission on Law Enforcement and Criminal Justice shall establish and maintain a central repository for the collection and analysis of information regarding criminal offenses committed against a person because of the person's race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the person's association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability. Upon establishing such a repository, the commission shall develop a procedure to monitor, record, classify, and analyze information relating to criminal offenses apparently directed against individuals or groups, or their property, because of their race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of their association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability.

Source:Laws 1997, LB 90, § 6.

28-115. Criminal offense against a pregnant woman; enhanced penalty.

(1) Except as provided in subsection (2) of this section, any person who commits any of the following criminal offenses against a pregnant woman shall be punished by the imposition of the next higher penalty classification than the penalty classification prescribed for the criminal offense:

(a) Assault in the first degree, section 28-308;

(b) Assault in the second degree, section 28-309;

(d) Assault by strangulation or suffocation, section 28-310.01;

(e) Sexual assault in the first degree, section 28-319;

(f) Sexual assault in the second or third degree, section 28-320;

(g) Sexual assault of a child in the first degree, section 28-319.01;

(h) Sexual assault of a child in the second or third degree, section 28-320.01;

(i) Sexual abuse of an inmate or parolee in the first degree, section 28-322.02;

(j) Sexual abuse of an inmate or parolee in the second degree, section 28-322.03;

(k) Sexual abuse of a protected individual in the first or second degree, section 28-322.04;

(l) Sexual abuse of a detainee under section 28-322.05;

(m) Domestic assault in the first, second, or third degree, section 28-323;

(n) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the first degree, section 28-929;

(o) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the second degree, section 28-930;

(p) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the third degree, section 28-931;

(q) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional using a motor vehicle, section 28-931.01;

(r) Assault by a confined person, section 28-932;

(s) Confined person committing offenses against another person, section 28-933; and

(t) Proximately causing serious bodily injury while operating a motor vehicle, section 60-6,198.

(2) The enhancement in subsection (1) of this section does not apply to any criminal offense listed in subsection (1) of this section that is already punishable as a Class I, IA, or IB felony. If any criminal offense listed in subsection (1) of this section is punishable as a Class I misdemeanor, the penalty under this section is a Class IIIA felony.

(3) The prosecution shall allege and prove beyond a reasonable doubt that the victim was pregnant at the time of the offense.

Source:Laws 2006, LB 57, § 9; Laws 2010, LB771, § 1; Laws 2014, LB811, § 1; Laws 2016, LB1094, § 4; Laws 2019, LB141, § 1; Laws 2019, LB519, § 5.

28-116. Changes made by Laws 2015, LB605; applicability.

The changes made to the sections listed in this section by Laws 2015, LB605, shall not apply to any offense committed prior to August 30, 2015. Any such offense shall be construed and punished according to the provisions of law existing at the time the offense was committed. For purposes of this section, an offense shall be deemed to have been committed prior to August 30, 2015, if any element of the offense occurred prior to such date. The following sections are subject to this provision: Sections 9-262, 9-352, 9-434, 9-652, 23-135.01, 28-105, 28-106, 28-201, 28-204, 28-305, 28-306, 28-309, 28-310.01, 28-311, 28-311.01, 28-311.04, 28-311.08, 28-320, 28-322.02, 28-322.03, 28-322.04, 28-323, 28-393, 28-394, 28-397, 28-416, 28-504, 28-507, 28-514, 28-518, 28-519, 28-603, 28-604, 28-611, 28-611.01, 28-620, 28-621, 28-622, 28-627, 28-631, 28-638, 28-639, 28-703, 28-707, 28-813.01, 28-912, 28-932, 28-1005, 28-1009, 28-1102, 28-1103, 28-1104, 28-1212.03, 28-1222, 28-1224, 28-1344, 28-1345, 28-1463.05, 29-1816, 29-2204, 29-2260, 29-2308, 29-4011, 60-6,197.03, 60-6,197.06, 68-1017, 68-1017.01, 71-2228, and 71-2229.

Source:Laws 2015, LB605, § 109.

Annotations

The nonretroactive provision of section 28-105(7) applies to the changes made by 2015 Neb. Laws, L.B. 605, to penalties for Class IV felony convictions under section 29-2204.02. State v. Benavides, 294 Neb. 902, 884 N.W.2d 923 (2016).

28-117. Department of Health and Human Services; information on programs and services.

On or before December 1, 2019, the Department of Health and Human Services shall make publicly available information on programs and services available for referral by the department to respond to the safety and needs of children reported or suspected to be victims of sex trafficking of a minor or labor trafficking of a minor as defined in section 28-830 and their families. The department shall develop this information in consultation with representatives of child advocacy centers, behavioral health providers, child welfare and juvenile justice service providers, law enforcement representatives, and prosecutors.

Source:Laws 2019, LB519, § 12.

28-201. Criminal attempt; conduct; penalties.

(1) A person shall be guilty of an attempt to commit a crime if he or she:

(a) Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he or she believes them to be; or

(b) Intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to culminate in his or her commission of the crime.

(2) When causing a particular result is an element of the crime, a person shall be guilty of an attempt to commit the crime if, acting with the state of mind required to establish liability with respect to the attendant circumstances specified in the definition of the crime, he or she intentionally engages in conduct which is a substantial step in a course of conduct intended or known to cause such a result.

(3) Conduct shall not be considered a substantial step under this section unless it is strongly corroborative of the defendant's criminal intent.

(4) Criminal attempt is:

(a) A Class II felony when the crime attempted is a Class I, IA, IB, IC, or ID felony;

(b) A Class IIA felony when the crime attempted is a Class II felony;

(d) A Class IV felony when the crime attempted is a Class III or IIIA felony;

(e) A Class I misdemeanor when the crime attempted is a Class IV felony;

(f) A Class II misdemeanor when the crime attempted is a Class I misdemeanor; and

(g) A Class III misdemeanor when the crime attempted is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 10; Laws 1997, LB 364, § 2; Laws 1998, LB 1266, § 3; Laws 2010, LB712, § 7; Laws 2010, LB771, § 2; Laws 2012, LB799, § 1; Laws 2015, LB268, § 7; Laws 2015, LB605, § 8; Referendum 2016, No. 426.

Note: The changes made to section 28-201 by Laws 2015, LB 268, section 7, have been omitted because of the vote on the referendum at the November 2016 general election.

Annotations

1. Criminal attempt

2. Lesser-included offense

3. Miscellaneous

1. Criminal attempt

A person can intentionally attempt an act that does not require criminal intent to complete. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

The statutory elements of attempted first degree murder are a substantial step in a course of conduct intended to culminate in the commission of a purposeful, malicious, premeditated killing of another person. The statutory elements of attempted second degree murder are a substantial step in a course of conduct intended to culminate in the commission of an intentional killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).

Within the offense of criminal attempt, an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).

Within the offense of "criminal attempt," an attempt to commit a particular crime may also include an attempt to commit a lesser-included offense in reference to the designated crime alleged to have been attempted. State v. Jackson, 225 Neb. 843, 408 N.W.2d 720 (1987).

Although a gun is unloaded and thereby incapable of causing death or injury, a person may be guilty of attempted murder or assault if the person pulling the trigger believes the gun to be loaded. State v. Benzel, 220 Neb. 466, 370 N.W.2d 501 (1985).

In order to constitute an attempt to commit a crime under this section, there must be an intentional act on the part of the defendant which would constitute a substantial step toward the completion of the allegedly attempted crime, assuming that the circumstances at the time were as the defendant believed them to be. State v. Sodders, 208 Neb. 504, 304 N.W.2d 62 (1981).

An intentional killing can be manslaughter, if it results from a sudden quarrel. Thus, attempted sudden quarrel manslaughter can be considered a crime. State v. Smith, 19 Neb. App. 708, 811 N.W.2d 720 (2012).

Where a particular result is an element of the underlying crime, subsection (1)(a) and (b) require that the actor intended the result. Under subsection (2), the actor can be convicted of criminal attempt if he knows that his conduct will produce the result. In other words, the actor can be convicted of attempt if he is aware of the high probability that such result will occur. One cannot commit the crime of attempt where the underlying crime contains only a reckless mens rea. State v. Hemmer, 3 Neb. App. 769, 531 N.W.2d 559 (1995).

2. Lesser-included offense

Where a crime is capable of being attempted, an attempt to commit such a crime is a lesser-included offense of the crime charged. It is not necessary to charge a criminal defendant with the lesser-included offense of which the defendant may be found guilty because by charging the greater offense, the defendant is by implication charged with the lesser offense. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

Attempted first degree assault is not a lesser-included offense of unlawful discharge of a firearm, and unlawful discharge of a firearm is not a lesser-included offense of attempted first degree assault. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

Whether a particular offense is a lesser-included offense of the offense with which defendant is charged is determined by examining the allegations in the information and the evidence offered in support of the charge. State v. Garza, 236 Neb. 202, 459 N.W.2d 739 (1990).

Because an attempted crime as defined by this section may be committed without the crime itself being committed, no offense can be a lesser-included offense of an attempted crime prosecuted under this section. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).

3. Miscellaneous

First degree assault and attempted voluntary manslaughter are two distinct offenses. First degree assault requires serious bodily injury to occur, and attempted voluntary manslaughter does not require any injury to occur. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).

A charge of a completed crime logically includes a charge of an attempt to commit it. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

Abandonment is not a defense to the commission of the crime of criminal attempt under Nebraska law. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).

Instruction to jury on attempt phrased in the language of this section was not error. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).

In the absence of a motion to quash, an information which alleges an attempt to commit an act or acts which, if successful, would constitute a statutory crime sufficiently charges an attempted crime so as to withstand a jurisdictional attack made for the first time on appeal. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).

Prior to 1979, there was no general attempt statute in the Nebraska Criminal Code. State v. Meredith, 208 Neb. 637, 304 N.W.2d 926 (1981).

Defendant who pled guilty to attempted murder was not precluded from challenging criminal attempt statute as unconstitutionally vague during habeas corpus proceeding. When examined in light of defendant's conduct, this section is not unconstitutionally vague. Sodders v. Parratt, 693 F.2d 811 (8th Cir. 1982).

28-202. Conspiracy, defined; penalty.

(1) A person shall be guilty of criminal conspiracy if, with intent to promote or facilitate the commission of a felony:

(a) He agrees with one or more persons that they or one or more of them shall engage in or solicit the conduct or shall cause or solicit the result specified by the definition of the offense; and

(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.

(2) If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit such crime with such other person or persons whether or not he knows their identity.

(3) If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

(4) Conspiracy is a crime of the same class as the most serious offense which is an object of the conspiracy, except that conspiracy to commit a Class I felony is a Class II felony.

A person prosecuted for a criminal conspiracy shall be acquitted if such person proves by a preponderance of the evidence that his or her conduct occurred in response to an entrapment.

Source:Laws 1977, LB 38, § 11; Laws 2015, LB268, § 8; Referendum 2016, No. 426.

Note: The changes made to section 28-202 by Laws 2015, LB 268, section 8, have been omitted because of the vote on the referendum at the November 2016 general election.

Annotations

Pursuant to subsection (1) of this section, a conviction requires only that an agreement for the commission of a criminal act was entered into and an overt act in furtherance of the conspiracy was committed. State v. Theisen, 306 Neb. 591, 946 N.W.2d 677 (2020).

In enacting this section, the Legislature adopted the unilateral approach to the agreement element of conspiracy as found in the Model Penal Code. State v. Heitman, 262 Neb. 185, 629 N.W.2d 542 (2001).

A conviction under this section requires proof of an overt act, but not successful commission of a felony. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).

Because Nebraska adheres to the unilateral approach to the crime of conspiracy, the fact that none of the "coconspirators" at any time planned to follow through with the plan has no impact on the culpability of the defendant. State v. Knight, 239 Neb. 958, 479 N.W.2d 792 (1992).

Conspiracy requires the proof of an overt act which tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime. State v. Anderson, 229 Neb. 436, 427 N.W.2d 770 (1988); State v. Anderson, 229 Neb. 427, 427 N.W.2d 764 (1988).

Circumstantial evidence may be sufficient to establish the existence of a conspiracy or the criminal intent necessary for conspiracy. State v. Anderson, 229 Neb. 427, 427 N.W.2d 764 (1988).

An "overt act" is an act which tends to show a preexisting conspiracy and manifests an intent or design toward accomplishment of a crime, but need not itself have the capacity to accomplish the conspiratorial objective and need not itself be a criminal act. State v. Copple, 224 Neb. 672, 401 N.W.2d 141 (1987).

A person may be convicted of a conspiracy to solicit the commission of murder even though the person with whom he conspired feigned agreement and at no time intended to go through with the plan. An overt act is an act done in pursuance of the conspiracy and manifests an intent or design looking toward accomplishing the crime. The act need not have a tendency to accomplish the object of the conspiracy, nor be criminal in itself. State v. John, 213 Neb. 76, 328 N.W.2d 181 (1982).

The Wharton Rule exception to establishing conspiracy does not apply to offenses that can be committed by one person, or if more or different people participate in the conspiracy than are necessary to commit the substantive offense, or when the substantive offense has not yet been committed by any of the conspirators. State v. Clason, 3 Neb. App. 339, 526 N.W.2d 673 (1994).

28-203. Conspiracy; renunciation of criminal intent.

In a prosecution for criminal conspiracy, it shall be an affirmative defense that the defendant, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, gave timely warning to law enforcement authorities or otherwise made a reasonable effort to prevent the conduct or result which is the object of the conspiracy.

Source:Laws 1977, LB 38, § 12.

28-204. Accessory to felony, defined; penalties.

(1) A person is guilty of being an accessory to felony if with intent to interfere with, hinder, delay, or prevent the discovery, apprehension, prosecution, conviction, or punishment of another for an offense, he or she:

(a) Harbors or conceals the other;

(b) Provides or aids in providing a weapon, transportation, disguise, or other means of effecting escape or avoiding discovery or apprehension;

(c) Conceals or destroys evidence of the crime or tampers with a witness, informant, document, or other source of information, regardless of its admissibility in evidence;

(d) Warns the other of impending discovery or apprehension other than in connection with an effort to bring another into compliance with the law;

(e) Volunteers false information to a peace officer; or

(f) By force, intimidation, or deception, obstructs anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction, or punishment of such person.

(2)(a) Accessory to felony is a Class IIA felony if the actor violates subdivision (1)(a), (1)(b), or (1)(c) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a Class I, IA, IB, IC, or ID felony.

(b) Accessory to felony is a Class IIIA felony if the actor violates subdivision (1)(a), (1)(b), or (1)(c) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a Class II or IIA felony.

(c) Accessory to felony is a Class IV felony if the actor violates subdivision (1)(a), (1)(b), or (1)(c) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a Class III or Class IIIA felony.

(d) Accessory to felony is a Class I misdemeanor if the actor violates subdivision (1)(a), (1)(b), or (1)(c) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a Class IV felony.

(e) Accessory to felony is a Class IV felony if the actor violates subdivision (1)(d), (1)(e), or (1)(f) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a felony of any class other than a Class IV felony.

(f) Accessory to felony is a Class I misdemeanor if the actor violates subdivision (1)(d), (1)(e), or (1)(f) of this section, the actor knows of the conduct of the other, and the conduct of the other constitutes a Class IV felony.

Source:Laws 1977, LB 38, § 13; Laws 1999, LB 40, § 1; Laws 2015, LB605, § 9; Laws 2016, LB1094, § 5.

Annotations

The crime of being an accessory to a felony, as defined in this section, is not a lesser-included offense of the crime of robbery. State v. Arthaloney, 230 Neb. 819, 433 N.W.2d 545 (1989).

When a jury is the fact finder in a case involving accessory to a felony charges, the jury should be instructed so as to ensure that the underlying offense of the principal is specifically determined. State v. Romo, 12 Neb. App. 472, 676 N.W.2d 737 (2004).

A person must have reliable knowledge of the principal's identity to be guilty as an accessory under this section. Merely reporting false information about a crime without knowledge of the principal's identity constitutes the misdemeanor of false reporting, as defined by section 28-907. State v. Anderson, 10 Neb. App. 163, 626 N.W.2d 627 (2001).

28-205. Aiding consummation of felony; penalty.

(1) A person is guilty of aiding consummation of felony if he intentionally aids another to secrete, disguise, or convert the proceeds of a felony or otherwise profit from a felony.

(2) If the crime involved is a felony of any class, aiding consummation of crime is a Class IV felony.

Source:Laws 1977, LB 38, § 14.

Annotations

A defendant’s conviction for aiding the consummation of a felony under this section is not incompatible with the defendant’s conviction as a principal of the underlying felony. State v. Hansen, 289 Neb. 478, 855 N.W.2d 777 (2014).

The word “profit” in this section means to make “returns, proceeds, or revenue” on a transaction. State v. Hansen, 289 Neb. 478, 855 N.W.2d 777 (2014).

There is no requirement that the underlying felony referred to in this section be committed in Nebraska. State v. Schiesser, 24 Neb. App. 407, 888 N.W.2d 736 (2016).

28-206. Prosecuting for aiding and abetting.

A person who aids, abets, procures, or causes another to commit any offense may be prosecuted and punished as if he were the principal offender.

Source:Laws 1977, LB 38, § 15.

Annotations

1. Aiding and abetting

2. Miscellaneous

1. Aiding and abetting

An alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such intent. In the context of felony murder, the required intent is the intent to commit the underlying felony rather than the intent to kill. State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

One who intentionally aids and abets the commission of a crime may be responsible not only for the intended crime, if it is in fact committed, but also for other crimes which are committed as a natural and probable consequence of the intended criminal act. State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

Aiding and abetting is not a separate crime in Nebraska. Rather, it is another theory for holding one liable for the underlying crime. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).

An aider and abettor is accountable for that which is proximately caused by the principal's conduct regardless of whether the crime would have occurred without the aider and abettor's participation. State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006).

Given the provisions of this section, an information charging a defendant with a specific crime gives the defendant adequate notice that he or she may be prosecuted for the crime specified or as having aided and abetted the commission of the crime specified. An aiding and abetting instruction is proper where warranted by the evidence, notwithstanding the fact that the information charging the defendant does not contain specific aiding and abetting language. State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004).

An information charging an aider and abettor of a crime need not include any additional facts than those necessary to charge the principal of the crime. One who intentionally aids and abets the commission of a crime may be responsible not only for the intended crime, if it is in fact committed, but also for other crimes which are committed as a natural and probable consequence of the intended criminal act. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).

For a defendant to be prosecuted for aiding and abetting, mere encouragement or assistance is sufficient participation in the criminal act. State v. Sanders, 241 Neb. 687, 490 N.W.2d 211 (1992).

Where a defendant is charged with aiding and abetting a second degree murder, the intent element applies to the aider and abettor or to the person who actually commits the murder. State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).

Aiding and abetting involves some participation in the criminal act and must be evidenced by some word, act, or deed. No particular acts are necessary, nor is it necessary that any physical part in the commission of the crime is taken or that there was an express agreement therefor. Mere encouragement or assistance is sufficient. State v. Schreck, 224 Neb. 650, 399 N.W.2d 830 (1987).

2. Miscellaneous

Evidence is sufficient to uphold a defendant's convictions for first degree murder and use of a deadly weapon in the commission of a felony when there is evidence indicating that the defendant had a conversation with another individual regarding who was going to kill a particular victim, that the defendant supplied the other individual with the murder weapon, that the defendant unlawfully broke into the victim's residence for the purpose of killing the victim, and that the defendant hit someone in the victim's residence with a piece of wood. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

Injuries which a victim sustains by his or her own action may not be a foreseeable consequence of the intended criminal act. State v. Trackwell, 235 Neb. 845, 458 N.W.2d 181 (1990).

A person involved in a conspiratorial effort to steal from a store is liable for all items taken from that store. State v. Mason, 232 Neb. 400, 440 N.W.2d 490 (1989).

Where persons acting in concert commit an assault, each is responsible for the injuries received by the victim. State v. Thomas, 210 Neb. 298, 314 N.W.2d 15 (1981).

28-301. Compounding a felony, defined; penalty.

(1) A person is guilty of compounding a felony if he accepts or agrees to accept any pecuniary benefit or other reward or promise thereof, as consideration for:

(a) Refraining from seeking prosecution of an offender; or

(b) Refraining from reporting to law enforcement authorities the commission of any felony or information relating to a felony.

(2) It is an affirmative defense to prosecution under this section that the benefit received by the defendant did not exceed an amount which the defendant reasonably believed to be due him as restitution for harm caused by the crime.

(3) Compounding is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 16.

28-302. Homicide; terms, defined.

As used in sections 28-302 to 28-306, unless the context otherwise requires:

(1) Homicide shall mean the killing of a person by another;

(2) Person, when referring to the victim of a homicide, shall mean a human being who had been born and was alive at the time of the homicidal act; and

(3) Premeditation shall mean a design formed to do something before it is done.

Source:Laws 1977, LB 38, § 17.

Annotations

Pursuant to subsection (3) of this section, evidence of premeditation is sufficient to uphold conviction for first degree murder when it demonstrates that the defendant told others that he wanted to "go finish (the victim) off", that the defendant broke off a knife attack on the victim to evade detection by a passing car, and that the defendant resumed the knife attack once the car had passed and the defendant heard the victim making noises which indicated that the victim was still alive. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

28-303. Murder in the first degree; penalty.

A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.

Source:Laws 1977, LB 38, § 18; Laws 2002, Third Spec. Sess., LB 1, § 3; Laws 2015, LB268, § 9; Referendum 2016, No. 426.

Note: The changes made to section 28-303 by Laws 2015, LB 268, section 9, have been omitted because of the vote on the referendum at the November 2016 general election.

Annotations

1. Felony murder

2. Jury

3. Lesser-included offense

4. Malice

5. Requisite mental state

6. Miscellaneous

1. Felony murder

The crime of first degree murder constitutes one offense even though there may be alternate theories by which criminal liability for first degree murder may be charged and prosecuted in Nebraska. State v. White, 254 Neb. 566, 577 N.W.2d 741 (1998).

One may commit first degree murder either by committing premeditated murder or by killing another person while in the commission of certain felonies. A defendant need not be charged and convicted of an underlying felony in order to be convicted of first degree murder pursuant to subsection (2) of this section. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).

A specific intent to kill is not required for felony murder, but only the intent to do a felonious act which causes a victim's death. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).

The felony murder statute does not violate the Eighth Amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).

A victim's fatal heart attack, proximately caused by a defendant's felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder. State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986).

Proof of intent to kill is not an element of crime of felony murder. Statement in State v. Kauffman, 183 Neb. 817, 164 N.W.2d 469 (1969), that "purpose to kill is conclusively presumed from the criminal intention required for robbery" is disapproved. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).

2. Jury

A jury needs to be unanimous only in its finding that the defendant committed first degree murder and not as to the theory which brought it to that verdict. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

In a first degree murder case, the jury need only be unanimous as to its verdict that defendant committed first degree murder, and not as to the theory which brought them to that verdict. State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).

3. Lesser-included offense

Second degree murder and manslaughter are not lesser-included offenses of the felonies set out in this section, so no instruction to the jury on them is ordinarily required. State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982).

4. Malice

Evidence that a defendant deliberately sought out the murder victim with the purpose of killing him was a sufficient basis for a reasonable trier of fact to find beyond a reasonable doubt that the defendant killed the victim purposely and with deliberate and premeditated malice. State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).

Deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

The term "premeditated" means to have formed a design to commit an act before it is done. One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).

Evidence of premeditated malice is sufficient to uphold conviction for first degree murder when it demonstrates that the defendant told others that he wanted to "go finish (the victim) off", that the defendant stopped a knife attack on the victim to evade detection by a passing car, and that the defendant resumed the knife attack once the car had passed and the defendant heard the victim making noises indicating that the victim was still alive. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

In order to be guilty of first degree murder, one must have killed purposely and with deliberate and premeditated malice. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).

5. Requisite mental state

A question of premeditation is for the jury to decide. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).

Nothing in this section or in the Nebraska Supreme Court's interpretation of this section requires that a defendant must rationally consider the probable consequences of his or her actions or rationally determine to kill the victim without legal justification. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).

In order to prove the requisite mental state, the state is required to show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause and which is defined as any willful or corrupt intention of the mind. State v. Krimmel, 216 Neb. 825, 346 N.W.2d 396 (1984).

To prove the requisite mental state for first degree murder, the state must show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause or excuse and which is defined as any willful or corrupt intention of the mind. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).

6. Miscellaneous

Under subdivision (1) of this section, the three elements which the State must prove beyond a reasonable doubt to obtain a conviction for first degree murder are as follows: The defendant (1) killed another person, (2) did so purposely, and (3) did so with deliberate and premeditated malice. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).

The absence of a sudden quarrel is not an element of the crime of murder in the first degree. State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).

A defendant who aids and abets a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

28-304. Murder in the second degree; penalty.

(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.

(2) Murder in the second degree is a Class IB felony.

Source:Laws 1977, LB 38, § 19.

Annotations

1. Elements

2. Lesser-included offense

3. Malice

4. Plea bargains

5. Requisite mental state

6. Sentencing

7. Miscellaneous

1. Elements

Evidence was held to be sufficient to support a conviction for murder in the second degree when an unprovoked defendant shot the victim in the back of the head as the victim was leaving the confrontation. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).

Malice is not a necessary element of second degree murder; however, a finding of malice is not necessarily prejudicial to the defendant because it places a greater burden on the State regarding intent. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).

A person commits second degree murder if he causes the death of a person intentionally, but without premeditation. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).

Malice is not a necessary element of second degree murder under this section. The interpretation of this section that malice is not a necessary element of second degree murder may be applied retroactively. State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001).

The statutory elements of attempted second degree murder are a substantial step in a course of conduct intended to culminate in the commission of an intentional killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).

Without the element of malice or mens rea, this section would be of doubtful validity and perhaps unconstitutional. Malice is a necessary element of second degree murder. Applying rules of proper statutory construction, this section, though silent as to the longstanding material element of malice, must be read to include malice as an element of second degree murder in order to preserve a defendant's right to his or her presumption of innocence. State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996).

Malice is an essential element of murder in the second degree. State v. Dean, 246 Neb. 869, 523 N.W.2d 861 (1994).

An information which alleges that defendant committed second degree murder but does not allege that the act was committed with "malice" fails to allege an essential element of the crime. State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994).

Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).

In order to support a conviction of second degree murder, the defendant must intend to kill; the prosecution must prove, beyond a reasonable doubt, that the defendant caused the victim's death intentionally. State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992).

In order to convict a person of second degree murder, the State is required to prove all three elements—death, intent to kill, and causation—beyond a reasonable doubt; none of the elements are presumed upon proof of the others, nor is any element presumed in the absence of proof by defendant of the converse of that element. Evidence of provocation by one other than the person whom defendant killed or attempted to kill cannot serve to mitigate an intentional killing from second degree murder to manslaughter. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).

The essential elements of second degree murder are that the murder must be done purposely and maliciously. State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).

2. Lesser-included offense

Second degree murder is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

3. Malice

Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).

Malice, in the context of this provision, has been said to denote that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse and to be any willful or corrupt intention of the mind. State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986).

4. Plea bargains

Although no authority was cited that a plea bargain must be supported by a concession on the part of the State, altering of charge from first degree murder to second degree murder was a substantial concession because it removed the possibility of the death sentence. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).

5. Requisite mental state

The state of mind required for second degree murder may be inferred from the evidence of the criminal act. State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987).

The state of mind required for second degree murder may be inferred from the circumstantial evidence of the criminal act. State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983).

6. Sentencing

A sentence of life imprisonment on a second degree murder conviction and 10 years' imprisonment for a conviction of use of a weapon to commit a felony, with the sentences to run consecutively, were not excessive. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).

The trial court did not abuse its discretion in sentencing the defendant to two consecutive life sentences on two counts of second degree murder, which sentences were within the statutory limits, when the record showed that despite being 17 years old at the time of the murders, the defendant admitted to shooting one victim in the head while he was struggling with her codefendant over a shotgun and was callous about her role 5 days after the murders. State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).

Pursuant to subsection (2) of this section, a sentence of imprisonment for a term of 60 years to life for second degree murder is not excessive in the absence of an abuse of judicial discretion. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).

Under the provisions of section 28-105 and subsection (2) of this statute, a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987).

A fifteen-year sentence was not excessive, in view of the seriousness of the crime, even though the defendant was a fifty-eight-year-old man with no previous criminal record, who was apparently provoked by the excessive demands of the victim, and who expressed remorse about committing the crime. State v. Kelly, 207 Neb. 295, 298 N.W.2d 370 (1980).

Where state Supreme Court interpreted 16- to 20-year sentence for second degree murder as definite 20-year term with a statutory 10-year minimum, defendant not prejudiced. Rouse v. Foster, 672 F.2d 649 (8th Cir. 1982).

7. Miscellaneous

Multiple convictions for second degree murder and child abuse resulting in death do not violate the Double Jeopardy Clauses of the state or federal Constitution. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

28-305. Manslaughter; penalty.

(1) A person commits manslaughter if he or she kills another without malice upon a sudden quarrel or causes the death of another unintentionally while in the commission of an unlawful act.

(2) Manslaughter is a Class IIA felony.

Source:Laws 1977, LB 38, § 20; Laws 2015, LB605, § 10.

Annotations

1. Involuntary manslaughter

2. Lesser-included offense

3. Malice

4. Motor vehicle homicide

5. Requisite mental state

6. Unlawful acts

7. Voluntary manslaughter

8. Miscellaneous

1. Involuntary manslaughter

Subsection (1) of this section establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).

2. Lesser-included offense

Manslaughter is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).

3. Malice

One who has killed without malice upon a sudden quarrel is guilty not of first degree murder but of manslaughter. It is not the assault or provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce the crime below murder. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer. The question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).

4. Motor vehicle homicide

The State has prosecutorial discretion to charge a person for either manslaughter or motor vehicle homicide as the result of an unintentional death arising from an unlawful act during the operation of a motor vehicle where the defendant's conduct constitutes both offenses; but if the State chooses to pursue charges for manslaughter, it must show mens rea. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

Traffic infractions are public welfare offenses which do not require a showing of mens rea and, therefore, are insufficient by themselves to support a conviction for "unlawful act" manslaughter or "involuntary" manslaughter. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

Motor vehicle homicide is not a lesser-included offense of manslaughter under current statutes. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).

One who is convicted of manslaughter under this section for a killing involving the use of a motor vehicle must be sentenced in accordance with this section rather than section 28-306, the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).

Manslaughter can be committed when someone causes the death of another unintentionally while operating a motor vehicle in violation of the law. The penalty for manslaughter resulting from the operation of a motor vehicle is specified in section 39-669.20. State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986).

5. Requisite mental state

Because this section is a codification of the common-law crime of involuntary manslaughter, the State must show all elements of that common-law crime to convict under that section, unless the Legislature expressly dispensed with any such element. Because the Legislature did not specifically exclude mens rea from the language of the offense, the State must show mens rea to sustain a conviction. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

To convict a defendant of "unlawful act" manslaughter or "involuntary" manslaughter, the State must show that the defendant acted with more than ordinary negligence in committing the predicate unlawful act. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).

There is no requirement of an intention to kill in committing manslaughter. State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994).

State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), holding that manslaughter is an intentional killing of another, is overruled. State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).

The test for determining whether there existed adequate provocation so as to mitigate an intentional killing from murder to manslaughter is an objective one; qualities peculiar to defendant which render him particularly excitable, including intoxication, are not considered. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).

6. Unlawful acts

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

7. Voluntary manslaughter

An intentional killing committed without malice upon a "sudden quarrel," as that term is defined by our jurisprudence, constitutes the offense of manslaughter. State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

Under subsection (1) of this section, the phrase "sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991).

"Accident" is not a defense to the crime of voluntary manslaughter under subsection (1) of this section, but does relate to intent to kill, which is an element of the crime of manslaughter committed "upon a sudden quarrel." State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

As used in subsection (1) of this section, the phrase "sudden quarrel" does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim; a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

To sustain a conviction for voluntary manslaughter under subsection (1) of this section, that is, a conviction for killing another, without malice, "upon a sudden quarrel," the State, by evidence beyond a reasonable doubt, must prove that the defendant intended to kill, and did kill, another. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).

When it is claimed that a killing was upon a sudden quarrel, there are three elements of the crime of manslaughter: the killing of another, upon a sudden quarrel, and without malice. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).

The pointing of a gun at another is a reckless act within the contemplation of section 28-310, and as such is an unlawful act, sufficient, should the gun discharge, to support a manslaughter conviction under subsection (1) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).

Manslaughter is a killing done upon a sudden quarrel, a legally recognized and sufficient provocation, which causes a reasonable person to lose normal self-control. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

8. Miscellaneous

Admission of evidence of blood test results in a criminal prosecution for manslaughter under this section is not authorized under section 60-6,210. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).

The analysis of provocation which mitigates an intentional killing logically applies to assault cases as well, given that the core difference between the two crimes is generally whether the victim lives or dies. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

Attempted manslaughter held not to exist under this section, given that a defendant cannot intentionally perform an act toward the commission of an unintentional crime. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).

28-306. Motor vehicle homicide; penalty.

(1) A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide.

(2) Except as provided in subsection (3) of this section, motor vehicle homicide is a Class I misdemeanor.

(3)(a) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,213 or 60-6,214, motor vehicle homicide is a Class IIIA felony.

(b) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class IIA felony. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least one year and not more than fifteen years and shall order that the operator's license of such person be revoked for the same period.

(c) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class II felony if the defendant has a prior conviction for a violation of section 60-6,196 or 60-6,197.06, under a city or village ordinance enacted in conformance with section 60-6,196, or 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 defendant was convicted would have been a violation of section 60-6,196. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of fifteen years and shall order that the operator's license of such person be revoked for the same period.

(d) An order of the court described in subdivision (b) or (c) of this subsection shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

(4) The crime punishable under this section shall be treated as a separate and distinct offense from any other offense arising out of acts alleged to have been committed while the person was in violation of this section.

Source:Laws 1977, LB 38, § 21; Laws 1979, LB 1, § 1; Laws 1992, LB 291, § 2; Laws 1993, LB 370, § 9; Laws 1993, LB 575, § 3; Laws 1997, LB 364, § 3; Laws 2001, LB 38, § 1; Laws 2004, LB 208, § 1; Laws 2006, LB 925, § 1; Laws 2011, LB667, § 3; Laws 2015, LB605, § 11.

Cross References

Operator's license, assessment of points and revocation, see sections 60-496 to 60-497.01, 60-498 to 60-498.04, 60-499, and 60-4,182 et seq.

Annotations

Just as in the context of habitual criminal and driving under the influence sentence enhancements, evidence of a prior conviction must be introduced in order to enhance a sentence for motor vehicle homicide. State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020).

Misdemeanor motor vehicle homicide is a public welfare offense which does not require proof of mens rea. State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).

Motor vehicle homicide is not a lesser-included offense of manslaughter under current statutes. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).

One who is convicted of manslaughter under section 28-305 for a killing involving the use of a motor vehicle must be sentenced in accordance with that section rather than this section, the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).

In order to convict a defendant of felony motor vehicle homicide under this section, the State must prove the defendant's driving in violation of section 39-669.07 proximately caused the death of another. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989) (pursuant to Laws 1993, LB 370, section 293, language from section 39-669.07 was placed in section 60-6,196).

In order to convict a defendant under this section, the State must prove that the accused's intoxication was the proximate cause of the accident and resulting death. State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989) (pursuant to Laws 1993, LB 370, section 293, language from section 39-669.07 was placed in section 60-6,196).

Motor vehicle homicide is a lesser-included offense of manslaughter. State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986).

A conviction for motor vehicle homicide by reckless/willful reckless driving does not give the sentencing court any authority to order a driver's license revocation. State v. Andersen, 16 Neb. App. 651, 748 N.W.2d 124 (2008).

28-307. Assisting suicide, defined; penalty.

(1) A person commits assisting suicide when, with intent to assist another person in committing suicide, he aids and abets him in committing or attempting to commit suicide.

(2) Assisting suicide is a Class IV felony.

Source:Laws 1977, LB 38, § 22.

28-308. Assault in the first degree; penalty.

(1) A person commits the offense of assault in the first degree if he or she intentionally or knowingly causes serious bodily injury to another person.

(2) Assault in the first degree shall be a Class II felony.

Source:Laws 1977, LB 38, § 23; Laws 2009, LB63, § 4.

Annotations

1. Constitutionality

2. Generally

3. Lesser-included offense

4. Proximate cause

5. Requisite mental state

6. Serious bodily injury

1. Constitutionality

This section is not unconstitutional solely because it does not allow a defense of consent. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).

The language of this section clearly is not unconstitutionally vague. The jury properly found assault in the first degree where the defendant deliberately struck the victim four times in the jaw, causing a fracture which required surgery to prevent serious permanent disfigurement. State v. Schreck, 226 Neb. 172, 409 N.W.2d 624 (1987).

2. Generally

In dealing with a criminal charge all attempts to do physical violence which amount to a statutory assault are unlawful and a breach of the peace, and a person cannot consent to an unlawful assault. State v. Hatfield, 218 Neb. 470, 356 N.W.2d 872 (1984).

3. Lesser-included offense

There is no double jeopardy violation where a defendant is charged and convicted of first degree assault under this section and second degree assault under section 28-309(1)(a). State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).

First degree assault and second degree assault are two distinct offenses and second degree assault is not a lesser-included offense of first degree assault. State v. Billups, 209 Neb. 737, 311 N.W.2d 512 (1981).

4. Proximate cause

Where the injuries are objective and the conclusion to be drawn from proved basic facts does not require special technical knowledge or science, the use of expert testimony is not legally necessary to prove a causal connection between a blow and the injuries inflicted. A jury may properly infer from the evidence that a single blow to a victim's jaw was the proximate cause of the victim's serious injuries. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988).

5. Requisite mental state

Malice is not an element of first degree assault, and, as such, "sudden quarrel" would not be applicable to negate it. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).

The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).

The law is settled that independent evidence of specific intent is not required. The intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident. To determine whether the defendant acted with justification or had the required intent for assault in the first degree, the jury may consider circumstantial evidence as to the force of the blow the defendant administered. State v. Costanzo, 227 Neb. 616, 419 N.W.2d 156 (1988).

6. Serious bodily injury

This section does not classify injuries as a per se "serious bodily injury"; rather, the jury is free to make such a determination on its own for purposes of a conviction. State v. Ramirez, 285 Neb. 203, 825 N.W.2d 801 (2013).

In reference to first degree assault, assaultive conduct which results in exposure to the specific harms described in section 28-109(20), and not actual infliction of the harms described in that statute, is the gravamen of first degree assault and the criminal conduct proscribed by subsection (1) of this section; it is not necessary that the injury cause death, serious permanent disfigurement, or impairment of the function of any part or organ of the body, but only that it involved a substantial risk of producing those results. State v. Swigart, 233 Neb. 517, 446 N.W.2d 216 (1989).

Assault in the first degree is not a lesser-included offense of attempted murder in the second degree. State v. Lovelace, 212 Neb. 356, 322 N.W.2d 673 (1982).

Multiple injuries including a cerebral concussion and nasal fracture constitute serious bodily injuries which will support a conviction for first degree assault under this section. State v. Sare, 209 Neb. 91, 306 N.W.2d 164 (1981).

A trier of fact can use common knowledge to determine if the victim has suffered serious bodily injury. In re Interest of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003).

28-309. Assault in the second degree; penalty.

(1) A person commits the offense of assault in the second degree if he or she:

(a) Intentionally or knowingly causes bodily injury to another person with a dangerous instrument;

(b) Recklessly causes serious bodily injury to another person with a dangerous instrument; or

(c) Unlawfully strikes or wounds another (i) while legally confined in a jail or an adult correctional or penal institution, (ii) while otherwise in legal custody of the Department of Correctional Services, or (iii) while committed as a dangerous sex offender under the Sex Offender Commitment Act.

(2) Assault in the second degree shall be a Class IIA felony.

Source:Laws 1977, LB 38, § 24; Laws 1982, LB 347, § 7; Laws 1997, LB 364, § 4; Laws 2009, LB63, § 5; Laws 2010, LB771, § 3; Laws 2015, LB605, § 12.

Cross References

Sex Offender Commitment Act, see section 71-1201.

Annotations

1. Dangerous instrument

2. Lesser-included offense

3. Recklessly

4. Requisite mental state

5. Sentencing

6. Constitutionality

1. Dangerous instrument

For the purposes of subsection (1)(a) of this section, a "dangerous instrument" is any object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. The intent required by this subsection is not an intent to cause bodily injury, but rather an intent to use the dangerous instrument in the manner in which it was in fact used. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).

A piece of curbing can be a "dangerous instrument" when thrown at others. State v. Sianouthai, 225 Neb. 62, 402 N.W.2d 316 (1987).

Under this section, a dangerous instrument is any object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. Under this section, teeth are not to be considered a dangerous instrument. State v. Bachelor, 6 Neb. App. 426, 575 N.W.2d 625 (1998).

2. Lesser-included offense

There is no double jeopardy violation where a defendant is charged and convicted of first degree assault under section 28-308 and second degree assault under subdivision (1)(a) of this section. State v. Ballew, 291 Neb. 577, 867 N.W.2d 571 (2015).

Assault in the second degree is not a lesser-included offense of attempted second degree murder. State v. Sanders, 235 Neb. 183, 455 N.W.2d 108 (1990).

Use of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).

Whether a particular offense is a lesser-included offense is determined by examining the allegations in the information and the evidence offered in support of the charge, and it is clear that some of the elements of second degree assault, without the addition of any element irrelevant to second degree assault, may also constitute third degree assault. State v. Britt, 1 Neb. App. 245, 493 N.W.2d 631 (1992).

3. Recklessly

"Recklessly," as used in subsection (1)(b) of this section, defined. For purposes of a second degree assault contrary to subsection (1)(b), the requisite reckless act or conduct involves the actor's conscious choice in a course of action involving a dangerous instrument, which constitutes disregard of a substantial and unjustifiable risk to another, and does not require the actor's intent to cause serious bodily injury to another. Under subsection (1)(b), concerning a second degree assault based on a reckless act or conduct, an intent to inflict or cause bodily injury is not an element; rather, the reckless act or conduct, causing serious bodily injury, is the gravamen. State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).

4. Requisite mental state

The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).

Assault with a dangerous instrument, like simple assault, is a general intent crime. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).

5. Sentencing

The sentencing court did not abuse its discretion by sentencing defendant to a six-month term for a third degree assault and a four-month term for a second degree assault arising out of the same incident. Both sentences were within the statutory limits set for Class III felonies and Class II misdemeanors, respectively. The third degree assault involved an aggravating factor. State v. Hatwan, 208 Neb. 450, 303 N.W.2d 779 (1981).

6. Constitutionality

This section is not unconstitutional solely because it does not allow a defense of consent. State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).

28-310. Assault in the third degree; penalty.

(1) A person commits the offense of assault in the third degree if he:

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Threatens another in a menacing manner.

(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.

Source:Laws 1977, LB 38, § 25.

Annotations

1. Bodily injury

2. Constitutionality

3. Generally

4. Lesser-included offense

5. Mutual consent

6. Recklessly

7. Requisite mental state

8. Sentencing

9. Double jeopardy

10. Penalty

1. Bodily injury

Bodily injury may be inferred from evidence that defendant intentionally struck the victim, even though the victim testified that blow did not cause physical pain. State v. Waltrip, 240 Neb. 888, 484 N.W.2d 831 (1992).

This section does not require proof of serious bodily injury. Proof of facts from which bodily injury may be inferred is sufficient. State v. Goodon, 219 Neb. 186, 361 N.W.2d 537 (1985).

2. Constitutionality

This is a serious offense for which a jury trial is constitutionally required, unless expressly and intelligently waived by the defendant. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).

Statute neither unconstitutionally vague nor overbroad. In re Interest of Siebert, 223 Neb. 454, 390 N.W.2d 522 (1986).

3. Generally

Adult bodybuilder who dunked 9-year-old boy's head into urinal could be convicted of third degree assault under this section. State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

4. Lesser-included offense

Third degree assault under subsection (1)(b) of this section is not a lesser-included offense of terroristic threats under subsection (1)(a) of section 28-311.01. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).

Assuming that third degree assault under this section may, under certain circumstances, be a lesser-included offense of third degree assault on a peace officer under section 28-931, it is not prejudicial error to fail to instruct upon a lesser-included offense when the evidence entirely fails to show an offense of a lesser degree than that charged in the information. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).

One of the forms of third degree assault, intentionally or knowingly causing bodily injury to another person, is a lesser-included offense of first degree assault. State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986).

Third degree assault is a lesser-included offense of assault by a confined person, because the elements of the two offenses are identical, except that the greater offense, assault by a confined person, requires the assault to be committed by someone who is legally confined. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).

5. Mutual consent

The language of subsection (2) of this section requires mutual consent for a fight or scuffle in order to render an assault a Class II misdemeanor. State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).

When there is a factual question concerning a charge of third degree assault by mutual consent, the state of mind of the "victim" is an issue, and testimony regarding state of mind is then relevant. State v. Farr, 1 Neb. App. 272, 493 N.W.2d 638 (1992).

6. Recklessly

The pointing of a gun at another is a reckless act within the contemplation of subsection (1)(a) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).

7. Requisite mental state

Subdivision (1)(b) of this section is violated when a person acts in such a manner as to intentionally cause a reasonable person in the position of the one threatened to feel apprehension of being bodily harmed. State v. Grant, 310 Neb. 700, 968 N.W.2d 837 (2022).

A violation of subsection (1)(b) of this section requires an intentional act, and it is error to give an instruction using the lesser standards of culpability in subsection (1)(a), "knowingly" and "recklessly". State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).

The intent required under subsection (1) of this section relates to the assault, not to the injury which results. State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).

8. Sentencing

9. Double jeopardy

In applying Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932), to separately codified criminal statutes which may be violated in alternative ways, only the elements charged in the case at hand should be compared in determining whether the offenses under consideration are separate or the same for purposes of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).

Third degree assault and the making of terroristic threats are separate offenses for the purpose of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).

10. Penalty

This section creates one offense of third degree assault, punishable by two different ranges of penalties depending on whether the assault was committed in a fight or scuffle entered into by mutual consent. Whether a fight or scuffle entered into by mutual consent occurred is not an element of the offense of third degree assault. Rather, it is a mitigating factor, the existence of which determines which of the two penalties is to be imposed—whether the defendant will receive a lesser penalty instead of the ordinary penalty. Whether a fight or scuffle was entered into by mutual consent is not a factual issue that must be submitted to a jury. State v. Stahla, 13 Neb. App. 79, 688 N.W.2d 641 (2004).

28-310.01. Assault by strangulation or suffocation; penalty; affirmative defense.

(1) A person commits the offense of assault by strangulation or suffocation if the person knowingly and intentionally:

(a) Impedes the normal breathing or circulation of the blood of another person by applying pressure on the throat or neck of the other person; or

(b) Impedes the normal breathing of another person by covering the mouth and nose of the person.

(2) An offense is committed under this section regardless of whether a visible injury resulted.

(3) Except as provided in subsection (4) of this section, a violation of this section is a Class IIIA felony.

(4) A violation of this section is a Class IIA felony if:

(a) The person used or attempted to use a dangerous instrument while committing the offense;

(b) The person caused serious bodily injury to the other person while committing the offense; or

(5) It is an affirmative defense that an act constituting strangulation or suffocation was the result of a legitimate medical procedure.

Source:Laws 2004, LB 943, § 2; Laws 2015, LB605, § 13; Laws 2019, LB141, § 2.

28-311. Criminal child enticement; attempt; penalties.

(1)(a) No person, by any means and without privilege to do so, shall knowingly solicit, coax, entice, or lure or attempt to solicit, coax, entice, or lure any child under the age of fourteen years to enter into any vehicle, whether or not the person knows the age of the child.

(b) No person, by any means and without privilege to do so, shall solicit, coax, entice, or lure or attempt to solicit, coax, entice, or lure any child under the age of fourteen years to enter into any place with the intent to seclude the child from his or her parent, guardian, or other legal custodian or the general public, whether or not the person knows the age of the child. For purposes of this subdivision, seclude means to take, remove, hide, secrete, conceal, isolate, or otherwise unlawfully separate.

(2) It is an affirmative defense to a charge under this section that:

(a) The person had the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity;

(b)(i) The person is a law enforcement officer, emergency services provider as defined in section 71-507, firefighter, or other person who regularly provides emergency services, is the operator of a bookmobile or other such vehicle operated by the state or a political subdivision and used for informing, educating, organizing, or transporting children, is a paid employee of, or a volunteer for, a nonprofit or religious organization which provides activities for children, or is an employee or agent of or a volunteer acting under the direction of any board of education and (ii) the person listed in subdivision (2)(b)(i) of this section was, at the time the person undertook the activity, acting within the scope of his or her lawful duties in that capacity; or

(c) The person undertook the activity in response to a bona fide emergency situation or the person undertook the activity in response to a reasonable belief that it was necessary to preserve the health, safety, or welfare of the child.

(3) Any person who violates this section commits criminal child enticement and is guilty of a Class IIIA felony. If such person has previously been convicted of (a) criminal child enticement under this section, (b) sexual assault of a child in the first degree under section 28-319.01, (c) sexual assault of a child in the second or third degree under section 28-320.01, (d) child enticement by means of an electronic communication device under section 28-320.02, or (e) assault under section 28-308, 28-309, or 28-310, kidnapping under section 28-313, or false imprisonment under section 28-314 or 28-315 when the victim was under eighteen years of age when such person violates this section, such person is guilty of a Class IIA felony.

Source:Laws 1999, LB 49, § 2; Laws 2006, LB 1199, § 3; Laws 2009, LB97, § 10; Laws 2011, LB665, § 1; Laws 2015, LB605, § 14.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

For the purposes of this section, "undertaking the activity" refers to the act or acts that formed the liability under subsection (1). State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).

The defendant bears the burden of showing that he or she had the express or implied permission of the parent, guardian, or other legal custodian of the child in undertaking the activity. State v. Kipple, 310 Neb. 654, 968 N.W.2d 613 (2022).

28-311.01. Terroristic threats; penalty.

(1) A person commits terroristic threats if he or she threatens to commit any crime of violence:

(a) With the intent to terrorize another;

(b) With the intent of causing the evacuation of a building, place of assembly, or facility of public transportation; or

(2) Terroristic threats is a Class IIIA felony.

Source:Laws 1986, LB 956, § 11; Laws 2015, LB605, § 15.

Annotations

1. Terroristic threats

2. Double jeopardy

3. Unconstitutionally vague

4. Miscellaneous

1. Terroristic threats

The word "threaten," as used in this section, requires communication of a threat to a listener or recipient. State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).

Whether or not based on "words only," this section does not require that the threatened crime of violence be imminent. State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022).

Whether words constitute a threat depends on the context of the interaction between the people involved and is not to be determined solely based upon the literal meaning of the words standing alone. State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022).

A terroristic threat made under subsection (1)(a) of this section requires an intent to terrorize another and is not concerned with the result produced by an individual's threat. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).

Third degree assault under subsection (1)(b) of section 28-310 is not a lesser-included offense of terroristic threats under subsection (1)(a) of this section. State v. Smith, 267 Neb. 917, 678 N.W.2d 733 (2004).

To violate the statute prohibiting the commission of terroristic threats does not require an intent to execute the threats made or that the recipient of the threat be terrorized. State v. Saltzman, 235 Neb. 964, 458 N.W.2d 239 (1990).

A defendant does not have to actually commit a crime of violence, because it is the threat of violence which is at the heart of the crime of terroristic threats. State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).

For purposes of the offense of terroristic threats, a threat may be written, oral, physical, or any combination thereof. State v. Tucker, 17 Neb. App. 487, 764 N.W.2d 137 (2009).

A threat may be written, oral, physical, or any combination thereof, and whether a particular conduct constitutes a threat depends on the context of the interaction between the involved people. State v. Curlile, 11 Neb. App. 52, 642 N.W.2d 517 (2002).

2. Double jeopardy

Third degree assault and the making of terroristic threats are separate offenses for the purpose of double jeopardy. State v. Winkler, 266 Neb. 155, 663 N.W.2d 102 (2003).

3. Unconstitutionally vague

The words "terror" and "terrorize," as used in this section, are not unconstitutionally vague. State v. Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007).

Subsection (1) of this section is not unconstitutionally vague. State v. Schmailzl, 243 Neb. 734, 502 N.W.2d 463 (1993).

As used in subsection (1)(c) of this section, the phrase "reckless disregard of the risk of causing such terror or evacuation" is not unconstitutionally vague. State v. Mayo, 237 Neb. 128, 464 N.W.2d 798 (1991).

Subsection (1)(c) of this section defines the crime with sufficient definiteness and ascertainable standards of guilt to inform those subject to it as to what conduct will result in punishment, and it is constitutional. State v. Bourke, 237 Neb. 121, 464 N.W.2d 805 (1991).

4. Miscellaneous

Because this section requires that the threat be communicated to another, a recipient is an essential element of the crime of terroristic threats. State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).

The word "another," as used in this section, refers to the person hearing or receiving the threat. State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022).

The pointing of a gun can be a "threat to commit a crime of violence" pursuant to this section; however, the pointing of a gun in self-defense is necessarily less serious than when no issue of self-defense is involved. State v. Oldenburg, 10 Neb. App. 104, 628 N.W.2d 278 (2001).

28-311.02. Stalking and harassment; legislative intent; terms, defined.

(1) It is the intent of the Legislature to enact laws dealing with stalking offenses which will protect victims from being willfully harassed, intentionally terrified, threatened, or intimidated by individuals who intentionally follow, detain, stalk, or harass them or impose any restraint on their personal liberty and which will not prohibit constitutionally protected activities.

(2) For purposes of sections 28-311.02 to 28-311.05, 28-311.09, and 28-311.10:

(a) Harass means to engage in a knowing and willful course of conduct directed at a specific person which seriously terrifies, threatens, or intimidates the person and which serves no legitimate purpose;

(b) Course of conduct means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including a series of acts of following, detaining, restraining the personal liberty of, or stalking the person or telephoning, contacting, or otherwise communicating with the person;

(c) Family or household member means a spouse or former spouse of the victim, children of the victim, a person presently residing with the victim or who has resided with the victim in the past, a person who had a child in common with the victim, other persons related to the victim by consanguinity or affinity, or any person presently involved in a dating relationship with the victim or who has been involved in a dating relationship with the victim. For purposes of this subdivision, dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement but does not include a casual relationship or an ordinary association between persons in a business or social context; and

(d) Substantially conforming criminal violation means a guilty plea, a nolo contendere plea, or a conviction for a violation of any federal law or law of another state or any county, city, or village ordinance of this state or another state substantially similar to section 28-311.03. Substantially conforming is a question of law to be determined by the court.

Source:Laws 1992, LB 1098, § 1; Laws 1993, LB 299, § 1; Laws 1998, LB 218, § 3; Laws 2006, LB 1113, § 21.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Given the language of Nebraska's stalking statutes and the purpose announced by the Legislature for enacting the statutes, an objective construction of the statute is appropriate, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

Nebraska's stalking statutes focus both on the behavior of the perpetrator and on the experience of the victim. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

Evidence was insufficient to support a finding that an alleged harasser's behavior fit the statutory definition of a harassing "course of conduct" as defined by subdivision (2)(b) of this section, where the incident between the alleged harasser and the alleged victims occurred within a span of 10 to 20 minutes on one particular day, and there was no evidence of harassment prior to or after the incident. Knopik v. Hahn, 25 Neb. App. 157, 902 N.W.2d 716 (2017).

Nebraska's stalking and harassment statutes are given an objective construction, and the victim's experience resulting from the perpetrator's conduct should be assessed on an objective basis. Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (2013).

28-311.03. Stalking.

Any person who willfully harasses another person or a family or household member of such person with the intent to injure, terrify, threaten, or intimidate commits the offense of stalking.

Source:Laws 1992, LB 1098, § 2; Laws 1993, LB 299, § 2; Laws 1998, LB 218, § 4; Laws 2006, LB 1113, § 22.

Annotations

Nebraska's stalking statutes focus both on the behavior of the perpetrator and on the experience of the victim. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

28-311.04. Stalking; violations; penalties.

(1) Except as provided in subsection (2) of this section, any person convicted of violating section 28-311.03 is guilty of a Class I misdemeanor.

(2) Any person convicted of violating section 28-311.03 is guilty of a Class IIIA felony if:

(a) The person has a prior conviction under such section or a substantially conforming criminal violation within the last seven years;

(b) The victim is under sixteen years of age;

(d) The person was also in violation of section 28-311.09, 28-311.11, 42-924, or 42-925, or in violation of a valid foreign harassment protection order recognized pursuant to section 28-311.10 or a valid foreign sexual assault protection order recognized pursuant to section 28-311.12 at any time during the violation; or

(e) The person has been convicted of any felony in this state or has been convicted of a crime in another jurisdiction which, if committed in this state, would constitute a felony and the victim or a family or household member of the victim was also the victim of such previous felony.

Source:Laws 1992, LB 1098, § 3; Laws 1993, LB 299, § 3; Laws 2006, LB 1113, § 23; Laws 2015, LB605, § 16; Laws 2017, LB289, § 3.

28-311.05. Stalking; not applicable to certain conduct.

Sections 28-311.02 to 28-311.04, 28-311.09, and 28-311.10 shall not apply to conduct which occurs during labor picketing.

Source:Laws 1992, LB 1098, § 4; Laws 1998, LB 218, § 5.

28-311.06. Hazing, defined; penalty.

(1) For purposes of this section, hazing means any activity by which a person intentionally or recklessly endangers the physical or mental health or safety of an individual for the purpose of initiation into, admission into, affiliation with, or continued membership with any organization. Such hazing activity includes whipping, beating, branding, an act of sexual penetration, an exposure of the genitals of the body done with intent to affront or alarm any person, a lewd fondling or caressing of the body of another person, forced and prolonged calisthenics, prolonged exposure to the elements, forced consumption of any food, liquor, beverage, drug, or harmful substance not generally intended for human consumption, prolonged sleep deprivation, or any brutal treatment or the performance of any unlawful act which endangers the physical or mental health or safety of any person or the coercing of any such activity.

(2) It is unlawful to commit the offense of hazing. Any person who commits the offense of hazing is guilty of a Class II misdemeanor.

(3) If the offense of hazing is committed for the purpose of initiation into, admission into, affiliation with, or continued membership with an organization of student members operating under the sanction of a postsecondary educational institution and such offense is committed by members of such organization, such organization shall be punished by a fine of not more than ten thousand dollars. Such organization shall not include the alumni organization or any corporation which owns the house or real estate of such organization.

Source:Laws 1994, LB 1129, § 2; Laws 2016, LB710, § 1.

28-311.07. Hazing; consent not a defense.

Notwithstanding any provisions to the contrary, consent shall not be a defense to a prosecution pursuant to section 28-311.06.

Source:Laws 1994, LB 1129, § 3.

28-311.08. Unlawful intrusion; photograph, film, or record image or video of intimate area; distribute or make public; penalty; court; duties; registration under Sex Offender Registration Act; statute of limitations.

(1) It shall be unlawful for any person to knowingly intrude upon any other person without his or her consent in a place of solitude or seclusion. Violation of this subsection is a Class I misdemeanor. A second or subsequent violation of this subsection is a Class IV felony.

(2) It shall be unlawful for any person to knowingly and intentionally photograph, film, or otherwise record an image or video of the intimate area of any other person without his or her knowledge and consent when his or her intimate area would not be generally visible to the public regardless of whether such other person is located in a public or private place. Violation of this subsection is a Class IV felony.

(3) It shall be unlawful for any person to knowingly and intentionally distribute or otherwise make public an image or video of another person recorded in violation of subsection (2) of this section without that person's consent. A first or second violation of this subsection is a Class IIA felony. A third or subsequent violation of this subsection is a Class II felony.

(4) It shall be unlawful for any person to knowingly and intentionally distribute or otherwise make public an image or video of another person's intimate area or of another person engaged in sexually explicit conduct (a) if the other person had a reasonable expectation that the image would remain private, (b) knowing the other person did not consent to distributing or making public the image or video, and (c) if distributing or making public the image or video serves no legitimate purpose. Violation of this subsection is a Class I misdemeanor. A second or subsequent violation of this subsection is a Class IV felony.

(5) It shall be unlawful for any person to threaten to distribute or otherwise make public an image or video of another person's intimate area or of another person engaged in sexually explicit conduct with the intent to intimidate, threaten, or harass any person. Violation of this subsection is a Class I misdemeanor.

(6) As part of sentencing following a conviction for a violation of subsection (1), (2), or (3) of this section, the court shall make a finding as to the ages of the defendant and the victim at the time the offense occurred. If the defendant is found to have been nineteen years of age or older and the victim is found to have been less than eighteen years of age at such time, then the defendant shall be required to register under the Sex Offender Registration Act.

(7) No person shall be prosecuted under this section unless the indictment for such offense is found by a grand jury or a complaint filed before a magistrate within three years after the later of:

(a) The commission of the crime;

(b) Law enforcement's or a victim's receipt of actual or constructive notice of either the existence of a video or other electronic recording made in violation of this section or the distribution of images, video, or other electronic recording made in violation of this section; or

(8) For purposes of this section:

(a) Intimate area means the naked or undergarment-clad genitalia, pubic area, buttocks, or female breast of an individual;

(b) Intrude means either:

(i) Viewing another person in a state of undress as it is occurring; or

(ii) Recording another person in a state of undress by video, photographic, digital, or other electronic means; and

(c) Place of solitude or seclusion means a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, any facility, public or private, used as a restroom, tanning booth, locker room, shower room, fitting room, or dressing room.

Source:Laws 1996, LB 908, § 1; Laws 2011, LB61, § 1; Laws 2014, LB998, § 2; Laws 2015, LB605, § 17; Laws 2019, LB630, § 1.

Cross References

Sex Offender Registration Act, see section 29-4001.

28-311.09. Harassment protection order; violation; penalty; procedure; costs; enforcement.

(1) Any victim who has been harassed as defined by section 28-311.02 may file a petition and affidavit for a harassment protection order as provided in subsection (3) of this section. Upon the filing of such a petition and affidavit in support thereof, the court may issue a harassment protection order without bond enjoining the respondent from (a) imposing any restraint upon the person or liberty of the petitioner, (b) harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the petitioner, or (c) telephoning, contacting, or otherwise communicating with the petitioner. The harassment protection order shall specify to whom relief under this section was granted.

(2) The petition for a harassment protection order shall state the events and dates or approximate dates of acts constituting the alleged harassment, including the most recent and most severe incident or incidents.

(3) A petition for a harassment protection order shall be filed with the clerk of the district court, and the proceeding may be heard by the county court or the district court as provided in section 25-2740.

(4) A petition for a harassment protection order filed pursuant to subsection (1) of this section may not be withdrawn except upon order of the court. An order issued pursuant to subsection (1) of this section shall specify that it is effective for a period of one year unless otherwise dismissed or modified by the court. Any person, except the petitioner, who knowingly violates an order issued pursuant to subsection (1) of this section after service or notice as described in subdivision (9)(b) of this section shall be guilty of a Class II misdemeanor.

(5)(a) Fees to cover costs associated with the filing of a petition for a harassment protection order or the issuance or service of a harassment protection order seeking only the relief provided by this section shall not be charged, except that a court may assess such fees and costs if the court finds, by clear and convincing evidence, that the statements contained in the petition were false and that the harassment protection order was sought in bad faith.

(b) A court may also assess costs associated with the filing of a petition for a harassment protection order or the issuance or service of a harassment protection order seeking only the relief provided by this section against the respondent.

(6) The clerk of the district court shall make available standard application and affidavit forms for a harassment protection order with instructions for completion to be used by a petitioner. Affidavit forms shall request all relevant information, including, but not limited to: A description of the incidents that are the basis for the application for a harassment protection order, including the most severe incident, and the date or approximate date of such incidents. The clerk and his or her employees shall not provide assistance in completing the forms. The State Court Administrator shall adopt and promulgate the standard application and affidavit forms provided for in this section as well as the standard temporary ex parte and final harassment protection order forms and provide a copy of such forms to all clerks of the district courts in this state. These standard temporary ex parte and final harassment protection order forms shall be the only such forms used in this state.

(7) Any order issued under subsection (1) of this section may be issued ex parte without notice to the respondent if it reasonably appears from the specific facts shown by affidavit of the petitioner that irreparable harm, loss, or damage will result before the matter can be heard on notice. If the specific facts included in the affidavit (a) do not show that the petitioner will suffer irreparable harm, loss, or damage or (b) show that, for any other compelling reason, an ex parte order should not be issued, the court may forthwith cause notice of the application to be given to the respondent stating that he or she may show cause, not more than fourteen days after service, why such order should not be entered. Any notice provided to the respondent shall include notification that a court may treat a petition for a harassment protection order as a petition for a sexual assault protection order or a domestic abuse protection order if it appears from the facts that such other protection order is more appropriate and that the respondent shall have an opportunity to show cause as to why such protection order should not be entered. If such ex parte order is issued without notice to the respondent, the court shall forthwith cause notice of the petition and order and a form with which to request a show-cause hearing to be given the respondent stating that, upon service on the respondent, the order shall remain in effect for a period of one year unless the respondent shows cause why the order should not remain in effect for a period of one year. If the respondent wishes to appear and show cause why the order should not remain in effect for a period of one year, he or she shall affix his or her current address, telephone number, and signature to the form and return it to the clerk of the district court within ten business days after service upon him or her. Upon receipt of a timely request for a show-cause hearing, the court shall immediately schedule a show-cause hearing to be held within thirty days after the receipt of the request for a show-cause hearing and shall notify the petitioner and respondent of the hearing date. If a petition is dismissed without a hearing, it shall be dismissed without prejudice. The petition and affidavit shall be deemed to have been offered into evidence at any show-cause hearing. The petition and affidavit shall be admitted into evidence unless specifically excluded by the court.

(8) A court may treat a petition for a harassment protection order as a petition for a sexual assault protection order or a domestic abuse protection order if it appears from the facts in the petition, affidavit, and evidence presented at a show-cause hearing that such other protection order is more appropriate and if:

(a) The court makes specific findings that such other order is more appropriate; or

(b) The petitioner has requested the court to so treat the petition.

(9)(a) Upon the issuance of any temporary ex parte or final harassment protection order, the clerk of the court shall forthwith provide the petitioner, without charge, with two certified copies of such order. The clerk of the court shall also forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of such order and one copy each of the sheriff's return thereon. The clerk of the court shall also forthwith provide a copy of the harassment protection order to the sheriff's office in the county where the respondent may be personally served together with instructions for service. Upon receipt of the order and instructions for service, such sheriff's office shall forthwith serve the harassment protection order upon the respondent and file its return thereon with the clerk of the court which issued the harassment protection order within fourteen days of the issuance of the harassment protection order. If any harassment protection order is dismissed or modified by the court, the clerk of the court shall forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of the order of dismissal or modification.

(b) If the respondent is present at a hearing convened pursuant to this section and the harassment protection order is not dismissed, such respondent shall be deemed to have notice by the court at such hearing that the harassment protection order will be granted and remain in effect and further service of such notice described in this subsection shall not be required for purposes of prosecution under this section.

(c) A temporary ex parte harassment protection order shall be affirmed and deemed the final protection order and service of the temporary ex parte order shall be notice of the final protection order if the respondent has been properly served with the ex parte order and:

(i) The respondent fails to request a show-cause hearing within ten business days after service upon him or her and no hearing was requested by the petitioner or upon the court's own motion;

(ii) The respondent has been properly served with notice of any hearing requested by the respondent or petitioner or upon the court's own motion and the respondent fails to appear at such hearing; or

(iii) The respondent has been properly served with notice of any hearing requested by the respondent, the petitioner, or upon the court's own motion and the protection order was not dismissed at the hearing.

(10) A peace officer may, with or without a warrant, arrest a person if (a) the officer has probable cause to believe that the person has committed a violation of a harassment protection order issued pursuant to this section or a violation of a valid foreign harassment protection order recognized pursuant to section 28-311.10 and (b) a petitioner under this section provides the peace officer with a copy of a harassment protection order or the peace officer determines that such an order exists after communicating with the local law enforcement agency or a person protected under a valid foreign harassment protection order recognized pursuant to section 28-311.10 provides the peace officer with a copy of such order.

(11) A peace officer making an arrest pursuant to subsection (10) of this section shall take such person into custody and take such person before the county court or the court which issued the harassment protection order within a reasonable time. At such time the court shall establish the conditions of such person's release from custody, including the determination of bond or recognizance, as the case may be. The court shall issue an order directing that such person shall have no contact with the alleged victim of the harassment.

(12) When provided by the petitioner, the court shall make confidential numeric victim identification information, including social security numbers and dates of birth, available to appropriate criminal justice agencies engaged in protection order enforcement efforts. Such agencies shall maintain the confidentiality of this information except for entry into state and federal databases for protection order enforcement.

Source:Laws 1998, LB 218, § 6; Laws 2012, LB310, § 1; Laws 2019, LB532, § 1.

Annotations

"[A]ppear," as it is found in subdivision (8)(b) of this section, is not narrowly confined to require the presence of a respondent in person. Rather, it is the same as any other "appearance" in court. Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).

Under this section, a respondent is entitled to appear by and through his or her counsel. Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (2018).

Pursuant to subsection (8) of this section, personal service is an element of the misdemeanor crime of violating a harassment protection order. State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011).

A proper form under this section is not a prerequisite for subject matter jurisdiction, and this section does not change the rules of notice pleading generally applicable to civil actions. Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (2010).

This section was amended operative January 1, 2020, and now provides that the petition and affidavit shall be deemed to have been offered into evidence at any show cause hearing, and the petition and affidavit shall be admitted into evidence unless specifically excluded by the court; this was a substantive amendment and therefore was not applicable to the pending case. Prentice v. Steede, 28 Neb. App. 423, 944 N.W.2d 323 (2020).

When a trial court determines an ex parte temporary harassment protection order is not warranted, an evidentiary hearing is not mandated under the harassment protection order statute as it is under the domestic abuse protection order statute. In harassment protection order proceedings, a trial court has the discretion to direct a respondent to show cause why an order should not be entered or, alternatively, the court can dismiss the petition if insufficient grounds have been stated in the petition and affidavit. Rosberg v. Rosberg, 25 Neb. App. 856, 916 N.W.2d 62 (2018).

The court erred in finding sufficient evidence to support issuance of harassment protection orders because the alleged harasser had not engaged in the type of stalking offense for which this section provides relief, where the incident between the alleged harasser and the alleged victims occurred within a span of 10 to 20 minutes on one particular day, and there was no evidence of harassment prior to or after the incident. Knopik v. Hahn, 25 Neb. App. 157, 902 N.W.2d 716 (2017).

The 5-day time requirement specified in this section for requesting a hearing is not essential to accomplishing the main objective of Nebraska's stalking and harassment statutes. Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (2013).

The requirement in this section to request a hearing within 5 days of service of the ex parte order is directory rather than mandatory. Glantz v. Daniel, 21 Neb. App. 89, 837 N.W.2d 563 (2013).

28-311.10. Foreign harassment protection order; enforcement.

(1) A valid foreign harassment protection order or order similar to a harassment protection order issued by a court of another state, tribe, or territory shall be accorded full faith and credit by the courts of this state and enforced as if it were issued in this state.

(2) A foreign harassment order issued by a court of another state, tribe, or territory shall be valid if:

(a) The issuing court had jurisdiction over the parties and matter under the law of such state, tribe, or territory;

(b) The respondent was given reasonable notice and an opportunity to be heard sufficient to protect the respondent's right to due process before the order was issued; and

(c) The harassment order from another jurisdiction has not been rendered against both the petitioner and the respondent, unless: (i) The respondent filed a cross or counter petition, complaint, or other written pleading seeking such a harassment order; and (ii) the issuing court made specific findings of harassment against both the petitioner and respondent and determined that each party was entitled to such an order. There is a presumption of the validity of the foreign protection order when the order appears authentic on its face.

(3) A peace officer may rely upon a copy of any putative valid foreign harassment protection order which has been provided to the peace officer by any source.

Source:Laws 1998, LB 218, § 7.

28-311.11. Sexual assault protection order; violation; penalty; procedure; renewal; enforcement.

(1) Any victim of a sexual assault offense may file a petition and affidavit for a sexual assault protection order as provided in subsection (3) of this section. Upon the filing of such a petition and affidavit in support thereof, the court may issue a sexual assault protection order without bond enjoining the respondent from (a) imposing any restraint upon the person or liberty of the petitioner, (b) harassing, threatening, assaulting, molesting, attacking, or otherwise disturbing the peace of the petitioner, or (c) telephoning, contacting, or otherwise communicating with the petitioner. The sexual assault protection order shall specify to whom relief under this section was granted.

(2) The petition for a sexual assault protection order shall state the events and dates or approximate dates of acts constituting the sexual assault offense, including the most recent and most severe incident or incidents.

(3) A petition for a sexual assault protection order shall be filed with the clerk of the district court and the proceeding may be heard by the county court or the district court as provided in section 25-2740.

(4) A petition for a sexual assault protection order may not be withdrawn except upon order of the court. A sexual assault protection order shall specify that it is effective for a period of one year unless renewed pursuant to subsection (12) of this section or otherwise dismissed or modified by the court. Any person, except the petitioner, who knowingly violates a sexual assault protection order after service or notice as described in subdivision (9)(b) of this section shall be guilty of a Class I misdemeanor, except that any person convicted of violating such order who has a prior conviction for violating a sexual assault protection order shall be guilty of a Class IV felony.

(5)(a) Fees to cover costs associated with the filing of a petition for issuance or renewal of a sexual assault protection order or the issuance or service of a sexual assault protection order seeking only the relief provided by this section shall not be charged, except that a court may assess such fees and costs if the court finds, by clear and convincing evidence, that the statements contained in the petition were false and that the sexual assault protection order was sought in bad faith.

(b) A court may also assess costs associated with the filing of a petition for issuance or renewal of a sexual assault protection order or the issuance or service of a sexual assault protection order seeking only the relief provided by this section against the respondent.

(6) The clerk of the district court shall make available standard application and affidavit forms for issuance and renewal of a sexual assault protection order with instructions for completion to be used by a petitioner. Affidavit forms shall request all relevant information, including, but not limited to: A description of the most recent incident that was the basis for the application for a sexual assault protection order and the date or approximate date of the incident and, if there was more than one incident, the most severe incident and the date or approximate date of such incident. The clerk and his or her employees shall not provide assistance in completing the forms. The State Court Administrator shall adopt and promulgate the standard application and affidavit forms provided for in this section as well as the standard temporary ex parte and final sexual assault protection order forms and provide a copy of such forms to all clerks of the district courts in this state. Such standard temporary ex parte and final sexual assault protection order forms shall be the only forms used in this state.

(7) A sexual assault protection order may be issued or renewed ex parte without notice to the respondent if it reasonably appears from the specific facts shown by affidavit of the petitioner that irreparable harm, loss, or damage will result before the matter can be heard on notice. If a sexual assault protection order is not issued ex parte, the court shall immediately schedule an evidentiary hearing to be held within fourteen days after the filing of the petition, and the court shall cause notice of the application to be given to the respondent stating that he or she may show cause why such order should not be entered. Any notice provided to the respondent shall include notification that a court may treat a petition for a sexual assault protection order as a petition for a harassment protection order or a domestic abuse protection order if it appears from the facts that such other protection order is more appropriate and that the respondent shall have an opportunity to show cause as to why such protection order should not be entered. If such ex parte order is issued or renewed without notice to the respondent, the court shall forthwith cause notice of the petition and order and a form with which to request a show-cause hearing to be given the respondent stating that, upon service on the respondent, the order shall remain in effect for a period of one year unless the respondent shows cause why the order should not remain in effect for a period of one year. If the respondent wishes to appear and show cause why the order should not remain in effect for a period of one year, he or she shall affix his or her current address, telephone number, and signature to the form and return it to the clerk of the district court within ten business days after service upon him or her. Upon receipt of a timely request for a show-cause hearing, the court shall immediately schedule a show-cause hearing to be held within thirty days after the receipt of the request for a show-cause hearing and shall notify the petitioner and respondent of the hearing date. The petition and affidavit shall be deemed to have been offered into evidence at any show-cause hearing. The petition and affidavit shall be admitted into evidence unless specifically excluded by the court.

(8) A court may treat a petition for a sexual assault protection order as a petition for a harassment protection order or a domestic abuse protection order if it appears from the facts in the petition, affidavit, and evidence presented at a show-cause hearing that such other protection order is more appropriate and if:

(a) The court makes specific findings that such other order is more appropriate; or

(b) The petitioner has requested the court to so treat the petition.

(9)(a) Upon the issuance or renewal of any temporary ex parte or final sexual assault protection order, the clerk of the court shall forthwith provide the petitioner, without charge, with two certified copies of such order. The clerk of the court shall also forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of such order and one copy each of the sheriff's return thereon. The clerk of the court shall also forthwith provide a copy of the sexual assault protection order to the sheriff's office in the county where the respondent may be personally served together with instructions for service. Upon receipt of the order and instructions for service, such sheriff's office shall forthwith serve the sexual assault protection order upon the respondent and file its return thereon with the clerk of the court which issued the sexual assault protection order within fourteen days of the issuance of the initial or renewed sexual assault protection order. If any sexual assault protection order is dismissed or modified by the court, the clerk of the court shall forthwith provide the local police department or local law enforcement agency and the local sheriff's office, without charge, with one copy each of the order of dismissal or modification.

(b) If the respondent is present at a hearing convened pursuant to this section and the sexual assault protection order is not dismissed, such respondent shall be deemed to have notice by the court at such hearing that the protection order will be granted and remain in effect and further service of such notice described in this subsection shall not be required for purposes of prosecution under this section.

(c) A temporary ex parte sexual assault protection order shall be affirmed and deemed the final protection order and service of the temporary ex parte order shall be notice of the final protection order if the respondent has been properly served with the ex parte order and:

(i) The respondent fails to request a show-cause hearing within ten business days after service upon him or her and no hearing was requested by the petitioner or upon the court's own motion;

(ii) The respondent has been properly served with notice of any hearing requested by the respondent or petitioner or upon the court's own motion and the respondent fails to appear at such hearing; or

(10) A peace officer shall, with or without a warrant, arrest a person if (a) the officer has probable cause to believe that the person has committed a violation of a sexual assault protection order issued pursuant to this section or a violation of a valid foreign sexual assault protection order recognized pursuant to section 28-311.12 and (b) a petitioner under this section provides the peace officer with a copy of such order or the peace officer determines that such an order exists after communicating with the local law enforcement agency.

(11) A peace officer making an arrest pursuant to subsection (10) of this section shall take such person into custody and take such person before the county court or the court which issued the sexual assault protection order within a reasonable time. At such time the court shall establish the conditions of such person's release from custody, including the determination of bond or recognizance, as the case may be. The court shall issue an order directing that such person shall have no contact with the alleged victim of the sexual assault offense.

(12)(a) An order issued under subsection (1) of this section may be renewed annually. To request renewal of the order, the petitioner shall file a petition for renewal and affidavit in support thereof at any time within forty-five days prior to the date the order is set to expire, including the date the order expires.

(b) A sexual assault protection order may be renewed on the basis of the petitioner's affidavit stating that there has been no material change in relevant circumstances since entry of the order and stating the reason for the requested renewal if:

(i) The petitioner seeks no modification of the order; and

(ii)(A) The respondent has been properly served with notice of the petition for renewal and notice of hearing and fails to appear at the hearing; or

(B) The respondent indicates that he or she does not contest the renewal.

(c) The petition for renewal shall state the reasons a renewal is sought and shall be filed with the clerk of the district court, and the proceeding thereon may be heard by the county court or the district court as provided in section 25-2740. A petition for renewal will otherwise be governed in accordance with the procedures set forth in subsections (4) through (11) of this section. The renewed order shall specify that it is effective for one year commencing on the first calendar day after expiration of the previous order or on the calendar day the court grants the renewal if such day is subsequent to the first calendar day after expiration of the previous order.

(13) When provided by the petitioner, the court shall make confidential numeric victim identification information, including social security numbers and dates of birth, available to appropriate criminal justice agencies engaged in protection order enforcement efforts. Such agencies shall maintain the confidentiality of this information, except for entry into state and federal databases for protection order enforcement.

(14) For purposes of this section, sexual assault offense means:

(a) Conduct amounting to sexual assault under section 28-319 or 28-320, sexual abuse by a school employee under section 28-316.01, sexual assault of a child under section 28-319.01 or 28-320.01, or an attempt to commit any of such offenses; or

(b) Subjecting or attempting to subject another person to sexual contact or sexual penetration without his or her consent, as such terms are defined in section 28-318.

Source:Laws 2017, LB289, § 4; Laws 2019, LB532, § 2; Laws 2020, LB881, § 7.

Annotations

If a court is considering an alternate form of protection order than was requested by the petitioner, pursuant to subsection (8) of this section, the court must ensure that the respondent has been notified of the ultimate theory selected and that the respondent has had a fair opportunity to address that theory. Yerania O. v. Juan P., 310 Neb. 749, 969 N.W.2d 121 (2022).

To satisfy the requirement of specific findings under subsection (8) of this section, the court must set forth the reasoning for its order, explaining why its conclusion is appropriate, rather than simply quoting the statutory language. Yerania O. v. Juan P., 310 Neb. 749, 969 N.W.2d 121 (2022).

A party seeking a sexual assault protection order must prove a sexual assault offense by a preponderance of the evidence. S.B. v. Pfeifler, 26 Neb. App. 448, 920 N.W.2d 851 (2018).

28-311.12. Foreign sexual assault protection order; enforcement.

(1) A valid foreign sexual assault protection order or an order similar to a sexual assault protection order issued by a court of another state, territory, possession, or tribe shall be accorded full faith and credit by the courts of this state and enforced as if it were issued in this state.

(2) A foreign sexual assault protection order issued by a court of another state, territory, possession, or tribe shall be valid if:

(a) The issuing court had jurisdiction over the parties and matter under the law of such state, territory, possession, or tribe;

(b) The respondent was given reasonable notice and an opportunity to be heard sufficient to protect the respondent's right to due process before the order was issued; and

(c) The sexual assault protection order from another jurisdiction has not been rendered against both the petitioner and the respondent, unless: (i) The respondent filed a cross or counter petition, complaint, or other written pleading seeking such a sexual assault protection order; and (ii) the issuing court made specific findings of sexual assault offenses against both the petitioner and respondent and determined that each party was entitled to such an order.

(3) There is a presumption of the validity of the foreign protection order when the order appears authentic on its face.

(4) A peace officer may rely upon a copy of any putative valid foreign sexual assault protection order which has been provided to the peace officer by any source.

Source:Laws 2017, LB289, § 5.

28-312. Terms, defined.

As used in sections 28-312 to 28-315, unless the context otherwise requires:

(1) Restrain shall mean to restrict a person's movement in such a manner as to interfere substantially with his liberty:

(a) By means of force, threat, or deception; or

(b) If the person is under the age of eighteen or incompetent, without the consent of the relative, person, or institution having lawful custody of him; and

(2) Abduct shall mean to restrain a person with intent to prevent his liberation by:

(a) Secreting or holding him in a place where he is not likely to be found; or

(b) Endangering or threatening to endanger the safety of any human being.

Source:Laws 1977, LB 38, § 27.

28-313. Kidnapping; penalties.

(1) A person commits kidnapping if he abducts another or, having abducted another, continues to restrain him with intent to do the following:

(a) Hold him for ransom or reward; or

(b) Use him as a shield or hostage; or

(d) Commit a felony; or

(e) Interfere with the performance of any government or political function.

(2) Except as provided in subsection (3) of this section, kidnapping is a Class IA felony.

(3) If the person kidnapped was voluntarily released or liberated alive by the abductor and in a safe place without having suffered serious bodily injury, prior to trial, kidnapping is a Class II felony.

Source:Laws 1977, LB 38, § 28.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Generally

2. Voluntary release

3. Miscellaneous

1. Generally

This section creates a single criminal offense and not two separate offenses, even though it is punishable by two different ranges of penalties depending on the treatment accorded to the victim. The factors which determine which of the two penalties under this section is to be imposed are not elements of the offense of kidnapping, and their existence or nonexistence should properly be determined by the trial judge. Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is concerned only with cases involving an increase in penalty beyond the statutory maximum and does not apply to the mitigating factors in this section. State v. Becerra, 263 Neb. 753, 642 N.W.2d 143 (2002).

Pursuant to subsection (3) of this section, kidnapping as a Class II felony is not a separate offense from kidnapping as a Class IA felony. The provisions of subsection (3) of this section are only mitigating circumstances which may reduce the penalty for kidnapping, and the existence or nonexistence of the mitigating circumstances is a matter properly considered by the court at sentencing, not the jury. State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).

In the absence of a statutory definition, terrorize in subsection (1)(c) of this section means to fill with terror, scare, frighten, markedly disturb with fear, throw into a state of alarm, make afraid, or terrify. State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).

The specific intentions specified in subsections (1)(a) through (e) of this section apply both to the act of abducting and to the act of continued restraint after having already abducted another. One commits kidnapping if one either abducts another with one or more of the intentions specified in subsections (1)(a) through (e) of this section, or abducts another without any of those intentions, but forms one or more of them while continuing to restrain the abducted person. Proof of the intent required for subsections (1)(a) through (e) of the crime of kidnapping, as defined by this section, requires proof of something more than the abduction. State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (1997).

The purpose of kidnapping in every instance is to make it possible to commit some other crime. One may not erase the commission of a crime simply because, after committing it, a second crime is committed. State v. Schmidt, 213 Neb. 126, 327 N.W.2d 624 (1982).

The Nebraska kidnapping statute defines only a single criminal offense which is punishable by two different ranges of penalties depending on the treatment accorded the victim. State v. Schneckloth, Koger, and Heathman, 210 Neb. 144, 313 N.W.2d 438 (1981).

2. Voluntary release

The victim's ability to effectuate an escape despite being bound and gagged does not equate with a voluntary release under subsection (3) of this section. State v. Betancourt-Garcia, 295 Neb. 170, 887 N.W.2d 296 (2016).

Rescue is not a voluntary release of a kidnapping victim to establish a mitigating factor under subsection (3) of this section. State v. Pittman, 285 Neb. 314, 826 N.W.2d 862 (2013).

3. Miscellaneous

Kidnapping is not a lesser-included offense of first degree sexual assault, nor is sexual assault a lesser-included offense of kidnapping; it is not impossible to commit one of these crimes without having committed the other. State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988).

Sections 28-313 and 28-314 define separate offenses. State v. Miller, 216 Neb. 72, 341 N.W.2d 915 (1983).

The district court did not abuse its discretion in sentencing the defendant to forty years for aiding and abetting kidnapping where sentence was well within the statutory limits, whether crime was classified as a Class IA or Class II felony, and the court had correctly considered that the victims were not voluntarily released and one victim had been raped, though defendant was not convicted of aiding and abetting the rape. United States v. Gomez, 733 F.2d 69 (8th Cir. 1984).

28-314. False imprisonment in the first degree; penalty.

(1) A person commits false imprisonment in the first degree if he or she knowingly restrains or abducts another person (a) under terrorizing circumstances or under circumstances which expose the person to the risk of serious bodily injury; or (b) with intent to hold him or her in a condition of involuntary servitude.

(2) False imprisonment in the first degree is a Class IIIA felony.

Source:Laws 1977, LB 38, § 29; Laws 1997, LB 364, § 5.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Sufficient evidence was presented from which a jury could reasonably infer that the defendant, either alone or while aiding and abetting a codefendant, intended to restrain the victim under terrorizing circumstances which exposed her to the risk of serious bodily injury. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

Sections 28-313 and 28-314 define separate offenses. State v. Miller, 216 Neb. 72, 341 N.W.2d 915 (1983).

Pursuant to subsection (1) of this section, the offense of first degree false imprisonment requires that the knowing restraint of another person be either under terrorizing circumstances, under circumstances which expose the person to the risk of serious bodily injury, or with the intent to hold the individual in a condition of involuntary servitude. None of these conditions can be accomplished without restraining the individual without legal authority. State v. Brownell, 11 Neb. App. 68, 644 N.W.2d 166 (2002).

Pursuant to subsection (1) of this section, the restraint required to commit the offense of first degree false imprisonment must necessarily be without legal authority. State v. Brownell, 11 Neb. App. 68, 644 N.W.2d 166 (2002).

Second degree false imprisonment is a lesser-included offense of first degree false imprisonment. State v. Brownell, 11 Neb. App. 68, 644 N.W.2d 166 (2002).

First degree false imprisonment is not a lesser-included offense of kidnapping. State v. Newman, 5 Neb. App. 291, 559 N.W.2d 764 (1997).

28-315. False imprisonment in the second degree; penalty.

(1) A person commits false imprisonment in the second degree if he knowingly restrains another person without legal authority.

(2) In any prosecution under this section, it shall be an affirmative defense that the person restrained (a) was on or in the immediate vicinity of the premises of a retail mercantile establishment and he was restrained for the purpose of investigation or questioning as to the ownership of any merchandise; and (b) was restrained in a reasonable manner and for not more than a reasonable time; and (c) was restrained to permit such investigation or questioning by a police officer, or by the owner of the mercantile establishment, his authorized employee or agent; and (d) that such police officer, owner, employee or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft of merchandise on the premises; Provided, nothing in this section shall prohibit or restrict any person restrained pursuant to this section from maintaining any applicable civil remedy if no theft has occurred.

(3) False imprisonment in the second degree is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 30.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Second degree false imprisonment is a lesser-included offense of first degree false imprisonment. State v. Brownell, 11 Neb. App. 68, 644 N.W.2d 166 (2002).

28-316. Violation of custody; penalty.

(1) Any person, including a natural or foster parent, who, knowing that he has no legal right to do so or, heedless in that regard, takes or entices any child under the age of eighteen years from the custody of its parent having legal custody, guardian, or other lawful custodian commits the offense of violation of custody.

(2) Except as provided in subsection (3) of this section, violation of custody is a Class II misdemeanor.

(3) Violation of custody in contravention of an order of any district or juvenile court of this state granting the custody of a child under the age of eighteen years to any person, agency, or institution, with the intent to deprive the lawful custodian of the custody of such child, is a Class IV felony.

Source:Laws 1977, LB 38, § 31.

28-316.01. Sexual abuse by a school employee; penalty.

(1) For purposes of this section:

(a) Sexual contact has the same meaning as in section 28-318;

(b) Sexual penetration has the same meaning as in section 28-318;

(c) School employee means a person nineteen years of age or older who is employed by a public, private, denominational, or parochial school approved or accredited by the State Department of Education; and

(d) Student means a person at least sixteen but not more than nineteen years of age enrolled in or attending a public, private, denominational, or parochial school approved or accredited by the State Department of Education, or who was such a person enrolled in or who attended such a school within ninety days of any violation of this section.

(2) A person commits the offense of sexual abuse by a school employee if a school employee subjects a student in the school to which such employee is assigned for work to sexual penetration or sexual contact, or engages in a pattern or scheme of conduct to subject a student in the school to which such employee is assigned for work to sexual penetration or sexual contact. It is not a defense to a charge under this section that the student consented to such sexual penetration or sexual contact.

(3) Any school employee who engages in sexual penetration with a student is guilty of sexual abuse by a school employee in the first degree. Sexual abuse by a school employee in the first degree is a Class IIA felony.

(4) Any school employee who engages in sexual contact with a student is guilty of sexual abuse by a school employee in the second degree. Sexual abuse by a school employee in the second degree is a Class IIIA felony.

(5) Any school employee who engages in a pattern or scheme of conduct with the intent to subject a student to sexual penetration or sexual contact is guilty of sexual abuse by a school employee in the third degree. Sexual abuse by a school employee in the third degree is a Class IV felony.

Source:Laws 2020, LB881, § 12.

28-317. Sexual assault; legislative intent.

It is the intent of the Legislature to enact laws dealing with sexual assault and related criminal sexual offenses which will protect the dignity of the victim at all stages of judicial process, which will insure that the alleged offender in a criminal sexual offense case have preserved the constitutionally guaranteed due process of law procedures, and which will establish a system of investigation, prosecution, punishment, and rehabilitation for the welfare and benefit of the citizens of this state as such system is employed in the area of criminal sexual offenses.

Source:Laws 1977, LB 38, § 32.

28-318. Terms, defined.

As used in sections 28-317 to 28-322.05, unless the context otherwise requires:

(1) Actor means a person accused of sexual assault;

(2) Intimate parts means the genital area, groin, inner thighs, buttocks, or breasts;

(3) Past sexual behavior means sexual behavior other than the sexual behavior upon which the sexual assault is alleged;

(4) Serious personal injury means great bodily injury or disfigurement, extreme mental anguish or mental trauma, pregnancy, disease, or loss or impairment of a sexual or reproductive organ;

(5) Sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact also means the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. Sexual contact also includes the touching of a child with the actor's sexual or intimate parts on any part of the child's body for purposes of sexual abuse by a school employee under section 28-316.01 or sexual assault of a child under sections 28-319.01 and 28-320.01;

(6) Sexual penetration means sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement purposes. Sexual penetration shall not require emission of semen;

(7) Victim means the person alleging to have been sexually assaulted;

(8) Without consent means:

(a)(i) The victim was compelled to submit due to the use of force or threat of force or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim expressed a lack of consent through conduct, or (iv) the consent, if any was actually given, was the result of the actor's deception as to the identity of the actor or the nature or purpose of the act on the part of the actor;

(b) The victim need only resist, either verbally or physically, so as to make the victim's refusal to consent genuine and real and so as to reasonably make known to the actor the victim's refusal to consent; and

(9) Force or threat of force means (a) the use of physical force which overcomes the victim's resistance or (b) the threat of physical force, express or implied, against the victim or a third person that places the victim in fear of death or in fear of serious personal injury to the victim or a third person where the victim reasonably believes that the actor has the present or future ability to execute the threat.

Source:Laws 1977, LB 38, § 33; Laws 1978, LB 701, § 1; Laws 1984, LB 79, § 3; Laws 1985, LB 2, § 2; Laws 1995, LB 371, § 3; Laws 2004, LB 943, § 4; Laws 2006, LB 1199, § 4; Laws 2009, LB97, § 11; Laws 2019, LB519, § 6; Laws 2020, LB881, § 8.

Annotations

1. Jury instruction

2. Sexual contact

3. Sexual penetration

4. Deception

5. Miscellaneous

1. Jury instruction

Jury instruction approved, defining cunnilingus as including licking, kissing, sucking, or otherwise fondling the sex organ of a female with the mouth or tongue. State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).

2. Sexual contact

In the context of a conviction for third degree sexual assault under section 28-320, evidence of physical contact between the defendant's penis and the victim's shin was sufficient to support a finding of "sexual contact" as defined in subdivision (5) of this section. State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).

In proving sexual contact, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992).

"Sexual contact," as defined in subsection (5) of this section, is established when the State proves that defendant intentionally touched the victim's underpants in the area between the legs. State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).

In proving "sexual contact," defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988).

Under subdivision (5) of this section, sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts, and it includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).

In proving sexual contact, as defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

Nebraska does not criminalize sexual contact for the purpose of humiliating or degrading a person. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

The issue of intent of sexual gratification in minors must be determined on a case-by-case basis, and the fact finder must consider all the evidence, including the offender's age and maturity, before deciding whether intent can be inferred. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

Without some evidence of the child's maturity, intent, experience, or other factor indicating his or her purpose in acting, sexual ambitions must not be assigned to a child's actions. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

3. Sexual penetration

Pursuant to subdivision (6) of this section, fellatio meets the definition of penetration regardless of whether the victim is forced to fellate the defendant or the defendant fellates the victim. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).

The slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be proved by either direct or circumstantial evidence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).

Penetration need not be penile to be sufficient to establish first degree sexual assault. State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).

The act of fellatio constitutes a sexual penetration within the meaning of this section. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).

The slightest penetration of the sexual organs is sufficient, if established beyond a reasonable doubt, to constitute the necessary element of penetration in a prosecution for first degree sexual assault. State v. Tatum, 206 Neb. 625, 294 N.W.2d 354 (1980).

4. Deception

A conviction for first degree sexual assault through the use of deception was supported by evidence that the victim, a young aspiring Olympian who trained at the defendant's gym, was told by the defendant that he needed to sexually penetrate her with his fingers to "adjust" her pelvis, that the defendant was 35 years older than the victim, that the defendant used deception for years to obtain the victim's consent and escalate the nature of the sexual penetration, and that the defendant told the victim that the penetration was necessary for "recovery" when she protested. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

The word "deception" means words or conduct, or both words and conduct, causing the victim to believe what is false. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).

Under subdivision (8)(a)(iv) of this section, consent to sexual penetration that was the result of the actor's deception as to the identity of the actor qualifies as being without consent. State v. Prado, 30 Neb. App. 223, 967 N.W.2d 696 (2021).

5. Miscellaneous

Pursuant to subdivision (6) of this section, fellatio is defined as the oral stimulation of the penis for the purpose of sexual satisfaction. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).

"[C]oercion," under subdivision (8)(a)(i) of this section, includes nonphysical force. State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

Sufficient evidence existed to establish sexual contact when the defendant touched the buttocks of a 12-year-old girl over her clothing on multiple occasions, coupled with the defendant's position of authority over the victim, his knowledge of her "tough" upbringing, and his watching pornography immediately after touching the victim on one occasion. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).

28-319. Sexual assault; first degree; penalty.

(1) Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree.

(2) Sexual assault in the first degree is a Class II felony. The sentencing judge shall consider whether the actor caused serious personal injury to the victim in reaching a decision on the sentence.

(3) Any person who is found guilty of sexual assault in the first degree for a second time when the first conviction was pursuant to this section or any other state or federal law with essentially the same elements as this section shall be sentenced to a mandatory minimum term of twenty-five years in prison.

Source:Laws 1977, LB 38, § 34; Laws 1978, LB 748, § 5; Laws 1993, LB 430, § 1; Laws 1995, LB 371, § 4; Laws 2006, LB 1199, § 5.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Constitutionality

2. Defenses

3. Elements

4. Evidence

5. Force

6. Generally

7. Lesser-included offense

8. Sentencing

9. Sexual penetration

10. Miscellaneous

1. Constitutionality

A constitutional amendment adding first degree sexual assault to offenses for which bail may be denied, is constitutional and is not violative of the Fourteenth Amendment, Due Process Clause of the U.S. Constitution. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979).

Statute held to be constitutional and not violative of equal protection under the Fourteenth Amendment. Country v. Parratt, 684 F.2d 588 (8th Cir. 1982).

2. Defenses

For criminal prosecutions brought under subsection (1)(a) of this section, the trial court must instruct the jury on the defense of consent when evidence is produced which, under all of the circumstances, could reasonably be viewed by the jury as an indication of affirmative and freely given consent to sexual penetration by the alleged victim. State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998).

In a charge of sexual assault on a child, it is no defense that the victim engaged in active concealment or misrepresentation of age, and evidence on the issue of the victim's chastity is irrelevant and inadmissible. State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (1991).

Consent or reasonable mistake as to the age of the victim is not a defense to first degree sexual assault upon a child. State v. Navarrete, 221 Neb. 171, 376 N.W.2d 8 (1985).

3. Elements

Subdivision (1)(b) of this section applies to a wide array of situations that affect a victim's capacity, including age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

Under subdivision (1)(b) of this section, whether the victim was incapable of consent depends upon a specific inquiry into the victim's capacity, i.e., whether the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).

To prove a lack-of-capacity sexual assault on the basis of a mental impairment, the State must prove beyond a reasonable doubt that the victim's impairment was so severe that he or she was mentally incapable of resisting or mentally incapable of appraising the nature of the sexual conduct with the alleged perpetrator. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).

A jury instruction on attempted first degree sexual assault is flawed if it fails to state that the defendant’s substantial step must strongly corroborate the defendant’s criminal intent or that the State must prove the defendant intended to subject the victim to sexual penetration without her consent or when she was incapable of resisting or appraising the nature of her conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

To find a defendant guilty of attempted first degree sexual assault, a jury must find that the defendant intended to subject the victim to penetration without consent or when the victim was incapable of resisting or appraising the nature of his or her conduct and that the defendant took a substantial step that strongly corroborated this intent. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).

Serious personal injury is not an element of first degree sexual assault. It is a factor that a sentencing judge shall take into consideration in imposing sentence. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).

The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).

Intent is not an element of first degree sexual assault as defined by subsection (1) of this section. State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994).

Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989).

Consent is not relevant and the State need not prove lack of consent for a charge under subdivision (1)(c) of this section. State v. Cramer, 28 Neb. App. 469, 945 N.W.2d 222 (2020).

4. Evidence

Under subsection (2) of this section, before imposition of a sentence on a defendant convicted of first degree sexual assault, a sentencing judge is not required to conduct an evidentiary hearing to determine whether the victim has sustained serious personal injury as a result of the sexual assault by the defendant; rather, concerning the question of personal injury to the victim, the judge shall consider information appropriately before the court in the sentencing process. State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990).

5. Force

For use of a firearm to subject a victim to sexual penetration by force or threat of force, it is only necessary that the victim be aware of the firearm's presence; that the assailant, in proximity to the firearm and knowing the firearm's location, has realistic accessibility to that firearm; and that the victim reasonably believes that the assailant will discharge the firearm to harm the victim unless the victim submits to the act of the assailant. State v. Dondlinger, 222 Neb. 741, 386 N.W.2d 866 (1986).

Removing articles of clothing from a sleeping person, physically spreading her legs, and performing nonconsenual cunnilingus is "force" sufficient to violate the statute. State v. Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993).

6. Generally

Cunnilingus, that is, stimulation by the tongue or lips of any part of a female's genitalia, is an act which may subject the actor to prosecution for first degree sexual assault. Once the perpetrator's lips or tongue touches any part of the female's genitalia, the act of cunnilingus is complete, irrespective of any actual penetration of the genitalia. State v. Brown, 225 Neb. 418, 405 N.W.2d 600 (1987).

Whatever basis there may have been for assuming that the common-law rule of spousal exclusion was applicable under the former rape law of this state, such assumption was effectively abrogated by the Legislature when it enacted this section. State v. Willis, 223 Neb. 844, 394 N.W.2d 648 (1986).

In a prosecution for sexual assault, the prosecutrix may testify on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details. State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981).

It is sufficient if the victim's testimony is corroborated as to material facts and circumstances which support her testimony as to the principal facts at issue. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980); State v. Rhodes, 201 Neb. 576, 270 N.W.2d 920 (1978).

7. Lesser-included offense

A trial court is not required to sua sponte instruct on lesser-included offenses, but the trial court may do so if the evidence adduced at trial would warrant conviction of the lesser charge and the defendant has been afforded a fair notice of those lesser-included offenses. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

Either the State or the defendant may request a lesser-included offense instruction where it is supported by the pleadings and the evidence. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

Sexual assault of a child is not a lesser-included offense of first degree sexual assault of a child. State v. Putz, 11 Neb. App. 332, 650 N.W.2d 486 (2002).

Sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

Sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

8. Sentencing

A sentence of thirty-five years without the possibility of parole for first degree sexual assault, second offense, did not constitute cruel and unusual punishment. State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985).

9. Sexual penetration

When a defendant is charged with first degree sexual assault under this section, the issue is not whether the defendant had sexual intercourse with the victim; rather, the issue is whether the defendant achieved even the slightest penetration. State v. Faatz, 234 Neb. 796, 452 N.W.2d 751 (1990).

Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989).

10. Miscellaneous

A defendant who fellates a victim without consent is guilty of first degree sexual assault. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).

Evidence was sufficient to support a conviction for first degree sexual assault where the victim testified she did not consent to having sex with anyone on the night of her party, an attendee at the party testified that the defendant said he had sex with the victim, and there was abundant testimony about the victim's intoxication. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

The definition of "mentally incapable" could have been excluded from the court's instructions, as the language of subdivision (1)(b) of this section is sufficiently clear that a definitional instruction would not normally be necessary. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

The evidence was sufficient to support a finding that a 10-year-old victim was incapable of appraising the nature of sexual conduct where the expert testimony provided an explanation of the brain capacities and reasoning abilities of a normal 10-year-old child and opined that the victim appeared to be a normally developed 10-year-old child. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

The trial court's ambiguous instruction was harmless error because the potential ambiguity did not in fact mislead the jury, because the instructions taken as a whole, combined with the evidence and arguments presented at trial, clarified the ambiguity of "because of the victim's age" such that the jury understood "age" in this context to be a subjective review of the victim's developmental age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

Using the phrase "because of the victim's age" to preface the term "mentally incapable" is ambiguous as to whether age can be the sole basis for a finding that the victim was mentally incapable, without an individualized assessment of the victim's maturity. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).

Attempted first degree sexual assault on a child is a crime in Nebraska. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

First degree sexual assault under subsection (1)(a) of this section is a general intent crime. State v. Sutton, 16 Neb. App. 287, 741 N.W.2d 713 (2008).

Whether expert testimony is required to prove that a victim is physically or mentally incapable of consenting to or appraising the nature of the sexual contact is to be determined on a case-by-case basis; it was not required when a psychotherapist who specialized in treating sexually abused children used his training and experience to abuse his stepdaughters. State v. Collins, 7 Neb. App. 187, 583 N.W.2d 341 (1998).

28-319.01. Sexual assault of a child; first degree; penalty.

(1) A person commits sexual assault of a child in the first degree:

(a) When he or she subjects another person under twelve years of age to sexual penetration and the actor is at least nineteen years of age or older; or

(b) When he or she subjects another person who is at least twelve years of age but less than sixteen years of age to sexual penetration and the actor is twenty-five years of age or older.

(2) Sexual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense.

(3) Any person who is found guilty of sexual assault of a child in the first degree under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-320.01 before July 14, 2006, of sexual assault of a child or attempted sexual assault of a child, (d) under section 28-320.01 on or after July 14, 2006, of sexual assault of a child in the second or third degree or attempted sexual assault of a child in the second or third degree, or (e) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-320.01 as it existed before, on, or after July 14, 2006, shall be guilty of a Class IB felony with a mandatory minimum sentence of twenty-five years in prison.

(4) In any prosecution under this section, the age of the actor shall be an essential element of the offense that must be proved beyond a reasonable doubt.

Source:Laws 2006, LB 1199, § 6; Laws 2009, LB97, § 12.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

The age classifications of the victim in subdivision (1)(a) of this section are rationally related to plausible policy reasons considered by lawmakers, including the concern of protecting young people. The relationship of the classifications to legislative goals was not so attenuated as to render the distinction arbitrary or irrational, and it does not violate the Equal Protection Clause of the 14th Amendment of the Constitution of the United States or Article I, sec. 3, of the Nebraska Constitution. State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).

For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in subsection (2) of this section and "minimum" as used in section 28-105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

The mandatory minimum sentence required by subsection (2) of this section affects both probation and parole: Probation is not authorized, and the offender will not receive any good time credit until the full amount of the mandatory minimum term of imprisonment has been served. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

The range of penalties for sexual assault of a child in the first degree, first offense, under subsection (2) of this section, is 15 years' to life imprisonment. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

28-320. Sexual assault; second or third degree; penalty.

(1) Any person who subjects another person to sexual contact (a) without consent of the victim, or (b) who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree.

(2) Sexual assault shall be in the second degree and is a Class IIA felony if the actor shall have caused serious personal injury to the victim.

(3) Sexual assault shall be in the third degree and is a Class I misdemeanor if the actor shall not have caused serious personal injury to the victim.

Source:Laws 1977, LB 38, § 35; Laws 1978, LB 701, § 2; Laws 1995, LB 371, § 5; Laws 2015, LB605, § 18.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Elements

2. Generally

3. Jury instructions

4. Lesser-included offense

5. Sexual contact

1. Elements

Pursuant to subsection (1) of this section, common sense alone establishes that a child of 5 or 6 years of age is incapable of understanding the nature of sexual conduct as a matter of law. In re Interest of Gunner B., 312 Neb. 697, 980 N.W.2d 863 (2022).

Defendant's conviction of sexual abuse of a vulnerable adult reversed because evidence was insufficient to establish element of sexual contact. State v. Hulshizer, 245 Neb. 244, 512 N.W.2d 372 (1994).

This section requires only that the state prove that the sexual contact took place and that the actor knew or should have known that the victim was mentally or physically incapable of resisting the actor's aggressions. In re Interest of J.M., 223 Neb. 609, 391 N.W.2d 146 (1986).

2. Generally

3. Jury instructions

Trial court erred in instructing jury on second degree sexual assault. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).

4. Lesser-included offense

Third degree sexual assault is not a lesser-included offense of attempted first degree sexual assault. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).

Third degree sexual assault is a lesser-included offense of second degree sexual assault. State v. Schwartz, 219 Neb. 833, 366 N.W.2d 766 (1985).

Sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

Sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

5. Sexual contact

In the context of a conviction for third degree sexual assault under this section, evidence of physical contact between the defendant's penis and the victim's shin was sufficient to support a finding of "sexual contact" as defined in section 28-318(5). State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).

28-320.01. Sexual assault of a child; second or third degree; penalties.

(1) A person commits sexual assault of a child in the second or third degree if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older.

(2) Sexual assault of a child is in the second degree if the actor causes serious personal injury to the victim. Sexual assault of a child in the second degree is a Class II felony for the first offense.

(3) Sexual assault of a child is in the third degree if the actor does not cause serious personal injury to the victim. Sexual assault of a child in the third degree is a Class IIIA felony for the first offense.

(4) Any person who is found guilty of second degree sexual assault of a child under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-319.01 for first degree or attempted first degree sexual assault of a child, or (d) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-319.01 shall be guilty of a Class IC felony and shall be sentenced to a mandatory minimum term of twenty-five years in prison.

(5) Any person who is found guilty of third degree sexual assault of a child under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-319.01 for first degree or attempted first degree sexual assault of a child, or (d) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-319.01 shall be guilty of a Class IC felony.

Source:Laws 1984, LB 79, § 1; Laws 1991, LB 23, § 1; Laws 1996, LB 645, § 14; Laws 1997, LB 364, § 6; Laws 2006, LB 1199, § 7.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

The exact date of the commission of an offense is not a substantive element of first, second, or third degree sexual assault of a child. State v. Samayoa, 292 Neb. 334, 873 N.W.2d 449 (2015).

As used in this section, the phrase, "fourteen years of age or younger" designates persons whose age is less than or under fourteen years, and also designates persons who have reached and passed their fourteenth birthday but have not reached their fifteenth birthday. State v. Carlson, 223 Neb. 874, 394 N.W.2d 669 (1986).

Sexual assault of a child is not a lesser-included offense of first degree sexual assault of a child. State v. Putz, 11 Neb. App. 332, 650 N.W.2d 486 (2002).

28-320.02. Sexual assault; use of electronic communication device; prohibited acts; penalties.

(1) No person shall knowingly solicit, coax, entice, or lure (a) a child sixteen years of age or younger or (b) a peace officer who is believed by such person to be a child sixteen years of age or younger, by means of an electronic communication device as that term is defined in section 28-833, to engage in an act which would be in violation of section 28-319, 28-319.01, or 28-320.01 or subsection (1) or (2) of section 28-320. A person shall not be convicted of both a violation of this subsection and a violation of section 28-319, 28-319.01, or 28-320.01 or subsection (1) or (2) of section 28-320 if the violations arise out of the same set of facts or pattern of conduct and the individual solicited, coaxed, enticed, or lured under this subsection is also the victim of the sexual assault under section 28-319, 28-319.01, or 28-320.01 or subsection (1) or (2) of section 28-320.

(2) A person who violates this section is guilty of a Class ID felony. If a person who violates this section has previously been convicted of a violation of this section or section 28-308, 28-309, 28-310, 28-311, 28-313, 28-314, 28-315, 28-319, 28-319.01, 28-320.01, 28-813.01, 28-833, 28-1463.03, or 28-1463.05 or subsection (1) or (2) of section 28-320, the person is guilty of a Class IC felony.

Source:Laws 2004, LB 943, § 3; Laws 2006, LB 1199, § 8; Laws 2009, LB97, § 13.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Subsection (1) of this section does not criminalize an attempt to commit one of the specified crimes. Instead, it unambiguously criminalizes the persuasion itself. Because this section is focused on persuading a child to engage in an illegal sexual act, the relevant time for determining whether the encouraged sexual act was illegal will generally be when the defendant was engaged in the persuasion. Depending upon the substance of the persuasion, however, this may not always be true. But where the facts did not warrant requiring further proof of the defendant's intent to commit an illegal sexual act, the State was not required to prove that he took a substantial step toward committing such act. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

This section does not implicate speech regarding otherwise legal activity; it targets only speech used for the purpose of enticing a child to engage in illegal sexual conduct, and such speech is not protected by the First Amendment. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).

Under the former law, a person was guilty of a Class IIIA felony where a person knowingly solicits, coaxes, entices, or lures (1) a child 16 years of age or younger or (2) a peace officer who is believed by such person to be a child 16 years of age or younger, by means of a computer as that term is defined in section 28-1343, to engage in a sexual act. State v. Atchison, 15 Neb. App. 422, 730 N.W.2d 115 (2007).

28-321. Repealed. Laws 2009, LB 97, § 36.

28-322. Sexual abuse of an inmate or parolee; terms, defined.

For purposes of sections 28-322 to 28-322.03:

(1) Inmate or parolee means any individual confined in a facility operated by the Department of Correctional Services or a city or county correctional or jail facility or under parole supervision; and

(2) Person means (a) an individual employed by the Department of Correctional Services or by the Division of Parole Supervision, including any individual working in central administration of the department, any individual working under contract with the department, and any individual, other than an inmate's spouse, to whom the department has authorized or delegated control over an inmate or an inmate's activities, (b) an individual employed by a city or county correctional or jail facility, including any individual working in central administration of the city or county correctional or jail facility, any individual working under contract with the city or county correctional or jail facility, and any individual, other than an inmate's spouse, to whom the city or county correctional or jail facility has authorized or delegated control over an inmate or an inmate's activities, and (c) an individual employed by the Office of Probation Administration who performs official duties within any facility operated by the Department of Correctional Services or a city or county correctional or jail facility.

Source:Laws 1999, LB 511, § 2; Laws 2001, LB 155, § 1; Laws 2004, LB 943, § 5; Laws 2018, LB841, § 1.

Annotations

The control requirement in this section applies only to those nonemployees or noncontractors to whom the Department of Correctional Services has authorized or delegated control over an inmate or an inmate’s activities. State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015).

28-322.01. Sexual abuse of an inmate or parolee.

(1) A person commits the offense of sexual abuse of an inmate or parolee if such person subjects an inmate or parolee to sexual penetration or sexual contact as those terms are defined in section 28-318. It is not a defense to a charge under this section that the inmate or parolee consented to such sexual penetration or sexual contact.

(2) An otherwise lawful pat-down or body cavity search by a person is not a violation of this section.

Source:Laws 1999, LB 511, § 3; Laws 2001, LB 155, § 2; Laws 2004, LB 943, § 6; Laws 2019, LB519, § 7.

28-322.02. Sexual abuse of an inmate or parolee in the first degree; penalty.

Any person who subjects an inmate or parolee to sexual penetration is guilty of sexual abuse of an inmate or parolee in the first degree. Sexual abuse of an inmate or parolee in the first degree is a Class IIA felony.

Source:Laws 1999, LB 511, § 4; Laws 2015, LB605, § 19.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

As used in this section, the word "subject" means to cause to undergo the action of something specified. State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (2015).

28-322.03. Sexual abuse of an inmate or parolee in the second degree; penalty.

Any person who subjects an inmate or parolee to sexual contact is guilty of sexual abuse of an inmate or parolee in the second degree. Sexual abuse of an inmate or parolee in the second degree is a Class IIIA felony.

Source:Laws 1999, LB 511, § 5; Laws 2015, LB605, § 20.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

28-322.04. Sexual abuse of a protected individual; penalties.

(1) For purposes of this section:

(a) Person means an individual employed by the Department of Health and Human Services and includes, but is not limited to, any individual working in central administration or regional service areas or facilities of the department and any individual to whom the department has authorized or delegated control over a protected individual or a protected individual's activities, whether by contract or otherwise; and

(b) Protected individual means an individual in the care or custody of the department.

(2) A person commits the offense of sexual abuse of a protected individual if the person subjects a protected individual to sexual penetration or sexual contact as those terms are defined in section 28-318. It is not a defense to a charge under this section that the protected individual consented to such sexual penetration or sexual contact.

(3) Any person who subjects a protected individual to sexual penetration is guilty of sexual abuse of a protected individual in the first degree. Sexual abuse of a protected individual in the first degree is a Class IIA felony.

(4) Any person who subjects a protected individual to sexual contact is guilty of sexual abuse of a protected individual in the second degree. Sexual abuse of a protected individual in the second degree is a Class IIIA felony.

Source:Laws 2003, LB 17, § 2; Laws 2007, LB296, § 26; Laws 2015, LB605, § 21.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Under this section, the word "subject" means to cause to undergo the action of something specified. State v. Wood, 296 Neb. 738, 895 N.W.2d 701 (2017).

28-322.05. Sexual abuse of a detainee; penalty.

(1) For purposes of this section:

(a) Detainee means an individual who has been:

(i) Arrested by a person;

(ii) Detained by a person, regardless of whether the detainee has been arrested or charged; or

(iii) Placed into the custody of a person, regardless of whether the detainee has been arrested or charged;

(b) Law enforcement agency means an agency or department of this state or of any political subdivision of this state which is responsible for the prevention and detection of crime; the enforcement of the penal, traffic, or highway laws of this state or any political subdivision of this state; and the enforcement of arrest warrants. Law enforcement agency includes a police department, an office of the town marshal, an office of the county sheriff, the Nebraska State Patrol, and any department to which a deputy state sheriff is assigned as provided in section 84-106; and

(i) Who is employed by a law enforcement agency, including an individual working under contract with the agency;

(ii) To whom the law enforcement agency has authorized or delegated authority to make arrests, to place a detainee in detention or custody, or to otherwise exercise control over a detainee or a detainee's activities; and

(iii) Who is not the spouse of a detainee.

(2) A person commits the offense of sexual abuse of a detainee if the person engages in sexual penetration or sexual contact with a detainee. It is not a defense to a charge under this section that the detainee consented to such sexual penetration or sexual contact.

(3) An otherwise lawful pat-down or body cavity search by a person is not a violation of this section.

(4) Any person who engages in sexual penetration with a detainee is guilty of sexual abuse of a detainee in the first degree. Sexual abuse of a detainee in the first degree is a Class IIA felony.

(5) Any person who engages in sexual contact with a detainee is guilty of sexual abuse of a detainee in the second degree. Sexual abuse of a detainee in the second degree is a Class IIIA felony.

Source:Laws 2019, LB519, § 8.

28-323. Domestic assault; penalties.

(1) A person commits the offense of domestic assault in the third degree if he or she:

(a) Intentionally and knowingly causes bodily injury to his or her intimate partner;

(b) Threatens an intimate partner with imminent bodily injury; or

(2) A person commits the offense of domestic assault in the second degree if he or she intentionally and knowingly causes bodily injury to his or her intimate partner with a dangerous instrument.

(3) A person commits the offense of domestic assault in the first degree if he or she intentionally and knowingly causes serious bodily injury to his or her intimate partner.

(4) Violation of subdivision (1)(a) or (b) of this section is a Class I misdemeanor, except that for any subsequent violation of subdivision (1)(a) or (b) of this section, any person so offending is guilty of a Class IIIA felony.

(5) Violation of subdivision (1)(c) of this section is a Class I misdemeanor.

(6) Violation of subsection (2) of this section is a Class IIIA felony, except that for any second or subsequent violation of such subsection, any person so offending is guilty of a Class IIA felony.

(7) Violation of subsection (3) of this section is a Class IIA felony, except that for any second or subsequent violation under such subsection, any person so offending is guilty of a Class II felony.

(8) For purposes of this section, intimate partner means a spouse; a former spouse; persons who have a child in common whether or not they have been married or lived together at any time; and persons who are or were involved in a dating relationship. For purposes of this subsection, dating relationship means frequent, intimate associations primarily characterized by the expectation of affectional or sexual involvement, but does not include a casual relationship or an ordinary association between persons in a business or social context.

Source:Laws 2004, LB 613, § 5; Laws 2010, LB507, § 2; Laws 2015, LB605, § 22.

Annotations

Multiple counts of third degree domestic assault under this section are not the "same offense" for double jeopardy purposes if a break occurred between the alleged assaults that allowed the defendant to form anew the required criminal intent. State v. Kleckner, 291 Neb. 539, 867 N.W.2d 273 (2015).

Pursuant to this section, the defendant and the victim were in a dating relationship and the victim was the defendant's "intimate partner," where their relationship began as casual or social, but progressed into a more serious relationship, their families considered them to be dating and each other's girlfriend or boyfriend, and the altercation was precipitated by the victim's concerns that the defendant was cheating on her by dating other girls. State v. Gay, 18 Neb. App. 163, 778 N.W.2d 494 (2009).

28-324. Robbery; penalty.

(1) A person commits robbery if, with the intent to steal, he forcibly and by violence, or by putting in fear, takes from the person of another any money or personal property of any value whatever.

(2) Robbery is a Class II felony.

Source:Laws 1977, LB 38, § 39.

Annotations

1. Elements

2. Miscellaneous

1. Elements

To find the element of taking "by putting in fear" under this section, the finder of fact must determine from the context established by the evidence whether the defendant's conduct would have placed a reasonable person in fear. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

Whether a person intends to destroy, abandon, or gift property to another, there is an "intent to steal" under this section if such property was taken with the intention of permanently depriving the owner of it. State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006).

If the sight of a weapon, whether it is operative or not, instills fear in the victim, that is sufficient under subsection (1) of this section. State v. Propst, 228 Neb. 722, 424 N.W.2d 136 (1988).

Robbery of contraband may be subject to the penal sanction of this section. State v. Dwyer, 226 Neb. 340, 411 N.W.2d 341 (1987).

Under the statute, a robbery is committed when property is taken from a person through the use of force, violence, or intimidation; however, the taking is sufficient if the property is taken from the individual's personal presence, protection, or control. It need not be taken from the person himself. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985).

In a case where defendant repeatedly sexually assaulted his victim and, during a pause in the assaults, took money from her purse when it was not in the immediate control of the victim, the factfinder was permitted to infer that the necessary elements of force and intent were present and to find the defendant guilty of robbery. State v. Welchel, 207 Neb. 337, 299 N.W.2d 155 (1980).

Evidence of a principal's intent to steal drugs from an undercover officer who had just purchased them from him was sufficient to support the defendant's conviction for aiding and abetting robbery; the principal told the officer to give him the drugs back, the officer refused at first and tried to leave, the principal took the money out of his pocket and insisted that the officer take his money back and give the drugs to the principal, the officer ultimately gave the drugs to the principal and took his money back, the officer felt threatened during the incident and felt that he had no choice but to give the drugs to the principal, and the principal had no right to the drugs after the transaction was complete. State v. Burbach, 20 Neb. App. 157, 821 N.W.2d 215 (2012).

For purposes of the robbery statute, "stealing" has commonly been described as taking without right or leave with intent to keep wrongfully; the focus of the statute is on the intent to deprive the owner of his or her property permanently, to keep it from him or her. State v. Burbach, 20 Neb. App. 157, 821 N.W.2d 215 (2012).

2. Miscellaneous

The crime of being an accessory to a felony, as defined in section 28-204, is not a lesser-included offense of the crime of robbery. State v. Arthaloney, 230 Neb. 819, 433 N.W.2d 545 (1989).

Where information charging an individual with robbery contains the name "McDonald's Restaurant" as the name of the person robbed, it is not of such a fundamental character as to make the indictment wholly invalid and, as such, objection to it was waived by the defendant's plea. State v. Coleman, 209 Neb. 823, 311 N.W.2d 911 (1981).

When a person found guilty of a substantive crime as well as being a habitual criminal is improperly sentenced, both sentences must be set aside and the case remanded for proper sentencing. State v. Rolling, 209 Neb. 243, 307 N.W.2d 123 (1981).

Evidence of a defendant's fingerprints has probative value; and it is for the jury to determine, in light of all other evidence, whether such evidence permits an inference to be drawn that beyond a reasonable doubt defendant was the person who committed the offense in question. State v. Pena, 208 Neb. 250, 302 N.W.2d 735 (1981).

28-325. Abortion; declaration of purpose.

The Legislature hereby finds and declares:

(1) That the following provisions were motivated by the legislative intrusion of the United States Supreme Court by virtue of its decision removing the protection afforded the unborn. Sections 28-325 to 28-345 are in no way to be construed as legislatively encouraging abortions at any stage of unborn human development, but are rather an expression of the will of the people of the State of Nebraska and the members of the Legislature to provide protection for the life of the unborn child whenever possible;

(2) That the members of the Legislature expressly deplore the destruction of the unborn human lives which has and will occur in Nebraska as a consequence of the United States Supreme Court's decision on abortion of January 22, 1973;

(3) That it is in the interest of the people of the State of Nebraska that every precaution be taken to insure the protection of every viable unborn child being aborted, and every precaution be taken to provide life-supportive procedures to insure the unborn child its continued life after its abortion;

(4) That currently this state is prevented from providing adequate legal remedies to protect the life, health, and welfare of pregnant women and unborn human life;

(5) That it is in the interest of the people of the State of Nebraska to maintain accurate statistical data to aid in providing proper maternal health regulations and education;

(6) That the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women;

(7) That clarifying the minimum standard of care for preabortion screening and counseling in statute is a practical means of protecting the well-being of women and may better ensure that abortion doctors are sufficiently aware of each patient's risk profile so they may give each patient a well-informed medical opinion regarding her unique case; and

(8) That providing right to redress against nonphysicians who perform illegal abortions or encourage self-abortions is an important means of protecting women's health.

Source:Laws 1977, LB 38, § 40; Laws 1997, LB 23, § 1; Laws 2010, LB594, § 2.

28-326. Terms, defined.

For purposes of sections 28-325 to 28-345 and 28-347 to 28-347.06, unless the context otherwise requires:

(1) Abortion means the use or prescription of any instrument, medicine, drug, or other substance or device intentionally to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child, and which causes the premature termination of the pregnancy;

(2) Complications associated with abortion means any adverse physical, psychological, or emotional reaction that is reported in a peer-reviewed journal to be statistically associated with abortion such that there is less than a five percent probability (P < .05) that the result is due to chance;

(3) Conception means the fecundation of the ovum by the spermatozoa;

(4)(a) Dismemberment abortion means an abortion in which, with the purpose of causing the death of an unborn child, a person purposely dismembers the body of a living unborn child and extracts him or her one piece at a time from the uterus through use of clamps, grasping forceps, tongs, scissors, or similar instruments that, through the convergence of two rigid levers, slice, crush, or grasp a portion of the unborn child's body to cut or rip it off.

(b) Dismemberment abortion does not include:

(i) An abortion in which suction is used to dismember the body of an unborn child by sucking fetal parts into a collection container; or

(ii) The use of instruments or suction to remove the remains of an unborn child who has already died;

(5) Emergency situation means that condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial impairment of a major bodily function;

(6) Hospital means those institutions licensed by the Department of Health and Human Services pursuant to the Health Care Facility Licensure Act;

(7) Negligible risk means a risk that a reasonable person would consider to be immaterial to a decision to undergo an elective medical procedure;

(8) Partial-birth abortion means an abortion procedure in which the person performing the abortion partially delivers vaginally a living unborn child before killing the unborn child and completing the delivery. For purposes of this subdivision, the term partially delivers vaginally a living unborn child before killing the unborn child means deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child;

(9) Physician means any person licensed to practice medicine in this state as provided in the Uniform Credentialing Act;

(10) Pregnant means that condition of a woman who has unborn human life within her as the result of conception;

(11) Probable gestational age of the unborn child means what will with reasonable probability, in the judgment of the physician, be the gestational age of the unborn child at the time the abortion is planned to be performed;

(12) Risk factor associated with abortion means any factor, including any physical, psychological, emotional, demographic, or situational factor, for which there is a statistical association with one or more complications associated with abortion such that there is less than a five percent probability (P < .05) that such statistical association is due to chance. Such information on risk factors shall have been published in any peer-reviewed journals indexed by the United States National Library of Medicine's search services (PubMed or MEDLINE) or in any journal included in the Thomson Reuters Scientific Master Journal List not less than twelve months prior to the day preabortion screening was provided;

(13) Self-induced abortion means any abortion or menstrual extraction attempted or completed by a pregnant woman on her own body;

(14) Ultrasound means the use of ultrasonic waves for diagnostic or therapeutic purposes, specifically to monitor an unborn child;

(15) Viability means that stage of human development when the unborn child is potentially able to live more than merely momentarily outside the womb of the mother by natural or artificial means; and

(16) Woman means any female human being whether or not she has reached the age of majority.

Source:Laws 1977, LB 38, § 41; Laws 1979, LB 316, § 1; Laws 1984, LB 695, § 1; Laws 1986, LB 663, § 1; Laws 1993, LB 110, § 1; Laws 1996, LB 1044, § 59; Laws 1997, LB 23, § 2; Laws 2000, LB 819, § 64; Laws 2007, LB296, § 27; Laws 2009, LB675, § 1; Laws 2010, LB594, § 3; Laws 2020, LB814, § 2.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Uniform Credentialing Act, see section 38-101.

Annotations

Sections 28-326(8), 28-327, 28-333, and 28-343 (1979) regulating abortion were unconstitutional. Womens Services, P.C. v. Thone, 690 F.2d 667 (8th Cir. 1982).

The portions of this statute which require that a woman seeking an abortion indicate in writing that she has been advised of possible alternatives to abortion and of the abortion procedures to be used, does not unduly burden either the woman's decisionmaking process or her obtaining an abortion and, in view of the state's interest in having the information conveyed, the sections are constitutional. Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D. Neb. 1979).

This section, as far as it requires a woman seeking an abortion to indicate that she has been advised of the reasonably possible medical and mental consequences resulting from an abortion, pregnancy, and childbirth, gives a person of ordinary intelligence fair notice as to the subject matter of the statute and is not void for vagueness. Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D. Neb. 1979).

28-327. Abortion; voluntary and informed consent required; exception.

No abortion shall be performed except with the voluntary and informed consent of the woman upon whom the abortion is to be performed. Except in the case of an emergency situation, consent to an abortion is voluntary and informed only if:

(1) The woman is told the following by the physician who is to perform the abortion, by the referring physician, or by a physician assistant or registered nurse licensed under the Uniform Credentialing Act who is an agent of either physician, at least twenty-four hours before the abortion:

(a) The particular medical risks associated with the particular abortion procedure to be employed including, when medically accurate, the risks of infection, hemorrhage, perforated uterus, danger to subsequent pregnancies, and infertility;

(b) The probable gestational age of the unborn child at the time the abortion is to be performed;

(d) That she cannot be forced or required by anyone to have an abortion and is free to withhold or withdraw her consent for an abortion; and

(e) Research indicates that mifepristone alone is not always effective in ending a pregnancy. You may still have a viable pregnancy after taking mifepristone. If you change your mind and want to continue your pregnancy after taking mifepristone, information on finding immediate medical assistance is available on the website of the Department of Health and Human Services.

The person providing the information specified in this subdivision to the person upon whom the abortion is to be performed shall be deemed qualified to so advise and provide such information only if, at a minimum, he or she has had training in each of the following subjects: Sexual and reproductive health; abortion technology; contraceptive technology; short-term counseling skills; community resources and referral; and informed consent. The physician or the physician's agent may provide this information by telephone without conducting a physical examination or tests of the patient, in which case the information required to be supplied may be based on facts supplied by the patient and whatever other relevant information is reasonably available to the physician or the physician's agent;

(2) The woman is informed by telephone or in person, by the physician who is to perform the abortion, by the referring physician, or by an agent of either physician, at least twenty-four hours before the abortion:

(a) The name of the physician who will perform the abortion;

(b) That medical assistance benefits may be available for prenatal care, childbirth, and neonatal care;

(c) That the father is liable to assist in the support of her child, even in instances in which the father has offered to pay for the abortion;

(d) That she has the right to review the printed materials described in section 28-327.01. The physician or his or her agent shall orally inform the woman that the materials have been provided by the Department of Health and Human Services and that they describe the unborn child, list agencies which offer alternatives to abortion, and include information on finding immediate medical assistance if she changes her mind after taking mifepristone and wants to continue her pregnancy. If the woman chooses to review the materials, they shall either be given to her at least twenty-four hours before the abortion or mailed to her at least seventy-two hours before the abortion by certified mail, restricted delivery to addressee, which means the postal employee can only deliver the mail to the addressee. The physician and his or her agent may disassociate themselves from the materials and may comment or refrain from commenting on them as they choose; and

(e) That she has the right to request a comprehensive list, compiled by the Department of Health and Human Services, of health care providers, facilities, and clinics that offer to have ultrasounds performed by a person at least as qualified as a registered nurse licensed under the Uniform Credentialing Act, including and specifying those that offer to perform such ultrasounds free of charge. The list shall be arranged geographically and shall include the name, address, hours of operation, and telephone number of each entity. If requested by the woman, the physician who is to perform the abortion, the referring physician, or his or her agent shall provide such a list as compiled by the department;

(3) If an ultrasound is used prior to the performance of an abortion, the physician who is to perform the abortion, the referring physician, or a physician assistant or registered nurse licensed under the Uniform Credentialing Act who is an agent of either physician, or any qualified agent of either physician, shall:

(a) Perform an ultrasound of the woman's unborn child of a quality consistent with standard medical practice in the community at least one hour prior to the performance of the abortion;

(b) Simultaneously display the ultrasound images so that the woman may choose to view the ultrasound images or not view the ultrasound images. The woman shall be informed that the ultrasound images will be displayed so that she is able to view them. Nothing in this subdivision shall be construed to require the woman to view the displayed ultrasound images; and

(c) If the woman requests information about the displayed ultrasound image, her questions shall be answered. If she requests a detailed, simultaneous, medical description of the ultrasound image, one shall be provided that includes the dimensions of the unborn child, the presence of cardiac activity, if present and viewable, and the presence of external members and internal organs, if present and viewable;

(4) At least one hour prior to the performance of an abortion, a physician, psychiatrist, psychologist, mental health practitioner, physician assistant, registered nurse, or social worker licensed under the Uniform Credentialing Act or a professional counselor holding a privilege to practice in Nebraska under the Licensed Professional Counselors Interstate Compact has:

(a) Evaluated the pregnant woman to identify if the pregnant woman had the perception of feeling pressured or coerced into seeking or consenting to an abortion;

(b) Evaluated the pregnant woman to identify the presence of any risk factors associated with abortion;

(c) Informed the pregnant woman and the physician who is to perform the abortion of the results of the evaluation in writing. The written evaluation shall include, at a minimum, a checklist identifying both the positive and negative results of the evaluation for each risk factor associated with abortion and both the licensed person's written certification and the woman's written certification that the pregnant woman was informed of the risk factors associated with abortion as discussed; and

(d) Retained a copy of the written evaluation results in the pregnant woman's permanent record;

(5) If any risk factors associated with abortion were identified, the pregnant woman was informed of the following in such manner and detail that a reasonable person would consider material to a decision of undergoing an elective medical procedure:

(a) Each complication associated with each identified risk factor; and

(b) Any quantifiable risk rates whenever such relevant data exists;

(6) The physician performing the abortion has formed a reasonable medical judgment, documented in the permanent record, that:

(a) The preponderance of statistically validated medical studies demonstrates that the physical, psychological, and familial risks associated with abortion for patients with risk factors similar to the patient's risk factors are negligible risks;

(b) Continuance of the pregnancy would involve risk of injury to the physical or mental health of the pregnant woman greater than if the pregnancy were terminated by induced abortion; or

(c) Continuance of the pregnancy would involve less risk of injury to the physical or mental health of the pregnant woman than if the pregnancy were terminated by an induced abortion;

(7) The woman certifies in writing, prior to the abortion, that:

(a) The information described in subdivisions (1) and (2)(a), (b), and (c) of this section has been furnished her;

(b) She has been informed of her right to review the information referred to in subdivision (2)(d) of this section; and

(c) The requirements of subdivision (3) of this section have been performed if an ultrasound is performed prior to the performance of the abortion; and

(8) Prior to the performance of the abortion, the physician who is to perform the abortion or his or her agent receives a copy of the written certification prescribed by subdivision (7) of this section. The physician or his or her agent shall retain a copy of the signed certification form in the woman's medical record.

Source:Laws 1977, LB 38, § 42; Laws 1979, LB 316, § 2; Laws 1984, LB 695, § 2; Laws 1993, LB 110, § 2; Laws 1996, LB 1044, § 60; Laws 2009, LB675, § 2; Laws 2010, LB594, § 4; Laws 2019, LB209, § 1; Laws 2022, LB752, § 3.

Cross References

Licensed Professional Counselors Interstate Compact, see section 38-4201.

Uniform Credentialing Act, see section 38-101.

Annotations

This section does not create an independent cause of action under section 25-206. The right of action for violation of this section is "against the person who performed the abortion or attempted to perform the abortion." Hill v. Women's Med. Ctr. of Neb., 254 Neb. 827, 580 N.W.2d 102 (1998).

Sections 28-326(8), 28-327, 28-333, and 28-343 (1979) regulating abortion were unconstitutional. Womens Services, P.C. v. Thone, 690 F.2d 667 (8th Cir. 1982).

The interest of the state in having women who seek abortions make a thoughtful decision after receiving certain information, while legitimate, is not sufficiently compelling to justify the substantial burden imposed by the requirement of a forty-eight hour wait between the expression of informed consent and the performance of the abortion. Therefor, sections 28-327 and 28-328 (1979) imposing the waiting period are unconstitutional and their implementation is permanently enjoined. Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D. Neb. 1979).

28-327.01. Department of Health and Human Services; printed materials; duties; availability; Internet website information; reporting form; contents.

(1) The Department of Health and Human Services shall cause to be published the following easily comprehensible printed materials:

(a) Geographically indexed materials designed to inform the woman of public and private agencies and services available to assist a woman through pregnancy, upon childbirth, and while the child is dependent, including adoption agencies and agencies and services for prevention of unintended pregnancies, which materials shall include a comprehensive list of the agencies available, a description of the services they offer, and a description of the manner, including telephone numbers and addresses in which such agencies may be contacted or printed materials including a toll-free, twenty-four-hour-a-day telephone number which may be called to orally obtain such a list and description of agencies in the locality of the caller and of the services they offer;

(b) Materials designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at two-week gestational increments from the time when a woman can be known to be pregnant to full term, including pictures or drawings representing the development of unborn children at the two-week gestational increments, and any relevant information on the possibility of the unborn child's survival. Any such pictures or drawings shall contain the dimensions of the unborn child and shall be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages. The materials shall also contain objective information describing the methods of abortion procedures commonly employed, the medical risks commonly associated with each such procedure, the possible detrimental psychological effects of abortion, the medical risks commonly associated with abortion, and the medical risks commonly associated with carrying a child to term;

(c) A comprehensive list of health care providers, facilities, and clinics that offer to have ultrasounds performed by a person at least as qualified as a registered nurse licensed under the Uniform Credentialing Act, including and specifying those that offer to perform such ultrasounds free of charge. The list shall be arranged geographically and shall include the name, address, hours of operation, and telephone number of each entity;

(d) Materials designed to inform the woman that she may still have a viable pregnancy after taking mifepristone. The materials shall include the following statements: "Research indicates that mifepristone alone is not always effective in ending a pregnancy. You may still have a viable pregnancy after taking mifepristone. If you change your mind and want to continue your pregnancy after taking mifepristone, it may not be too late."; and

(e) Materials, including contact information, that will assist the woman in finding a medical professional who can help her continue her pregnancy after taking mifepristone.

(2) The printed materials shall be printed in a typeface large enough to be clearly legible.

(3) The printed materials required under this section shall be available from the department upon the request by any person, facility, or hospital for an amount equal to the cost incurred by the department to publish the materials.

(4) The Department of Health and Human Services shall make available on its Internet website a printable publication of geographically indexed materials designed to inform the woman of public and private agencies with services available to assist a woman with mental health concerns, following a risk factor evaluation. Such services shall include, but not be limited to, outpatient and crisis intervention services and crisis hotlines. The materials shall include a comprehensive list of the agencies available, a description of the services offered, and a description of the manner in which such agencies may be contacted, including addresses and telephone numbers of such agencies, as well as a toll-free, twenty-four-hour-a-day telephone number to be provided by the department which may be called to orally obtain the names of the agencies and the services they provide in the locality of the woman. The department shall update the publication as necessary.

(5) The Department of Health and Human Services shall publish and make available on its website materials designed to inform the woman that she may still have a viable pregnancy after taking mifepristone. The materials shall include the following statements: "Research indicates that mifepristone alone is not always effective in ending a pregnancy. You may still have a viable pregnancy after taking mifepristone. If you change your mind and want to continue your pregnancy after taking mifepristone, it may not be too late." The materials shall also include information, including contact information, that will assist the woman in finding a medical professional who can help her continue her pregnancy after taking mifepristone.

(6) The Department of Health and Human Services shall review and update, as necessary, the materials, including contact information, regarding medical professionals who can help a woman continue her pregnancy after taking mifepristone.

(7)(a) The Department of Health and Human Services shall prescribe a reporting form which shall be used for the reporting of every attempt at continuing a woman's pregnancy after taking mifepristone as described in this section performed in this state. Such form shall include the following items:

(i) The age of the pregnant woman;

(ii) The location of the facility where the service was performed;

(iii) The type of service provided;

(iv) Complications, if any;

(v) The name of the attending medical professional;

(vi) The pregnant woman's obstetrical history regarding previous pregnancies, abortions, and live births;

(vii) The state of the pregnant woman's legal residence;

(viii) Whether an emergency situation caused the physician to waive any of the requirements of section 28-327; and

(ix) Such other information as may be prescribed in accordance with section 71-602.

(b) The completed form shall be signed by the attending medical professional and sent to the department within fifteen days after each reporting month. The completed form shall be an original, typed or written legibly in durable ink, and shall not be deemed complete unless the omission of any item of information required shall have been disclosed or satisfactorily accounted for. Carbon copies shall not be acceptable. The reporting form shall not include the name of the person for whom the service was provided. The reporting form shall be confidential and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding.

Source:Laws 1993, LB 110, § 3; Laws 1996, LB 1044, § 61; Laws 2009, LB675, § 3; Laws 2010, LB594, § 12; Laws 2019, LB209, § 2.

Cross References

Uniform Credentialing Act, see section 38-101.

28-327.02. Abortion; emergency situation; physician; duties.

When an emergency situation compels the performance of an abortion, the physician shall inform the woman, prior to the abortion if possible, of the medical indications supporting his or her judgment that an abortion is necessary to avert her death or to avert substantial impairment of a major bodily function.

Source:Laws 1993, LB 110, § 4.

28-327.03. Civil liability; limitation.

No civil liability for failure to comply with subdivision (2)(d) of section 28-327 or that portion of subdivision (7) of such section requiring a written certification that the woman has been informed of her right to review the information referred to in subdivision (2)(d) of such section may be imposed unless the Department of Health and Human Services has published and made available the printed materials at the time the physician or his or her agent is required to inform the woman of her right to review them.

Source:Laws 1993, LB 110, § 5; Laws 1996, LB 1044, § 62; Laws 2009, LB675, § 4; Laws 2010, LB594, § 13.

28-327.04. Civil cause of action; authorized; evidence of professional negligence; attorney's fee.

Any person upon whom an abortion has been performed or attempted in violation of section 28-327 or the parent or guardian of a minor upon whom an abortion has been performed or attempted in violation of such section shall have a right to maintain a civil cause of action against the person who performed the abortion or attempted to perform the abortion. A violation of subdivision (1), (2), (3), (7), or (8) of section 28-327 shall be prima facie evidence of professional negligence. The written certifications prescribed by subdivisions (4) and (7) of section 28-327 signed by the person upon whom an abortion has been performed or attempted shall constitute and create a rebuttable presumption of full compliance with all provisions of section 28-327 in favor of the physician who performed or attempted to perform the abortion, the referring physician, or the agent of either physician. The written certification shall be admissible as evidence in the cause of action for professional negligence or in any criminal action. If judgment is rendered in favor of the plaintiff in any such action, the court shall also render judgment for a reasonable attorney's fee in favor of the plaintiff against the defendant.

Source:Laws 1993, LB 110, § 6; Laws 2009, LB675, § 5; Laws 2010, LB594, § 14.

28-327.05. Civil action; anonymity of woman; procedures.

In every civil action brought pursuant to section 28-327.04, the court shall rule whether the anonymity of any woman upon whom an abortion is performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion by a party or on its own motion, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone given standing under section 28-327.04 who brings a civil action under such section shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant.

Source:Laws 1993, LB 110, § 7.

28-327.06. Waiver of evaluations and notices; void and unenforceable.

Any waiver of the evaluations and notices provided for in subdivision (4) of section 28-327 is void and unenforceable.

Source:Laws 2010, LB594, § 5.

28-327.07. Damages.

In addition to whatever remedies are available under the common or statutory laws of this state, the intentional, knowing, or negligent failure to comply with the requirements of section 28-327 shall provide a basis for the following damages:

(1) The award of reasonable costs and attorney's fees; and

(2) A recovery for the pregnant woman for the wrongful death of her unborn child under section 30-809 upon proving by a preponderance of evidence that the physician knew or should have known that the pregnant woman's consent was either not fully informed or not fully voluntary pursuant to section 28-327.

Source:Laws 2010, LB594, § 6.

28-327.08. Action for civil remedies.

Any action for civil remedies based on a failure to comply with the requirements of section 28-327 shall be commenced in accordance with section 25-222 or 44-2828.

Source:Laws 2010, LB594, § 7.

28-327.09. Minor; burden of proof.

If a physician performed an abortion on a pregnant woman who is a minor without providing the information required in section 28-327 to the pregnant woman's parent or legal guardian, then the physician bears the burden of proving that the pregnant woman was capable of independently evaluating the information given to her.

Source:Laws 2010, LB594, § 8.

28-327.10. Time requirement.

Except in the case of an emergency situation, if a pregnant woman is provided with the information required by section 28-327 less than twenty-four hours before her scheduled abortion, the physician shall bear the burden of proving that the pregnant woman had sufficient reflection time, given her age, maturity, emotional state, and mental capacity, to comprehend and consider such information.

Source:Laws 2010, LB594, § 9.

28-327.11. Civil action; rebuttable presumption; noneconomic damages; expert witness; physician deemed transacting business; affirmative defense; additional remedies.

In a civil action involving section 28-327, the following shall apply:

(1) In determining the liability of the physician and the validity of the consent of a pregnant woman, the failure to comply with the requirements of section 28-327 shall create a rebuttable presumption that the pregnant woman would not have undergone the recommended abortion had section 28-327 been complied with by the physician;

(2) The absence of physical injury shall not preclude an award of noneconomic damages including pain, suffering, inconvenience, mental suffering, emotional distress, psychological trauma, loss of society or companionship, loss of consortium, injury to reputation, or humiliation associated with the abortion;

(3) The fact that a physician does not perform elective abortions or has not performed elective abortions in the past shall not automatically disqualify such physician from being an expert witness. A licensed obstetrician or family practitioner who regularly assists pregnant women in resolving medical matters related to pregnancy may be qualified to testify as an expert on the screening, counseling, management, and treatment of pregnancies;

(4) Any physician advertising services in this state shall be deemed to be transacting business in this state pursuant to section 25-536 and shall be subject to the provisions of section 28-327;

(5) It shall be an affirmative defense to an allegation of inadequate disclosure under the requirements of section 28-327 that the defendant omitted the contested information because statistically validated surveys of the general population of women of reproductive age, conducted within the three years before or after the contested abortion, demonstrate that less than five percent of women would consider the contested information to be relevant to an abortion decision; and

(6) In addition to the other remedies available under the common or statutory law of this state, a woman or her survivors shall have a cause of action for reckless endangerment against any person, other than a physician or pharmacist licensed under the Uniform Credentialing Act, who attempts or completes an abortion on the pregnant woman or aids or abets the commission of a self-induced abortion. Proof of injury shall not be required to recover an award, including reasonable costs and attorney's fees, for wrongful death under this subdivision.

Source:Laws 2010, LB594, § 10.

Cross References

Uniform Credentialing Act, see section 38-101.

28-327.12. Statute of limitations; tolled; section, how construed; violations; how treated.

(1) In the event that any portion of section 28-327 is enjoined and subsequently upheld, the statute of limitations for filing a civil suit under section 28-327 shall be tolled during the period for which the injunction is pending and for two years thereafter.

(2) Nothing in section 28-327 shall be construed as defining a standard of care for any medical procedure other than an induced abortion.

(3) A violation of subdivision (4), (5), or (6) of section 28-327 shall not provide grounds for any criminal action or disciplinary action against or revocation of a license to practice medicine and surgery pursuant to the Uniform Credentialing Act.

Source:Laws 2010, LB594, § 11.

Cross References

Uniform Credentialing Act, see section 38-101.

28-328. Partial-birth abortion; prohibition; violation; penalties.

(1) No partial-birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.

(2) The intentional and knowing performance of an unlawful partial-birth abortion in violation of subsection (1) of this section is a Class III felony.

(3) No woman upon whom an unlawful partial-birth abortion is performed shall be prosecuted under this section or for conspiracy to violate this section.

(4) The intentional and knowing performance of an unlawful partial-birth abortion shall result in the automatic suspension and revocation of an attending physician's license to practice medicine in Nebraska by the Division of Public Health pursuant to sections 38-177 to 38-1,102.

(5) Upon the filing of criminal charges under this section by the Attorney General or a county attorney, the Attorney General shall also file a petition to suspend and revoke the attending physician's license to practice medicine pursuant to section 38-186. A hearing on such administrative petition shall be set in accordance with section 38-188. At such hearing, the attending physician shall have the opportunity to present evidence that the physician's conduct was necessary to save the life of a mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. A defendant against whom criminal charges are brought under this section may bring a motion to delay the beginning of the trial until after the entry of an order by the Director of Public Health pursuant to section 38-196. The findings of the director as to whether the attending physician's conduct was necessary to save the life of a mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself, shall be admissible in the criminal proceedings brought pursuant to this section.

Source:Laws 1997, LB 23, § 3; Laws 2007, LB296, § 28; Laws 2007, LB463, § 1118.

Annotations

Section declared unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000).

28-329. Abortion; when not to be performed.

No abortion shall be performed after the time at which, in the sound medical judgment of the attending physician, the unborn child clearly appears to have reached viability, except when necessary to preserve the life or health of the mother.

Source:Laws 1977, LB 38, § 44; Laws 1979, LB 316, § 3; Laws 1984, LB 695, § 4.

28-330. Abortion procedure; protection of viable, unborn child.

In any abortion performed pursuant to section 28-329, all reasonable precautions, in accord with the sound medical judgment of the attending physician and compatible with preserving the life or health of the mother, shall be taken to insure the protection of the viable, unborn child.

Source:Laws 1977, LB 38, § 45; Laws 1979, LB 316, § 4; Laws 1984, LB 695, § 5.

28-331. Care and treatment of child aborted.

When as the result of an abortion a child is, in the sound medical judgment of the attending physician, born alive, then all reasonable steps, in accordance with the sound medical judgment of the attending physician, shall be employed to preserve the life of the child. For purposes of this section, born alive shall mean the complete expulsion or extraction of the child from the mother irrespective of the duration of the pregnancy and after such expulsion or extraction such child breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles whether or not the umbilical cord has been cut or the placenta is attached.

Source:Laws 1977, LB 38, § 46; Laws 1979, LB 316, § 5; Laws 1984, LB 695, § 6.

28-332. Violation; penalty.

The intentional and knowing violation of section 28-329, 28-330, or 28-331 is a Class IV felony.

Source:Laws 1977, LB 38, § 47; Laws 1984, LB 695, § 7.

28-333. Repealed. Laws 1984, LB 695, § 9.

28-334. Repealed. Laws 1984, LB 695, § 9.

28-335. Abortion by other than licensed physician; penalty; physical presence; violation; penalty.

(1) The performing of an abortion by any person other than a licensed physician is a Class IV felony.

(2) No abortion shall be performed, induced, or attempted unless the physician who uses or prescribes any instrument, device, medicine, drug, or other substance to perform, induce, or attempt the abortion is physically present in the same room with the patient when the physician performs, induces, or attempts to perform or induce the abortion. Any person who knowingly or recklessly violates this subsection shall be guilty of a Class IV felony. No civil or criminal penalty shall be assessed against the patient upon whom the abortion is performed, induced, or attempted to be performed or induced.

Source:Laws 1977, LB 38, § 50; Laws 2011, LB521, § 1.

28-336. Abortion by other than accepted medical procedures; penalty.

The performing of an abortion by using anything other than accepted medical procedures is a Class IV felony.

Source:Laws 1977, LB 38, § 51.

28-337. Hospital, clinic, institution; not required to admit patient for abortion.

No hospital, clinic, institution, or other facility in this state shall be required to admit any patient for the purpose of performing an abortion nor required to allow the performance of an abortion therein, but the hospital, clinic, institution, or other facility shall inform the patient of its policy not to participate in abortion procedures. No cause of action shall arise against any hospital, clinic, institution, or other facility for refusing to perform or allow an abortion.

Source:Laws 1977, LB 38, § 52.

28-338. No person required to perform an abortion; no liability for refusal.

No person shall be required to perform or participate in any abortion, and the refusal of any person to participate in an abortion shall not be a basis for civil liability to any person. No hospital, governing board, or any other person, firm, association, or group shall terminate the employment or alter the position of, prevent or impair the practice or occupation of, or impose any other sanction or otherwise discriminate against any person who refuses to participate in an abortion.

Source:Laws 1977, LB 38, § 53.

28-339. Discrimination against person refusing to participate in an abortion; violation; penalty.

Any violation of section 28-338 is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 54.

28-340. Discrimination against person refusing to participate in an abortion; damages.

Any person whose employment or position has been in any way altered, impaired, or terminated in violation of sections 28-325 to 28-345 may sue in the district court for all consequential damages, lost wages, reasonable attorney's fees incurred, and the cost of litigation.

Source:Laws 1977, LB 38, § 55; Laws 1997, LB 23, § 4; Laws 2010, LB594, § 15.

28-341. Discrimination against person refusing to participate in an abortion; injunctive relief.

Any person whose employment or position has in any way been altered, impaired, or terminated because of his refusal to participate in an abortion shall have the right to injunctive relief, including temporary relief, pending trial upon showing of an emergency, in the district court, in accordance with the statutes, rules, and practices applicable in other similar cases.

Source:Laws 1977, LB 38, § 56.

28-342. Aborted child; sell, transfer, distribute, give away; violation; penalty.

The knowing, willful, or intentional sale, transfer, distribution, or giving away of any live or viable aborted child for any form of experimentation is a Class III felony. The knowing, willful, or intentional consenting to, aiding, or abetting of any such sale, transfer, distribution, or other unlawful disposition of an aborted child is a Class III felony. This section shall not prohibit or regulate diagnostic or remedial procedures the purpose of which is to preserve the life or health of the aborted child or the mother.

Source:Laws 1977, LB 38, § 57; Laws 1979, LB 316, § 8.

28-343. Department of Health and Human Services; abortion reporting form; items included; confidential.

The Department of Health and Human Services shall prescribe an abortion reporting form which shall be used for the reporting of every abortion performed in this state. Such form shall include the following items:

(1) The age of the pregnant woman;

(2) The location of the facility where the abortion was performed;

(3) The type of procedure performed;

(4) Complications, if any;

(5) The name of the attending physician;

(6) The pregnant woman's obstetrical history regarding previous pregnancies, abortions, and live births;

(7) The stated reason or reasons for which the abortion was requested;

(8) The state of the pregnant woman's legal residence;

(9) The length and weight of the aborted child, when measurable;

(10) Whether an emergency situation caused the physician to waive any of the requirements of section 28-327; and

(11) Such other information as may be prescribed in accordance with section 71-602.

The completed form shall be signed by the attending physician and sent to the department within fifteen days after each reporting month. The completed form shall be an original, typed or written legibly in durable ink, and shall not be deemed complete unless the omission of any item of information required shall have been disclosed or satisfactorily accounted for. Carbon copies shall not be acceptable. The abortion reporting form shall not include the name of the person upon whom the abortion was performed. The abortion reporting form shall be confidential and shall not be revealed except upon the order of a court of competent jurisdiction in a civil or criminal proceeding.

Source:Laws 1977, LB 38, § 58; Laws 1979, LB 316, § 9; Laws 1984, LB 695, § 8; Laws 1989, LB 344, § 2; Laws 1996, LB 1044, § 63; Laws 1997, LB 307, § 2; Laws 2007, LB296, § 29.

Annotations

This section is unconstitutional insofar as the statute requires physicians to make an official report of "prescribed" abortions. Womens Services, P.C. v. Thone, 483 F.Supp. 1022 (D. Neb. 1979).

28-344. Reporting form; violation; penalty.

Violation of section 28-343 is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 59.

28-345. Department of Health and Human Services; permanent file; rules and regulations.

The Department of Health and Human Services shall prepare and keep on permanent file compilations of the information submitted on the abortion reporting forms and reporting forms regarding attempts at continuing a woman's pregnancy after taking mifepristone pursuant to such rules and regulations as established by the department, which compilations shall be a matter of public record. Under no circumstances shall the compilations of information include the name of any attending physician or identify in any respect facilities where abortions are performed. The department, in order to maintain and keep such compilations current, shall file with such reports any new or amended information.

Source:Laws 1977, LB 38, § 60; Laws 1979, LB 316, § 10; Laws 1996, LB 1044, § 64; Laws 2007, LB296, § 30; Laws 2019, LB209, § 3.

28-346. Aborted infant; experimentation; prohibited; exception; penalty.

No person shall knowingly, intentionally, or willfully use any premature infant aborted alive for any type of scientific, research, laboratory, or other kind of experimentation except as necessary to protect or preserve the life or health of such premature infant aborted alive. Violation of this section is a Class IV felony.

Source:Laws 1979, LB 316, § 11.

28-347. Dismemberment abortion; unlawful; when; medical emergency; Board of Medicine and Surgery; hearing; findings admissible at trial; persons not liable.

(1) It shall be unlawful for any person to purposely perform or attempt to perform a dismemberment abortion and thereby kill an unborn child unless a dismemberment abortion is necessary due to a medical emergency as defined in subdivision (4) of section 28-3,103.

(2) A person accused in any proceeding of unlawful conduct under subsection (1) of this section may seek a hearing before the Board of Medicine and Surgery on whether the performance of a dismemberment abortion was necessary due to a medical emergency as defined in subdivision (4) of section 28-3,103. The board's findings are admissible on that issue at any trial in which such unlawful conduct is alleged. Upon a motion of the person accused, the court shall delay the beginning of the trial for not more than thirty days to permit such a hearing to take place.

(3) No woman upon whom an abortion is performed or attempted to be performed shall be liable for performing or attempting to perform a dismemberment abortion. No nurse, secretary, receptionist, or other employee or agent who is not a physician, but who acts at the direction of a physician, shall be liable for performing or attempting to perform a dismemberment abortion. No pharmacist or other individual who is not a physician, but who fills a prescription or provides instruments or materials used in an abortion at the direction of or to a physician, shall be liable for performing or attempting to perform a dismemberment abortion.

Source:Laws 2020, LB814, § 3.

28-347.01. Dismemberment abortion; injunction; cause of action; who may maintain.

(1) A cause of action for injunctive relief against a person who has performed a dismemberment abortion in violation of section 28-347 may be maintained by:

(a) A woman upon whom such a dismemberment abortion was performed;

(b) If the woman had not attained the age of nineteen years at the time of the dismemberment abortion, a person who is the parent or guardian of the woman upon whom such a dismemberment abortion was performed; or

(2) The injunction shall prevent the defendant from performing or attempting to perform dismemberment abortions in this state in violation of section 28-347.

(3) A cause of action may not be maintained by a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

Source:Laws 2020, LB814, § 4.

28-347.02. Dismemberment abortion; damages; cause of action; who may maintain.

(1) A cause of action for civil damages against a person who performed a dismemberment abortion in violation of section 28-347 may be maintained by:

(a) Any woman upon whom a dismemberment abortion has been performed in violation of section 28-347;

(b) The father of the unborn child, if married to the woman at the time the dismemberment abortion was performed; or

(c) If the woman had not attained the age of nineteen years at the time of the dismemberment abortion or has died as a result of the abortion, the maternal grandparents of the unborn child.

(2) No damages may be awarded a plaintiff if the pregnancy resulted from the plaintiff's criminal conduct.

(3) Damages awarded in such an action shall include money damages for all injuries, psychological and physical, occasioned by the dismemberment abortion.

Source:Laws 2020, LB814, § 5.

28-347.03. Dismemberment abortion; cause of action; judgment; attorney's fees.

(1) If judgment is rendered in favor of the plaintiff in an action described in section 28-347.01 or 28-347.02, the court shall also render judgment for reasonable attorney's fees in favor of the plaintiff against the defendant.

(2) If judgment is rendered in favor of the defendant in an action described in section 28-347.01 or 28-347.02 and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall render judgment for reasonable attorney's fees in favor of the defendant against the plaintiff.

(3) No attorney's fees may be assessed against the woman upon whom an abortion was performed or attempted to be performed except in accordance with subsection (2) of this section.

Source:Laws 2020, LB814, § 6.

28-347.04. Dismemberment abortion; penalty.

The intentional and knowing performance of an unlawful dismemberment abortion in violation of section 28-347 is a Class IV felony.

Source:Laws 2020, LB814, § 7.

28-347.05. Dismemberment abortion; action or proceeding; anonymity of woman; preserved; court order.

In every civil, criminal, or administrative proceeding or action brought under sections 28-347 to 28-347.04, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted to be performed shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted to be performed, any person other than a public official who brings an action under section 28-347.01 or 28-347.02 shall do so under a pseudonym. This section may not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.

Source:Laws 2020, LB814, § 8.

28-347.06. Dismemberment abortion; sections, how construed.

Nothing in sections 28-347 to 28-347.04 shall be construed as creating or recognizing a right to abortion or a right to a particular method of abortion.

Source:Laws 2020, LB814, § 9.

28-348. Act, how cited.

Sections 28-348 to 28-387 shall be known and may be cited as the Adult Protective Services Act.

Source:Laws 1988, LB 463, § 1; Laws 2012, LB1051, § 1; Laws 2016, LB934, § 2.

28-349. Legislative intent.

The Legislature recognizes the need for the investigation and provision of services to certain persons who are substantially impaired and are unable to protect themselves from abuse, neglect, or exploitation. Often such persons cannot find others able or willing to render assistance. The Legislature intends through the Adult Protective Services Act to establish a program designed to fill this need and to assure the availability of the program to all eligible persons. It is also the intent of the Legislature to authorize the least restriction possible on the exercise of personal and civil rights consistent with the person's need for services.

Source:Laws 1988, LB 463, § 2; Laws 2012, LB1051, § 2.

Annotations

A public policy exception to the employment-at-will doctrine applies to allow a cause of action for retaliatory discharge when an employee is fired for making a report of abuse as mandated by the Adult Protective Services Act. Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).

28-350. Definitions, where found.

For purposes of the Adult Protective Services Act, unless the context otherwise requires, the definitions found in sections 28-351 to 28-371 shall be used.

Source:Laws 1988, LB 463, § 3; Laws 2012, LB1051, § 3; Laws 2016, LB934, § 3.

28-351. Abuse, defined.

Abuse means any knowing or intentional act on the part of a caregiver or any other person which results in physical injury, unreasonable confinement, cruel punishment, sexual abuse, or sexual exploitation of a vulnerable adult.

Source:Laws 1988, LB 463, § 4; Laws 2012, LB1051, § 4.

Annotations

Under the "evidence of abuse . . . or child abuse or neglect" provision of section 71-6903(3), the pregnant woman must establish that a parent or guardian, who occupies that role in relation to her at the time she files her petition for waiver of parental consent, has either abused her as defined in this section or subjected her to child abuse or neglect as defined in section 28-710. In re Petition of Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013).

28-352. Adult protective services, defined.

Adult protective services means those services provided by the department for the prevention, correction, or discontinuance of abuse, neglect, or exploitation. Such services shall be those necessary and appropriate under the circumstances to protect an abused, neglected, or exploited vulnerable adult, ensure that the least restrictive alternative is provided, prevent further abuse, neglect, or exploitation, and promote self-care and independent living. Such services shall include, but not be limited to: (1) Receiving and investigating reports of alleged abuse, neglect, or exploitation; (2) developing social service plans; (3) arranging for the provision of services such as medical care, mental health care, legal services, fiscal management, housing, or home health care; (4) arranging for the provision of items such as food, clothing, or shelter; and (5) arranging or coordinating services for caregivers.

Source:Laws 1988, LB 463, § 5; Laws 2012, LB1051, § 5.

28-353. Caregiver, defined.

Caregiver shall mean any person or entity which has assumed the responsibility for the care of a vulnerable adult voluntarily, by express or implied contract, or by order of a court of competent jurisdiction.

Source:Laws 1988, LB 463, § 6.

Annotations

This section does not limit family caregiver status to an order of court or express or implied contract. This section also includes reference to any person who has assumed responsibility for the care of a vulnerable adult voluntarily. State v. Boyd, 28 Neb. App. 874, 949 N.W.2d 540 (2020).

28-354. Cruel punishment, defined.

Cruel punishment shall mean punishment which intentionally causes physical injury to a vulnerable adult.

Source:Laws 1988, LB 463, § 7.

28-355. Transferred to section 28-361.01.

28-356. Department, defined.

Department shall mean the Department of Health and Human Services.

Source:Laws 1988, LB 463, § 9; Laws 1996, LB 1044, § 65; Laws 2006, LB 994, § 51; Laws 2007, LB296, § 31.

28-357. Essential services, defined.

Essential services shall mean those services necessary to safeguard the person or property of a vulnerable adult. Such services shall include, but not be limited to, sufficient and appropriate food and clothing, temperate and sanitary shelter, treatment for physical needs, and proper supervision.

Source:Laws 1988, LB 463, § 10.

28-358. Exploitation, defined.

Exploitation means the wrongful or unauthorized taking, withholding, appropriation, conversion, control, or use of money, funds, securities, assets, or any other property of a vulnerable adult or senior adult by any person by means of undue influence, breach of a fiduciary relationship, deception, extortion, intimidation, force or threat of force, isolation, or any unlawful means or by the breach of a fiduciary duty by the guardian, conservator, agent under a power of attorney, trustee, or any other fiduciary of a vulnerable adult or senior adult.

Source:Laws 1988, LB 463, § 11; Laws 2012, LB1051, § 6; Laws 2016, LB934, § 4.

Annotations

The statutory definition of exploitation does not require proof of a financial crime. State v. Vanderford, 312 Neb. 580, 980 N.W.2d 397 (2022).

28-358.01. Isolation, defined.

(1) Isolation means intentional acts (a) committed for the purpose of preventing, and which do prevent, a vulnerable adult or senior adult from having contact with family, friends, or concerned persons, (b) committed to prevent a vulnerable adult or senior adult from receiving his or her mail or telephone calls, (c) of physical or chemical restraint of a vulnerable adult or senior adult committed for purposes of preventing contact with visitors, family, friends, or other concerned persons, or (d) which restrict, place, or confine a vulnerable adult or senior adult in a restricted area for purposes of social deprivation or preventing contact with family, friends, visitors, or other concerned persons.

(2) Isolation does not include (a) medical isolation prescribed by a licensed physician caring for the vulnerable adult or senior adult, (b) action taken in compliance with a harassment protection order issued pursuant to section 28-311.09, a valid foreign harassment protection order recognized pursuant to section 28-311.10, a sexual assault protection order issued pursuant to section 28-311.11, a valid foreign sexual assault protection order recognized pursuant to section 28-311.12, an order issued pursuant to section 42-924, an ex parte order issued pursuant to section 42-925, an order excluding a person from certain premises issued pursuant to section 42-357, or a valid foreign protection order recognized pursuant to section 42-931, or (c) action authorized by an administrator of a nursing home pursuant to section 71-6021.

Source:Laws 2016, LB934, § 5; Laws 2017, LB289, § 6.

28-359. Law enforcement agency, defined.

Law enforcement agency shall mean the police department or the town marshal in incorporated municipalities, the office of the sheriff in unincorporated areas, and the Nebraska State Patrol.

Source:Laws 1988, LB 463, § 12.

28-360. Least restrictive alternative, defined.

Least restrictive alternative shall mean adult protective services provided in a manner no more restrictive of a vulnerable adult's liberty and no more intrusive than necessary to achieve and ensure essential services.

Source:Laws 1988, LB 463, § 13.

28-361. Living independently, defined.

Living independently shall include, but not be limited to, using the telephone, shopping, preparing food, housekeeping, and administering medications.

Source:Laws 1988, LB 463, § 14.

28-361.01. Neglect, defined.

Neglect means any knowing or intentional act or omission on the part of a caregiver to provide essential services or the failure of a vulnerable adult, due to physical or mental impairments, to perform self-care or obtain essential services to such an extent that there is actual physical injury to a vulnerable adult or imminent danger of the vulnerable adult suffering physical injury or death.

Source:Laws 1988, LB 463, § 8; R.S.1943, (2008), § 28-355; Laws 2012, LB1051, § 7.

28-362. Permit, defined.

Permit shall mean to allow a vulnerable adult over whom one has a proximate or direct degree of control to perform an act or acts or be in a situation which the controlling person could have prevented by the reasonable exercise of such control.

Source:Laws 1988, LB 463, § 15.

28-363. Physical injury, defined.

Physical injury shall mean damage to bodily tissue caused by nontherapeutic conduct, including, but not limited to, fractures, bruises, lacerations, internal injuries, or dislocations, and shall include, but not be limited to, physical pain, illness, or impairment of physical function.

Source:Laws 1988, LB 463, § 16.

28-364. Proper supervision, defined.

Proper supervision shall mean care and control of a vulnerable adult which a reasonable and prudent person would exercise under similar facts and circumstances.

Source:Laws 1988, LB 463, § 17.

28-365. Registry, defined.

Registry shall mean the Adult Protective Services Central Registry established by section 28-376.

Source:Laws 1988, LB 463, § 18.

28-366. Self-care, defined.

Self-care shall include, but not be limited to, personal hygiene, eating, and dressing.

Source:Laws 1988, LB 463, § 19.

28-366.01. Senior adult, defined.

Senior adult means any person sixty-five years of age or older.

Source:Laws 2016, LB934, § 6.

28-367. Sexual abuse, defined.

Sexual abuse shall include sexual assault as described in section 28-319 or 28-320 and incest as described in section 28-703.

Source:Laws 1988, LB 463, § 20.

Annotations

28-367.01. Sexual exploitation, defined.

Sexual exploitation includes, but is not limited to, a violation of section 28-311.08 and causing, allowing, permitting, inflicting, or encouraging a vulnerable adult to engage in voyeurism, in exhibitionism, in prostitution, or in the lewd, obscene, or pornographic photographing, filming, or depiction of the vulnerable adult.

Source:Laws 2012, LB1051, § 8; Laws 2014, LB998, § 3.

28-368. Substantial functional impairment, defined.

Substantial functional impairment shall mean a substantial incapability, because of physical limitations, of living independently or providing self-care as determined through observation, diagnosis, investigation, or evaluation.

Source:Laws 1988, LB 463, § 21.

28-369. Substantial mental impairment, defined.

Substantial mental impairment shall mean a substantial disorder of thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, or ability to live independently or provide self-care as revealed by observation, diagnosis, investigation, or evaluation.

Source:Laws 1988, LB 463, § 22.

28-370. Unreasonable confinement, defined.

Unreasonable confinement means confinement which intentionally causes physical injury to a vulnerable adult or false imprisonment as described in section 28-314 or 28-315.

Source:Laws 1988, LB 463, § 23; Laws 2012, LB1051, § 9.

28-371. Vulnerable adult, defined.

Vulnerable adult means any person eighteen years of age or older who has a substantial mental or functional impairment or for whom a guardian or conservator has been appointed under the Nebraska Probate Code.

Source:Laws 1988, LB 463, § 24; Laws 2016, LB934, § 7.

Cross References

Nebraska Probate Code, see section 30-2201.

28-372. Report of abuse, neglect, or exploitation; required; contents; notification; toll-free number established.

(1) When any physician, psychologist, physician assistant, nurse, nurse aide, other medical, developmental disability, or mental health professional, law enforcement personnel, caregiver or employee of a caregiver, operator or employee of a sheltered workshop, owner, operator, or employee of any facility licensed by the department, or human services professional or paraprofessional not including a member of the clergy has reasonable cause to believe that a vulnerable adult has been subjected to abuse, neglect, or exploitation or observes such adult being subjected to conditions or circumstances which reasonably would result in abuse, neglect, or exploitation, he or she shall report the incident or cause a report to be made to the appropriate law enforcement agency or to the department. Any other person may report abuse, neglect, or exploitation if such person has reasonable cause to believe that a vulnerable adult has been subjected to abuse, neglect, or exploitation or observes such adult being subjected to conditions or circumstances which reasonably would result in abuse, neglect, or exploitation.

(2) Such report may be made by telephone, with the caller giving his or her name and address, and, if requested by the department, shall be followed by a written report within forty-eight hours. To the extent available the report shall contain: (a) The name, address, and age of the vulnerable adult; (b) the address of the caregiver or caregivers of the vulnerable adult; (c) the nature and extent of the alleged abuse, neglect, or exploitation or the conditions and circumstances which would reasonably be expected to result in such abuse, neglect, or exploitation; (d) any evidence of previous abuse, neglect, or exploitation, including the nature and extent of the abuse, neglect, or exploitation; and (e) any other information which in the opinion of the person making the report may be helpful in establishing the cause of the alleged abuse, neglect, or exploitation and the identity of the perpetrator or perpetrators.

(3) Any law enforcement agency receiving a report of abuse, neglect, or exploitation shall notify the department no later than the next working day by telephone or mail.

(4) A report of abuse, neglect, or exploitation made to the department which was not previously made to or by a law enforcement agency shall be communicated to the appropriate law enforcement agency by the department no later than the next working day by telephone or mail.

(5) The department shall establish a statewide toll-free number to be used by any person any hour of the day or night and any day of the week to make reports of abuse, neglect, or exploitation.

Source:Laws 1988, LB 463, § 25; Laws 1996, LB 1044, § 66; Laws 2006, LB 994, § 52; Laws 2007, LB296, § 32; Laws 2012, LB1051, § 10; Laws 2017, LB417, § 2.

Annotations

In order for a retaliatory discharge action to lie against an employer for discharging an employee in retaliation for the mandatory filing of a report of patient abuse pursuant to this section, such report must be based upon reasonable cause. Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).

28-373. Report of abuse, neglect, or exploitation; law enforcement agency; duties.

(1) Upon the receipt of a report concerning abuse, neglect, or exploitation pursuant to section 28-372, it shall be the duty of the law enforcement agency (a) to make an investigation if deemed warranted because of alleged violations of section 28-386, (b) to take immediate steps, if necessary, to protect the vulnerable adult, and (c) to institute legal proceedings if appropriate. The law enforcement agency shall notify the department if an investigation is undertaken. Such notification shall be made no later than the next working day following receipt of the report.

(2) The law enforcement agency shall make a written report or a case summary to the department of all investigated cases of abuse, neglect, or exploitation and action taken with respect to all such cases.

Source:Laws 1988, LB 463, § 26; Laws 2012, LB1051, § 11.

28-374. Alleged abuse, neglect, or exploitation; department; duties.

(1) The department shall investigate each case of alleged abuse, neglect, or exploitation of a vulnerable adult and shall provide such adult protective services as are necessary and appropriate under the circumstances.

(2) In each case of alleged abuse, neglect, or exploitation, the department may make a request for further assistance from the appropriate law enforcement agency or initiate such action as may be appropriate under the circumstances.

(3) The department shall make a written report or case summary to the appropriate law enforcement agency and to the registry of all reported cases of abuse, neglect, or exploitation and action taken.

(4) The department shall deliver a written report or case summary to the appropriate county attorney if the investigation indicates a reasonable cause to believe that a violation of section 28-386 has occurred.

Source:Laws 1988, LB 463, § 27; Laws 2012, LB1051, § 12; Laws 2016, LB934, § 8.

28-374.01. Alleged abuse, neglect, or exploitation; completion of investigation; decision regarding entry into registry; notice; contents; right to amend or expunge information.

(1) Upon completion of the investigation pursuant to sections 28-373 and 28-374, the person who allegedly abused, neglected, or exploited a vulnerable adult shall be given written notice of the determination of the investigation and whether the person who allegedly abused, neglected, or exploited a vulnerable adult will be entered into the registry.

(2) If the person who allegedly abused, neglected, or exploited a vulnerable adult will be entered into the registry, the notice shall be sent by certified mail with return receipt requested or first-class mail to the last-known address of the person who allegedly abused, neglected, or exploited a vulnerable adult and shall include:

(a) The nature of the report;

(b) The classification of the report; and

(c) The right of the person who allegedly abused, neglected, or exploited a vulnerable adult to request the department to amend or expunge identifying information from the report or to remove the substantiated report from the registry in accordance with section 28-380.

(3) If the person who allegedly abused, neglected, or exploited a vulnerable adult will not be entered into the registry, the notice shall be sent by first-class mail and shall include:

(a) The nature of the report; and

(b) The classification of the report.

Source:Laws 2012, LB1051, § 13.

28-375. Immunity from liability; when.

Any person participating in an investigation or the making of a report pursuant to the Adult Protective Services Act or participating in a judicial proceeding resulting therefrom shall be immune from any liability except (1) as otherwise provided in the Adult Protective Services Act, (2) for malfeasance in office or willful or wanton neglect of duty, or (3) for false statements of fact made with malicious intent.

Source:Laws 1988, LB 463, § 28.

28-376. Adult Protective Services Central Registry; established; access; name-change order; treatment.

(1) The department shall establish and maintain an Adult Protective Services Central Registry which shall contain any substantiated report regarding a person who has allegedly abused, neglected, or exploited a vulnerable adult.

(2) Upon request, a vulnerable adult who is the subject of a report or, if the vulnerable adult is legally incapacitated, the guardian or guardian ad litem of the vulnerable adult and the person who has allegedly abused, neglected, or exploited the vulnerable adult shall be entitled to receive a copy of all information contained in the registry pertaining to such report. The department shall not release data that would be harmful or detrimental to the vulnerable adult or that would identify or locate a person who, in good faith, made a report or cooperated in a subsequent investigation unless ordered to do so by a court of competent jurisdiction.

(3) The department shall establish classifications for all cases in the registry.

(4) The department shall determine whether a name-change order received from the clerk of a district court pursuant to section 25-21,271 is for a person on the Adult Protective Services Central Registry and, if so, shall include the changed name with the former name in the registry and file or cross-reference the information under both names.

Source:Laws 1988, LB 463, § 29; Laws 2010, LB147, § 2; Laws 2012, LB1051, § 14.

28-377. Records relating to abuse; access.

Except as otherwise provided in sections 28-376 to 28-380, no person, official, or agency shall have access to the records relating to abuse unless in furtherance of purposes directly connected with the administration of the Adult Protective Services Act and section 28-726. Persons, officials, and agencies having access to such records shall include, but not be limited to:

(1) A law enforcement agency investigating a report of known or suspected abuse;

(2) A county attorney in preparation of an abuse petition;

(3) A physician who has before him or her a person whom he or she reasonably suspects may be abused;

(4) An agency having the legal responsibility or authorization to care for, treat, or supervise an abused vulnerable adult;

(5) Defense counsel in preparation of the defense of a person charged with abuse;

(6) Any person engaged in bona fide research or auditing, except that no information identifying the subjects of the report shall be made available to the researcher or auditor. The researcher shall be charged for any costs of such research incurred by the department at a rate established by rules and regulations adopted and promulgated by the department;

(7) The designated protection and advocacy system authorized pursuant to the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. 6000, as the act existed on September 1, 2001, and the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. 10801, as the act existed on September 1, 2001, acting upon a complaint received from or on behalf of a person with developmental disabilities or mental illness; and

(8) The department, as required or authorized by state law, federal law, federal regulation, or applicable federal program provisions and in furtherance of its programs.

Source:Laws 1988, LB 463, § 30; Laws 1992, LB 643, § 1; Laws 2001, LB 214, § 1; Laws 2007, LB296, § 33; Laws 2020, LB1148, § 1.

28-378. Records relating to abuse; release of information; when.

The department or appropriate law enforcement agency shall provide requested information to any person legally authorized by sections 28-376 to 28-380 to have access to records relating to abuse when ordered by a court of competent jurisdiction or upon compliance by such person with identification requirements established by rules and regulations of the department or law enforcement agency. Such information shall not include the name and address of the person making the report, except that the department may use the name and address as required or authorized by state law, federal law, federal regulation, or applicable federal program provisions and in furtherance of its programs and the county attorney's office may request and receive the name and address of the person making the report with such person's written consent. The name and other identifying data of any person requesting or receiving information from the registry and the dates and the circumstances under which requests are made or information is released shall be entered in the registry.

Source:Laws 1988, LB 463, § 31; Laws 2020, LB1148, § 2.

28-379. Report of abuse; summary by department; when provided.

Upon request, a physician or the person in charge of an institution, facility, or agency making a legally mandated report shall receive a summary of the findings of and actions taken by the department in response to such report. The amount of detail such summary contains and the purposes for which it may be used shall depend on the source of the report and shall be established by rules and regulations adopted and promulgated by the department.

Source:Laws 1988, LB 463, § 32.

28-380. Amendment or expungement of records; inaccurate or inconsistent with act; procedure.

At any time subsequent to the completion of the department's investigation, if a vulnerable adult, the guardian of a vulnerable adult, or a person who allegedly abused a vulnerable adult and who is mentioned in a report believes the information in the report is inaccurate or being maintained in a manner inconsistent with the Adult Protective Services Act, such person may request the department to amend or expunge identifying information from the report or remove the record of such report from the registry. If the department refuses to do so or does not act within thirty days, the vulnerable adult or person who allegedly abused a vulnerable adult shall have the right to a hearing to determine whether the record of the report should be amended, expunged, or removed on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with such act. Such hearing shall be held within a reasonable time after a request is made and at a reasonable place and hour. At the hearing the burden of proving the accuracy and consistency of the record shall be on the department. The hearing shall be conducted by the chief executive officer of the department or his or her designated representative, who is hereby authorized and empowered to order the amendment, expunction, or removal of the record to make such record accurate or consistent with the requirements of the Adult Protective Services Act. The decision shall be made in writing within thirty days of the close of the hearing and shall state the reasons upon which it is based. Decisions of the department may be appealed, and the appeal shall be in accordance with the Administrative Procedure Act.

Source:Laws 1988, LB 463, § 33; Laws 1996, LB 1044, § 67; Laws 2006, LB 994, § 53; Laws 2007, LB296, § 34.

Cross References

Administrative Procedure Act, see section 84-920.

28-381. Amendment or expungement of records; good cause; notice.

At any time, the department may amend, expunge, or remove from the registry any record upon good cause. Upon request, written notice of any amendment, expunction, or removal of any record made pursuant to the Adult Protective Services Act shall be served upon the vulnerable adult who is the subject of the report or the person who allegedly abused the vulnerable adult. The department shall advise any other individuals or agencies who received a copy of the record pursuant to the Adult Protective Services Act to amend, expunge, or destroy such record. All information identifying the subjects of unsubstantiated reports shall be expunged from the registry.

Source:Laws 1988, LB 463, § 34.

28-382. Law concerning confidentiality; applicability.

(1) No rule of evidence or other provision of law concerning confidential communications shall apply to prevent reports made pursuant to the Adult Protective Services Act unless otherwise specifically mentioned in the act.

(2) Evidence shall not be excluded from any judicial proceeding resulting from a report made pursuant to the Adult Protective Services Act on the ground that it is a confidential communication protected by the privilege granted to husband and wife, patient and physician, or client and professional counselor.

Source:Laws 1988, LB 463, § 35; Laws 1993, LB 130, § 2.

28-383. Treatment by spiritual means alone; not considered abuse.

No person shall be considered to be abused for the sole reason that such person relies upon spiritual means alone for treatment in accordance with the tenets and practices of a recognized church or religious denomination in lieu of medical treatment.

Source:Laws 1988, LB 463, § 36.

28-384. Failure to make report; penalty.

Any person who willfully fails to make any report required by the Adult Protective Services Act shall be guilty of a Class III misdemeanor.

Source:Laws 1988, LB 463, § 37.

28-385. Release of confidential information; penalty.

Any person who knowingly releases information required to be kept confidential by the Adult Protective Services Act, except as provided in the act, shall be guilty of a Class III misdemeanor.

Source:Laws 1988, LB 463, § 38.

28-386. Knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult; penalty.

(1) A person commits knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult if he or she through a knowing and intentional act causes or permits a vulnerable adult or senior adult to be:

(a) Physically injured;

(b) Unreasonably confined;

(d) Exploited;

(e) Cruelly punished;

(f) Neglected; or

(g) Sexually exploited.

(2) Knowing and intentional abuse, neglect, or exploitation of a vulnerable adult or senior adult is a Class IIIA felony.

Source:Laws 1988, LB 463, § 39; Laws 1997, LB 364, § 7; Laws 2012, LB1051, § 15; Laws 2016, LB934, § 9.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

The initial step when determining whether this section has been violated is to determine whether the victim was a vulnerable adult. State v. Stubbs, 252 Neb. 420, 562 N.W.2d 547 (1997).

The term "neglected" as used in subdivision (1)(f) of this section includes an act or omission. State v. Boyd, 28 Neb. App. 874, 949 N.W.2d 540 (2020).

The initial step when determining if this section has been violated is to determine whether the victim was a vulnerable adult. The State has the burden of proving all essential elements of the crime charged. State v. Janssen, 7 Neb. App. 384, 584 N.W.2d 27 (1998).

In order to convict someone of the crime of exploitation of a vulnerable adult, there must be a nexus between a vulnerable adult's impairment and the exploitation. State v. Stubbs, 5 Neb. App. 38, 555 N.W.2d 55 (1996).

28-387. Short-term protective services; temporary placement; authorized; when; procedure.

(1) A county court may issue an ex parte order authorizing the provision of short-term involuntary adult protective services or temporary placement for a vulnerable adult for up to forty-eight hours, excluding nonjudicial days, pending the hearing for a need for continuing services, after finding on the record that:

(a) The person is a vulnerable adult;

(b) An emergency exists; and

(2) An ex parte order shall be issued only if other protective custody services are unavailable or other services provide insufficient protection.

(3) The department shall contact the appropriate county attorney to file an application for short-term involuntary adult protective services or temporary placement if an investigation indicates probable cause to believe that an emergency exists for a vulnerable adult. The department shall not be given legal custody nor be made guardian of such vulnerable adult. A vulnerable adult shall be responsible for the costs of services provided either through his or her own income or other programs for which he or she may be eligible.

(4) A law enforcement officer accompanied by a representative of the department may enter the premises where the vulnerable adult is located after obtaining the court order and announcing his or her authority and purpose. Forcible entry may be made only after the court order has been obtained unless there is probable cause to believe that the delay of such entry would cause the vulnerable adult to be in imminent danger of life-threatening physical injury or neglect.

(5) When, from the personal observations of a representative of the department and a law enforcement officer, it appears probable that the vulnerable adult is likely to be in imminent danger of life-threatening physical injury or neglect if he or she is not immediately removed from the premises, the law enforcement agency shall, when authorized by the court order, take into custody and transport the vulnerable adult to an appropriate medical or protective placement facility.

(6) When action is taken under this section, a hearing shall be held within forty-eight hours of the signing of the court order, excluding nonjudicial days, to establish probable cause for short-term involuntary adult protective services or for protective placement. Unless the vulnerable adult has counsel of his or her own choice or has indicated a desire for an attorney of his or her own choice, the court shall appoint an attorney to represent him or her in the proceeding, who shall have the powers and duties of a guardian ad litem.

(7) Notice of the hearing shall be served personally on the vulnerable adult. Waiver of notice by the vulnerable adult shall not be effective unless he or she attends the hearing or such notice is waived by the guardian ad litem. Notice of the hearing shall be given to the following parties whose whereabouts can be readily ascertained: (a) The spouse of the vulnerable adult; (b) children of the vulnerable adult; and (c) any other party specified by the court.

(8) A judgment authorizing continuance of short-term involuntary adult protective services shall prescribe those specific adult protective services which are to be provided, the duration of the services which shall not exceed sixty days, and the person or persons who are authorized or ordered to provide them.

Source:Laws 1988, LB 463, § 40; Laws 2012, LB1051, § 16.

28-388. Act, how cited.

Sections 28-388 to 28-394 shall be known and may be cited as the Homicide of the Unborn Child Act.

Source:Laws 2002, LB 824, § 2.

28-389. Terms, defined.

For purposes of the Homicide of the Unborn Child Act, unless the context otherwise requires:

(1) Premeditation means a design formed to do something before it is done; and

(2) Unborn child means an individual member of the species Homo sapiens, at any stage of development in utero, who was alive at the time of the homicidal act and died as a result thereof whether before, during, or after birth.

Source:Laws 2002, LB 824, § 3.

28-390. Applicability of sections.

Sections 28-391 to 28-394 do not apply to an act or conduct causing or contributing to the death of an unborn child when the act or conduct is:

(1) Committed or engaged in by the mother of the unborn child;

(2) Any medical procedure performed with the consent of the mother; or

(3) Dispensing a drug or device in accordance with law or administering a drug or device prescribed in accordance with law.

Source:Laws 2002, LB 824, § 4.

28-391. Murder of an unborn child in the first degree; penalty.

(1) A person commits murder of an unborn child in the first degree if he or she in committing an act or engaging in conduct that causes the death of an unborn child, intends, with deliberate and premeditated malice, to kill the unborn child or the mother of the unborn child with knowledge of the pregnancy.

(2) Murder of an unborn child in the first degree is a Class IA felony.

Source:Laws 2002, LB 824, § 5.

28-392. Murder of an unborn child in the second degree; penalty.

(1) A person commits murder of an unborn child in the second degree if he or she, in committing an act or engaging in conduct that causes the death of an unborn child, intends, but without premeditation, to kill the unborn child or another.

(2) Murder of an unborn child in the second degree is a Class IB felony.

Source:Laws 2002, LB 824, § 6.

28-393. Manslaughter of an unborn child; penalty.

(1) A person commits manslaughter of an unborn child if he or she (a) kills an unborn child without malice upon a sudden quarrel with any person or (b) causes the death of an unborn child unintentionally while in the perpetration of or attempt to perpetrate any criminal assault, any sexual assault, arson, robbery, kidnapping, intentional child abuse, hijacking of any public or private means of transportation, or burglary.

(2) Manslaughter of an unborn child is a Class IIA felony.

Source:Laws 2002, LB 824, § 7; Laws 2015, LB605, § 23.

28-394. Motor vehicle homicide of an unborn child; penalty.

(1) A person who causes the death of an unborn child unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide of an unborn child.

(2) Except as provided in subsection (3) of this section, motor vehicle homicide of an unborn child is a Class I misdemeanor.

(3)(a) If the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,213 or 60-6,214, motor vehicle homicide of an unborn child is a Class IIIA felony.

(b) Except as provided in subdivision (3)(c) of this section, if the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide of an unborn child is a Class IIIA felony and the court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least sixty days and not more than fifteen years after the date ordered by the court and shall order that the operator's license of such person be revoked for the same period. The revocation shall not run concurrently with any jail term imposed.

(c) If the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06 and the defendant has a prior conviction for a violation of section 60-6,196 or a city or village ordinance enacted in conformance with section 60-6,196, motor vehicle homicide of an unborn child is a Class IIA felony and the court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least sixty days and not more than fifteen years after the date ordered by the court and shall order that the operator's license of such person be revoked for the same period. The revocation shall not run concurrently with any jail term imposed.

Source:Laws 2002, LB 824, § 8; Laws 2004, LB 208, § 2; Laws 2011, LB667, § 4; Laws 2015, LB605, § 24; Laws 2016, LB1094, § 6.

28-395. Act, how cited.

Sections 28-395 to 28-3,101 shall be known and may be cited as the Assault of an Unborn Child Act.

Source:Laws 2006, LB 57, § 2.

28-396. Unborn child, defined.

For purposes of the Assault of an Unborn Child Act, unborn child means an individual member of the species Homo sapiens at any stage of development in utero.

Source:Laws 2006, LB 57, § 3.

28-397. Assault of an unborn child in the first degree; penalty.

(1) A person commits the offense of assault of an unborn child in the first degree if he or she, during the commission of any criminal assault on a pregnant woman, intentionally or knowingly causes serious bodily injury to her unborn child.

(2) Assault of an unborn child in the first degree is a Class IIA felony.

Source:Laws 2006, LB 57, § 4; Laws 2015, LB605, § 25.

28-398. Assault of an unborn child in the second degree; penalty.

(1) A person commits the offense of assault of an unborn child in the second degree if he or she, during the commission of any criminal assault on a pregnant woman, recklessly causes serious bodily injury to her unborn child with a dangerous instrument.

(2) Assault of an unborn child in the second degree is a Class IIIA felony.

Source:Laws 2006, LB 57, § 5.

28-399. Assault of an unborn child in the third degree; penalty.

(1) A person commits the offense of assault of an unborn child in the third degree if he or she, during the commission of any criminal assault on a pregnant woman, recklessly causes serious bodily injury to her unborn child.

(2) Assault of an unborn child in the third degree is a Class I misdemeanor.

Source:Laws 2006, LB 57, § 6.

28-3,100. Applicability of act.

The Assault of an Unborn Child Act does not apply to:

(1) Any act or conduct that is committed or engaged in by the mother of the unborn child;

(2) Any medical procedure performed with the consent of the mother; or

(3) Dispensing a drug or device in accordance with law or administering a drug or device prescribed in accordance with law.

Source:Laws 2006, LB 57, § 7.

28-3,101. Prosecution of separate acts.

Assault on a pregnant woman and assault on her unborn child shall be considered as separate acts or conduct for purposes of prosecution.

Source:Laws 2006, LB 57, § 8.

28-3,102. Act, how cited.

Sections 28-3,102 to 28-3,111 shall be known and may be cited as the Pain-Capable Unborn Child Protection Act.

Source:Laws 2010, LB1103, § 1.

28-3,103. Terms, defined.

For purposes of the Pain-Capable Unborn Child Protection Act:

(1) Abortion means the use or prescription of any instrument, medicine, drug, or other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of the child after live birth, or to remove a dead unborn child who died as the result of natural causes in utero, accidental trauma, or a criminal assault on the pregnant woman or her unborn child, and which causes the premature termination of the pregnancy;

(2) Attempt to perform or induce an abortion means an act, or an omission of a statutorily required act, that, under the circumstances as the actor believes them to be, constitutes a substantial step in a course of conduct planned to culminate in the performance or induction of an abortion in this state in violation of the Pain-Capable Unborn Child Protection Act;

(3) Fertilization means the fusion of a human spermatozoon with a human ovum;

(4) Medical emergency means a condition which, in reasonable medical judgment, so complicates the medical condition of the pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create a serious risk of substantial and irreversible physical impairment of a major bodily function. No condition shall be deemed a medical emergency if based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function;

(5) Postfertilization age means the age of the unborn child as calculated from the fertilization of the human ovum;

(6) Reasonable medical judgment means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved;

(7) Physician means any person licensed to practice medicine and surgery or osteopathic medicine under the Uniform Credentialing Act;

(8) Probable postfertilization age of the unborn child means what, in reasonable medical judgment, will with reasonable probability be the postfertilization age of the unborn child at the time the abortion is planned to be performed;

(9) Unborn child or fetus each mean an individual organism of the species homo sapiens from fertilization until live birth; and

(10) Woman means a female human being whether or not she has reached the age of majority.

Source:Laws 2010, LB1103, § 2.

Cross References

Uniform Credentialing Act, see section 38-101.

28-3,104. Legislative findings.

The Legislature makes the following findings:

(1) At least by twenty weeks after fertilization there is substantial evidence that an unborn child has the physical structures necessary to experience pain;

(2) There is substantial evidence that, by twenty weeks after fertilization, unborn children seek to evade certain stimuli in a manner which in an infant or an adult would be interpreted as a response to pain;

(3) Anesthesia is routinely administered to unborn children who have developed twenty weeks or more past fertilization who undergo prenatal surgery;

(4) Even before twenty weeks after fertilization, unborn children have been observed to exhibit hormonal stress responses to painful stimuli. Such responses were reduced when pain medication was administered directly to such unborn children; and

(5) It is the purpose of the State of Nebraska to assert a compelling state interest in protecting the lives of unborn children from the stage at which substantial medical evidence indicates that they are capable of feeling pain.

Source:Laws 2010, LB1103, § 3.

28-3,105. Determination of probable postfertilization age of unborn child; physician; duties.

(1) Except in the case of a medical emergency which prevents compliance with this section, no abortion shall be performed or induced or be attempted to be performed or induced unless the physician performing or inducing it has first made a determination of the probable postfertilization age of the unborn child or relied upon such a determination made by another physician. In making such a determination, a physician shall make such inquiries of the woman and perform or cause to be performed such medical examinations and tests as a reasonably prudent physician, knowledgeable about the case and the medical conditions involved, would consider necessary to perform in making an accurate diagnosis with respect to postfertilization age.

(2) Failure by any physician to conform to any requirement of this section constitutes unprofessional conduct pursuant to section 38-2021.

Source:Laws 2010, LB1103, § 4.

28-3,106. Abortion; performance; restrictions.

No person shall perform or induce or attempt to perform or induce an abortion upon a woman when it has been determined, by the physician performing or inducing the abortion or by another physician upon whose determination that physician relies, that the probable postfertilization age of the woman's unborn child is twenty or more weeks unless, in reasonable medical judgment (1) she has a condition which so complicates her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function or (2) it is necessary to preserve the life of an unborn child. No such condition shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function. In such a case, the physician shall terminate the pregnancy in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless, in reasonable medical judgment, termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would another available method. No such greater risk shall be deemed to exist if it is based on a claim or diagnosis that the woman will engage in conduct which would result in her death or in substantial and irreversible physical impairment of a major bodily function.

Source:Laws 2010, LB1103, § 5.

28-3,107. Report to Department of Health and Human Services; contents; department; issue public report; failure to file report; late fee; prohibited acts; penalty.

(1) Any physician who performs or induces or attempts to perform or induce an abortion shall report to the Department of Health and Human Services, on a schedule and in accordance with forms and rules and regulations adopted and promulgated by the department:

(a) If a determination of probable postfertilization age was made, the probable postfertilization age determined and the method and basis of the determination;

(b) If a determination of probable postfertilization age was not made, the basis of the determination that a medical emergency existed;

(c) If the probable postfertilization age was determined to be twenty or more weeks, the basis of the determination that the pregnant woman had a condition which so complicated her medical condition as to necessitate the abortion of her pregnancy to avert her death or to avert serious risk of substantial and irreversible physical impairment of a major bodily function, or the basis of the determination that it was necessary to preserve the life of an unborn child; and

(d) The method used for the abortion and, in the case of an abortion performed when the probable postfertilization age was determined to be twenty or more weeks, whether the method of abortion used was one that, in reasonable medical judgment, provided the best opportunity for the unborn child to survive or, if such a method was not used, the basis of the determination that termination of the pregnancy in that manner would pose a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than would other available methods.

(2) By June 30 of each year, the department shall issue a public report providing statistics for the previous calendar year compiled from all of the reports covering that year submitted in accordance with this section for each of the items listed in subsection (1) of this section. Each such report shall also provide the statistics for all previous calendar years during which this section was in effect, adjusted to reflect any additional information from late or corrected reports. The department shall take care to ensure that none of the information included in the public reports could reasonably lead to the identification of any pregnant woman upon whom an abortion was performed.

(3) Any physician who fails to submit a report by the end of thirty days following the due date shall be subject to a late fee of five hundred dollars for each additional thirty-day period or portion of a thirty-day period the report is overdue. Any physician required to report in accordance with the Pain-Capable Unborn Child Protection Act who has not submitted a report, or has submitted only an incomplete report, more than one year following the due date, may, in an action brought in the manner in which actions are brought to enforce the Uniform Credentialing Act pursuant to section 38-1,139, be directed by a court of competent jurisdiction to submit a complete report within a time period stated by court order or be subject to civil contempt. Failure by any physician to conform to any requirement of this section, other than late filing of a report, constitutes unprofessional conduct pursuant to section 38-2021. Failure by any physician to submit a complete report in accordance with a court order constitutes unprofessional conduct pursuant to section 38-2021. Intentional or reckless falsification of any report required under this section is a Class V misdemeanor.

(4) Within ninety days after October 15, 2010, the department shall adopt and promulgate rules and regulations to assist in compliance with this section.

Source:Laws 2010, LB1103, § 6.

Cross References

Uniform Credentialing Act, see section 38-101.

28-3,108. Prohibited abortion; penalty.

Any person who intentionally or recklessly performs or attempts to perform an abortion in violation of section 28-3,106 is guilty of a Class IV felony. No penalty shall be assessed against the woman upon whom the abortion is performed or attempted to be performed.

Source:Laws 2010, LB1103, § 7.

28-3,109. Action for damages; action for injunctive relief; attorney's fees.

(1) Any woman upon whom an abortion has been performed in violation of the Pain-Capable Unborn Child Protection Act or the father of the unborn child who was the subject of such an abortion may maintain an action against the person who performed the abortion in an intentional or a reckless violation of the Pain-Capable Unborn Child Protection Act for actual damages. Any woman upon whom an abortion has been attempted in violation of the Pain-Capable Unborn Child Protection Act may maintain an action against the person who attempted to perform the abortion in an intentional or a reckless violation of the Pain-Capable Unborn Child Protection Act for actual damages.

(2) A cause of action for injunctive relief against any person who has intentionally violated the Pain-Capable Unborn Child Protection Act may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of the Pain-Capable Unborn Child Protection Act, by any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of the Pain-Capable Unborn Child Protection Act, by a county attorney with appropriate jurisdiction, or by the Attorney General. The injunction shall prevent the abortion provider from performing further abortions in violation of the Pain-Capable Unborn Child Protection Act in this state.

(3) If judgment is rendered in favor of the plaintiff in an action described in this section, the court shall also render judgment for reasonable attorney's fees in favor of the plaintiff against the defendant.

(4) If judgment is rendered in favor of the defendant and the court finds that the plaintiff's suit was frivolous and brought in bad faith, the court shall also render judgment for reasonable attorney's fees in favor of the defendant against the plaintiff.

(5) No damages or attorney's fees may be assessed against the woman upon whom an abortion was performed or attempted to be performed except as provided in subsection (4) of this section.

Source:Laws 2010, LB1103, § 8.

28-3,110. Anonymity; court orders authorized.

In every civil or criminal proceeding or action brought under the Pain-Capable Unborn Child Protection Act, the court shall rule whether the anonymity of any woman upon whom an abortion has been performed or attempted shall be preserved from public disclosure if she does not give her consent to such disclosure. The court, upon motion or sua sponte, shall make such a ruling and, upon determining that her anonymity should be preserved, shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard her identity from public disclosure. Each such order shall be accompanied by specific written findings explaining why the anonymity of the woman should be preserved from public disclosure, why the order is essential to that end, how the order is narrowly tailored to serve that interest, and why no reasonable less restrictive alternative exists. In the absence of written consent of the woman upon whom an abortion has been performed or attempted, anyone, other than a public official, who brings an action under section 28-3,109 shall do so under a pseudonym. This section shall not be construed to conceal the identity of the plaintiff or of witnesses from the defendant or from attorneys for the defendant.

Source:Laws 2010, LB1103, § 9.

28-3,111. Severability.

If any one or more provisions, sections, subsections, sentences, clauses, phrases, or words of the Pain-Capable Unborn Child Protection Act or the application thereof to any person or circumstance is found to be unconstitutional, the same is hereby declared to be severable and the balance of the Pain-Capable Unborn Child Protection Act shall remain effective notwithstanding such unconstitutionality. The Legislature hereby declares that it would have passed the Pain-Capable Unborn Child Protection Act, and each provision, section, subsection, sentence, clause, phrase, or word thereof, irrespective of the fact that any one or more provisions, sections, subsections, sentences, clauses, phrases, or words of the Pain-Capable Unborn Child Protection Act, or the application of the Pain-Capable Unborn Child Protection Act, would be declared unconstitutional.

Source:Laws 2010, LB1103, § 10.

28-401. Terms, defined.

As used in the Uniform Controlled Substances Act, unless the context otherwise requires:

(1) Administer means to directly apply a controlled substance by injection, inhalation, ingestion, or any other means to the body of a patient or research subject;

(2) Agent means an authorized person who acts on behalf of or at the direction of another person but does not include a common or contract carrier, public warehouse keeper, or employee of a carrier or warehouse keeper;

(3) Administration means the Drug Enforcement Administration of the United States Department of Justice;

(4) Controlled substance means a drug, biological, substance, or immediate precursor in Schedules I through V of section 28-405. Controlled substance does not include distilled spirits, wine, malt beverages, tobacco, hemp, or any nonnarcotic substance if such substance may, under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., as such act existed on January 1, 2014, and the law of this state, be lawfully sold over the counter without a prescription;

(5) Counterfeit substance means a controlled substance which, or the container or labeling of which, without authorization, bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser;

(6) Department means the Department of Health and Human Services;

(7) Division of Drug Control means the personnel of the Nebraska State Patrol who are assigned to enforce the Uniform Controlled Substances Act;

(8) Dispense means to deliver a controlled substance to an ultimate user or a research subject pursuant to a medical order issued by a practitioner authorized to prescribe, including the packaging, labeling, or compounding necessary to prepare the controlled substance for such delivery;

(9) Distribute means to deliver other than by administering or dispensing a controlled substance;

(10) Prescribe means to issue a medical order;

(11) Drug means (a) articles recognized in the official United States Pharmacopoeia, official Homeopathic Pharmacopoeia of the United States, official National Formulary, or any supplement to any of them, (b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in human beings or animals, and (c) substances intended for use as a component of any article specified in subdivision (a) or (b) of this subdivision, but does not include devices or their components, parts, or accessories;

(12) Deliver or delivery means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship;

(13) Hemp has the same meaning as in section 2-503;

(14)(a) Marijuana means all parts of the plant of the genus cannabis, whether growing or not, the seeds thereof, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant or its seeds.

(b) Marijuana does not include the mature stalks of such plant, hashish, tetrahydrocannabinols extracted or isolated from the plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks, the sterilized seed of such plant which is incapable of germination, or cannabidiol contained in a drug product approved by the federal Food and Drug Administration.

(d) When the weight of marijuana is referred to in the Uniform Controlled Substances Act, it means its weight at or about the time it is seized or otherwise comes into the possession of law enforcement authorities, whether cured or uncured at that time.

(e) When industrial hemp as defined in section 2-5701 is in the possession of a person as authorized under section 2-5701, it is not considered marijuana for purposes of the Uniform Controlled Substances Act;

(15) Manufacture means the production, preparation, propagation, conversion, or processing of a controlled substance, either directly or indirectly, by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. Manufacture does not include the preparation or compounding of a controlled substance by an individual for his or her own use, except for the preparation or compounding of components or ingredients used for or intended to be used for the manufacture of methamphetamine, or the preparation, compounding, conversion, packaging, or labeling of a controlled substance: (a) By a practitioner as an incident to his or her prescribing, administering, or dispensing of a controlled substance in the course of his or her professional practice; or (b) by a practitioner, or by his or her authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale;

(16) Narcotic drug means any of the following, whether produced directly or indirectly by extraction from substances of vegetable origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: (a) Opium, opium poppy and poppy straw, coca leaves, and opiates; (b) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or opiates; or (c) a substance and any compound, manufacture, salt, derivative, or preparation thereof which is chemically equivalent to or identical with any of the substances referred to in subdivisions (a) and (b) of this subdivision, except that the words narcotic drug as used in the Uniform Controlled Substances Act does not include decocainized coca leaves or extracts of coca leaves, which extracts do not contain cocaine or ecgonine, or isoquinoline alkaloids of opium;

(17) Opiate means any substance having an addiction-forming or addiction-sustaining liability similar to morphine or being capable of conversion into a drug having such addiction-forming or addiction-sustaining liability. Opiate does not include the dextrorotatory isomer of 3-methoxy-n methylmorphinan and its salts. Opiate includes its racemic and levorotatory forms;

(18) Opium poppy means the plant of the species Papaver somniferum L., except the seeds thereof;

(19) Poppy straw means all parts, except the seeds, of the opium poppy after mowing;

(20) Person means any corporation, association, partnership, limited liability company, or one or more persons;

(21) Practitioner means a physician, a physician assistant, a dentist, a veterinarian, a pharmacist, a podiatrist, an optometrist, a certified nurse midwife, a certified registered nurse anesthetist, a nurse practitioner, a scientific investigator, a pharmacy, a hospital, or any other person licensed, registered, or otherwise permitted to distribute, dispense, prescribe, conduct research with respect to, or administer a controlled substance in the course of practice or research in this state, including an emergency medical service as defined in section 38-1207;

(22) Production includes the manufacture, planting, cultivation, or harvesting of a controlled substance;

(23) Immediate precursor means a substance which is the principal compound commonly used or produced primarily for use and which is an immediate chemical intermediary used or likely to be used in the manufacture of a controlled substance, the control of which is necessary to prevent, curtail, or limit such manufacture;

(24) State means the State of Nebraska;

(25) Ultimate user means a person who lawfully possesses a controlled substance for his or her own use, for the use of a member of his or her household, or for administration to an animal owned by him or her or by a member of his or her household;

(26) Hospital has the same meaning as in section 71-419;

(27) Cooperating individual means any person, other than a commissioned law enforcement officer, who acts on behalf of, at the request of, or as agent for a law enforcement agency for the purpose of gathering or obtaining evidence of offenses punishable under the Uniform Controlled Substances Act;

(28)(a) Hashish or concentrated cannabis means (i) the separated resin, whether crude or purified, obtained from a plant of the genus cannabis or (ii) any material, preparation, mixture, compound, or other substance which contains ten percent or more by weight of tetrahydrocannabinols.

(b) When resins extracted from (i) industrial hemp as defined in section 2-5701 are in the possession of a person as authorized under section 2-5701 or (ii) hemp as defined in section 2-503 are in the possession of a person as authorized under the Nebraska Hemp Farming Act, they are not considered hashish or concentrated cannabis for purposes of the Uniform Controlled Substances Act.

(c) Hashish or concentrated cannabis does not include cannabidiol contained in a drug product approved by the federal Food and Drug Administration;

(29) Exceptionally hazardous drug means (a) a narcotic drug, (b) thiophene analog of phencyclidine, (c) phencyclidine, (d) amobarbital, (e) secobarbital, (f) pentobarbital, (g) amphetamine, or (h) methamphetamine;

(30) Imitation controlled substance means a substance which is not a controlled substance or controlled substance analogue but which, by way of express or implied representations and consideration of other relevant factors including those specified in section 28-445, would lead a reasonable person to believe the substance is a controlled substance or controlled substance analogue. A placebo or registered investigational drug manufactured, distributed, possessed, or delivered in the ordinary course of practice or research by a health care professional shall not be deemed to be an imitation controlled substance;

(31)(a) Controlled substance analogue means a substance (i) the chemical structure of which is substantially similar to the chemical structure of a Schedule I or Schedule II controlled substance as provided in section 28-405 or (ii) which has a stimulant, depressant, analgesic, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, analgesic, or hallucinogenic effect on the central nervous system of a Schedule I or Schedule II controlled substance as provided in section 28-405. A controlled substance analogue shall, to the extent intended for human consumption, be treated as a controlled substance under Schedule I of section 28-405 for purposes of the Uniform Controlled Substances Act; and

(b) Controlled substance analogue does not include (i) a controlled substance, (ii) any substance generally recognized as safe and effective within the meaning of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301 et seq., as such act existed on January 1, 2014, (iii) any substance for which there is an approved new drug application, or (iv) with respect to a particular person, any substance if an exemption is in effect for investigational use for that person, under section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 355, as such section existed on January 1, 2014, to the extent conduct with respect to such substance is pursuant to such exemption;

(32) Anabolic steroid means any drug or hormonal substance, chemically and pharmacologically related to testosterone (other than estrogens, progestins, and corticosteroids), that promotes muscle growth and includes any controlled substance in Schedule III(d) of section 28-405. Anabolic steroid does not include any anabolic steroid which is expressly intended for administration through implants to cattle or other nonhuman species and has been approved by the Secretary of Health and Human Services for such administration, but if any person prescribes, dispenses, or distributes such a steroid for human use, such person shall be considered to have prescribed, dispensed, or distributed an anabolic steroid within the meaning of this subdivision;

(33) Chart order means an order for a controlled substance issued by a practitioner for a patient who is in the hospital where the chart is stored or for a patient receiving detoxification treatment or maintenance treatment pursuant to section 28-412. Chart order does not include a prescription;

(34) Medical order means a prescription, a chart order, or an order for pharmaceutical care issued by a practitioner;

(35) Prescription means an order for a controlled substance issued by a practitioner. Prescription does not include a chart order;

(36) Registrant means any person who has a controlled substances registration issued by the state or the Drug Enforcement Administration of the United States Department of Justice;

(37) Reverse distributor means a person whose primary function is to act as an agent for a pharmacy, wholesaler, manufacturer, or other entity by receiving, inventorying, and managing the disposition of outdated, expired, or otherwise nonsaleable controlled substances;

(38) Signature means the name, word, or mark of a person written in his or her own hand with the intent to authenticate a writing or other form of communication or a digital signature which complies with section 86-611 or an electronic signature;

(39) Facsimile means a copy generated by a system that encodes a document or photograph into electrical signals, transmits those signals over telecommunications lines, and reconstructs the signals to create an exact duplicate of the original document at the receiving end;

(40) Electronic signature has the definition found in section 86-621;

(41) Electronic transmission means transmission of information in electronic form. Electronic transmission includes computer-to-computer transmission or computer-to-facsimile transmission;

(42) Long-term care facility means an intermediate care facility, an intermediate care facility for persons with developmental disabilities, a long-term care hospital, a mental health substance use treatment center, a nursing facility, or a skilled nursing facility, as such terms are defined in the Health Care Facility Licensure Act;

(43) Compounding has the same meaning as in section 38-2811;

(44) Cannabinoid receptor agonist means any chemical compound or substance that, according to scientific or medical research, study, testing, or analysis, demonstrates the presence of binding activity at one or more of the CB1 or CB2 cell membrane receptors located within the human body. Cannabinoid receptor agonist does not include cannabidiol contained in a drug product approved by the federal Food and Drug Administration; and

(45) Lookalike substance means a product or substance, not specifically designated as a controlled substance in section 28-405, that is either portrayed in such a manner by a person to lead another person to reasonably believe that it produces effects on the human body that replicate, mimic, or are intended to simulate the effects produced by a controlled substance or that possesses one or more of the following indicia or characteristics:

(a) The packaging or labeling of the product or substance suggests that the user will achieve euphoria, hallucination, mood enhancement, stimulation, or another effect on the human body that replicates or mimics those produced by a controlled substance;

(b) The name or packaging of the product or substance uses images or labels suggesting that it is a controlled substance or produces effects on the human body that replicate or mimic those produced by a controlled substance;

(c) The product or substance is marketed or advertised for a particular use or purpose and the cost of the product or substance is disproportionately higher than other products or substances marketed or advertised for the same or similar use or purpose;

(d) The packaging or label on the product or substance contains words or markings that state or suggest that the product or substance is in compliance with state and federal laws regulating controlled substances;

(e) The owner or person in control of the product or substance uses evasive tactics or actions to avoid detection or inspection of the product or substance by law enforcement authorities;

(f) The owner or person in control of the product or substance makes a verbal or written statement suggesting or implying that the product or substance is a synthetic drug or that consumption of the product or substance will replicate or mimic effects on the human body to those effects commonly produced through use or consumption of a controlled substance;

(g) The owner or person in control of the product or substance makes a verbal or written statement to a prospective customer, buyer, or recipient of the product or substance implying that the product or substance may be resold for profit; or

(h) The product or substance contains a chemical or chemical compound that does not have a legitimate relationship to the use or purpose claimed by the seller, distributor, packer, or manufacturer of the product or substance or indicated by the product name, appearing on the product's packaging or label or depicted in advertisement of the product or substance.

Source:Laws 1977, LB 38, § 61; Laws 1978, LB 276, § 1; Laws 1980, LB 696, § 1; Laws 1985, LB 323, § 1; Laws 1985, LB 406, § 2; Laws 1988, LB 273, § 3; Laws 1988, LB 537, § 1; Laws 1992, LB 1019, § 30; Laws 1993, LB 121, § 175; Laws 1996, LB 1044, § 68; Laws 1996, LB 1108, § 1; Laws 1997, LB 307, § 3; Laws 1999, LB 379, § 1; Laws 2001, LB 398, § 1; Laws 2002, LB 1105, § 428; Laws 2003, LB 200, § 1; Laws 2005, LB 117, § 1; Laws 2005, LB 256, § 16; Laws 2005, LB 382, § 1; Laws 2007, LB247, § 1; Laws 2007, LB296, § 35; Laws 2007, LB463, § 1119; Laws 2009, LB195, § 1; Laws 2013, LB23, § 4; Laws 2014, LB811, § 2; Laws 2014, LB1001, § 2; Laws 2015, LB390, § 2; Laws 2016, LB1009, § 2; Laws 2017, LB487, § 3; Laws 2018, LB1034, § 1; Laws 2019, LB657, § 22; Laws 2021, LB236, § 1.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Nebraska Hemp Farming Act, see section 2-501.

Annotations

The "personal use exception" in subsection (14) of this section applies to only "preparation" and "compounding" of a controlled substance, but does not apply to the "production" of a controlled substance. State v. Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008).

Under subsection (22) of this section, the term manufacture includes cultivating marijuana. State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).

A jury instruction as to the technical definition of marijuana need not be given where the defendant is charged with delivery of marijuana, when the evidence at trial presents no factual issue as to whether the substance involved was anything but marijuana. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).

The Criminal Code which became effective on January 1, 1979, is not applicable to offenses committed prior to its effective date. State v. Fuller, 203 Neb. 233, 278 N.W.2d 756 (1979).

Aiding and abetting possession is a lesser-included offense of aiding and abetting distribution. State v. McKimmey, 10 Neb. App. 595, 634 N.W.2d 817 (2001).

28-401.01. Act, how cited.

Sections 28-401 to 28-456.01 and 28-458 to 28-476 shall be known and may be cited as the Uniform Controlled Substances Act.

Source:Laws 1977, LB 38, § 98; R.S.1943, (1995), § 28-438; Laws 2001, LB 113, § 17; Laws 2001, LB 398, § 2; Laws 2005, LB 117, § 2; Laws 2007, LB463, § 1120; Laws 2011, LB20, § 2; Laws 2014, LB811, § 3; Laws 2015, LB390, § 3; Laws 2016, LB1009, § 3; Laws 2017, LB487, § 4; Laws 2018, LB931, § 2; Laws 2020, LB1152, § 15.

28-401.02. Act; how construed.

Nothing in the Uniform Controlled Substances Act shall be construed as authority for a practitioner to perform an act for which he or she is not authorized by the laws of this state.

Source:Laws 2001, LB 398, § 3.

28-402. Repealed. Laws 2001, LB 398, § 97.

28-403. Administering secret medicine; penalty.

If any physician or other person shall prescribe any drug or medicine to another person, the true nature and composition of which he does not, if inquired of, truly make known, but avow the same to be a secret medicine or composition, thereby endangering the life of such other person, he shall be guilty of a Class III misdemeanor.

Source:Laws 1977, LB 38, § 63.

28-404. Controlled substances; declaration.

All drugs and substances or immediate precursors listed in section 28-405 are hereby declared to be controlled substances, whether listed by official name, generic, common, or usual name, chemical name, brand, or trade name.

Source:Laws 1977, LB 38, § 64; Laws 1990, LB 571, § 3; Laws 1992, LB 1019, § 31.

Annotations

Under this section and section 28-405(c)(10) and (c)(15), marijuana is a Schedule I controlled substance, and thus is a "drug." State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).

28-405. Controlled substances; schedules; enumerated.

The following are the schedules of controlled substances referred to in the Uniform Controlled Substances Act, unless specifically contained on the list of exempted products of the Drug Enforcement Administration of the United States Department of Justice as the list existed on January 31, 2022:

Schedule I

(a) Any of the following opiates, including their isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, unless specifically excepted, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation:

(1) Acetylmethadol;

(2) Allylprodine;

(3) Alphacetylmethadol, except levo-alphacetylmethadol which is also known as levo-alpha-acetylmethadol, levomethadyl acetate, and LAAM;

(4) Alphameprodine;

(5) Alphamethadol;

(6) Benzethidine;

(7) Betacetylmethadol;

(8) Betameprodine;

(9) Betamethadol;

(10) Betaprodine;

(11) Clonitazene;

(12) Dextromoramide;

(13) Difenoxin;

(14) Diampromide;

(15) Diethylthiambutene;

(16) Dimenoxadol;

(17) Dimepheptanol;

(18) Dimethylthiambutene;

(19) Dioxaphetyl butyrate;

(20) Dipipanone;

(21) Ethylmethylthiambutene;

(22) Etonitazene;

(23) Etoxeridine;

(24) Furethidine;

(25) Hydroxypethidine;

(26) Ketobemidone;

(27) Levomoramide;

(28) Levophenacylmorphan;

(29) Morpheridine;

(30) Noracymethadol;

(31) Norlevorphanol;

(32) Normethadone;

(33) Norpipanone;

(34) Phenadoxone;

(35) Phenampromide;

(36) Phenomorphan;

(37) Phenoperidine;

(38) Piritramide;

(39) Proheptazine;

(40) Properidine;

(41) Propiram;

(42) Racemoramide;

(43) Trimeperidine;

(44) Alpha-methylfentanyl, N-(1-(alpha-methyl-beta-phenyl)ethyl-4-piperidyl) propionanilide, 1-(1-methyl-2-phenylethyl)-4-(N-propanilido) piperidine;

(45) Tilidine;

(46) 3-Methylfentanyl, N-(3-methyl-1-(2-phenylethyl)-4-piperidyl)-N-phenylpropanamide, its optical and geometric isomers, salts, and salts of isomers;

(47) 1-methyl-4-phenyl-4-propionoxypiperidine (MPPP), its optical isomers, salts, and salts of isomers;

(48) PEPAP, 1-(2-phenethyl)-4-phenyl-4-acetoxypiperidine, its optical isomers, salts, and salts of isomers;

(49) Acetyl-alpha-methylfentanyl, N-(1-(1-methyl-2-phenethyl)-4-piperidinyl)-N-phenylacetamide, its optical isomers, salts, and salts of isomers;

(50) Alpha-methylthiofentanyl, N-(1-methyl-2-(2-thienyl)ethyl-4-piperidinyl)-N-phenylpropanamide, its optical isomers, salts, and salts of isomers;

(51) Benzylfentanyl, N-(1-benzyl-4-piperidyl)-N-phenylpropanamide, its optical isomers, salts, and salts of isomers;

(52) Beta-hydroxyfentanyl, N-(1-(2-hydroxy-2-phenethyl)-4-piperidinyl)-N-phenylpropanamide, its optical isomers, salts, and salts of isomers;

(53) Beta-hydroxy-3-methylfentanyl, (other name: N-(1-(2-hydroxy-2-phenethyl)-3-methyl-4-piperidinyl)-N-phenylpropanamide), its optical and geometric isomers, salts, and salts of isomers;

(54) 3-methylthiofentanyl, N-(3-methyl-1-(2-thienyl)ethyl-4-piperidinyl)-N-phenylpropanamide, its optical and geometric isomers, salts, and salts of isomers;

(55) N-(1-(2-thienyl)methyl-4-piperidyl)-N-phenylpropanamide (thenylfentanyl), its optical isomers, salts, and salts of isomers;

(56) Thiofentanyl, N-phenyl-N-(1-(2-thienyl)ethyl-4-piperidinyl)-propanamide, its optical isomers, salts, and salts of isomers;

(57) Para-fluorofentanyl, N-(4-fluorophenyl)-N-(1-(2-phenethyl)-4-piperidinyl)propanamide, its optical isomers, salts, and salts of isomers;

(58) U-47700, 3,4-dichloro-N-[2-(dimethylamino)cyclohexyl]-N-methylbenzamide;

(59) 4-Fluoroisobutyryl Fentanyl;

(60) Acetyl Fentanyl;

(61) Acyrloylfentanyl;

(62) AH-7921; 3, 4-dichloro-N-[(1-dimethylamino) cyclohexylmethyl] benzamide;

(63) Butyryl fentanyl;

(64) Cyclopentyl fentanyl;

(65) Cyclopropyl fentanyl;

(66) Furanyl fentanyl;

(67) Isobutyryl fentanyl;

(68) Isotonitazene;

(69) Methoxyacetyl fentanyl;

(70) MT-45; 1-cyclohexyl-4-(1,2-diphenylethyl) piperazine;

(71) Tetrahydrofuranyl fentanyl;

(72) 2-fluorofentanyl; N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl) propionamide;

(73) Ocfentanil;

(74) Ortho-Fluorofentanyl;

(75) Para-chloroisobutyryl fentanyl;

(76) Para-Fluorobutyryl Fentanyl;

(77) Valeryl fentanyl;

(78) Phenyl Fentanyl;

(79) Para-Methylfentanyl;

(80) Thiofuranyl Fentanyl;

(81) Beta-methyl Fentanyl;

(82) Beta'-Phenyl Fentanyl;

(83) Crotonyl Fentanyl;

(84) 2'-Fluoro Ortho-Fluorofentanyl;

(85) 4'-Methyl Acetyl Fentanyl;

(86) Ortho-Fluorobutyryl Fentanyl;

(87) Ortho-Methyl Acetylfentanyl;

(88) Ortho-Methyl Methoxyacetyl Fentanyl;

(89) Ortho-Fluoroacryl Fentanyl;

(90) Fentanyl Carbamate;

(91) Ortho-Fluoroisobutyryl Fentanyl;

(92) Para-Fluoro Furanyl Fentanyl;

(93) Para-Methoxybutyryl Fentanyl;

(94) Brorphine (other name: 1-(1-(1-(4-bromophenyl) ethyl) piperidin-4-yl-1,3-dihydro-2H-benzo[D]imidazole-2-one); and

(95) Fentanyl-related substances, their isomers, esters, ethers, salts and salts of isomers, esters, and ethers. Unless specifically excepted, listed in another schedule, or specifically named in this schedule, this includes any substance that is structurally related to fentanyl by one or more of the following modifications:

(A) Replacement of the phenyl portion of the phenethyl group by any monocycle, whether or not further substituted in or on the monocycle;

(B) Substitution in or on the phenethyl group with alkyl, alkenyl, alkoxyl, hydroxyl, halo, haloalkyl, amino, or nitro groups;

(C) Substitution in or on the piperidine ring with alkyl, alkenyl, alkoxyl, ester, ether, hydroxyl, halo, haloalkyl, amino, or nitro groups;

(D) Replacement of the aniline ring with any aromatic monocycle whether or not further substituted in or on the aromatic monocycle; or

(E) Replacement of the N-propionyl group by another acyl group.

(b) Any of the following opium derivatives, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) Acetorphine;

(2) Acetyldihydrocodeine;

(3) Benzylmorphine;

(4) Codeine methylbromide;

(5) Codeine-N-Oxide;

(6) Cyprenorphine;

(7) Desomorphine;

(8) Dihydromorphine;

(9) Drotebanol;

(10) Etorphine, except hydrochloride salt;

(11) Heroin;

(12) Hydromorphinol;

(13) Methyldesorphine;

(14) Methyldihydromorphine;

(15) Morphine methylbromide;

(16) Morphine methylsulfonate;

(17) Morphine-N-Oxide;

(18) Myrophine;

(19) Nicocodeine;

(20) Nicomorphine;

(21) Normorphine;

(22) Pholcodine; and

(23) Thebacon.

(c) Any material, compound, mixture, or preparation which contains any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, unless specifically excepted, whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation, and, for purposes of this subdivision only, isomer shall include the optical, position, and geometric isomers:

(1) Bufotenine. Trade and other names shall include, but are not limited to: 3-(beta-Dimethylaminoethyl)-5-hydroxyindole; 3-(2-dimethylaminoethyl)-5-indolol; N,N-dimethylserotonin; 5-hydroxy-N,N-dimethyltryptamine; and mappine;

(2) 4-bromo-2,5-dimethoxyamphetamine. Trade and other names shall include, but are not limited to: 4-bromo-2,5-dimethoxy-alpha-methylphenethylamine; and 4-bromo-2,5-DMA;

(3) 4-methoxyamphetamine. Trade and other names shall include, but are not limited to: 4-methoxy-alpha-methylphenethylamine; and paramethoxyamphetamine, PMA;

(4) 4-methyl-2,5-dimethoxyamphetamine. Trade and other names shall include, but are not limited to: 4-methyl-2,5-dimethoxy-alpha-methylphenethylamine; DOM; and STP;

(5) Para-methoxymethamphetamine. Trade and other names shall include, but are not limited to: 1-(4-Methoxyphenyl)-N-methylpropan-2-amine, PMMA, and 4-MMA;

(6) Ibogaine. Trade and other names shall include, but are not limited to: 7-Ethyl-6,6beta,7,8,9,10,12,13-octahydro-2-methoxy-6,9-methano-5H-pyrido (1',2':1,2) azepino (5,4-b) indole; and Tabernanthe iboga;

(7) Lysergic acid diethylamide;

(8) Marijuana;

(9) Mescaline;

(10) Methoxetamine (MXE);

(11) Peyote. Peyote shall mean all parts of the plant presently classified botanically as Lophophora williamsii Lemaire, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, salts, derivative, mixture, or preparation of such plant or its seeds or extracts;

(12) Psilocybin;

(13) Psilocyn;

(14) Tetrahydrocannabinols, including, but not limited to, synthetic equivalents of the substances contained in the plant or in the resinous extractives of cannabis, sp. or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following: Delta 1 cis or trans tetrahydrocannabinol and their optical isomers, excluding dronabinol in a drug product approved by the federal Food and Drug Administration; Delta 6 cis or trans tetrahydrocannabinol and their optical isomers; and Delta 3,4 cis or trans tetrahydrocannabinol and its optical isomers. Since nomenclature of these substances is not internationally standardized, compounds of these structures shall be included regardless of the numerical designation of atomic positions covered. Tetrahydrocannabinols does not include cannabidiol contained in a drug product approved by the federal Food and Drug Administration;

(15) N-ethyl-3-piperidyl benzilate;

(16) N-methyl-3-piperidyl benzilate;

(17) Thiophene analog of phencyclidine. Trade and other names shall include, but are not limited to: 1-(1-(2-thienyl)-cyclohexyl)-piperidine; 2-thienyl analog of phencyclidine; TPCP; and TCP;

(18) Hashish or concentrated cannabis;

(19) Parahexyl. Trade and other names shall include, but are not limited to: 3-Hexyl-1-hydroxy-7,8,9,10-tetrahydro-6,6,9-trimethyl-6H-dibenzo(b,d)pyran; and Synhexyl;

(20) Ethylamine analog of phencyclidine. Trade and other names shall include, but are not limited to: N-ethyl-1-phenylcyclohexylamine; (1-phenylcyclohexyl)ethylamine; N-(1-phenylcyclohexyl)ethylamine; cyclohexamine; and PCE;

(21) Pyrrolidine analog of phencyclidine. Trade and other names shall include, but are not limited to: 1-(1-phenylcyclohexyl)-pyrrolidine; PCPy; and PHP;

(22) Alpha-ethyltryptamine. Some trade or other names: etryptamine; Monase; alpha-ethyl-1H-indole-3-ethanamine; 3-(2-aminobutyl) indole; alpha-ET; and AET;

(23) 2,5-dimethoxy-4-ethylamphet-amine; and DOET;

(24) 1-(1-(2-thienyl)cyclohexyl)pyrrolidine; and TCPy;

(25) Alpha-methyltryptamine, which is also known as AMT;

(26) Salvia divinorum or Salvinorin A. Salvia divinorum or Salvinorin A includes all parts of the plant presently classified botanically as Salvia divinorum, whether growing or not, the seeds thereof, any extract from any part of such plant, and every compound, manufacture, derivative, mixture, or preparation of such plant, its seeds, or its extracts, including salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation;

(27) Any material, compound, mixture, or preparation containing any quantity of synthetically produced cannabinoids as listed in subdivisions (A) through (L) of this subdivision, including their salts, isomers, salts of isomers, and nitrogen, oxygen, or sulfur-heterocyclic analogs, unless specifically excepted elsewhere in this section. Since nomenclature of these synthetically produced cannabinoids is not internationally standardized and may continually evolve, these structures or compounds of these structures shall be included under this subdivision, regardless of their specific numerical designation of atomic positions covered, so long as it can be determined through a recognized method of scientific testing or analysis that the substance contains properties that fit within one or more of the following categories:

(A) Tetrahydrocannabinols: Meaning tetrahydrocannabinols naturally contained in a plant of the genus cannabis (cannabis plant), as well as synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, sp. and/or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following: Delta 1 cis or trans tetrahydrocannabinol, and their optical isomers; Delta 6 cis or trans tetrahydrocannabinol, and their optical isomers; Delta 3,4 cis or trans tetrahydrocannabinol, and its optical isomers. This subdivision does not include cannabidiol contained in a drug product approved by the federal Food and Drug Administration;

(B) Naphthoylindoles: Any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(C) Naphthylmethylindoles: Any compound containing a 1 H-indol-3-yl-(1-naphthyl)methane structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(D) Naphthoylpyrroles: Any compound containing a 3-(1-naphthoyl)pyrrole structure with substitution at the nitrogen atom of the pyrrole ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(E) Naphthylideneindenes: Any compound containing a naphthylideneindene structure with substitution at the 3-position of the indene ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(F) Phenylacetylindoles: Any compound containing a 3-phenylacetylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(G) Cyclohexylphenols: Any compound containing a 2-(3-hydroxycyclohexyl)phenol structure with substitution at the 5-position of the phenolic ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not substituted in or on any of the listed ring systems to any extent;

(H) Benzoylindoles: Any compound containing a 3-(benzoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 2-(4-morpholinyl)ethyl group, cyanoalkyl, 1-(N-methyl-2-piperidinyl)methyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(I) Adamantoylindoles: Any compound containing a 3-adamantoylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(J) Tetramethylcyclopropanoylindoles: Any compound containing a 3-tetramethylcyclopropanoylindole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, whether or not further substituted in or on any of the listed ring systems to any extent;

(K) Indole carboxamides: Any compound containing a 1-indole-3-carboxamide structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, substitution at the carboxamide group by an alkyl, methoxy, benzyl, propionaldehyde, adamantyl, 1-naphthyl, phenyl, aminooxoalkyl group, or quinolinyl group, whether or not further substituted in or on any of the listed ring systems to any extent or to the adamantyl, 1-mapthyl, phenyl, aminooxoalkyl, benzyl, or propionaldehyde groups to any extent;

(L) Indole carboxylates: Any compound containing a 1-indole-3-carboxylate structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl, cyanoalkyl, alkenyl, halobenzyl, benzyl, cycloalkylmethyl, cycloalkylethyl, 1-(N-methyl-2-piperidinyl)methyl, 2-(4-morpholinyl)ethyl, 1-(N-methyl-2-pyrrolidinyl)methyl, 1-(N-methyl-3-morpholinyl)methyl, or tetrahydropyranylmethyl group, substitution at the carboxylate group by an alkyl, methoxy, benzyl, propionaldehyde, adamantyl, 1-naphthyl, phenyl, aminooxoalkyl group, or quinolinyl group, whether or not further substituted in or on any of the listed ring systems to any extent or to the adamantyl, 1-mapthyl, phenyl, aminooxoalkyl, benzyl, or propionaldehyde groups to any extent; and

(M) Any nonnaturally occurring substance, chemical compound, mixture, or preparation, not specifically listed elsewhere in these schedules and which is not approved for human consumption by the federal Food and Drug Administration, containing or constituting a cannabinoid receptor agonist as defined in section 28-401;

(28) Zipeprol 1-methoxy-3-[4-(2-methoxy-2-phenylethyl)piperazin-1-yl]-1-phenylpropan-2-ol, including its isomers, esters, ethers, salts, and salts of isomers, esters, and ethers, whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation;

(29) Any material, compound, mixture, or preparation containing any quantity of a substituted phenethylamine as listed in subdivisions (A) through (C) of this subdivision, unless specifically excepted, listed in another schedule, or specifically named in this schedule, that is structurally derived from phenylethan-2-amine by substitution on the phenyl ring with a fused methylenedioxy ring, fused furan ring, or a fused tetrahydrofuran ring; by substitution with two alkoxy groups; by substitution with one alkoxy and either one fused furan, tetrahydrofuran, or tetrahydropyran ring system; or by substitution with two fused ring systems from any combination of the furan, tetrahydrofuran, or tetrahydropyran ring systems, whether or not the compound is further modified in any of the following ways:

(A) Substitution of the phenyl ring by any halo, hydroxyl, alkyl, trifluoromethyl, alkoxy, or alkylthio groups; (B) substitution at the 2-position by any alkyl groups; or (C) substitution at the 2-amino nitrogen atom with alkyl, dialkyl, benzyl, hydroxybenzyl, or methoxybenzyl groups, and including, but not limited to:

(i) 2-(4-Chloro-2,5-dimethoxyphenyl)ethanamine, which is also known as 2C-C or 2,5-Dimethoxy-4-chlorophenethylamine;

(ii) 2-(2,5-Dimethoxy-4-methylphenyl)ethanamine, which is also known as 2C-D or 2,5-Dimethoxy-4-methylphenethylamine;

(iii) 2-(2,5-Dimethoxy-4-ethylphenyl)ethanamine, which is also known as 2C-E or 2,5-Dimethoxy-4-ethylphenethylamine;

(iv) 2-(2,5-Dimethoxyphenyl)ethanamine, which is also known as 2C-H or 2,5-Dimethoxyphenethylamine;

(v) 2-(4-lodo-2,5-dimethoxyphenyl)ethanamine, which is also known as 2C-I or 2,5-Dimethoxy-4-iodophenethylamine;

(vi) 2-(2,5-Dimethoxy-4-nitro-phenyl)ethanamine, which is also known as 2C-N or 2,5-Dimethoxy-4-nitrophenethylamine;

(vii) 2-(2,5-Dimethoxy-4-(n)-propylphenyl)ethanamine, which is also known as 2C-P or 2,5-Dimethoxy-4-propylphenethylamine;

(viii) 2-[4-(Ethylthio)-2,5-dimethoxyphenyl]ethanamine, which is also known as 2C-T-2 or 2,5-Dimethoxy-4-ethylthiophenethylamine;

(ix) 2-[4-(Isopropylthio)-2,5-dimethoxyphenyl]ethanamine, which is also known as 2C-T-4 or 2,5-Dimethoxy-4-isopropylthiophenethylamine;

(x) 2-(4-bromo-2,5-dimethoxyphenyl)ethanamine, which is also known as 2C-B or 2,5-Dimethoxy-4-bromophenethylamine;

(xi) 2-(2,5-dimethoxy-4-(methylthio)phenyl)ethanamine, which is also known as 2C-T or 4-methylthio-2,5-dimethoxyphenethylamine;

(xii) 1-(2,5-dimethoxy-4-iodophenyl)-propan-2-amine, which is also known as DOI or 2,5-Dimethoxy-4-iodoamphetamine;

(xiii) 1-(4-Bromo-2,5-dimethoxyphenyl)-2-aminopropane, which is also known as DOB or 2,5-Dimethoxy-4-bromoamphetamine;

(xiv) 1-(4-chloro-2,5-dimethoxy-phenyl)propan-2-amine, which is also known as DOC or 2,5-Dimethoxy-4-chloroamphetamine;

(xv) 2-(4-bromo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine, which is also known as 2C-B-NBOMe; 25B-NBOMe or 2,5-Dimethoxy-4-bromo-N-(2-methoxybenzyl)phenethylamine;

(xvi) 2-(4-iodo-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine, which is also known as 2C-I-NBOMe; 25I-NBOMe or 2,5-Dimethoxy-4-iodo-N-(2-methoxybenzyl)phenethylamine;

(xvii) N-(2-Methoxybenzyl)-2-(3,4,5-trimethoxyphenyl)ethanamine, which is also known as Mescaline-NBOMe or 3,4,5-trimethoxy-N-(2-methoxybenzyl)phenethylamine;

(xviii) 2-(4-chloro-2,5-dimethoxyphenyl)-N-[(2-methoxyphenyl)methyl]ethanamine, which is also known as 2C-C-NBOMe; or 25C-NBOMe or 2,5-Dimethoxy-4-chloro-N-(2-methoxybenzyl)phenethylamine;

(xix) 2-(7-Bromo-5-methoxy-2,3-dihydro-1-benzofuran-4-yl)ethanamine, which is also known as 2CB-5-hemiFLY;

(xx) 2-(8-bromo-2,3,6,7-tetrahydrofuro [2,3-f][1]benzofuran-4-yl)ethanamine, which is also known as 2C-B-FLY;

(xxi) 2-(10-Bromo-2,3,4,7,8,9-hexahydropyrano[2,3-g]chromen-5-yl)ethanamine, which is also known as 2C-B-butterFLY;

(xxii) N-(2-Methoxybenzyl)-1-(8-bromo-2,3,6,7- tetrahydrobenzo[1,2-b:4,5-b']difuran-4-yl)-2-aminoethane, which is also known as 2C-B-FLY-NBOMe;

(xxiii) 1-(4-Bromofuro[2,3-f][1]benzofuran-8-yl)propan-2-amine, which is also known as bromo-benzodifuranylisopropylamine or bromo-dragonFLY;

(xxiv) N-(2-Hydroxybenzyl)-4-iodo-2,5-dimethoxyphenethylamine, which is also known as 2C-INBOH or 25I-NBOH;

(xxv) 5-(2-Aminopropyl)benzofuran, which is also known as 5-APB;

(xxvi) 6-(2-Aminopropyl)benzofuran, which is also known as 6-APB;

(xxvii) 5-(2-Aminopropyl)-2,3-dihydrobenzofuran, which is also known as 5-APDB;

(xxviii) 6-(2-Aminopropyl)-2,3-dihydrobenzofuran, which is also known as 6-APDB;

(xxix) 2,5-dimethoxy-amphetamine, which is also known as 2, 5-dimethoxy-a-methylphenethylamine; 2, 5-DMA;

(xxx) 2,5-dimethoxy-4-ethylamphetamine, which is also known as DOET;

(xxxi) 2,5-dimethoxy-4-(n)-propylthiophenethylamine, which is also known as 2C-T-7;

(xxxii) 5-methoxy-3,4-methylenedioxy-amphetamine;

(xxxiii) 4-methyl-2,5-dimethoxy-amphetamine, which is also known as 4-methyl-2,5-dimethoxy-amethylphenethylamine; DOM and STP;

(xxxiv) 3,4-methylenedioxy amphetamine, which is also known as MDA;

(xxxv) 3,4-methylenedioxymethamphetamine, which is also known as MDMA;

(xxxvi) 3,4-methylenedioxy-N-ethylamphetamine, which is also known as N-ethyl-alpha-methyl-3,4(methylenedioxy)phenethylamine, MDE, MDEA;

(xxxvii) 3,4,5-trimethoxy amphetamine; and

(xxxviii) n-hydroxy-3, 4-Methylenedioxy-N-Hydroxyamphetamine, which is also known as N-hydroxyMDA;

(30) Any material, compound, mixture, or preparation containing any quantity of a substituted tryptamine unless specifically excepted, listed in another schedule, or specifically named in this schedule, that is structurally derived from 2-(1H-indol-3-yl)ethanamine, which is also known as tryptamine, by mono- or di-substitution of the amine nitrogen with alkyl or alkenyl groups or by inclusion of the amino nitrogen atom in a cyclic structure whether or not the compound is further substituted at the alpha position with an alkyl group or whether or not further substituted on the indole ring to any extent with any alkyl, alkoxy, halo, hydroxyl, or acetoxy groups, and including, but not limited to:

(A) 5-methoxy-N,N-diallyltryptamine, which is also known as 5-MeO-DALT;

(B) 4-acetoxy-N,N-dimethyltryptamine, which is also known as 4-AcO-DMT or OAcetylpsilocin;

(D) 4-hydroxy-N,N-diisopropyltryptamine, which is also known as 4-HO-DIPT;

(E) 5-methoxy-N-methyl-N-isopropyltryptamine, which is also known as 5-MeOMiPT;

(F) 5-Methoxy-N,N-Dimethyltryptamine, which is also known as 5-MeO-DMT;

(G) 5-methoxy-N,N-diisopropyltryptamine, which is also known as 5-MeO-DiPT;

(H) Diethyltryptamine, which is also known as N,N-Diethyltryptamine, DET; and

(I) Dimethyltryptamine, which is also known as DMT; and

(31)(A) Any substance containing any quantity of the following materials, compounds, mixtures, or structures:

(i) 3,4-methylenedioxymethcathinone, or bk-MDMA, or methylone;

(ii) 3,4-methylenedioxypyrovalerone, or MDPV;

(iii) 4-methylmethcathinone, or 4-MMC, or mephedrone;

(iv) 4-methoxymethcathinone, or bk-PMMA, or PMMC, or methedrone;

(v) Fluoromethcathinone, or FMC;

(vi) Naphthylpyrovalerone, or naphyrone; or

(vii) Beta-keto-N-methylbenzodioxolylpropylamine or bk-MBDB or butylone; or

(B) Unless listed in another schedule, any substance which contains any quantity of any material, compound, mixture, or structure, other than bupropion, that is structurally derived by any means from 2-aminopropan-1-one by substitution at the 1-position with either phenyl, naphthyl, or thiophene ring systems, whether or not the compound is further modified in any of the following ways:

(i) Substitution in the ring system to any extent with alkyl, alkoxy, alkylenedioxy, haloalkyl, hydroxyl, or halide substituents, whether or not further substituted in the ring system by one or more other univalent substituents;

(ii) Substitution at the 3-position with an acyclic alkyl substituent; or

(iii) Substitution at the 2-amino nitrogen atom with alkyl or dialkyl groups, or by inclusion of the 2-amino nitrogen atom in a cyclic structure.

(d) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) Amineptine 7-[(10,11-dihydro-5H-dibenzo[a,d]-cyclohepten-5-yl)amino]heptanoic acid, including its salts, isomers, and salts of isomers;

(2) Mecloqualone;

(3) Methaqualone; and

(4) Gamma-Hydroxybutyric Acid. Some other names include: GHB; Gamma-hydroxybutyrate; 4-Hydroxybutyrate; 4-Hydroxybutanoic Acid; Sodium Oxybate; and Sodium Oxybutyrate.

(e) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers:

(1) Fenethylline;

(2) N-ethylamphetamine;

(3) Aminorex; aminoxaphen; 2-amino-5-phenyl-2-oxazoline; or 4,5-dihydro-5-phenyl-2-oxazolamine;

(4) Cathinone; 2-amino-1-phenyl-1-propanone; alpha-aminopropiophenone; 2-aminopropiophenone; and norephedrone;

(5) Methcathinone, its salts, optical isomers, and salts of optical isomers. Some other names: 2-(methylamino)-propiophenone; alpha-(methylamino)propiophenone; 2-(methylamino)-1-phenylpropan-1-one; alpha-N-methylaminopropiophenone; methylcathinone; monomethylpropion; ephedrone; N-methylcathinone; AL-464; AL-422; AL-463; UR1432; and 4-MEC;

(6) (+/-)cis-4-methylaminorex; and (+/-)cis-4,5-dihydro-4-methyl-5-phenyl-2-oxazolamine;

(7) N,N-dimethylamphetamine; N,N-alpha-trimethyl-benzeneethanamine; and N,N-alpha-trimethylphenethylamine;

(8) Benzylpiperazine, 1-benzylpiperazine;

(9) 4,4'-dimethylaminorex (other names: 4,4'-DMAR, 4,5-dihydro-4-methyl-5-(4-methylphenyl)-2-oxazolamine); and

(10) N-phenyl-N' -(3-(1- phenylpropan-2-yl)-1,2,3-oxadiazol-3- ium-5-yl)carbamimidate), including its salts, isomers, and salts of isomers.

(f) Any controlled substance analogue to the extent intended for human consumption.

Schedule II

(a) Any of the following substances except those narcotic drugs listed in other schedules whether produced directly or indirectly by extraction from substances of vegetable origin, independently by means of chemical synthesis, or by combination of extraction and chemical synthesis:

(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate, excluding apomorphine, buprenorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, nalmefene, naloxone, and naltrexone and their salts, but including the following:

(A) Raw opium;

(B) Opium extracts;

(D) Powdered opium;

(E) Granulated opium;

(F) Tincture of opium;

(G) Codeine;

(H) Ethylmorphine;

(I) Etorphine hydrochloride;

(J) Hydrocodone;

(K) Hydromorphone;

(L) Metopon;

(M) Morphine;

(N) Oxycodone;

(O) Oxymorphone;

(P) Oripavine;

(Q) Thebaine; and

(R) Dihydroetorphine;

(2) Any salt, compound, derivative, or preparation thereof which is chemically equivalent to or identical with any of the substances referred to in subdivision (1) of this subdivision, except that these substances shall not include the isoquinoline alkaloids of opium;

(3) Opium poppy and poppy straw;

(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent to or identical with any of these substances, including cocaine or ecgonine and its salts, optical isomers, and salts of optical isomers, except that the substances shall not include decocainized coca leaves or extractions which do not contain cocaine or ecgonine; and

(5) Concentrate of poppy straw, the crude extract of poppy straw in either liquid, solid, or powder form which contains the phenanthrene alkaloids of the opium poppy.

(b) Unless specifically excepted or unless in another schedule any of the following opiates, including their isomers, esters, ethers, salts, and salts of their isomers, esters, and ethers whenever the existence of such isomers, esters, ethers, and salts is possible within the specific chemical designation, dextrorphan excepted:

(1) Alphaprodine;

(2) Anileridine;

(3) Bezitramide;

(4) Diphenoxylate;

(5) Fentanyl;

(6) Isomethadone;

(7) Levomethorphan;

(8) Levorphanol;

(9) Metazocine;

(10) Methadone;

(11) Methadone-intermediate, 4-cyano-2-dimethylamino-4,4-diphenyl butane;

(12) Moramide-intermediate, 2-methyl-3-morpholino-1,1-diphenylpropane-carboxylic acid;

(13) Norfentanyl (N-phenyl-N-piperidin-4-yl) propionamide;

(14) Oliceridine;

(15) Pethidine or meperidine;

(16) Pethidine-Intermediate-A, 4-cyano-1-methyl-4-phenylpiperidine;

(17) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-4-carboxylate;

(18) Pethidine-Intermediate-C, 1-methyl-4-phenylpiperidine-4-carboxylic acid;

(19) Phenazocine;

(20) Piminodine;

(21) Racemethorphan;

(22) Racemorphan;

(23) Dihydrocodeine;

(24) Bulk Propoxyphene in nondosage forms;

(25) Sufentanil;

(26) Alfentanil;

(27) Levo-alphacetylmethadol which is also known as levo-alpha-acetylmethadol, levomethadyl acetate, and LAAM;

(28) Carfentanil;

(29) Remifentanil;

(30) Tapentadol; and

(31) Thiafentanil.

(c) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system:

(1) Amphetamine, its salts, optical isomers, and salts of its optical isomers;

(2) Phenmetrazine and its salts;

(3) Methamphetamine, its salts, isomers, and salts of its isomers;

(4) Methylphenidate; and

(5) Lisdexamfetamine, its salts, isomers, and salts of its isomers.

(d) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system, including their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designations:

(1) Amobarbital;

(2) Secobarbital;

(3) Pentobarbital;

(4) Phencyclidine; and

(5) Glutethimide.

(e) Hallucinogenic substances known as:

(1) Nabilone. Another name for nabilone: (+/-)-trans-3-(1,1-dimethylheptyl)- 6,6a,7,8,10,10a-Hexahydro-1-hydroxy-6,6-dimethyl-9H-dibenzo(b,d)pyran-9-one; and

(2) Dronabinol in an oral solution in a drug product approved by the federal Food and Drug Administration.

(f) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances:

(1) Immediate precursor to amphetamine and methamphetamine: Phenylacetone. Trade and other names shall include, but are not limited to: Phenyl-2-propanone; P2P; benzyl methyl ketone; and methyl benzyl ketone;

(2) Immediate precursors to phencyclidine, PCP:

(A) 1-phenylcyclohexylamine; or

(B) 1-piperidinocyclohexanecarbonitrile, PCC; or

(3) Immediate precursor to fentanyl; 4-anilino-N-phenethylpiperidine (ANPP).

Schedule III

(a) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a stimulant effect on the central nervous system, including their salts, isomers, whether optical, position, or geometric, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) Benzphetamine;

(2) Chlorphentermine;

(3) Clortermine; and

(4) Phendimetrazine.

(b) Any material, compound, mixture, or preparation which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:

(1) Any substance which contains any quantity of a derivative of barbituric acid or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules of this section;

(2) Aprobarbital;

(3) Butabarbital;

(4) Butalbital;

(5) Butethal;

(6) Butobarbital;

(7) Chlorhexadol;

(8) Embutramide;

(9) Lysergic acid;

(10) Lysergic acid amide;

(11) Methyprylon;

(12) Perampanel;

(13) Secbutabarbital;

(14) Sulfondiethylmethane;

(15) Sulfonethylmethane;

(16) Sulfonmethane;

(17) Nalorphine;

(18) Talbutal;

(19) Thiamylal;

(20) Thiopental;

(21) Vinbarbital;

(22) Any compound, mixture, or preparation containing amobarbital, secobarbital, pentobarbital, or any salt thereof and one or more other active medicinal ingredients which are not listed in any schedule;

(23) Any suppository dosage form containing amobarbital, secobarbital, pentobarbital, or any salt of any of these drugs and approved by the federal Food and Drug Administration for marketing only as a suppository;

(24) Any drug product containing gamma-hydroxybutyric acid, including its salts, isomers, and salts of isomers, for which an application is approved under section 505 of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 355, as such section existed on January 1, 2014;

(25) Ketamine, its salts, isomers, and salts of isomers. Some other names for ketamine: (+/-)-2-(2-chlorophenyl)-2-(methylamino)-cyclohexanone; and

(26) Tiletamine and zolazepam or any salt thereof. Trade or other names for a tiletamine-zolazepam combination product shall include, but are not limited to: telazol. Trade or other names for tiletamine shall include, but are not limited to: 2-(ethylamino)-2-(2-thienyl)-cyclohexanone. Trade or other names for zolazepam shall include, but are not limited to: 4-(2-fluorophenyl)-6,8-dihydro-1,3,8-trimethylpyrazolo-(3,4-e) (1,4)-diazepin-7(1H)-one, and flupyrazapon.

(1) Any material, compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs, or any salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:

(A) Not more than one and eight-tenths grams of codeine per one hundred milliliters or not more than ninety milligrams per dosage unit, with an equal or greater quantity of an isoquinoline alkaloid of opium;

(B) Not more than one and eight-tenths grams of codeine per one hundred milliliters or not more than ninety milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(C) Not more than one and eight-tenths grams of dihydrocodeine per one hundred milliliters or not more than ninety milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(D) Not more than three hundred milligrams of ethylmorphine per one hundred milliliters or not more than fifteen milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts;

(E) Not more than five hundred milligrams of opium per one hundred milliliters or per one hundred grams, or not more than twenty-five milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts; and

(F) Not more than fifty milligrams of morphine per one hundred milliliters or per one hundred grams with one or more active, nonnarcotic ingredients in recognized therapeutic amounts; and

(2) Any material, compound, mixture, or preparation containing any of the following narcotic drug or its salts, as set forth below:

(A) Buprenorphine.

(d) Unless contained on the list of exempt anabolic steroids of the Drug Enforcement Administration of the United States Department of Justice as the list existed on January 31, 2022, any anabolic steroid, which shall include any material, compound, mixture, or preparation containing any quantity of the following substances, including its salts, isomers, and salts of isomers whenever the existence of such salts of isomers is possible within the specific chemical designation:

(1) 3-beta,17-dihydroxy-5a-androstane;

(2) 3-alpha,17-beta-dihydroxy-5a-androstane;

(3) 5-alpha-androstan-3,17-dione;

(4) 1-androstenediol (3-beta,17-beta-dihydroxy-5-alpha-androst-1-ene);

(5) 1-androstenediol (3-alpha,17-beta-dihydroxy-5-alpha-androst-1-ene);

(6) 4-androstenediol (3-beta,17-beta-dihydroxy-androst-5-ene);

(7) 5-androstenediol (3-beta,17-beta-dihydroxy-androst-5-ene);

(8) 1-androstenedione ([5-alpha]-androst-1-en-3,17-dione);

(9) 4-androstenedione (androst-4-en-3,17-dione);

(10) 5-androstenedione (androst-5-en-3,17-dione);

(11) Bolasterone (7-alpha,17-alpha-dimethyl-17-beta-hydroxyandrost-4-en-3-one);

(12) Boldenone (17-beta-hydroxyandrost-1,4-diene-3-one);

(13) Boldione (androsta-1,4-diene-3,17-3-one);

(14) Calusterone (7-beta,17-alpha-dimethyl-17-beta-hydroxyandrost-4-en-3-one);

(15) Clostebol (4-chloro-17-beta-hydroxyandrost-4-en-3-one);

(16) Dehydrochloromethyltestosterone (4-chloro-17-beta-hydroxy-17-alpha-methyl-androst-1,4-dien-3-one);

(17) Desoxymethyltestosterone (17-alpha-methyl-5-alpha-androst-2-en-17-beta-ol) (a.k.a. 'madol');

(18) Delta-1-Dihydrotestosterone (a.k.a. '1-testosterone')(17-beta-hydroxy-5-alpha-androst-1-en-3-one);

(19) 4-Dihydrotestosterone (17-beta-hydroxy-androstan-3-one);

(20) Drostanolone (17-beta-hydroxy-2-alpha-methyl-5-alpha-androstan-3-one);

(21) Ethylestrenol (17-alpha-ethyl-17-beta-hydroxyestr-4-ene);

(22) Fluoxymesterone (9-fluoro-17-alpha-methyl-11-beta,17-beta-dihydroxyandrost-4-en-3-one);

(23) Formebulone (formebolone); (2-formyl-17-alpha-methyl-11-alpha,17-beta-dihydroxyandrost-1,4-dien-3-one);

(24) Furazabol (17-alpha-methyl-17-beta-hydroxyandrostano[2,3-c]-furazan);

(25) 13-beta-ethyl-17-beta-hydroxygon-4-en-3-one;

(26) 4-hydroxytestosterone (4,17-beta-dihydroxy-androst-4-en-3-one);

(27) 4-hydroxy-19-nortestosterone (4,17-beta-dihydroxy-estr-4-en-3-one);

(28) Mestanolone (17-alpha-methyl-17-beta-hydroxy-5-androstan-3-one);

(29) Mesterolone (17-alpha-methyl-17-beta-hydroxy-5-androstan-3-one);

(30) Methandienone (17-alpha-methyl-17-beta-hydroxyandrost-1,4-dien-3-one);

(31) Methandriol (17-alpha-methyl-3-beta,17-beta-dihydroxyandrost-5-ene);

(32) Methasterone (2-alpha,17-alpha-dimethyl-5-alpha-androstan-17-beta-ol-3-one);

(33) Methenolone (1-methyl-17-beta-hydroxy-5-alpha-androst-1-en-3-one);

(34) 17-alpha-methyl-3-beta,17-beta-dihydroxy-5a-androstane;

(35) 17-alpha-methyl-3-alpha,17-beta-dihydroxy-5a-androstane;

(36) 17-alpha-methyl-3-beta,17-beta-dihydroxyandrost-4-ene;

(37) 17-alpha-methyl-4-hydroxynandrolone (17-alpha-methyl-4-hydroxy-17-beta-hydroxyestr-4-en-3-one);

(38) Methyldienolone (17-alpha-methyl-17-beta-hydroxyestra-4,9(10)-dien-3-one);

(39) Methyltrienolone (17-alpha-methyl-17-beta-hydroxyestra-4,9,11-trien-3-one);

(40) Methyltestosterone (17-alpha-methyl-17-beta-hydroxyandrost-4-en-3-one);

(41) Mibolerone (7-alpha,17-alpha-dimethyl-17-beta-hydroxyestr-4-en-3-one);

(42) 17-alpha-methyl-delta-1-dihydrotestosterone (17-beta-hydroxy-17-alpha-methyl-5-alpha-androst-1-en-3-one) (a.k.a. '17-alpha-methyl-1-testosterone');

(43) Nandrolone (17-beta-hydroxyestr-4-en-3-one);

(44) 19-nor-4-androstenediol (3-beta, 17-beta-dihydroxyestr-4-ene);

(45) 19-nor-4-androstenediol (3-alpha, 17-beta-dihydroxyestr-4-ene);

(46) 19-nor-5-androstenediol (3-beta, 17-beta-dihydroxyestr-5-ene);

(47) 19-nor-5-androstenediol (3-alpha, 17-beta-dihydroxyestr-5-ene);

(48) 19-nor-4,9(10)-androstadienedione (estra-4,9(10)-diene-3,17-dione);

(49) 19-nor-4-androstenedione (estr-4-en-3,17-dione);

(50) 19-nor-5-androstenedione (estr-5-en-3,17-dione);

(51) Norbolethone (13-beta, 17-alpha-diethyl-17-beta-hydroxygon-4-en-3-one);

(52) Norclostebol (4-chloro-17-beta-hydroxyestr-4-en-3-one);

(53) Norethandrolone (17-alpha-ethyl-17-beta-hydroxyestr-4-en-3-one);

(54) Normethandrolone (17-alpha-methyl-17-beta-hydroxyestr-4-en-3-one);

(55) Oxandrolone (17-alpha-methyl-17-beta-hydroxy-2-oxa-[5-alpha]-androstan-3-one);

(56) Oxymesterone (17-alpha-methyl-4,17-beta-dihydroxyandrost-4-en-3-one);

(57) Oxymetholone (17-alpha-methyl-2-hydroxymethylene-17-beta-hydroxy-[5-alpha]-androstan-3-one);

(58) Prostanozol (17-beta-hydroxy-5-alpha-androstano[3,2-c]pyrazole);

(59) Stanozolol (17-alpha-methyl-17-beta-hydroxy-[5-alpha]-androst-2-eno[3,2-c]-pyrazole);

(60) Stenbolone (17-beta-hydroxy-2-methyl-[5-alpha]-androst-1-en-3-one);

(61) Testolactone (13-hydroxy-3-oxo-13,17-secoandrosta-1,4-dien-17-oic acid lactone);

(62) Testosterone (17-beta-hydroxyandrost-4-en-3-one);

(63) Tetrahydrogestrinone (13-beta, 17-alpha-diethyl-17-beta-hydroxygon-4,9,11-trien-3-one);

(64) Trenbolone (17-beta-hydroxyestr-4,9,11-trien-3-one);

(65) [3,2-c]-furazan-5 alpha-androstane-17 beta-ol;

(66) [3,2-c]pyrazole-androst-4-en-17 beta-ol;

(67) 17 alpha-methyl-androst-ene-3,17 beta-diol;

(68) 17 alpha-methyl-androsta-1,4-diene-3,17 beta-diol;

(69) 17 alpha-methyl-androstan-3-hydroxyimine-17 beta-ol;

(70) 17 beta-hydroxy-androstano[2,3-d]isoxazole;

(71) 17 beta-hydroxy-androstano[3,2-c]isoxazole;

(72) 18a-homo-3-hydroxy-estra-2,5(10)-dien-17-one;

(73) 2 alpha, 3 alpha-epithio-17 alpha-methyl-5 alpha-androstan-17 beta-ol;

(74) 4-chloro-17 alpha-methyl-17 beta-hydroxy-androst-4-en-3-one;

(75) 4-chloro-17 alpha-methyl-17 beta-hydroxy-androst-4-en-3,11-dione;

(76) 4-chloro-17 alpha-methyl-androst-4-ene-3 beta,17 beta-diol;

(77) 4-chloro-17 alpha-methyl-androsta-1,4-diene-3,17 beta-diol;

(78) 4-hydroxy-androst-4-ene-3,17-dione;

(79) 5 alpha-Androstan-3,6,17-trione;

(80) 6-bromo-androst-1,4-diene-3,17-dione;

(81) 6-bromo-androstan-3,17-dione;

(82) 6 alpha-methyl-androst-4-ene-3,17-dione;

(83) Delta 1-dihydrotestosterone;

(84) Estra-4,9,11-triene-3,17-dione; and

(85) Any salt, ester, or ether of a drug or substance described or listed in this subdivision if the salt, ester, or ether promotes muscle growth.

(e) Hallucinogenic substances known as:

(1) Dronabinol, synthetic, in sesame oil and encapsulated in a soft gelatin capsule in a drug product approved by the federal Food and Drug Administration. Some other names for dronabinol are (6aR-trans)-6a,7,8,10a-tetrahydro-6,6,9-trimethyl-3-pentyl-6H-dibenzo (b,d)pyran-1-ol or (-)-delta-9-(trans)-tetrahydrocannabinol.

Schedule IV

(a) Any material, compound, mixture, or preparation which contains any quantity of the following substances, including their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) Barbital;

(2) Chloral betaine;

(3) Chloral hydrate;

(4) Chlordiazepoxide, but not including librax (chlordiazepoxide hydrochloride and clindinium bromide) or menrium (chlordiazepoxide and water soluble esterified estrogens);

(5) Clonazepam;

(6) Clorazepate;

(7) Daridorexant;

(8) Diazepam;

(9) Ethchlorvynol;

(10) Ethinamate;

(11) Flurazepam;

(12) Mebutamate;

(13) Meprobamate;

(14) Methohexital;

(15) Methylphenobarbital;

(16) Oxazepam;

(17) Paraldehyde;

(18) Petrichloral;

(19) Phenobarbital;

(20) Prazepam;

(21) Alprazolam;

(22) Bromazepam;

(23) Camazepam;

(24) Clobazam;

(25) Clotiazepam;

(26) Cloxazolam;

(27) Delorazepam;

(28) Estazolam;

(29) Ethyl loflazepate;

(30) Fludiazepam;

(31) Flunitrazepam;

(32) Halazepam;

(33) Haloxazolam;

(34) Ketazolam;

(35) Loprazolam;

(36) Lorazepam;

(37) Lormetazepam;

(38) Medazepam;

(39) Nimetazepam;

(40) Nitrazepam;

(41) Nordiazepam;

(42) Oxazolam;

(43) Pinazepam;

(44) Temazepam;

(45) Tetrazepam;

(46) Triazolam;

(47) Midazolam;

(48) Quazepam;

(49) Zolpidem;

(50) Dichloralphenazone;

(51) Zaleplon;

(52) Zopiclone;

(53) Fospropofol;

(54) Alfaxalone;

(55) Suvorexant;

(56) Carisoprodol;

(57) Brexanolone; 3 alpha-hydroxy-5 alpha-pregnan-20-one;

(58) Lemborexant;

(59) Solriamfetol; 2-amino-3-phenylpropyl carbamate;

(60) Remimazolam; and

(61) Serdexmethylphenidate.

(b) Any material, compound, mixture, or preparation which contains any quantity of the following substance, including its salts, isomers, whether optical, position, or geometric, and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible: Fenfluramine.

(c) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including their salts, isomers, whether optical, position, or geometric, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation:

(1) Diethylpropion;

(2) Phentermine;

(3) Pemoline, including organometallic complexes and chelates thereof;

(4) Mazindol;

(5) Pipradrol;

(6) SPA, ((-)-1-dimethylamino-1,2-diphenylethane);

(7) Cathine. Another name for cathine is ((+)-norpseudoephedrine);

(8) Fencamfamin;

(9) Fenproporex;

(10) Mefenorex;

(11) Modafinil; and

(12) Sibutramine.

(d) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following narcotic drugs, or their salts or isomers calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:

(1) Propoxyphene in manufactured dosage forms;

(2) Not more than one milligram of difenoxin and not less than twenty-five micrograms of atropine sulfate per dosage unit; and

(3) 2-[(dimethylamino)methyl]-1-(3-methoxyphenyl)cyclohexanol, its salts, optical and geometric isomers, and salts of these isomers to include: Tramadol.

(e) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substance, including its salts:

(1) Pentazocine; and

(2) Butorphanol (including its optical isomers).

(f) Any material, compound, mixture, or preparation which contains any quantity of the following substances, including its salts, isomers, and salts of such isomers, whenever the existence of such salts, isomers, and salts of isomers is possible: Lorcaserin.

(g)(1) Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substance, including its salts, optical isomers, and salts of such optical isomers: Ephedrine.

(2) The following drug products containing ephedrine, its salts, optical isomers, and salts of such optical isomers, are excepted from subdivision (g)(1) of Schedule IV if they (A) are stored behind a counter, in an area not accessible to customers, or in a locked case so that a customer needs assistance from an employee to access the drug product; (B) are sold by a person, eighteen years of age or older, in the course of his or her employment to a customer eighteen years of age or older with the following restrictions: No customer shall be allowed to purchase, receive, or otherwise acquire more than three and six-tenths grams of ephedrine base during a twenty-four-hour period; no customer shall purchase, receive, or otherwise acquire more than nine grams of ephedrine base during a thirty-day period; and the customer shall display a valid driver's or operator's license, a Nebraska state identification card, a military identification card, an alien registration card, or a passport as proof of identification; (C) are labeled and marketed in a manner consistent with the pertinent OTC Tentative Final or Final Monograph; (D) are manufactured and distributed for legitimate medicinal use in a manner that reduces or eliminates the likelihood of abuse; and (E) are not marketed, advertised, or represented in any manner for the indication of stimulation, mental alertness, euphoria, ecstasy, a buzz or high, heightened sexual performance, or increased muscle mass:

(i) Primatene Tablets; and

(ii) Bronkaid Dual Action Caplets.

Schedule V

(a) Any compound, mixture, or preparation containing any of the following limited quantities of narcotic drugs or salts calculated as the free anhydrous base or alkaloid, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:

(1) Not more than two hundred milligrams of codeine per one hundred milliliters or per one hundred grams;

(2) Not more than one hundred milligrams of dihydrocodeine per one hundred milliliters or per one hundred grams;

(3) Not more than one hundred milligrams of ethylmorphine per one hundred milliliters or per one hundred grams;

(4) Not more than two and five-tenths milligrams of diphenoxylate and not less than twenty-five micrograms of atropine sulfate per dosage unit;

(5) Not more than one hundred milligrams of opium per one hundred milliliters or per one hundred grams; and

(6) Not more than five-tenths milligram of difenoxin and not less than twenty-five micrograms of atropine sulfate per dosage unit.

(b) Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers, and salts of isomers: Pyrovalerone.

(c) Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a depressant effect on the central nervous system, including its salts, isomers, and salts of isomers:

(1) Ezogabine (N-(2-amino-4-(4-fluorobenzylamino)-phenyl)-carbamic acid ethyl ester);

(2) Ganaxolone;

(3) Lacosamide ((R)-2-acetoamido-N-benzyl-3-methoxy-propionamide);

(4) Pregabalin ((S)-3-(aminomethyl)-5-methylhexanoic acid);

(5) Brivaracetam ((2S)-2-[(4R)-2-oxo-4-propylpyrrolidin-1-yl] butanamide) (also referred to as BRV; UCB-34714; Briviact), including its salts;

(6) Cenobamate; and

(7) Lasmiditan.

Source:Laws 1977, LB 38, § 65; Laws 1978, LB 748, § 50; Laws 1980, LB 696, § 2; Laws 1985, LB 323, § 2; Laws 1985, LB 406, § 3; Laws 1986, LB 1160, § 1; Laws 1987, LB 473, § 1; Laws 1990, LB 571, § 6; Laws 1992, LB 1019, § 32; Laws 1994, LB 1210, § 3; Laws 1995, LB 406, § 5; Laws 1996, LB 1213, § 4; Laws 1998, LB 1073, § 8; Laws 1999, LB 594, § 1; Laws 2000, LB 1115, § 2; Laws 2001, LB 113, § 10; Laws 2002, LB 500, § 1; Laws 2003, LB 245, § 1; Laws 2005, LB 382, § 2; Laws 2007, LB247, § 2; Laws 2008, LB902, § 1; Laws 2009, LB123, § 1; Laws 2009, LB151, § 1; Laws 2010, LB792, § 1; Laws 2011, LB19, § 1; Laws 2012, LB670, § 1; Laws 2013, LB298, § 1; Laws 2014, LB811, § 4; Laws 2015, LB390, § 4; Laws 2017, LB487, § 5; Laws 2018, LB906, § 1; Laws 2021, LB236, § 2; Laws 2022, LB808, § 1; Laws 2023, LB157, § 6.
Operative Date: September 2, 2023

Annotations

An information containing the descriptive language from this section is not deficient if it contains an incorrect trade name description, since the use of said language is unnecessary to constitute a proper charge and is mere surplusage. State v. Spiegel, 239 Neb. 233, 474 N.W.2d 873 (1991).

Under subsections (c)(10) and (c)(15) of this section and section 28-404, marijuana is a Schedule I controlled substance, and thus is a "drug." State v. Finnegan, 232 Neb. 75, 439 N.W.2d 496 (1989).

28-406. Registration; fees.

(1) The department shall issue registrations and reregistrations to manufacture, distribute, prescribe, or dispense controlled substances within this state on a biennial basis.

(2) The various fees to be paid by applicants for registrations and reregistrations, as required under the Uniform Controlled Substances Act, shall be as follows:

(a) Registration or reregistration to manufacture controlled substances, not less than one hundred dollars and not more than three hundred dollars;

(b) Registration or reregistration to distribute controlled substances, not less than one hundred dollars and not more than three hundred dollars;

(c) Registration or reregistration to prescribe, administer, or dispense controlled substances, not less than twenty dollars and not more than one hundred fifty dollars;

(d) Registration or reregistration to engage in research on the use and effects of controlled substances, not less than fifty dollars and not more than two hundred dollars;

(e) Registration or reregistration to engage in laboratory and analytical analysis of controlled substances, not less than fifty dollars and not more than two hundred dollars; and

(f) Registration or reregistration to provide detoxification treatment or maintenance treatment, not less than twenty dollars and not more than one hundred fifty dollars.

(3) The department shall remit the fees to the State Treasurer for credit to the Professional and Occupational Credentialing Cash Fund.

(4) All registrations and reregistrations shall expire on August 31 of each odd-numbered year. Registration shall be automatically denied without a hearing for nonpayment of fees. Any registration or reregistration not renewed by payment of renewal fees by October 1 of odd-numbered years shall be automatically denied and canceled on October 2 of odd-numbered years without a hearing.

(5) The department is authorized to adopt and promulgate rules and regulations necessary to implement this section.

Source:Laws 1977, LB 38, § 66; Laws 1985, LB 323, § 3; Laws 1992, LB 1019, § 33; Laws 1997, LB 307, § 4; Laws 1997, LB 550, § 1; Laws 1999, LB 594, § 2; Laws 2001, LB 398, § 4; Laws 2003, LB 242, § 2.

28-407. Registration required; exceptions.

(1) Except as otherwise provided in this section, every person who manufactures, prescribes, distributes, administers, or dispenses any controlled substance within this state or who proposes to engage in the manufacture, prescribing, administering, distribution, or dispensing of any controlled substance within this state shall obtain a registration issued by the department, except that on and after January 1, 2000, health care providers credentialed by the department and facilities licensed by the department shall not be required to obtain a separate Nebraska controlled substances registration upon providing proof of a Federal Controlled Substances Registration to the department. Federal Controlled Substances Registration numbers obtained under this section shall not be public information but may be shared by the department for investigative and regulatory purposes if necessary and only under appropriate circumstances to ensure against any unauthorized access to such information.

(2) The following persons shall not be required to register and may lawfully possess controlled substances under the provisions of the Uniform Controlled Substances Act:

(a) An agent, or an employee thereof, of any practitioner, registered manufacturer, distributor, or dispenser of any controlled substance if such agent is acting in the usual course of his or her business or employment;

(b) A common or contract carrier or warehouse keeper, or an employee thereof, whose possession of any controlled substance is in the usual course of his or her business or employment; and

(c) An ultimate user or a person in possession of any controlled substance pursuant to a medical order issued by a practitioner authorized to prescribe.

(3) A separate registration shall be required at each principal place of business of professional practice where the applicant manufactures, distributes, or dispenses controlled substances, except that no registration shall be required in connection with the placement of an emergency box within a long-term care facility pursuant to the provisions of the Emergency Box Drug Act.

(4) The department is authorized to inspect the establishment of a registrant or applicant for registration in accordance with the rules and regulations promulgated.

Source:Laws 1977, LB 38, § 67; Laws 1994, LB 1210, § 4; Laws 1997, LB 307, § 5; Laws 1997, LB 550, § 2; Laws 1999, LB 828, § 1; Laws 2001, LB 398, § 5; Laws 2009, LB195, § 2.

Cross References

Emergency Box Drug Act, see section 71-2410.

28-408. Registration to manufacture or distribute controlled substances; factors considered.

(1) The department shall register an applicant to manufacture or distribute controlled substances included in Schedules I to V of section 28-405 unless the department determines that the issuance of such registration is inconsistent with the public interest. In determining the public interest the department shall consider the following factors:

(a) Maintenance of effective controls against diversion of particular controlled substances and any Schedule I or II substance compounded therefrom into other than legitimate medical, scientific, or industrial channels;

(b) Compliance with applicable state and local law;

(c) Whether the applicant has been convicted of a felony under any law of the United States or of any state or has been convicted of a violation relating to any substance defined in the Uniform Controlled Substances Act as a controlled substance under any law of the United States or any state, except that such fact in itself shall not be an automatic bar to registration;

(d) Past experience in the manufacture or distribution of controlled substances, and the existence in the applicant's establishment of effective controls against diversion; and

(e) Such other factors as may be relevant to and consistent with the public health and safety.

(2) Registration granted under subsection (1) of this section shall not entitle a registrant to manufacture or distribute controlled substances in Schedule I or II of section 28-405 other than those specified in the registration.

(3) Except as otherwise provided in this section and section 28-409, practitioners shall be registered to prescribe, administer, or dispense substances in Schedules II to V of section 28-405 if they are authorized to prescribe, administer, or dispense under the laws of this state. A registration application by a practitioner who wishes to conduct research with Schedule I substances shall be referred to the department for approval or disapproval. Registration to prescribe, administer, or dispense substances in Schedules II to V of section 28-405 or registration for the purpose of bona fide research with Schedule I substances by a practitioner may be denied only on a ground specified in subsection (1) of section 28-409 or if there are reasonable grounds to believe that the applicant will abuse or unlawfully transfer such substances or fail to safeguard adequately his or her supply of such substances against diversion from legitimate medical or scientific use.

(4) Compliance by manufacturers and distributors with the Controlled Substances Act, 21 U.S.C. 801 et seq., as such act existed on May 1, 2001, respecting registration, excluding fees, shall be deemed compliance with this section.

Source:Laws 1977, LB 38, § 68; Laws 1985, LB 323, § 4; Laws 1997, LB 307, § 6; Laws 2001, LB 398, § 6.

28-409. Registrant; disciplinary action; grounds; procedure.

(1) A registration pursuant to section 28-408 to prescribe, administer, manufacture, distribute, or dispense a controlled substance may be denied, suspended, revoked, or renewal refused by the department upon a finding that the applicant or registrant:

(a) Has falsified any application filed pursuant to the Uniform Controlled Substances Act or required by the act;

(b) Has been convicted of a felony subsequent to being granted a registration pursuant to section 28-408 under any law of the United States or of any state or has been convicted of a violation relating to any substance defined in the act as a controlled substance subsequent to being granted a registration pursuant to section 28-408 under any law of the United States or of any state;

(c) Has had his or her federal registration suspended or revoked by competent federal authority and is no longer authorized by federal law to engage in the prescribing, manufacturing, distribution, or dispensing of controlled substances;

(d) Is guilty of any of the acts or offenses listed in section 38-178 for which disciplinary measures may be taken against his or her license, certificate, or registration to practice and which have a rational connection with his or her fitness to prescribe, administer, or dispense a controlled substance. The department may automatically revoke or suspend the registration of a practitioner who has had his or her license, certificate, or registration to practice revoked or suspended and is no longer authorized to prescribe, administer, or dispense under the laws of this state or who has had his or her license, certificate, or registration to practice limited or restricted and is no longer authorized to prescribe, administer, or dispense controlled substances under the laws of this state;

(e) Is habitually intoxicated or is dependent upon or actively addicted to alcohol or any controlled substance or narcotic drug; or

(f) Has violated the Uniform Controlled Substances Act or any rules or regulations adopted and promulgated pursuant to the act.

(2) The department may limit revocation or suspension of a registration to the particular controlled substance with respect to which grounds for revocation or suspension exist.

(3) A person whose registration or renewal has been denied, revoked, or suspended shall be afforded an opportunity for a hearing in accordance with the Administrative Procedure Act. Such proceedings shall be independent of, and not in lieu of, criminal prosecutions or other proceedings under the Uniform Controlled Substances Act or any law of the state, except that such proceedings may be consolidated with proceedings under the Uniform Credentialing Act. Proceedings to refuse renewal of registration shall not abate the existing registration which shall remain in effect pending the outcome of the administrative hearing, except in cases when the department finds that there is an imminent danger to the public health or safety.

(4) The department may suspend any registration simultaneously with the institution of proceedings under this section or when renewal of registration is refused in cases when the department finds that there is an imminent danger to the public health or safety. Such suspension shall continue in effect until the conclusion of such proceedings, including judicial review thereof, unless sooner withdrawn by the department or dissolved by a court of competent jurisdiction.

(5) In the event the department suspends or revokes a registration granted under section 28-408, all controlled substances owned or possessed by the registrant pursuant to such registration at the time of suspension or the effective date of the revocation order, as the case may be, may in the discretion of the department be placed under seal. No disposition may be made of substances under seal until the time for taking an appeal has elapsed or until all appeals have been concluded unless a court, upon application therefor, orders the sale of perishable substances and the deposit of the proceeds of the sale with the court. Upon a revocation order becoming final, all such controlled substances may be forfeited to the state.

(6) The administration shall be promptly notified of all orders limiting, suspending, or revoking registration.

Source:Laws 1977, LB 38, § 69; Laws 1985, LB 323, § 5; Laws 1991, LB 456, § 1; Laws 1994, LB 1210, § 5; Laws 2001, LB 398, § 7; Laws 2007, LB463, § 1121.

Cross References

Administrative Procedure Act, see section 84-920.

Uniform Credentialing Act, see section 38-101.

28-410. Records of registrants; inventory; violation; penalty; storage.

(1) Each registrant manufacturing, distributing, or dispensing controlled substances in Schedule I, II, III, IV, or V of section 28-405 shall keep and maintain a complete and accurate record of all stocks of such controlled substances on hand. Such records shall be maintained for five years.

(2) Each registrant manufacturing, distributing, storing, or dispensing such controlled substances shall prepare an annual inventory of each controlled substance in his or her possession. Such inventory shall (a) be taken within one year after the previous annual inventory date, (b) contain such information as shall be required by the Board of Pharmacy, (c) be copied and such copy forwarded to the department within thirty days after completion, (d) be maintained at the location listed on the registration for a period of five years, (e) contain the name, address, and Drug Enforcement Administration number of the registrant, the date and time of day the inventory was completed, and the signature of the person responsible for taking the inventory, (f) list the exact count or measure of all controlled substances listed in Schedules I, II, III, IV, and V of section 28-405, and (g) be maintained in permanent, read-only format separating the inventory for controlled substances listed in Schedules I and II of section 28-405 from the inventory for controlled substances listed in Schedules III, IV, and V of section 28-405. A registrant whose inventory fails to comply with this subsection shall be guilty of a Class IV misdemeanor.

(3) This section shall not apply to practitioners who prescribe or administer, as a part of their practice, controlled substances listed in Schedule II, III, IV, or V of section 28-405 unless such practitioner regularly engages in dispensing any such drug or drugs to his or her patients.

(4) Controlled substances shall be stored in accordance with the following:

(a) All controlled substances listed in Schedule I of section 28-405 must be stored in a locked cabinet; and

(b) All controlled substances listed in Schedule II, III, IV, or V of section 28-405 must be stored in a locked cabinet or distributed throughout the inventory of noncontrolled substances in a manner which will obstruct theft or diversion of the controlled substances or both.

(5) Each pharmacy which is registered with the administration and in which controlled substances are stored or dispensed shall complete a controlled-substances inventory when there is a change in the pharmacist-in-charge. The inventory shall contain the information required in the annual inventory, and the original copy shall be maintained in the pharmacy for five years after the date it is completed.

Source:Laws 1977, LB 38, § 70; Laws 1996, LB 1108, § 2; Laws 1997, LB 307, § 7; Laws 1997, LB 550, § 3; Laws 2001, LB 398, § 8; Laws 2003, LB 242, § 3; Laws 2008, LB902, § 2; Laws 2017, LB166, § 1.

28-411. Controlled substances; records; by whom kept; contents; compound controlled substances; duties.

(1) Every practitioner who is authorized to administer or professionally use controlled substances shall keep a record of such controlled substances received by him or her and a record of all such controlled substances administered or professionally used by him or her, other than by medical order issued by a practitioner authorized to prescribe, in accordance with subsection (4) of this section.

(2) Manufacturers, wholesalers, distributors, and reverse distributors shall keep records of all controlled substances compounded, mixed, cultivated, grown, or by any other process produced or prepared and of all controlled substances received and disposed of by them, in accordance with subsection (4) of this section.

(3) Pharmacies shall keep records of all controlled substances received and disposed of by them, in accordance with subsection (4) of this section.

(4)(a) The record of controlled substances received shall in every case show (i) the date of receipt, (ii) the name, address, and Drug Enforcement Administration number of the person receiving the controlled substances, (iii) the name, address, and Drug Enforcement Administration number of the person from whom received, (iv) the kind and quantity of controlled substances received, (v) the kind and quantity of controlled substances produced or removed from process of manufacture, and (vi) the date of such production or removal from process of manufacture.

(b) The record shall in every case show the proportion of morphine, cocaine, or ecgonine contained in or producible from crude opium or coca leaves received or produced. The record of all controlled substances sold, administered, dispensed, or otherwise disposed of shall show the date of selling, administering, or dispensing, the name and address of the person to whom or for whose use or the owner and species of animal for which the controlled substances were sold, administered, or dispensed, and the kind and quantity of controlled substances. For any lost, destroyed, or stolen controlled substances, the record shall list the kind and quantity of such controlled substances and the discovery date of such loss, destruction, or theft.

(5) Any person authorized to compound controlled substances shall comply with section 38-2867.01.

Source:Laws 1977, LB 38, § 71; Laws 1988, LB 273, § 4; Laws 1995, LB 406, § 6; Laws 1996, LB 1044, § 69; Laws 2001, LB 398, § 9; Laws 2015, LB37, § 28; Laws 2017, LB166, § 2.

28-412. Narcotic drugs; administration to narcotic-dependent person; violation; penalty.

(1) It is unlawful to prescribe any narcotic drug listed in section 28-405, except buprenorphine, for the purpose of detoxification treatment or maintenance treatment except as provided in this section.

(2) A narcotic drug may be administered or dispensed to a narcotic-dependent person for detoxification treatment or maintenance treatment by a practitioner who is registered to provide detoxification treatment or maintenance treatment pursuant to section 28-406.

(3) A narcotic drug may be administered or dispensed to a narcotic-dependent person when necessary to relieve acute withdrawal symptoms pending the referral of such person for detoxification treatment or maintenance treatment by a physician who is not registered to provide detoxification treatment or maintenance treatment under section 28-406. Not more than one day's supply of narcotic drugs shall be administered or dispensed for such person's use at one time. Such treatment shall not be continued for more than three successive calendar days and may not be renewed or extended.

(4) A narcotic drug may be administered or dispensed in a hospital to maintain or detoxify a person as an incidental adjunct to medical or surgical treatment conditions other than dependence.

(5) Any person who violates this section is guilty of a Class IV felony.

(6) For purposes of this section:

(a) Detoxification treatment means the administering or dispensing of a narcotic drug in decreasing doses to a person for a specified period of time to alleviate adverse physiological or psychological effects incident to withdrawal from the continuous or sustained use of a narcotic drug and to bring such person to a narcotic drug-free state within such period of time. Detoxification treatment includes short-term detoxification treatment and long-term detoxification treatment;

(b) Long-term detoxification treatment means detoxification treatment for a period of more than thirty days but not more than one hundred eighty days;

(c) Maintenance treatment means the administering or dispensing of a narcotic drug in the treatment of a narcotic-dependent person for a period of more than twenty-one days; and

(d) Short-term detoxification treatment means detoxification treatment for a period of not more than thirty days.

Source:Laws 1977, LB 38, § 72; Laws 1996, LB 1044, § 70; Laws 1996, LB 1108, § 3; Laws 1999, LB 379, § 2; Laws 1999, LB 594, § 3; Laws 2001, LB 398, § 10; Laws 2007, LB247, § 3.

28-413. Distribution to another registrant; manner.

Controlled substances listed in Schedules I and II of section 28-405 shall be distributed by a registrant to another registrant pursuant to an order form or the electronic controlled substance ordering system of the administration.

Compliance with the provisions of the Controlled Substances Act, 21 U.S.C. 801 et seq., as such act existed on January 1, 2014, respecting order forms shall be deemed compliance with this section.

Source:Laws 1977, LB 38, § 73; Laws 2001, LB 398, § 11; Laws 2014, LB811, § 5.

28-414. Controlled substance; Schedule II; prescription; requirements; contents.

(1) Except as otherwise provided in this section or section 28-412 or when administered directly by a practitioner to an ultimate user, a controlled substance listed in Schedule II of section 28-405 shall not be dispensed without a prescription from a practitioner authorized to prescribe. Beginning January 1, 2022, all such prescriptions shall be subject to section 38-1,146, except that all such prescriptions issued by a practitioner who is a dentist shall be subject to section 38-1,146 beginning January 1, 2024. No prescription for a controlled substance listed in Schedule II of section 28-405 shall be filled more than six months from the date of issuance. A prescription for a controlled substance listed in Schedule II of section 28-405 shall not be refilled.

(2) A prescription for controlled substances listed in Schedule II of section 28-405 must contain the following information prior to being filled by a pharmacist or dispensing practitioner: (a) Patient's name and address, (b) name of the drug, device, or biological, (c) strength of the drug or biological, if applicable, (d) dosage form of the drug or biological, (e) quantity of the drug, device, or biological prescribed, (f) directions for use, (g) date of issuance, (h) prescribing practitioner's name and address, and (i) Drug Enforcement Administration number of the prescribing practitioner. If the prescription is a written paper prescription, the paper prescription must contain the prescribing practitioner's manual signature. If the prescription is an electronic prescription, the electronic prescription must contain all of the elements in subdivisions (a) through (i) of this subsection, must be digitally signed, and must be transmitted to and received by the pharmacy electronically to meet all of the requirements of the Controlled Substances Act, 21 U.S.C. 801 et seq., as it existed on January 1, 2014, pertaining to electronic prescribing of controlled substances.

(3)(a) In emergency situations, a controlled substance listed in Schedule II of section 28-405 may be dispensed pursuant to an oral prescription reduced to writing in accordance with subsection (2) of this section, except for the prescribing practitioner's signature, and bearing the word "emergency".

(b) For purposes of this section, emergency situation means a situation in which a prescribing practitioner determines that (i) immediate administration of the controlled substance is necessary for proper treatment of the patient, (ii) no appropriate alternative treatment is available, including administration of a drug which is not a controlled substance listed in Schedule II of section 28-405, and (iii) it is not reasonably possible for the prescribing practitioner to provide a signed, written or electronic prescription to be presented to the person dispensing the controlled substance prior to dispensing.

(4)(a) In nonemergency situations:

(i) A controlled substance listed in Schedule II of section 28-405 may be dispensed pursuant to a facsimile of a written, signed paper prescription if the original written, signed paper prescription is presented to the pharmacist for review before the controlled substance is dispensed, except as provided in subdivision (a)(ii) or (iii) of this subsection;

(ii) A narcotic drug listed in Schedule II of section 28-405 may be dispensed pursuant to a facsimile of a written, signed paper prescription (A) to be compounded for direct parenteral administration to a patient for the purpose of home infusion therapy or (B) for administration to a patient enrolled in a hospice care program and bearing the words "hospice patient"; and

(iii) A controlled substance listed in Schedule II of section 28-405 may be dispensed pursuant to a facsimile of a written, signed paper prescription for administration to a resident of a long-term care facility.

(b) For purposes of subdivisions (a)(ii) and (iii) of this subsection, a facsimile of a written, signed paper prescription shall serve as the original written prescription and shall be maintained in accordance with subsection (1) of section 28-414.03.

(5)(a) A prescription for a controlled substance listed in Schedule II of section 28-405 may be partially filled if the pharmacist does not supply the full quantity prescribed and he or she makes a notation of the quantity supplied on the face of the prescription or in the electronic record. The remaining portion of the prescription may be filled no later than thirty days after the date on which the prescription is written. The pharmacist shall notify the prescribing practitioner if the remaining portion of the prescription is not or cannot be filled within such period. No further quantity may be supplied after such period without a new written, signed paper prescription or electronic prescription.

(b) A prescription for a controlled substance listed in Schedule II of section 28-405 written for a patient in a long-term care facility or for a patient with a medical diagnosis documenting a terminal illness may be partially filled. Such prescription shall bear the words "terminally ill" or "long-term care facility patient" on its face or in the electronic record. If there is any question whether a patient may be classified as having a terminal illness, the pharmacist shall contact the prescribing practitioner prior to partially filling the prescription. Both the pharmacist and the prescribing practitioner have a corresponding responsibility to assure that the controlled substance is for a terminally ill patient. For each partial filling, the dispensing pharmacist shall record on the back of the prescription or on another appropriate record, uniformly maintained and readily retrievable, the date of the partial filling, quantity dispensed, remaining quantity authorized to be dispensed, and the identification of the dispensing pharmacist. The total quantity of controlled substances listed in Schedule II which is dispensed in all partial fillings shall not exceed the total quantity prescribed. A prescription for a Schedule II controlled substance for a patient in a long-term care facility or a patient with a medical diagnosis documenting a terminal illness is valid for sixty days from the date of issuance or until discontinuance of the prescription, whichever occurs first.

Source:Laws 1977, LB 38, § 74; Laws 1988, LB 273, § 5; Laws 1995, LB 406, § 7; Laws 1996, LB 1108, § 4; Laws 1997, LB 307, § 8; Laws 1999, LB 594, § 4; Laws 2000, LB 819, § 65; Laws 2001, LB 398, § 12; Laws 2004, LB 1005, § 2; Laws 2005, LB 382, § 3; Laws 2007, LB463, § 1122; Laws 2009, LB195, § 3; Laws 2011, LB179, § 1; Laws 2014, LB811, § 6; Laws 2017, LB166, § 3; Laws 2021, LB583, § 1.

Annotations

The State did not violate the defendant's due process privacy rights through its warrantless, investigatory access to her prescription records; the reporting and monitoring of prescription records was a rational exercise of the State's broad police powers. State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

28-414.01. Controlled substance; Schedule III, IV, or V; medical order, required; prescription; requirements; contents; pharmacist; authority to adapt prescription; duties.

(1) Except as otherwise provided in this section or when administered directly by a practitioner to an ultimate user, a controlled substance listed in Schedule III, IV, or V of section 28-405 shall not be dispensed without a written, oral, or electronic medical order. Such medical order is valid for six months after the date of issuance. Original prescription information for any controlled substance listed in Schedule III, IV, or V of section 28-405 may be transferred between pharmacies for purposes of refill dispensing pursuant to section 38-2871.

(2) A prescription for controlled substances listed in Schedule III, IV, or V of section 28-405 must contain the following information prior to being filled by a pharmacist or dispensing practitioner: (a) Patient's name and address, (b) name of the drug, device, or biological, (c) strength of the drug or biological, if applicable, (d) dosage form of the drug or biological, (e) quantity of the drug, device, or biological prescribed, (f) directions for use, (g) date of issuance, (h) number of refills, including pro re nata or PRN refills, not to exceed five refills within six months after the date of issuance, (i) prescribing practitioner's name and address, and (j) Drug Enforcement Administration number of the prescribing practitioner. Beginning January 1, 2022, all such prescriptions shall be subject to section 38-1,146, except that all such prescriptions issued by a practitioner who is a dentist shall be subject to section 38-1,146 beginning January 1, 2024. If the prescription is a written paper prescription, the paper prescription must contain the prescribing practitioner's manual signature. If the prescription is an electronic prescription, the electronic prescription must contain all of the elements in subdivisions (a) through (j) of this subsection, must be digitally signed, and must be transmitted to and received by the pharmacy electronically to meet all of the requirements of 21 C.F.R. 1311, as the regulation existed on January 1, 2014, pertaining to electronic prescribing of controlled substances.

(3)(a) A pharmacist who is exercising reasonable care and who has obtained patient consent may do the following:

(i) Change the quantity of a drug prescribed if:

(A) The prescribed quantity or package size is not commercially available; or

(B) The change in quantity is related to a change in dosage form;

(ii) Change the dosage form of the prescription if it is in the best interest of the patient and if the directions for use are also modified to equate to an equivalent amount of drug dispensed as prescribed;

(iii) Dispense multiple months' supply of a drug if a prescription is written with sufficient refills; and

(iv) Substitute any chemically equivalent drug product for a prescribed drug to comply with a drug formulary which is covered by the patient's health insurance plan unless the prescribing practitioner specifies "no substitution", "dispense as written", or "D.A.W." to indicate that substitution is not permitted. If a pharmacist substitutes any chemically equivalent drug product as permitted under this subdivision, the pharmacist shall provide notice to the prescribing practitioner or the prescribing practitioner's designee. If drug product selection occurs involving a generic substitution, the drug product selection shall comply with section 38-28,111.

(b) A pharmacist who adapts a prescription in accordance with this subsection shall document the adaptation in the patient's pharmacy record.

(4) A controlled substance listed in Schedule III, IV, or V of section 28-405 may be dispensed pursuant to a facsimile of a written, signed paper prescription. The facsimile of a written, signed paper prescription shall serve as the original written prescription for purposes of this subsection and shall be maintained in accordance with subsection (2) of section 28-414.03.

(5) A prescription for a controlled substance listed in Schedule III, IV, or V of section 28-405 may be partially filled if (a) each partial filling is recorded in the same manner as a refilling, (b) the total quantity dispensed in all partial fillings does not exceed the total quantity prescribed, and (c) each partial filling is dispensed within six months after the prescription was issued.

Source:Laws 2014, LB811, § 7; Laws 2017, LB166, § 4; Laws 2020, LB1052, § 1; Laws 2021, LB583, § 2.

28-414.02. Prescription created, signed, transmitted, and received electronically; records.

(1) If a prescription is created, signed, transmitted, and received electronically, all records related to that prescription must be retained electronically.

(2) Electronic records must be maintained electronically for five years after the date of their creation or receipt.

(3) Records regarding controlled substances must be readily retrievable from all other records. Electronic records must be easily readable or easily rendered into a format that a person can read.

(4) Records of electronic prescriptions for controlled substances shall be maintained in an application that meets the requirements of 21 C.F.R. 1311, as the regulation existed on January 1, 2014. The computers on which the records are maintained may be located at another location, but the records must be readily retrievable at the registered location if requested by an agent of the department or the administration or other law enforcement agent. The electronic application must be capable of printing out or transferring the records in a format that is readily understandable to an agent of the department or the administration or other law enforcement agent at the registered location.

Source:Laws 2014, LB811, § 8.

28-414.03. Controlled substances; maintenance of records; label.

(1) Paper prescriptions for all controlled substances listed in Schedule II of section 28-405 shall be kept in a separate file by the dispensing practitioner and shall be maintained for a minimum of five years. The practitioner shall make all such files readily available to the department and law enforcement for inspection without a search warrant.

(2) Prescriptions for all controlled substances listed in Schedule III, IV, or V of section 28-405 shall be maintained either separately from other prescriptions or in a form in which the information required is readily retrievable from ordinary business records of the dispensing practitioner and shall be maintained for a minimum of five years. The practitioner shall make all such records readily available to the department, the administration, and law enforcement for inspection without a search warrant.

(3) Before dispensing any controlled substance listed in Schedule II, III, IV, or V of section 28-405, the dispensing practitioner shall affix a label to the container in which the controlled substance is dispensed. Such label shall bear the name and address of the pharmacy or dispensing practitioner, the name of the patient, the date of filling, the serial number of the prescription under which it is recorded in the practitioner's prescription records, the name of the prescribing practitioner, and the directions for use of the controlled substance. Unless the prescribing practitioner writes "do not label" or words of similar import on the original paper prescription or so designates in an electronic prescription or an oral prescription, such label shall also bear the name of the controlled substance.

(4) For multidrug containers, more than one drug, device, or biological may be dispensed in the same container when (a) such container is prepackaged by the manufacturer, packager, or distributor and shipped directly to the pharmacy in this manner or (b) the container does not accommodate greater than a thirty-one-day supply of compatible dosage units and is labeled to identify each drug or biological in the container in addition to all other information required by law.

(5) If a pharmacy fills prescriptions for controlled substances on behalf of another pharmacy under contractual agreement or common ownership, the prescription label shall contain the Drug Enforcement Administration number of the pharmacy at which the prescriptions are filled.

Source:Laws 2014, LB811, § 9; Laws 2017, LB166, § 5.

28-414.04. Controlled substance; transfer.

A registrant who is the owner of a controlled substance may transfer:

(1) Any controlled substance listed in Schedule I or II of section 28-405 to another registrant as provided by law or by rule and regulation of the department; and

(2) Any controlled substance listed in Schedule III, IV, or V of section 28-405 to another registrant if such owner complies with subsection (4) of section 28-411.

Source:Laws 2014, LB811, § 10.

28-414.05. Controlled substance; destruction; records.

(1) The owner of any stock of controlled substances may cause such controlled substances to be destroyed pursuant to this section when the need for such substances ceases. Complete records of the destruction of controlled substances pursuant to this section shall be maintained by the registrant for five years after the date of destruction.

(2) If the owner is a registrant:

(a) Controlled substances listed in Schedule II, III, IV, or V of section 28-405 may be destroyed by a pharmacy inspector, by a reverse distributor, or by the administration. Upon destruction, any forms required by the administration to document such destruction shall be completed;

(b) Liquid controlled substances in opened containers which originally contained fifty milliliters or less or compounded liquid controlled substances within the facility where they were compounded may be destroyed if witnessed by two individuals credentialed under the Uniform Credentialing Act and designated by the facility and recorded in accordance with subsection (4) of section 28-411; or

(c) Solid controlled substances in opened unit-dose containers or which have been adulterated within a hospital where they were to be administered to patients in such hospital may be destroyed if witnessed by two individuals credentialed under the Uniform Credentialing Act and designated by the hospital and recorded in accordance with subsection (4) of section 28-411.

(3) If the owner is a resident of a long-term care facility or hospital, a controlled substance listed in Schedule II, III, IV, or V of section 28-405 shall be destroyed by two individuals credentialed under the Uniform Credentialing Act and designated by the facility or hospital.

Source:Laws 2014, LB811, § 11.

Cross References

Uniform Credentialing Act, see section 38-101.

28-414.06. Controlled substance; practitioner; provide information; limit on liability or penalty.

(1) Any practitioner who gives information to a law enforcement officer or professional board appointed pursuant to the Uniform Credentialing Act shall not be subject to any civil, criminal, or administrative liability or penalty for giving such information.

(2) As used in this section, unless the context otherwise requires:

(a) Information means information regarding unlawfully obtaining or attempting to obtain from a practitioner (i) a controlled substance, (ii) a written or oral prescription for a controlled substance, or (iii) the administration of a controlled substance; and

(b) Law enforcement officer has the definition found in section 81-1401.

Source:Laws 1988, LB 273, § 2; R.S.1943, (2008), § 28-1438.01; Laws 2014, LB811, § 12.

Cross References

Uniform Credentialing Act, see section 38-101.

28-414.07. Controlled substances; chemical analysis; admissible as evidence in preliminary hearing.

Whenever matter is submitted to the criminalistics laboratory of the Nebraska State Patrol for chemical analysis to determine if the matter is, or contains, a controlled substance, the report of that analysis shall be admissible in any preliminary hearing in any court in Nebraska as prima facie evidence of the identity, nature, and quantity of the matter analyzed. Nothing in this section is intended to require the use of a laboratory report in a preliminary hearing or to prohibit the use of other evidence, including circumstantial evidence, in the preliminary hearing to establish the identity, nature, and quantity of a controlled substance.

Source:Laws 1976, LB 487, § 1; R.R.S.1943, § 28-4,135.01, (1975); Laws 1984, LB 403, § 3; R.S.1943, (2008), § 28-1439; Laws 2014, LB811, § 13.

28-415. Narcotic drugs; label; requirements.

(1) A manufacturer, distributor, or packager who sells or dispenses a narcotic drug or a wholesaler who sells or dispenses a narcotic drug in a package prepared by him or her shall securely affix a label to each package in which such drug is contained showing in legible English the name and address of the vendor and the quantity, kind, and form of narcotic drug contained therein. No person, except a pharmacy for the purpose of filling a medical order under the Uniform Controlled Substances Act, shall alter, deface, or remove any label so affixed.

(2) A pharmacy that sells or dispenses any narcotic drug on a prescription issued by a practitioner shall affix a label to the container in which such drug is sold or dispensed pursuant to subsection (3) of section 28-414.03. No person shall alter, deface, or remove any label so affixed.

Source:Laws 1977, LB 38, § 75; Laws 1988, LB 273, § 6; Laws 1995, LB 406, § 8; Laws 1999, LB 379, § 3; Laws 1999, LB 594, § 5; Laws 2001, LB 398, § 13; Laws 2014, LB811, § 14.

28-416. Prohibited acts; violations; penalties.

(1) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person knowingly or intentionally: (a) To manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance; or (b) to create, distribute, or possess with intent to distribute a counterfeit controlled substance.

(2) Except as provided in subsections (4), (5), (7), (8), (9), and (10) of this section, any person who violates subsection (1) of this section with respect to: (a) A controlled substance classified in Schedule I, II, or III of section 28-405 which is an exceptionally hazardous drug shall be guilty of a Class II felony; (b) any other controlled substance classified in Schedule I, II, or III of section 28-405 shall be guilty of a Class IIA felony; or (c) a controlled substance classified in Schedule IV or V of section 28-405 shall be guilty of a Class IIIA felony.

(3) A person knowingly or intentionally possessing a controlled substance, except marijuana or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(27) of Schedule I of section 28-405, unless such substance was obtained directly or pursuant to a medical order issued by a practitioner authorized to prescribe while acting in the course of his or her professional practice, or except as otherwise authorized by the act, shall be guilty of a Class IV felony. A person shall not be in violation of this subsection if section 28-472 or 28-1701 applies.

(4)(a) Except as authorized by the Uniform Controlled Substances Act, any person eighteen years of age or older who knowingly or intentionally manufactures, distributes, delivers, dispenses, or possesses with intent to manufacture, distribute, deliver, or dispense a controlled substance or a counterfeit controlled substance (i) to a person under the age of eighteen years, (ii) in, on, or within one thousand feet of the real property comprising a public or private elementary, vocational, or secondary school, a community college, a public or private college, junior college, or university, or a playground, or (iii) within one hundred feet of a public or private youth center, public swimming pool, or video arcade facility shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, depending upon the controlled substance involved, for the first violation and for a second or subsequent violation shall be punished by the next higher penalty classification than that prescribed for a first violation of this subsection, but in no event shall such person be punished by a penalty greater than a Class IB felony.

(b) For purposes of this subsection:

(i) Playground means any outdoor facility, including any parking lot appurtenant to the facility, intended for recreation, open to the public, and with any portion containing three or more apparatus intended for the recreation of children, including sliding boards, swingsets, and teeterboards;

(ii) Video arcade facility means any facility legally accessible to persons under eighteen years of age, intended primarily for the use of pinball and video machines for amusement, and containing a minimum of ten pinball or video machines; and

(iii) Youth center means any recreational facility or gymnasium, including any parking lot appurtenant to the facility or gymnasium, intended primarily for use by persons under eighteen years of age which regularly provides athletic, civic, or cultural activities.

(5)(a) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person eighteen years of age or older to knowingly and intentionally employ, hire, use, cause, persuade, coax, induce, entice, seduce, or coerce any person under the age of eighteen years to manufacture, transport, distribute, carry, deliver, dispense, prepare for delivery, offer for delivery, or possess with intent to do the same a controlled substance or a counterfeit controlled substance.

(b) Except as authorized by the Uniform Controlled Substances Act, it shall be unlawful for any person eighteen years of age or older to knowingly and intentionally employ, hire, use, cause, persuade, coax, induce, entice, seduce, or coerce any person under the age of eighteen years to aid and abet any person in the manufacture, transportation, distribution, carrying, delivery, dispensing, preparation for delivery, offering for delivery, or possession with intent to do the same of a controlled substance or a counterfeit controlled substance.

(c) Any person who violates subdivision (a) or (b) of this subsection shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, depending upon the controlled substance involved, for the first violation and for a second or subsequent violation shall be punished by the next higher penalty classification than that prescribed for a first violation of this subsection, but in no event shall such person be punished by a penalty greater than a Class IB felony.

(6) It shall not be a defense to prosecution for violation of subsection (4) or (5) of this section that the defendant did not know the age of the person through whom the defendant violated such subsection.

(7) Any person who violates subsection (1) of this section with respect to cocaine or any mixture or substance containing a detectable amount of cocaine in a quantity of:

(a) One hundred forty grams or more shall be guilty of a Class IB felony;

(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or

(8) Any person who violates subsection (1) of this section with respect to base cocaine (crack) or any mixture or substance containing a detectable amount of base cocaine in a quantity of:

(a) One hundred forty grams or more shall be guilty of a Class IB felony;

(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or

(9) Any person who violates subsection (1) of this section with respect to heroin or any mixture or substance containing a detectable amount of heroin in a quantity of:

(a) One hundred forty grams or more shall be guilty of a Class IB felony;

(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or

(10) Any person who violates subsection (1) of this section with respect to amphetamine, its salts, optical isomers, and salts of its isomers, or with respect to methamphetamine, its salts, optical isomers, and salts of its isomers, in a quantity of:

(a) One hundred forty grams or more shall be guilty of a Class IB felony;

(b) At least twenty-eight grams but less than one hundred forty grams shall be guilty of a Class IC felony; or

(11) Any person knowingly or intentionally possessing marijuana weighing more than one ounce but not more than one pound shall be guilty of a Class III misdemeanor.

(12) Any person knowingly or intentionally possessing marijuana weighing more than one pound shall be guilty of a Class IV felony.

(13) Except as provided in section 28-1701, any person knowingly or intentionally possessing marijuana weighing one ounce or less or any substance containing a quantifiable amount of the substances, chemicals, or compounds described, defined, or delineated in subdivision (c)(27) of Schedule I of section 28-405 shall:

(a) For the first offense, be guilty of an infraction, receive a citation, be fined three hundred dollars, and be assigned to attend a course as prescribed in section 29-433 if the judge determines that attending such course is in the best interest of the individual defendant;

(b) For the second offense, be guilty of a Class IV misdemeanor, receive a citation, and be fined four hundred dollars and may be imprisoned not to exceed five days; and

(c) For the third and all subsequent offenses, be guilty of a Class IIIA misdemeanor, receive a citation, be fined five hundred dollars, and be imprisoned not to exceed seven days.

(14) Any person convicted of violating this section, if placed on probation, shall, as a condition of probation, satisfactorily attend and complete appropriate treatment and counseling on drug abuse provided by a program authorized under the Nebraska Behavioral Health Services Act or other licensed drug treatment facility.

(15) Any person convicted of violating this section, if sentenced to the Department of Correctional Services, shall attend appropriate treatment and counseling on drug abuse.

(16) Any person knowingly or intentionally possessing a firearm while in violation of subsection (1) of this section shall be punished by the next higher penalty classification than the penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section, but in no event shall such person be punished by a penalty greater than a Class IB felony.

(17) A person knowingly or intentionally in possession of money used or intended to be used to facilitate a violation of subsection (1) of this section shall be guilty of a Class IV felony.

(18) In addition to the existing penalties available for a violation of subsection (1) of this section, including any criminal attempt or conspiracy to violate subsection (1) of this section, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, following conviction for a violation of subsection (1) of this section, and conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of subsection (1) of this section.

(19) In addition to the penalties provided in this section:

(a) If the person convicted or adjudicated of violating this section is eighteen years of age or younger and has one or more licenses or permits issued under the Motor Vehicle Operator's License Act:

(i) For the first offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for thirty days and (B) require such person to attend a drug education class;

(ii) For a second offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for ninety days and (B) require such person to complete no fewer than twenty and no more than forty hours of community service and to attend a drug education class; and

(iii) For a third or subsequent offense, the court may, as a part of the judgment of conviction or adjudication, (A) impound any such licenses or permits for twelve months and (B) require such person to complete no fewer than sixty hours of community service, to attend a drug education class, and to submit to a drug assessment by a licensed alcohol and drug counselor; and

(b) If the person convicted or adjudicated of violating this section is eighteen years of age or younger and does not have a permit or license issued under the Motor Vehicle Operator's License Act:

(i) For the first offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until thirty days after the date of such order and (B) require such person to attend a drug education class;

(ii) For a second offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until ninety days after the date of such order and (B) require such person to complete no fewer than twenty hours and no more than forty hours of community service and to attend a drug education class; and

(iii) For a third or subsequent offense, the court may, as part of the judgment of conviction or adjudication, (A) prohibit such person from obtaining any permit or any license pursuant to the act for which such person would otherwise be eligible until twelve months after the date of such order and (B) require such person to complete no fewer than sixty hours of community service, to attend a drug education class, and to submit to a drug assessment by a licensed alcohol and drug counselor.

A copy of an abstract of the court's conviction or adjudication shall be transmitted to the Director of Motor Vehicles pursuant to sections 60-497.01 to 60-497.04 if a license or permit is impounded or a juvenile is prohibited from obtaining a license or permit under this subsection.

Cross References

Motor Vehicle Operator's License Act, see section 60-462.

Nebraska Behavioral Health Services Act, see section 71-801.

Annotations

1. Elements

2. Evidence

3. Generally

4. Jury instruction

5. Plain view doctrine

6. Possession

7. Possession with intent to deliver

8. Sentencing

1. Elements

Subsection (5)(a) of this section requires the State to prove that the defendant is someone (1) who is 18 years of age or older and (2) who knowingly and intentionally (a) used a person under 18 years of age in one of the ways listed (b) to perform one of the listed acts related to drug distribution. State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012).

Unless a statute specifically provides otherwise, the quantity possessed of a controlled substance is not an essential element of the crime. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).

The weight or amount of marijuana possessed is not an element of the substantive offense of possession of marijuana, and the weight or amount of marijuana only determines the grade of the offense and relates to the punishment which may be imposed on conviction for the offense of simple possession. Simple possession of marijuana is a lesser-included offense of possession of marijuana with intent to distribute. State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).

2. Evidence

A passenger's mere presence in a vehicle with contraband is insufficient to support a finding of joint possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Generally, a passenger's joint possession of a controlled substance found in a vehicle can be established by evidence that (1) supports an inference that the driver was involved in drug trafficking, as distinguished from possessing illegal drugs for personal use; (2) shows the passenger acted suspiciously during a traffic stop; and (3) shows the passenger was not a casual occupant but someone who had been traveling a considerable distance with the driver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the Fourth Amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).

3. Generally

A juror may reasonably infer that a driver with a possessory interest in a vehicle who is transporting a large quantity of illegal drugs would not invite someone into his or her vehicle who had no knowledge of the driver's drug activities. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Subsection (6) of this section and section 77-4301(2) address different types of misconduct and are not inconsistent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).

A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).

Subsection (6)(a) merely authorizes the issuance of a citation for certain violations; it does not prohibit an arrest for the same violation when otherwise authorized by law. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).

4. Jury instruction

The statutory elements neither solely control nor exclusively dictate whether a lesser-included offense instruction for simple possession is required along with an instruction on possession of a controlled substance with intent to deliver. State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992).

5. Plain view doctrine

Plain view doctrine circumvents need for a search warrant when contraband is inadvertently found while arresting officer is legally present at physical examination of accused. State v. Brockman, 231 Neb. 982, 439 N.W.2d 84 (1989).

6. Possession

Constructive possession of an illegal substance may be proved by direct or circumstantial evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Possession of a controlled substance is a lesser-included offense of distribution of the controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Possession of an illegal substance can be inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the passenger to the substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Under subsection (1) of this section, a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).

Under subsection (1) of this section, a defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).

Pursuant to subsection (3) of this section, there is sufficient evidence to convict the defendant of knowingly or intentionally possessing a controlled substance when he approaches an undercover officer, asks to buy drugs, physically examines the drugs, and then hands over money to pay for the drugs. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990).

7. Possession with intent to deliver

For purposes of subsection (1) of this section, circumstantial evidence that a defendant received controlled substances in amounts larger than are typically associated with personal use can be sufficient to support a finding of intent to distribute. State v. Worthman, 311 Neb. 284, 971 N.W.2d 785 (2022).

Circumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Circumstantial evidence to establish possession of a controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

When a defendant did not dispute the State's evidence on the separate element of intent to deliver, he was not entitled to an instruction on the lesser-included offense of simple possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).

Conviction of possession with intent to deliver a controlled substance affirmed in case where police officers noticed defendant in bar making a furtive gesture by pulling both hands from underneath bar; the officers subsequently found a bag with 11 snow seals behind the carpet under the bar within arm's distance from defendant; and defendant could not adequately account for the money he had in his possession. State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992).

Possession with intent to deliver a controlled substance is not a victimless crime. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).

8. Sentencing

Sentence of 3 to 5 years' imprisonment was not excessive for conviction under subsection (1)(a) of this statute. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).

28-417. Unlawful acts; violations; penalty.

(1) It shall be unlawful for any person:

(a) To omit, remove, alter, or obliterate a symbol required by the federal Controlled Substances Act, 21 U.S.C. 801 et seq., as the act existed on September 1, 2001, or required by the laws of this state;

(b) To alter, deface, or remove any label affixed to a package of narcotic drugs;

(c) To refuse or fail to make, keep, or furnish any record, notification, order form, statement, invoice, or information required under the Uniform Controlled Substances Act;

(d) To refuse any entry into any premises for inspection authorized by the act;

(e) To keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or place whatever which such person knows or should know is resorted to by persons using controlled substances in violation of the Uniform Controlled Substances Act for the purpose of using such substances or which is used for the keeping or selling of the same in violation of the act;

(f) To whom or for whose use any controlled substance has been prescribed, sold, or dispensed by a practitioner or the owner of any animal for which any such substance has been prescribed, sold, or dispensed by a veterinarian to possess it in a container other than which it was delivered to him or her by the practitioner; or

(g) To be under the influence of any controlled substance for a purpose other than the treatment of a sickness or injury as prescribed or administered by a practitioner. In a prosecution under this subdivision, it shall not be necessary for the state to prove that the accused was under the influence of any specific controlled substance, but it shall be sufficient for a conviction under this subdivision for the state to prove that the accused was under the influence of some controlled substance by proving that the accused did manifest physical and physiological symptoms or reactions caused by the use of any controlled substance.

(2) Any person who violates this section shall be guilty of a Class III misdemeanor.

Source:Laws 1977, LB 38, § 77; Laws 1978, LB 920, § 1; Laws 1988, LB 273, § 7; Laws 2001, LB 113, § 11; Laws 2001, LB 398, § 15.

28-418. Intentional violations; penalty.

(1) It shall be unlawful for any person knowingly or intentionally:

(a) Who is a registrant to distribute a controlled substance classified in Schedule I or II of section 28-405 in the course of his or her legitimate business except in compliance with section 28-413;

(b) To use in the course of the manufacture or distribution of a controlled substance a registration number which is fictitious, revoked, suspended, or issued to another person;

(c) To acquire or obtain or to attempt to acquire or obtain possession of a controlled substance by theft, misrepresentation, fraud, forgery, deception, or subterfuge;

(d) To furnish false or fraudulent material information in or omit any material information from any application, report, or other document required to be kept or filed under the Uniform Controlled Substances Act or any record required to be kept by the act;

(e) To make, distribute, or possess any punch, die, plate, stone, or other thing designed to print, imprint, or reproduce the trademark, trade name, or other identifying mark, imprint, or device of another or any likeness of any of the foregoing upon any drug or container or labeling thereof so as to render such drug a counterfeit controlled substance;

(f) Who is subject to sections 28-406 to 28-414.05 to distribute or dispense a controlled substance in violation of sections 28-414 to 28-414.05;

(g) Who is a registrant to manufacture a controlled substance not authorized by his or her registration or to distribute or dispense a controlled substance not authorized by his or her registration to another registrant or authorized person;

(h) To possess a false or forged medical order for a controlled substance issued by a practitioner authorized to prescribe, except that this subdivision shall not apply to law enforcement officials, practitioners, or attorneys in the performance of their official lawful duties; or

(i) To communicate information to a practitioner in an effort to unlawfully procure a controlled substance, the administration of a controlled substance, or a medical order for a controlled substance issued by a practitioner authorized to prescribe.

(2) Any person who violates this section shall be guilty of a Class IV felony.

Source:Laws 1977, LB 38, § 78; Laws 1988, LB 273, § 8; Laws 2001, LB 113, § 12; Laws 2001, LB 398, § 16; Laws 2014, LB811, § 15.

28-419. Inhaling or drinking certain intoxicating substances; unlawful.

No person shall breathe, inhale, or drink any compound, liquid, or chemical containing acetate, acetone, benzene, butyl alcohol, cyclohexanone, ethyl acetate, ethyl alcohol, ethylene dichloride, ethylene trichloride, hexane, isopropanol, isopropyl alcohol, methyl alcohol, methyl cellosolve acetate, methyl ethyl ketone, methyl isobutyl ketone, pentachlorophenol, petroleum ether, toluene, toluol, trichloroathane, trichloroethylene, or any other substance for the purpose of inducing a condition of intoxication, stupefaction, depression, giddiness, paralysis, inebriation, excitement, or irrational behavior, or in any manner changing, distorting, or disturbing the auditory, visual, mental, or nervous processes. For the purposes of sections 28-419 to 28-424, any such condition so induced shall be deemed an intoxicated condition.

Source:Laws 1977, LB 38, § 79; Laws 2007, LB424, § 1.

28-420. Selling or offering for sale certain compounds; use; knowledge of seller; unlawful.

No person shall knowingly sell or offer for sale, deliver or give to any person any compound, liquid or chemical or any other substance which will induce an intoxicated condition as defined in section 28-419, when the seller, offerer or deliverer knows or has reason to know that such compound is intended for use to induce such condition.

Source:Laws 1977, LB 38, § 80.

28-421. Act, exceptions.

The provisions of sections 28-419 to 28-424 shall not apply to the use or sale of such substances, as defined in sections 28-419 and 28-420, when such use or sale is administered or prescribed for medical or dental purposes, nor shall the provisions of sections 28-419 to 28-424 apply to the use or sale of alcoholic liquors as defined by section 53-103.02.

Source:Laws 1977, LB 38, § 81; Laws 2010, LB861, § 5.

28-422. Selling or offering for sale certain compounds; register; maintain for one year.

Every person selling or offering for sale at retail any of the substances as defined in section 28-419, shall maintain a register in which are recorded the date of each sale, the quantity sold, and the name and address of the purchaser. The record of each sale shall be available for inspection by any peace officer for at least one year.

Source:Laws 1977, LB 38, § 82.

28-423. Inducing or enticing; violation.

No person shall induce or entice any person to violate the provisions of section 28-419, 28-420, or 28-422.

Source:Laws 1977, LB 38, § 83.

28-424. Violations; penalty.

Any person who violates any provision of section 28-419, 28-420, 28-422, or 28-423 shall be guilty of a Class III misdemeanor.

Source:Laws 1977, LB 38, § 84.

28-425. Transferred to section 71-2510.01.

28-426. Repealed. Laws 1978, LB 748, § 61.

28-427. Additional penalties.

Any penalty imposed for violation of the Uniform Controlled Substances Act shall be in addition to, and not in lieu of, any civil or administrative penalty or sanction authorized by law. A conviction or acquittal under federal law or the law of another state having a substantially similar law shall be a bar to prosecution in this state for the same act. If any person is convicted for violation of the Uniform Controlled Substances Act, in addition to any penalty imposed by the court, the court may order that such person make restitution to any law enforcement agency for reasonable expenditures made in the purchase of any controlled substances from such person or his or her agent as part of the investigation leading to such conviction.

Source:Laws 1977, LB 38, § 87; Laws 2001, LB 113, § 13.

Annotations

The plain and ordinary meaning of the words "as part of the investigation leading to such conviction" limits the amount of restitution ordered to the reasonable law enforcement expenses incurred in connection with the purchase of the controlled substance for the sale of which the defendant was convicted. State v. Rios, 237 Neb. 232, 465 N.W.2d 611 (1991).

An order of restitution under this section can be made at the time of sentencing, but there is no statutory requirement that it be made at that time. State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986).

Restitution imposed under this section is not a criminal penalty to be imposed as punishment for the crime, but is in the nature of a civil or administrative penalty or sanction. State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986).

Restitution imposed under this section is not a part of the sentence; therefore, the trial court had jurisdiction to make an order of restitution after sentencing. State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986).

The heading, or catchline, is supplied in the compilation of the statutes and does not constitute any part of the law. State v. Holmes, 221 Neb. 629, 379 N.W.2d 765 (1986).

A defendant may be ordered to make restitution for law enforcement expenses incurred during controlled buys that were part of the investigation leading to a conviction arising from a subsequent controlled buy. State v. Thomas, 6 Neb. App. 510, 574 N.W.2d 542 (1998).

28-428. Controlled premises, defined; inspection; procedure.

(1) Administrative inspections of controlled premises are authorized in accordance with the following provisions:

(a) For purposes of the Uniform Controlled Substances Act only, controlled premises shall mean: (i) Places where persons registered or exempted from registration requirements under the act are required to keep records; and (ii) places including factories, warehouses, establishments, and conveyances where persons registered or exempted from registration requirements under the act are permitted to hold, manufacture, compound, process, sell, deliver, or otherwise dispose of any controlled substance;

(b) When so authorized by an administrative inspection or an officer of the Division of Drug Control or an authorized agent of the department, upon presenting the warrant and appropriate credentials to the owner, operator, or agent in charge, shall have the right to enter controlled premises for the purpose of conducting an administrative inspection;

(c) When so authorized by an administrative inspection warrant, an officer of the Division of Drug Control or an authorized agent of the department shall have the right: (i) To inspect and copy records required by the act to be kept; (ii) to inspect, within reasonable limits and in a reasonable manner, controlled premises and all pertinent equipment, finished and unfinished material, containers, and labeling found therein, and, except as otherwise provided in subdivision (1)(e)(ii) of this section, all other things therein, including records, files, papers, processes, controls, and facilities, bearing on any violation of the act; and (iii) to inventory any stock of any controlled substance therein and obtain samples of any such substance;

(d) This section shall not be construed to prevent entries and administrative inspections including seizures of property without a warrant: (i) With the consent of the owner, operator, or agent in charge of the controlled premises; (ii) in situations presenting imminent danger to health or safety; (iii) in situations involving inspection of any conveyance when there is reasonable cause to believe that such conveyance contains substances possessed or carried in violation of the act; (iv) in any other exceptional or emergency circumstance when time or opportunity to apply for a warrant is lacking; and (v) in all other situations when a warrant is not constitutionally required; and

(e) Except when the owner, operator, or agent in charge of the controlled premises so consents in writing, no inspection authorized by this section shall extend to (i) financial data; (ii) sales data other than shipment data; or (iii) pricing data.

(2) For the purpose of the execution of administrative inspection warrants, an authorized agent of the department shall be deemed to be a peace officer.

(3) Issuance and execution of administrative inspection warrants for controlled premises shall be in accordance with the provisions of sections 29-830 to 29-835, except that inspection warrants for the purpose of the act shall be issued not only upon a showing that consent to entry for inspection purposes has been refused, but also in all cases when the judge of a court of record has been given reason to believe that consent would be refused if requested.

Source:Laws 1977, LB 38, § 88; Laws 1997, LB 307, § 9.

28-429. Division of Drug Control; established; personnel; powers and duties; Nebraska State Patrol Drug Control and Education Cash Fund; created; use; investment; report; contents.

(1) There is hereby established in the Nebraska State Patrol a Division of Drug Control. The division shall consist of such personnel as may be designated by the Superintendent of Law Enforcement and Public Safety. It shall be the duty of the division to enforce all of the provisions of the Uniform Controlled Substances Act and any other provisions of the law dealing with controlled substances and to conduct drug education activities as directed by the superintendent. The Nebraska State Patrol shall cooperate with federal agencies, the department, other state agencies, elementary and secondary schools, and County Drug Law Enforcement and Education Fund Boards in discharging their responsibilities concerning traffic in controlled substances, in suppressing the abuse of controlled substances, and in conducting drug education activities. To this end the division is authorized to: (a) Arrange for the exchange of information between governmental officials concerning the use and abuse of controlled substances; (b) coordinate and cooperate in training programs on controlled substance law enforcement and education at the local and state levels; (c) establish a centralized unit which will accept, catalog, file, and collect statistics, including records of drug dependent persons and other controlled substance law offenders within the state, and make such information available for federal, state, and local law enforcement purposes on request; (d) cooperate in locating, eradicating, and destroying wild or illicit growth of plant species from which controlled substances may be extracted, and for these purposes a peace officer is hereby authorized to enter onto property upon which there are no buildings or upon which there are only uninhabited buildings without first obtaining a search warrant or consent; (e) develop a priority program so as to focus the bulk of its efforts on the reduction and elimination of the most damaging drugs including narcotic drugs, depressant and stimulant drugs, and hallucinogenic drugs; and (f) develop and conduct drug education activities in cooperation with elementary and secondary schools in Nebraska and with County Drug Law Enforcement and Education Fund Boards.

(2) There is hereby created the Nebraska State Patrol Drug Control and Education Cash Fund which shall be used for the purposes of (a) obtaining evidence for enforcement of any state law relating to the control of drug abuse and (b) drug education activities conducted pursuant to subsection (1) of this section, except that transfers may be made from the fund to the General Fund at the direction of the Legislature. Any money in the Nebraska State Patrol Drug Control and Education Cash Fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

(3) For the purpose of establishing and maintaining legislative oversight and accountability, the Appropriations Committee of the Legislature shall formulate record-keeping procedures to be adhered to by the Nebraska State Patrol for all expenditures, disbursements, and transfers of cash from the Nebraska State Patrol Drug Control and Education Cash Fund. Based on these record-keeping procedures, the Nebraska State Patrol shall prepare and electronically deliver to the Clerk of the Legislature at the commencement of each succeeding session a detailed report which shall contain, but not be limited to: (a) Current total in the cash fund; (b) total amount of expenditures; (c) purpose of the expenditures to include: (i) Salaries and any expenses of all agents and informants; (ii) front money for drug purchases; (iii) names of drugs and quantity of purchases; (iv) amount of front money recovered; and (v) drug education activities; (d) total number of informers on payroll; (e) amounts delivered to patrol supervisors for distribution to agents and informants and the method of accounting for such transactions and the results procured through such transactions; and (f) a description of the drug education activities conducted since the date of the previous report. Each member of the Legislature shall receive an electronic copy of such report by making a request for it to the superintendent.

(4) The superintendent shall adopt and promulgate rules and regulations to carry out this section.

Source:Laws 1977, LB 38, § 89; Laws 1979, LB 322, § 8; Laws 1991, LB 773, § 1; Laws 1994, LB 1066, § 19; Laws 2001, LB 398, § 17; Laws 2009, First Spec. Sess., LB3, § 13; Laws 2012, LB782, § 31.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

Annotations

This section permits law enforcement officers to enter onto property without a search warrant or consent for the purpose of locating and eradicating wild or illicit weeds from which a controlled substance could be extracted. State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).

28-430. Department; enforce act; powers.

The department shall enforce the Uniform Controlled Substances Act and shall cooperate with federal agencies, the Division of Drug Control, and other state agencies in discharging their responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances. To this end, it is authorized to: (1) Arrange for the exchange of information between governmental officials concerning the use and abuse of controlled substances; (2) cooperate with the Drug Enforcement Administration and the Federal Bureau of Investigation; (3) do drug accountability audits of all registered practitioners in accordance with the act; (4) provide laboratory analysis; (5) provide drug abuse education to schools, courts, and persons requesting it; and (6) rely on results, information, and evidence received from the Drug Enforcement Administration and the Federal Bureau of Investigation relating to the regulatory functions of the act, including results of inspections conducted by that agency, which may be acted upon by the department and the Division of Drug Control in the performance of their regulatory functions under the act.

Source:Laws 1977, LB 38, § 90; Laws 1984, LB 403, § 1; Laws 1997, LB 307, § 10.

28-431. Seized without warrant; subject to forfeitures; disposition; manner; when; accepted as evidence; court costs and expenses; report to Auditor of Public Accounts; contents.

(1) The following shall be seized with or without a warrant by an officer of the Division of Drug Control or by any peace officer and the same shall be subject to forfeiture: (a) All controlled substances which have been manufactured, distributed, dispensed, acquired, or possessed in violation of the Uniform Controlled Substances Act; (b) all raw materials, products, and equipment of any kind which are used, or intended for use, in manufacturing, compounding, processing, administering, delivering, importing, or exporting any controlled substance in violation of the act; (c) all lookalike substances; (d) all property which is used, or is intended for use, as a container for property described in subdivisions (a) and (b) of this subsection; (e) all drug paraphernalia defined in section 28-439; (f) all books, records, and research, including, but not limited to, formulas, microfilm, tapes, and data, which are used, or intended for use, in violation of the act; (g) all conveyances including, but not limited to, aircraft, vehicles, or vessels which are used, or intended for use, in transporting any controlled substance with intent to manufacture, distribute, deliver, dispense, export, or import such controlled substance in violation of the act; and (h) all money used, or intended to be used, to facilitate a violation of the act.

(2) Any property described in subdivision (1)(g) of this section which is used, or intended for use, to transport any property described in subdivision (1)(a) or (b) of this section is hereby declared to be a common nuisance, and any peace officer having probable cause to believe that such property is so used, or intended for such use, shall make a search thereof with or without a warrant.

(3) All money that a law enforcement agency proves was furnished by such agency shall be returned to the agency. All property seized without a search warrant shall not be subject to a replevin action and: (a) All property described in subdivisions (1)(a) through (1)(f) of this section shall be kept by the property division of the law enforcement agency which employs the officer who seized such property for so long as it is needed as evidence in any trial; and (b) when no longer required as evidence, all property described in subdivision (1)(f) of this section shall be disposed of on order of a court of record of this state in such manner as the court in its sound discretion shall direct, and all property described in subdivisions (1)(a), (b), (c), (d), and (e) of this section, that has been used or is intended to be used in violation of the act, when no longer needed as evidence shall be destroyed by the law enforcement agency holding the same or turned over to the department for custody or destruction, except that a law enforcement agency may keep a small quantity of the property described in subdivisions (1)(a), (b), (c), (d), and (e) of this section for training purposes or use in investigations. Any large quantity of property described in subdivisions (1)(a), (b), (c), (d), and (e) of this section, whether seized under a search warrant or validly seized without a warrant, may be disposed of on order of a court of record of this state in such manner as the court in its sound discretion shall direct. Such an order may be given only after a proper laboratory examination and report of such property has been completed and after a hearing has been held by the court after notice to the defendant of the proposed disposition of the property. The findings in such court order as to the nature, kind, and quantity of the property so disposed of may be accepted as evidence at subsequent court proceedings in lieu of the property ordered destroyed by the court order.

(4) When any property described in subdivision (1)(g) or (h) of this section is seized, the person seizing the same shall cause to be filed, within ten days thereafter, in the district court of the county in which seizure was made, petition for disposition of such property. The proceedings shall be brought in the name of the state by the county attorney of the county in which such property was seized. The petition shall describe the property, state the name of the owner if known, allege the essential elements of the violation which is claimed to exist, and conclude with a prayer for disposition. The county attorney shall have a copy of the petition served upon the owner of or any person having an interest in the property, if known, in person or by registered or certified mail at his or her last-known address. If the owner is unknown or there is a reasonable probability that there are unknown persons with interests in the property, the county attorney shall provide notice of the seizure and petition for disposition by publication once a week for four consecutive weeks in a newspaper of general circulation in the county of the seizure. At least five days shall elapse between each publication of notice.

(5) At any time after seizure and prior to court disposition, the owner of record of such property may petition the district court of the county in which seizure was made to release such property, and the court shall order the release of the property upon a showing by the owner that he or she had no actual knowledge that such property was being used in violation of the Uniform Controlled Substances Act.

(6) Any person having an interest in the property proceeded against or any person against whom civil or criminal liability would exist if such property is in violation of the act may, within thirty days after seizure, appear and file an answer or demurrer to the petition. The answer or demurrer shall allege the claimant's interest in or liability involving such property. At least thirty but not more than ninety days after seizure, there shall be a hearing before the court. If the claimant proves by a preponderance of the evidence that he or she (a) has not used or intended to use the property to facilitate an offense in violation of the act, (b) has an interest in such property as owner or lienor or otherwise, acquired by him or her in good faith, and (c) at no time had any actual knowledge that such property was being or would be used in, or to facilitate, the violation of the act, the court shall order that such property or the value of the claimant's interest in such property be returned to the claimant. If there are no claims, if all claims are denied, or if the value of the property exceeds all claims granted and it is shown by clear and convincing evidence that such property was used in violation of the act, the court shall order disposition of such property at such time as the property is no longer required as evidence in any criminal proceeding. The court may order that property described in subdivision (1)(g) of this section be sold or put to official use by the confiscating agency for a period of not more than one year and that when such property is no longer necessary for official use or at the end of two years, whichever comes first, such property shall be sold. Proceeds from the sale of the property and any money described in subdivision (1)(h) of this section shall be distributed pursuant to section 28-1439.02. Official use shall mean use directly in connection with enforcement of the act.

(7) Any court costs and fees and storage and other proper expenses shall be charged against any person intervening as claimant or owner of the property unless such person shall establish his or her claim. If a sale is ordered, the officer holding the sale shall make a return to the court showing to whom the property was sold and for what price. This return together with the court order shall authorize the county clerk to issue a title to the purchaser of the property if such title is required under the laws of this state.

(8)(a) For all money, securities, negotiable instruments, firearms, conveyances, or real estate seized pursuant to this section, the Division of Drug Control, any peace officer, or, as provided in subdivision (d) of this subsection, the prosecuting attorney shall provide a written report of the seizure to the Auditor of Public Accounts. The report shall include:

(i) The date of the seizure;

(ii) The type of property seized, such as a vehicle or currency;

(iii) A description of the property seized, including, if applicable, the make, model, year, and serial number of the property seized;

(iv) The street name and traffic direction where the seizure occurred, such as eastbound, westbound, southbound, or northbound;

(v) The crime for which the suspect was charged;

(vi) The disposition of the property seized through the forfeiture process, such as the property was returned to the suspect, returned to a third-party owner, sold, destroyed, or retained by law enforcement;

(vii) The basis for disposition of the seized property, such as the suspect was found not guilty, agreement for disposition, criminal forfeiture, or civil forfeiture;

(viii) The value of the property forfeited;

(ix) If the seizure resulted from a motor vehicle stop, (A) whether a warning or citation was issued, an arrest was made, or a search was conducted and (B) the characteristics of the race or ethnicity of the suspect. The identification of such characteristics shall be based on the observation and perception of the law enforcement officer responsible for reporting the motor vehicle stop. The information shall not be required to be provided by the suspect; and

(x) Any additional information the Division of Drug Control or peace officer deems appropriate.

(b) Reports shall be made on an annual basis in a manner prescribed by the Auditor of Public Accounts. The Auditor of Public Accounts shall submit a report to the Legislature on the nature and extent of such seizures on an annual basis. Such report shall be submitted electronically.

(c) For seizures resulting from the activities of multijurisdictional law enforcement entities, a law enforcement entity other than a Nebraska law enforcement entity shall, on its own initiative, report the information required by this subsection.

(d) The prosecuting attorney is not required to report information required by this subsection unless he or she has been notified by the Auditor of Public Accounts that the Division of Drug Control or any peace officer has not reported the information required by this subsection.

Source:Laws 1977, LB 38, § 91; Laws 1980, LB 991, § 7; Laws 1985, LB 247, § 1; Laws 1997, LB 307, § 11; Laws 2016, LB1009, § 5; Laws 2016, LB1106, § 6.

Annotations

1. Double jeopardy

2. Burden of proof

3. Miscellaneous

1. Double jeopardy

Forfeiture actions pursuant to this section are criminal in character and double jeopardy principles apply. State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999).

Forfeiture proceedings brought pursuant to this section are not in rem proceedings, but are criminal proceedings entitled to double jeopardy protection. State v. Franco, 257 Neb. 15, 594 N.W.2d 633 (1999).

This section is criminal in character; therefore, double jeopardy principles apply. State v. One 1987 Toyota Pickup, 233 Neb. 670, 447 N.W.2d 243 (1989).

2. Burden of proof

The State's burden of proof under this section is to show by clear and convincing evidence that such property was used in violation of the act. State v. $18,000, 311 Neb. 621, 974 N.W.2d 290 (2022).

Subsection (4) of this section requires the State to prove beyond a reasonable doubt that seized property was used in violation of Chapter 28, article 4. State v. 1987 Jeep Wagoneer, 241 Neb. 397, 488 N.W.2d 546 (1992).

3. Miscellaneous

Subsection (4) of this section sets forth two avenues by which a purported owner or claimant may prevent forfeiture and recover his or her property. First, the forfeiture statute allows the owner of record of such property, at any time after seizure and prior to court disposition, to petition the district court of the county in which seizure was made to release such property. Second, subsection (4) provides that any person having an interest in the property proceeded against or any person against whom civil or criminal liability would exist if such property is in violation of the Uniform Controlled Substances Act may, within 30 days after seizure, appear and file an answer or demurrer to the petition. Obad v. State, 277 Neb. 866, 766 N.W.2d 89 (2009).

The alleged owner of cash cannot be an owner of record under subsection (4) of this section. Obad v. State, 277 Neb. 866, 766 N.W.2d 89 (2009).

Pursuant to subsection (4) of this section, the time limitations of this section are directory rather than mandatory, and the State's failure to strictly conform to them is not fatal to a forfeiture action. State v. $1,947 in U.S. Currency, 255 Neb. 290, 583 N.W.2d 611 (1998).

Appellate review concerning the sufficiency of the evidence to forfeit a motor vehicle to the State under this section should not be treated differently than review of the sufficiency of evidence in a criminal case. State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335, 526 N.W.2d 657 (1995).

Failure to claim some legal or equitable interest in the money seized pursuant to a search warrant is fatal to some real interest in the subject matter in controversy. State v. $15,518 in U.S. Currency, 239 Neb. 100, 474 N.W.2d 659 (1991).

Forfeitures of property under this section are considered punitive and criminal in nature because property forfeited under this section is not contraband per se, but rather ordinary, legal items used to facilitate illegal drug transactions. Appellate review of the sufficiency of the evidence to support a forfeiture of a motor vehicle under this section is to be treated the same as the review of the sufficiency of the evidence in the appeal of a criminal case. State v. $3,067.65 in U.S. Currency, 4 Neb. App. 443, 545 N.W.2d 129 (1996).

The State's ability to appeal a forfeiture action which is criminal and punitive is limited to the terms of sections 29-2315.01 to 29-2316. State v. One 1986 Toyota 4-Runner, 1 Neb. App. 1138, 510 N.W.2d 556 (1993).

Provision for civil forfeiture of drug paraphernalia is constitutional. Provision authorizing civil forfeiture of drug paraphernalia with strict time limit for filing of complaint for condemnation by law enforcement personnel when "conveyances" are seized allows forfeiture provision to satisfy procedural due process, and procedural due process is not violated by provisions for seizure of drug paraphernalia without opportunity for prior hearing. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-432. Complaint, pleading, or proceeding; burden of proof.

(1) It shall not be necessary for the state to negate any exemption or exception set forth in the Uniform Controlled Substances Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under the provisions of the act, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit.

(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under the Uniform Controlled Substances Act, the person shall be presumed not to be the holder of such registration or form, and the burden of proof shall be upon him or her to rebut such presumption.

Source:Laws 1977, LB 38, § 92; Laws 2001, LB 113, § 14.

Annotations

A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).

28-433. Appeal; procedure.

All final determinations, findings, and conclusions of the department under the Uniform Controlled Substances Act shall be final and conclusive decisions of the matters involved, except that any person aggrieved by such decision may appeal the decision, and the appeal shall be in accordance with the Administrative Procedure Act.

Source:Laws 1977, LB 38, § 93; Laws 1988, LB 352, § 27; Laws 2001, LB 113, § 15.

Cross References

Administrative Procedure Act, see section 84-920.

28-434. Education and research.

(1) The department and the Division of Drug Control shall carry out educational programs designed to prevent and deter misuse and abuse of controlled substances. In connection with such programs they may: (a) Promote better recognition of the problems of misuse and abuse of controlled substances within the regulated industry and among interested groups and organizations; (b) assist the regulated industry and interested groups and organizations in contributing to the reduction of misuse and abuse of controlled substances; (c) consult with interested groups and organizations to aid them in solving administrative and organizational problems; (d) evaluate procedures, projects, techniques, and controls conducted or proposed as part of educational programs on misuse and abuse of controlled substances; (e) disseminate the results of research on misuse and abuse of controlled substances to promote a better public understanding of what problems exist and what can be done to combat them; and (f) assist in the education and training of state and local law enforcement officials in their efforts to control misuse and abuse of controlled substances.

(2) The department may encourage research on misuse and abuse of controlled substances. In connection with such research and in furtherance of the enforcement of the Uniform Controlled Substances Act, it may: (a) Establish methods to assess accurately the effects of controlled substances and to identify and characterize controlled substances with potential for abuse; (b) make studies and undertake programs of research to (i) develop new or improved approaches, techniques, systems, equipment, and devices to strengthen the enforcement of the act, (ii) determine patterns of misuse and abuse of controlled substances and the social effects thereof, and (iii) improve methods for preventing, predicting, understanding, and dealing with the misuse and abuse of controlled substances; and (c) enter into contracts with public agencies, institutions of higher education, and private organizations or individuals for the purpose of conducting research, demonstrations, or special projects which bear directly on misuse and abuse of controlled substances.

(3) The department may enter into contracts for educational and research activities without performance bonds.

(4) The department shall cooperate with the Division of Drug Control providing technical advice and information, including all evidence of violations of the act disclosed by drug accountability inspections. The criminalistics laboratory of the Nebraska State Patrol shall provide laboratory analysis for the Division of Drug Control and other peace officers of this state when requested for the effective administration and enforcement of the act.

(5) The department may authorize persons engaged in research on the use and effects of controlled substances to withhold the names and other identifying characteristics of persons who are subjects of such research. Persons who obtain such authorization may not be compelled in any state, civil, criminal, administrative, legislative, or other proceeding to identify the subjects of research for which such authorization was obtained.

(6) The department may authorize the possession and distribution of controlled substances by persons engaged in research. Persons who obtain this authorization shall be exempt from state prosecution for possession and distribution of controlled substances to the extent authorized by the department.

Source:Laws 1977, LB 38, § 94; Laws 1984, LB 403, § 2; Laws 1997, LB 307, § 12.

28-435. Licensee; reporting and investigation duties.

Every licensee subject to the Uniform Controlled Substances Act shall be subject to and comply with sections 38-1,124 to 38-1,126 relating to reporting and investigations.

Source:Laws 2007, LB463, § 1123.

28-435.01. Health care facility; peer review organization or professional association; report required; contents; confidentiality; immunity; failure to report; civil penalty; disposition.

(1) A health care facility licensed under the Health Care Facility Licensure Act or a peer review organization or professional association relating to a profession regulated under the Uniform Controlled Substances Act shall report to the department, on a form and in the manner specified by the department, any facts known to the facility, organization, or association, including, but not limited to, the identity of the credential holder and consumer, when the facility, organization, or association:

(a) Has made payment due to adverse judgment, settlement, or award of a professional liability claim against it or a licensee, including settlements made prior to suit, arising out of the acts or omissions of the licensee; or

(b) Takes action adversely affecting the privileges or membership of a licensee in such facility, organization, or association due to alleged incompetence, professional negligence, unprofessional conduct, or physical, mental, or chemical impairment.

The report shall be made within thirty days after the date of the action or event.

(2) A report made to the department under this section shall be confidential. The facility, organization, association, or person making such report shall be completely immune from criminal or civil liability of any nature, whether direct or derivative, for filing a report or for disclosure of documents, records, or other information to the department under this section. Nothing in this subsection shall be construed to require production of records protected by the Health Care Quality Improvement Act or section 25-12,123 or patient safety work product under the Patient Safety Improvement Act except as otherwise provided in either of such acts or such section.

(3) Any health care facility, peer review organization, or professional association that fails or neglects to make a report or provide information as required under this section is subject to a civil penalty of five hundred dollars for the first offense and a civil penalty of up to one thousand dollars for a subsequent offense. Any civil penalty collected under this subsection shall be remitted to the State Treasurer to be disposed of in accordance with Article VII, section 5, of the Constitution of Nebraska.

(4) For purposes of this section, the department shall accept reports made to it under the Nebraska Hospital-Medical Liability Act or in accordance with national practitioner data bank requirements of the federal Health Care Quality Improvement Act of 1986, as the act existed on January 1, 2007, and may require a supplemental report to the extent such reports do not contain the information required by the department.

Source:Laws 2007, LB463, § 1124; Laws 2011, LB431, § 11.

Cross References

Health Care Facility Licensure Act, see section 71-401.

Health Care Quality Improvement Act, see section 71-7904.

Nebraska Hospital-Medical Liability Act, see section 44-2855.

Patient Safety Improvement Act, see section 71-8701.

28-435.02. Insurer; duty to report violations.

(1) Unless such knowledge or information is based on confidential medical records protected by the confidentiality provisions of the federal Public Health Services Act, 42 U.S.C. 290dd-2, and federal administrative rules and regulations, as such act and rules and regulations existed on January 1, 2007:

(a) Any insurer having knowledge of any violation of any provision of the Uniform Controlled Substances Act governing the profession of the person being reported whether or not such person is licensed shall report the facts of such violation as known to such insurer to the department; and

(b) All insurers shall cooperate with the department and provide such information as requested by the department concerning any possible violations by any person required to be licensed whether or not such person is licensed.

(2) Such reporting shall be done on a form and in the manner specified pursuant to sections 38-1,130 and 38-1,131. Such reports shall be subject to sections 38-1,132 to 38-1,136.

Source:Laws 2007, LB463, § 1125.

28-435.03. Clerk of county or district court; report convictions and judgments; Attorney General or city or county prosecutor; provide information.

The clerk of any county or district court in this state shall report to the department the conviction of any person licensed by the department under the Uniform Controlled Substances Act of any felony or of any misdemeanor involving the use, sale, distribution, administration, or dispensing of a controlled substance, alcohol or chemical impairment, or substance abuse and shall also report a judgment against any such licensee arising out of a claim of professional liability. The Attorney General or city or county prosecutor prosecuting any such criminal action and plaintiff in any such civil action shall provide the court with information concerning the license of the defendant or party. Notice to the department shall be filed within thirty days after the date of conviction or judgment in a manner agreed to by the Director of Public Health of the Division of Public Health and the State Court Administrator.

Source:Laws 2007, LB463, § 1126.

28-436. Repealed. Laws 1993, LB 627, § 26.

28-437. Uniformity of interpretation.

The Uniform Controlled Substances Act shall be so applied and construed as to effectuate its general purpose to make uniform the law with respect to the subject of the act among those states which enact it.

Source:Laws 1977, LB 38, § 97; Laws 2001, LB 113, § 16.

28-438. Transferred to section 28-401.01.

28-439. Drug paraphernalia, defined; enumerated.

As used in sections 28-101, 28-431, and 28-439 to 28-444, unless the context otherwise requires, drug paraphernalia shall mean all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in manufacturing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444 or the Uniform Controlled Substances Act. It shall include, but not be limited to, the following:

(1) Diluents and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose, and lactose, used, intended for use, or designed for use in cutting controlled substances;

(2) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marijuana;

(3) Hypodermic syringes, needles, and other objects used, intended for use, and designed for use in parenterally injecting controlled substances into the human body; and

(4) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marijuana, cocaine, hashish, or hashish oil into the human body, which shall include but not be limited to the following:

(a) Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

(b) Water pipes;

(d) Smoking and carburetion masks;

(e) Roach clips, meaning objects used to hold burning material, such as a marijuana cigarette, which has become too small or too short to be held in the hand;

(f) Miniature cocaine spoons, and cocaine vials;

(g) Chamber pipes;

(h) Carburetor pipes;

(i) Electric pipes;

(j) Air-driven pipes;

(k) Chillums;

(l) Bongs; and

(m) Ice pipes or chillers.

Source:Laws 1980, LB 991, § 1.

Annotations

Neither Fourth Amendment rights nor privacy rights are implicated in "drug paraphernalia" statutes, and thus, strict scrutiny standard of review is inapplicable to constitutional challenge. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

Use of term "designed" does not refer to physical attributes of object but to intent of person charged with violation, and thus does not render statute unconstitutionally vague. List of items exemplary of drug paraphernalia is not vague and overbroad on ground that it includes numerous innocent items, where no item is drug paraphernalia absent requisite intent to use it with controlled substances. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-440. Drug paraphernalia; determination; factors considered.

In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;

(3) The proximity of the object, in time and space, to a direct violation of this act;

(4) The proximity of the object to any controlled substance;

(5) The existence of any residue of a controlled substance on the object;

(6) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to any person whom he or she knows, or should reasonably know, intends to use the object to facilitate a violation of sections 28-101, 28-431, and 28-439 to 28-444. The innocence of an owner, or of anyone in control of the object, as to a direct violation of sections 28-101, 28-431, and 28-439 to 28-444 shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(7) Instructions, oral or written, provided with the object concerning its use;

(8) Descriptive materials accompanying the object which explain or depict its use;

(9) National and local advertising concerning its use;

(10) The manner in which the object is displayed for sale;

(11) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(12) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(13) The existence and scope of any legitimate use for the object in the community; and

(14) Expert testimony concerning its use.

Source:Laws 1980, LB 991, § 2.

Annotations

The factors listed in this section are used to determine if the objects are actually drug paraphernalia, not whether officer had probable cause to believe they were drug paraphernalia. The list in this section is illustrative, not exclusive. State v. Sassen, 240 Neb. 773, 484 N.W.2d 469 (1992).

List of items exemplary of drug paraphernalia is not unconstitutional on ground that several factors would permit conviction based on transferred intent and guilt by association where, although actions of third parties are relevant in determining paraphernalia, evidence regarding third-party actions is but one step in prosecutorial scheme, and if third-party actions tend to indicate the item is drug paraphernalia, focus of inquiry must necessarily shift to intent of individual involved. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

Reference to "other authority" is not unconstitutionally vague since "other authority" certainly refers to law enforcement personnel, and fact that statute attempts to guide such personnel in their enforcement duties lessens, rather than increases, danger of arbitrary enforcement. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-441. Drug paraphernalia; use or possession; unlawful; penalty.

(1) It shall be unlawful for any person to use, or to possess with intent to use, drug paraphernalia to manufacture, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444.

(2) Any person who violates this section shall be guilty of an infraction.

(3) A person shall not be in violation of this section if section 28-472 or 28-1701 applies.

Source:Laws 1980, LB 991, § 3; Laws 2017, LB487, § 7; Laws 2022, LB519, § 5.

Annotations

Evidence that defendant invited police to her motel room and let them in, wherein police found two syringes, cigarette papers, and a small plastic spoon in close proximity to cocaine and marijuana, was sufficient to sustain convictions for possession of drug paraphernalia. State v. Garza, 239 Neb. 98, 474 N.W.2d 246 (1991).

Possession of drug paraphernalia is an infraction. State v. Petersen, 12 Neb. App. 445, 676 N.W.2d 65 (2004).

Where statute includes requirement of intent in definition of drug paraphernalia and enumerates factors which officer has to consider in determining whether object is drug paraphernalia, statute does not alter requirement that searches and seizures be based on probable cause and is thus not violative of Fourth Amendment. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-442. Drug paraphernalia; deliver or manufacture; unlawful; exception; penalty.

(1) It shall be unlawful for any person to deliver, possess with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances in which one reasonably should know, that it will be used to manufacture, inject, ingest, or inhale or otherwise be used to introduce into the human body a controlled substance in violation of sections 28-101, 28-431, and 28-439 to 28-444.

(2) This section shall not apply to pharmacists, pharmacist interns, pharmacy technicians, and pharmacy clerks who sell hypodermic syringes or needles for the prevention of the spread of infectious diseases.

(3) Any person who violates this section shall be guilty of a Class II misdemeanor.

Source:Laws 1980, LB 991, § 4; Laws 2001, LB 398, § 18; Laws 2017, LB166, § 6.

Annotations

Sections of drug paraphernalia statute making it unlawful to deliver, possess with intent to deliver, manufacture with intent to deliver, or advertise drug paraphernalia in circumstances where one knows or "reasonably should know" that items will be used with drugs or that purpose of advertisement is to promote sale of drug paraphernalia are not unconstitutional on ground that they would permit conviction under impermissibly vague negligence standard and would leave innocent sellers in untenable posture of trying to divine intentions of their buyers where, under sections, seller has to already have intended that item be sold for drug use before his knowledge of its use by a buyer came into play. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-443. Delivery of drug paraphernalia to a minor; penalty.

Any person eighteen years of age or older who violates section 28-442 by delivering drug paraphernalia to a person under eighteen years of age who is at least three years his or her junior shall be guilty of a Class I misdemeanor.

Source:Laws 1980, LB 991, § 5.

28-444. Advertisement of drug paraphernalia; unlawful; penalty.

(1) It shall be unlawful for any person to place in any newspaper, magazine, handbill, or other publication any advertisement, knowing, or under circumstances where one reasonably should know, that the purpose of the advertisement, in whole or in part, is to promote the sale of objects designed or intended for use as drug paraphernalia.

(2) Any person who violates this section shall be guilty of a Class III misdemeanor.

Source:Laws 1980, LB 991, § 6.

Annotations

The prohibition of advertising that promotes, in whole or in part, sale of objects designed or intended for use as drug paraphernalia regulates commercial speech in its narrowest sense, i.e., speech which proposes a commercial transaction and which is entitled to lesser protection than other constitutionally guaranteed expression where statute facially does not reach speech which merely glorifies drug culture without direct invitation to purchase specific items. Advertising promoting sale of drug paraphernalia encourages activities which are otherwise crimes under Nebraska law and is thus analogous to advertisements promoting sale of narcotics or soliciting prostitution and can constitutionally be prohibited. Although this statute prohibits advertisements that "only in part" have purpose of promoting sale of drug paraphernalia, court of appeals is obliged to presume legislative intent to act within constitutional bounds, and thus, under statute, where drug paraphernalia is advertised along with innocent items, statute forbids only that part of the advertisement relating to drug paraphernalia and remainder of advertisement is not condemned. Casbah, Inc. v. Thone, 651 F.2d 551 (8th Cir. 1981).

28-445. Imitation controlled substance; prohibited acts; determination; penalties; seizure.

(1) Any person who knowingly and intentionally manufactures, distributes, delivers, or possesses with intent to distribute or deliver an imitation controlled substance shall:

(a) For the first offense, be guilty of a Class III misdemeanor; and

(b) For the second and all subsequent offenses, be guilty of a Class II misdemeanor.

(2) In determining whether a substance is an imitation controlled substance the court or other authority concerned shall consider all relevant factors, including, but not limited to, the following:

(a) Whether the substance is represented as having an effect similar to or the same as an illicit controlled substance;

(b) Whether the substance is represented by way of terminology which is deceptively similar to or the same as that describing a particular controlled substance;

(c) Whether the dosage unit price substantially exceeds the reasonable price of a similar dosage unit of like chemical composition sold over the counter;

(d) Whether the substance was approved by the federal Food and Drug Administration for over-the-counter sales and contained the packaging and labeling information approved by the federal Food and Drug Administration;

(e) Whether the substance is packaged in a manner and quantity similar to or the same as that commonly used for illicit controlled substances;

(f) Whether the dosage unit appearance of the substance is deceptively similar to that of a particular controlled substance;

(g) Whether the substance is distributed to persons who represent it as a controlled substance or controlled substance analogue, under circumstances which indicate the distributor knows, intends, or should know that his or her distributee is making or will make such representations; and

(h) Whether the person in possession or control of the substance utilized deception, fraud, or evasive tactics or actions to prevent the seizure, discovery, or detection of the substance by law enforcement.

(3) Any substance possessed, distributed, or delivered in violation of this section shall be subject to seizure and forfeiture as provided in section 28-431.

Source:Laws 1985, LB 406, § 5; Laws 2014, LB811, § 16.

28-446. Repealed. Laws 1992, LB 1019, § 130.

28-447. Repealed. Laws 1992, LB 1019, § 130.

28-448. Repealed. Laws 2009, LB 151, § 5.

28-449. Crystalline iodine; sale; requirements.

Any person who sells crystalline iodine to another person shall require photo identification of the purchaser and shall maintain a written record for a period of five years after the sale, including the date of the sale, the name, address, and date of birth of the purchaser, and the quantity purchased.

Source:Laws 2001, LB 113, § 2.

28-450. Ephedrine, pseudoephedrine, or phenylpropanolamine; immediate precursor; prohibited acts; violation; penalty.

No person shall sell, distribute, or otherwise transfer any drug product containing ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, if the person knows that the transferee will use the drug product as an immediate precursor to any controlled substance. No person shall unlawfully sell, distribute, or otherwise transfer such a product with reckless disregard as to how the drug product will be used. Any person who violates this section is guilty of a Class III misdemeanor.

Source:Laws 2001, LB 113, § 3; Laws 2005, LB 117, § 4.

28-451. Anhydrous ammonia; possession; penalty.

No person shall possess anhydrous ammonia with the intent to manufacture methamphetamine. Any person who violates this section is guilty of a Class IV felony.

Source:Laws 2001, LB 113, § 4.

28-452. Ephedrine, pseudoephedrine, or phenylpropanolamine; possession; penalty.

No person shall possess ephedrine, pseudoephedrine, or phenylpropanolamine, or their salts, isomers, or salts of isomers, with the intent to manufacture methamphetamine. Any person who violates this section is guilty of a Class IV felony.

Source:Laws 2001, LB 113, § 5.

28-453. Methamphetamine; retailer education program.

The Nebraska State Patrol may develop and maintain a program to inform retailers about illicit methamphetamine production, distribution, and use in Nebraska and devise procedures and forms for retailers to use in reporting to the patrol suspicious purchases, thefts, or other transactions involving any products under the retailers' control which contain ephedrine, pseudoephedrine, phenylpropanolamine, or ephedra. Reporting under this section shall be voluntary. Retailers reporting information to the patrol in good faith shall be immune from civil liability.

Source:Laws 2001, LB 113, § 6.

28-454. Repealed. Laws 2009, LB 151, § 5.

28-455. Methamphetamine Awareness and Education Fund; created; use; investment.

The Methamphetamine Awareness and Education Fund is created. The Nebraska Commission on Law Enforcement and Criminal Justice shall use the fund to support projects relating to educating retailers and the public on the dangers of methamphetamine. The commission may accept contributions, gifts, grants, and bequests for such purposes and remit them to the State Treasurer for credit to the fund. Any money in the fund available for investment shall be invested by the state investment officer pursuant to the Nebraska Capital Expansion Act and the Nebraska State Funds Investment Act.

Source:Laws 2001, LB 113, § 8.

Cross References

Nebraska Capital Expansion Act, see section 72-1269.

Nebraska State Funds Investment Act, see section 72-1260.

28-456. Phenylpropanolamine or pseudoephedrine; sold without a prescription; requirements; enforcement.

(1) Any drug products containing phenylpropanolamine, pseudoephedrine, or their salts, optical isomers, or salts of such optical isomers may be sold without a prescription only if they are:

(a) Labeled and marketed in a manner consistent with the pertinent OTC Tentative Final or Final Monograph;

(b) Manufactured and distributed for legitimate medicinal use in a manner that reduces or eliminates the likelihood of abuse;

(i) Except for liquids, sold in package sizes of not more than three and six-tenths grams of pseudoephedrine base or three and six-tenths grams of phenylpropanolamine base, in blister packs, each blister containing not more than two dosage units, or if the use of blister packs is technically infeasible, in unit dose packets or pouches; and

(ii) For liquids, sold in package sizes of not more than three and six-tenths grams of pseudoephedrine base or three and six-tenths grams of phenylpropanolamine base;

(d) Sold by a person, eighteen years of age or older, in the course of his or her employment to a customer, eighteen years of age or older, with the following restrictions:

(i) No customer shall be allowed to purchase, receive, or otherwise acquire more than three and six-tenths grams of pseudoephedrine base or three and six-tenths grams of phenylpropanolamine base during a twenty-four-hour period;

(ii) No customer shall purchase, receive, or otherwise acquire more than nine grams of pseudoephedrine base or nine grams of phenylpropanolamine base during a thirty-day period; and

(iii) The customer shall display a valid driver's or operator's license, a Nebraska state identification card, a military identification card, an alien registration card, or a passport as proof of identification; and

(e) Stored behind a counter, in an area not accessible to customers, or in a locked case so that a customer needs assistance from an employee to access the drug product.

(2) Any person who sells drug products in violation of this section may be subject to a civil penalty of fifty dollars per day, and for a second or any subsequent violation, the penalty may be one hundred dollars per day. Any such drug products shall be seized and destroyed upon the finding of a violation of this section. The department, in conjunction with the Attorney General, the Nebraska State Patrol, and local law enforcement agencies, shall have authority to make inspections and investigations to enforce this section. In addition, the department may seek injunctive relief for suspected violations of this section.

Source:Laws 2001, LB 113, § 9; Laws 2005, LB 117, § 5; Laws 2007, LB218, § 1; Laws 2007, LB296, § 36; Laws 2009, LB151, § 2.

28-456.01. Pseudoephedrine or phenylpropanolamine; limitation on acquisition; violation; penalty.

(1) No person shall purchase, receive, or otherwise acquire, other than wholesale acquisition by a retail business in the normal course of its trade or business, any drug product containing more than three and six-tenths grams of pseudoephedrine base or three and six-tenths grams of phenylpropanolamine base during a twenty-four-hour period unless purchased pursuant to a medical order. Any person who violates this section shall be guilty of a Class IV misdemeanor for the first offense and a Class III misdemeanor for each subsequent offense.

(2) No person shall purchase, receive, or otherwise acquire, other than wholesale acquisition by a retail business in the normal course of its trade or business, any drug product containing more than nine grams of pseudoephedrine base or nine grams of phenylpropanolamine base during a thirty-day period unless purchased pursuant to a medical order. Any person who violates this section shall be guilty of a Class IV misdemeanor for the first offense and a Class III misdemeanor for each subsequent offense.

Source:Laws 2005, LB 117, § 6; Laws 2009, LB151, § 3; Laws 2011, LB20, § 8.

28-457. Methamphetamine; prohibited acts; violation; penalties.

(1) For purposes of this section:

(a) Bodily injury has the same meaning as in section 28-109;

(b) Chemical substance means a substance intended to be used as an immediate precursor or reagent in the manufacture of methamphetamine or any other chemical intended to be used in the manufacture of methamphetamine. Intent for purposes of this subdivision may be demonstrated by the substance's use, quantity, manner of storage, or proximity to other precursors or manufacturing equipment;

(d) Methamphetamine means methamphetamine, its salts, optical isomers, and salts of its isomers;

(e) Paraphernalia means all equipment, products, and materials of any kind which are used, intended for use, or designed for use in manufacturing, injecting, ingesting, inhaling, or otherwise introducing methamphetamine into the human body;

(f) Prescription has the same meaning as in section 28-401;

(g) Serious bodily injury has the same meaning as in section 28-109; and

(h) Vulnerable adult has the same meaning as in section 28-371.

(2) Any person who knowingly or intentionally causes or permits a child or vulnerable adult to inhale or have contact with methamphetamine, a chemical substance, or paraphernalia is guilty of a Class I misdemeanor. For any second or subsequent conviction under this subsection, any person so offending is guilty of a Class IV felony.

(3) Any person who knowingly or intentionally causes or permits a child or vulnerable adult to ingest methamphetamine, a chemical substance, or paraphernalia is guilty of a Class I misdemeanor. For any second or subsequent conviction under this subsection, any person so offending shall be guilty of a Class IIIA felony.

(4) Any child or vulnerable adult who resides with a person violating subsection (2) or (3) of this section shall be taken into protective custody as provided in the Adult Protective Services Act or the Nebraska Juvenile Code.

(5) Any person who violates subsection (2) or (3) of this section and a child or vulnerable adult actually suffers serious bodily injury by ingestion of, inhalation of, or contact with methamphetamine, a chemical substance, or paraphernalia is guilty of a Class IIIA felony unless the ingestion, inhalation, or contact results in the death of the child or vulnerable adult, in which case the person is guilty of a Class IB felony.

(6) It is an affirmative defense to a violation of this section that the chemical substance was provided by lawful prescription for the child or vulnerable adult and that it was administered to the child or vulnerable adult in accordance with the prescription instructions provided with the chemical substance.

Source:Laws 2003, LB 43, § 9.

Cross References

Adult Protective Services Act, see section 28-348.

Nebraska Juvenile Code, see section 43-2,129.

28-458. Methamphetamine precursor; terms, defined.

For purposes of sections 28-458 to 28-462:

(1) Exchange means the National Precursor Log Exchange administered by the National Association of Drug Diversion Investigators;

(2) Methamphetamine precursor means any drug product containing ephedrine, pseudoephedrine, or phenylpropanolamine that is required to be documented pursuant to the logbook requirements of 21 U.S.C. 830;

(3) Seller means any person who lawfully sells a methamphetamine precursor pursuant to subdivision (1)(d) of section 28-456 or his or her employer; and

(4) Stop-sale alert means a notification sent to a seller indicating that the completion of a methamphetamine precursor sale would result in a violation of subdivision (1)(d)(i) or (ii) of section 28-456.

Source:Laws 2011, LB20, § 3.

28-459. Methamphetamine precursor; seller; duties; waiver authorized.

(1) Beginning January 1, 2012, each seller shall, before completing a sale of a methamphetamine precursor, electronically submit required information to the exchange, if the exchange is available to sellers. Required information shall include, but not be limited to:

(a) The name, age, and address of the person purchasing, receiving, or otherwise acquiring the methamphetamine precursor;

(b) The name of the product and quantity of product purchased;

(d) The name or initials of the seller who sold the product; and

(e) The type of identification presented by the customer, the governmental entity that issued the identification, and the number on the identification.

(2) If a seller experiences mechanical or electronic failure of the electronic logging equipment on the sales end of the transaction or a failure of the exchange and is unable to comply with subsection (1) of this section, the seller shall maintain a written log or an alternative electronic record-keeping mechanism or may refrain from selling any methamphetamine precursor until such time as the seller is able to comply with subsection (1) of this section.

(3) The Attorney General may grant a waiver exempting a seller from compliance with subsection (1) of this section upon a showing of good cause by the seller that he or she is otherwise unable to submit log information by electronic means, including, but not limited to, any financial, technological, or other reason which would place an undue burden on the seller, as established by the Attorney General.

(4) Whenever the exchange generates a stop-sale alert, the seller shall not complete the sale unless the seller has a reasonable fear of imminent bodily harm if he or she does not complete the sale. The exchange shall contain an override function to the stop-sale alert for the seller to use in a situation in which a reasonable fear of imminent bodily harm is present.

(5) This section does not apply if a lawful prescription for the methamphetamine precursor is presented to a pharmacist licensed under the Uniform Credentialing Act.

Source:Laws 2011, LB20, § 4.

Cross References

Uniform Credentialing Act, see section 38-101.

28-460. Methamphetamine precursor; access to exchange to law enforcement.

As a condition of use in Nebraska, the National Association of Drug Diversion Investigators shall provide real-time access to the exchange through its online portal to law enforcement in this state as authorized by the Attorney General and no fee or charge shall be imposed on a seller for the use of the exchange.

Source:Laws 2011, LB20, § 5.

28-461. Methamphetamine precursor; seller; immunity.

A seller utilizing in good faith sections 28-458 to 28-462 shall be immune from any civil cause of action based upon an act or omission in carrying out such sections.

Source:Laws 2011, LB20, § 6.

28-462. Methamphetamine precursor; prohibited acts; penalty.

Beginning January 1, 2013, a seller that knowingly fails to submit methamphetamine precursor information to the exchange as required by sections 28-458 to 28-462 or knowingly submits incorrect information to the exchange shall be guilty of a Class IV misdemeanor.

Source:Laws 2011, LB20, § 7.

28-463. Cannabidiol; terms, defined; legislative findings.

(1) For purposes of sections 28-463 to 28-468:

(a) Cannabidiol means processed cannabis plant extract, oil, or resin that contains more than ten percent cannabidiol by weight, but not more than three-tenths of one percent tetrahydrocannabinols by weight, and delivered in the form of a liquid or solid dosage form; and

(b) Intractable seizures means intractable, catastrophic genetic, or metabolic epilepsies; Lennox-Gastaut Syndrome; epilepsies consisting of drop seizures at risk for significant bodily injury; or cluster seizures that result in significant life-threatening apnea after the trial and failure of at least three antiepileptic therapies that directly address the epilepsy in question.

(2) The Legislature finds:

(a) There are individuals in Nebraska who suffer from intractable seizures and treatment resistant seizures for which currently available treatment options have been ineffective. Cannabidiol shows promise in treating individuals with intractable seizures and treatment resistant seizures; and

(b) Additional study of cannabidiol for the treatment of intractable seizures and treatment resistant seizures should be undertaken.

(3) The purpose of sections 28-463 to 28-468 is to permit medical professionals to conduct limited-scope, evidence-based studies exploring the safety and efficacy of treating intractable seizures and treatment resistant seizures using cannabidiol.

Source:Laws 2015, LB390, § 5. Termination Date: October 1, 2019

28-464. Medical Cannabidiol Pilot Study; University of Nebraska and Nebraska Medicine; authority to produce or possess cannabidiol; patient; eligibility.

(1) The University of Nebraska and Nebraska Medicine shall be the only entities in this state authorized to produce or possess cannabidiol for research for purposes of the Medical Cannabidiol Pilot Study.

(2) Cannabidiol shall be obtained from or tested at the University of Nebraska Medical Center and dispensed by the Nebraska Medicine Research Pharmacy.

(3) Cannabidiol may only be obtained by patients with intractable seizures and treatment resistant seizures and on the order of a physician who is licensed to practice medicine and surgery in Nebraska and designated as a medical provider under section 28-465 and administered to a patient by or under the direction or supervision of such medical provider participating in the Medical Cannabidiol Pilot Study.

Source:Laws 2015, LB390, § 6. Termination Date: October 1, 2019

28-465. Medical Cannabidiol Pilot Study; created; physician or pharmacist; duties; risks and benefits form; use; participant; document; contents.

(1) The University of Nebraska Medical Center shall create the Medical Cannabidiol Pilot Study. The pilot study shall designate at least two medical providers to conduct research on the safety and preliminary effectiveness of cannabidiol to treat patients with intractable seizures and treatment resistant seizures. The medical providers shall be physicians licensed to practice medicine and surgery in Nebraska, and at least one shall be a pediatric neurologist. The medical providers shall adhere to the policies and procedures established by the University of Nebraska Medical Center for the pilot study.

(2) A physician designated as a medical provider or a licensed pharmacist participating in the Medical Cannabidiol Pilot Study shall not be subject to arrest or prosecution, penalized or disciplined in any manner, or denied any right or privilege for approving or recommending the use of cannabidiol under the pilot study.

(3)(a) A physician designated as a medical provider conducting research under the Medical Cannabidiol Pilot Study shall:

(i) Determine eligibility for participation in the pilot study;

(ii) Keep a record of the evaluation and observation of a patient under the physician's care, including the patient's response to cannabidiol treatment; and

(iii) Transmit the record described in subdivision (a)(ii) of this subsection to the department upon request.

(b) All medical records received or maintained by the department pursuant to this section are confidential and may not be disclosed to the public.

(4) The University of Nebraska Medical Center shall create a risks and benefits form to be signed by the medical provider conducting the cannabidiol trial and by the patient who is to be administered cannabidiol or a parent or legal guardian of the patient if the patient is under nineteen years of age. The risks and benefits form shall document their discussion of the risks and benefits of invasive therapies, including, but not limited to, neurostimulation such as vagus nerve stimulation and responsive neurostimulation and epilepsy surgery, including corpus callosotomy, if indicated. This form shall be completed and on file with the University of Nebraska Medical Center before the patient begins the cannabidiol trial.

(5) The University of Nebraska Medical Center shall provide a document to patients who are to be administered cannabidiol or a parent or legal guardian of such patients confirming participation in the Medical Cannabidiol Pilot Study. The document shall include, at a minimum, the patient's name, date of birth, and address, as well as the name and contact information of the patient's medical provider. If the patient is under nineteen years of age, the document shall also include the name, date of birth, and address of the parent or legal guardian of the patient. The document may be provided by the patient to law enforcement agencies in order to verify participation in the pilot study.

Source:Laws 2015, LB390, § 7. Termination Date: October 1, 2019

28-466. University of Nebraska Medical Center and Nebraska Medicine; duties; powers.

(1) The University of Nebraska Medical Center and Nebraska Medicine, when using cannabidiol for research, shall comply with the Uniform Controlled Substances Act regarding possession of controlled substances, record-keeping requirements relative to the dispensing, use, or administration of controlled substances, and inventory requirements, as applicable.

(2) The University of Nebraska Medical Center and Nebraska Medicine are authorized to pursue any federal permits or waivers necessary to conduct the activities authorized under sections 28-463 to 28-468.

Source:Laws 2015, LB390, § 8. Termination Date: October 1, 2019

28-467. Prosecution for unlawful possession of marijuana; defense; restrictions on certain actions.

(1) In a prosecution for the unlawful possession of marijuana under the Uniform Controlled Substances Act, it is an affirmative and complete defense to prosecution that:

(a) The defendant suffered from intractable seizures and the use or possession of cannabidiol was pursuant to the order of a physician designated as a medical provider under section 28-465; or

(b) The defendant is the parent or legal guardian of an individual who suffers from intractable seizures and the use or possession of cannabidiol was pursuant to the order of a physician designated as a medical provider under section 28-465.

(2) An agency of this state or a political subdivision thereof, including any law enforcement agency, may not initiate proceedings to remove a child from a home based solely upon the possession or use of cannabidiol by the child or possession of cannabidiol by a parent or legal guardian for use by the child as authorized under sections 28-463 to 28-468.

(3) An employee of the state or any division, agency, or institution thereof or any employee of Nebraska Medicine involved in the research, ordering, dispensing, and administration of cannabidiol under sections 28-463 to 28-468, including its cultivation and processing, shall not be subject to prosecution for unlawful possession, use, distribution, or dispensing of marijuana under the Uniform Controlled Substances Act for activities arising from or related to the use of cannabidiol in the treatment of individuals diagnosed with intractable seizures or treatment resistant seizures.

Source:Laws 2015, LB390, § 9. Termination Date: October 1, 2019

28-468. Report; contents.

The University of Nebraska Medical Center shall submit a report electronically to the chairperson of the Judiciary Committee of the Legislature, the chairperson of the Health and Human Services Committee of the Legislature, and the Clerk of the Legislature on or before September 15, 2016, and each September 15 thereafter, containing the following performance measures:

(1) The number of patients enrolled in the Medical Cannabidiol Pilot Study, including the number of patients under nineteen years of age;

(2) The number of patients previously enrolled in the pilot study and no longer receiving treatment under the pilot study;

(3) Any changes in intractable seizure or treatment resistant seizure frequency and severity;

(4) Any relevant or related adverse health outcomes for patients; and

(5) A summary of findings concerning appropriate dosing.

Source:Laws 2015, LB390, § 10. Termination Date: October 1, 2019

28-469. Termination.

Sections 28-463 to 28-468 terminate on October 1, 2019.

Source:Laws 2015, LB390, § 13.

28-470. Naloxone; authorized activities; immunity from administrative action, criminal prosecution, or civil liability.

(1) A health professional who is authorized to prescribe or dispense naloxone, if acting with reasonable care, may prescribe, administer, or dispense naloxone to any of the following persons without being subject to administrative action or criminal prosecution:

(a) A person who is apparently experiencing or who is likely to experience an opioid-related overdose; or

(b) A family member, friend, or other person in a position to assist a person who is apparently experiencing or who is likely to experience an opioid-related overdose.

(2) A family member, friend, or other person, including school personnel, who is in a position to assist a person who is apparently experiencing or who is likely to experience an opioid-related overdose, other than an emergency responder or peace officer, is not subject to actions under the Uniform Credentialing Act, administrative action, or criminal prosecution if the person, acting in good faith, obtains naloxone from a health professional or a prescription for naloxone from a health professional and administers the naloxone obtained from the health professional or acquired pursuant to the prescription to a person who is apparently experiencing an opioid-related overdose.

(3) An emergency responder who, acting in good faith, obtains naloxone from the emergency responder's emergency medical service organization and administers the naloxone to a person who is apparently experiencing an opioid-related overdose shall not be:

(a) Subject to administrative action or criminal prosecution; or

(b) Personally liable in any civil action to respond in damages as a result of his or her acts of commission or omission arising out of and in the course of his or her rendering such care or services or arising out of his or her failure to act to provide or arrange for further medical treatment or care for the person who is apparently experiencing an opioid-related overdose, unless the emergency responder caused damage or injury by his or her willful, wanton, or grossly negligent act of commission or omission. This subdivision shall not affect the liability of such emergency medical service organization for the emergency responder's acts of commission or omission.

(4) A peace officer or law enforcement employee who, acting in good faith, obtains naloxone from the peace officer's or employee's law enforcement agency and administers the naloxone to a person who is apparently experiencing an opioid-related overdose shall not be:

(a) Subject to administrative action or criminal prosecution; or

(b) Personally liable in any civil action to respond in damages as a result of his or her acts of commission or omission arising out of and in the course of his or her rendering such care or services or arising out of his or her failure to act to provide or arrange for further medical treatment or care for the person who is apparently experiencing an opioid-related overdose, unless the peace officer or employee caused damage or injury by his or her willful, wanton, or grossly negligent act of commission or omission. This subdivision shall not affect the liability of such law enforcement agency for the peace officer's or employee's acts of commission or omission.

(5) For purposes of this section:

(a) Administer has the same meaning as in section 38-2806;

(b) Dispense has the same meaning as in section 38-2817;

(c) Emergency responder means an emergency medical responder, an emergency medical technician, an advanced emergency medical technician, or a paramedic licensed under the Emergency Medical Services Practice Act or practicing pursuant to the EMS Personnel Licensure Interstate Compact;

(d) Health professional means a physician, physician assistant, nurse practitioner, or pharmacist licensed under the Uniform Credentialing Act;

(e) Law enforcement agency means a police department, a town marshal, the office of sheriff, or the Nebraska State Patrol;

(f) Law enforcement employee means an employee of a law enforcement agency, a contractor of a law enforcement agency, or an employee of such contractor who regularly, as part of his or her duties, handles, processes, or is likely to come into contact with any evidence or property which may include or contain opioids;

(g) Naloxone means naloxone hydrochloride; and

(h) Peace officer has the same meaning as in section 49-801.

Source:Laws 2015, LB390, § 11; Laws 2017, LB487, § 9; Laws 2018, LB923, § 1; Laws 2018, LB1034, § 2; Laws 2023, LB50, § 5.
Effective Date: September 2, 2023

Cross References

Emergency Medical Services Practice Act, see section 38-1201.

EMS Personnel Licensure Interstate Compact, see section 38-3801.

Uniform Credentialing Act, see section 38-101.

28-471. Lookalike substance; prohibited acts; penalty.

(1) A person shall not offer, display, market, advertise for sale, or sell a lookalike substance. A violation of this section shall be deemed to have occurred if a person knowingly offers, displays, markets, advertises for sale, or sells a lookalike substance and the packaging containing such substance bears a label or marking which:

(a) Is false, misleading, or incomplete;

(b) Does not specifically identify all chemicals or chemical compounds contained on or in the substance or product inside the packaging; or

(c) Does not specifically identify the name and place of business of the manufacturer, packer, or distributor of the product or substance contained inside the packaging.

(2) Any person who violates this section is guilty of a Class IV felony. The penalty for a violation of this section shall be in addition to any other applicable criminal offenses or penalties or civil remedies or penalties.

(3) This section shall not apply to lookalike substances intended solely for investigational use by experts qualified by scientific training and experience to investigate the safety of drugs if the drug is plainly labeled for investigational use only and the investigational use is authorized by state or federal law.

Source:Laws 2016, LB1009, § 4.

28-472. Drug overdose; exception from criminal liability; conditions.

(1) A person shall not be in violation of section 28-441 or subsection (3) of section 28-416 if:

(a) Such person made a good faith request for emergency medical assistance in response to a drug overdose of himself, herself, or another;

(b) Such person made a request for medical assistance as soon as the drug overdose was apparent;

(c) The evidence for the violation of section 28-441 or subsection (3) of section 28-416 was obtained as a result of the drug overdose and the request for medical assistance; and

(d) When emergency medical assistance was requested for the drug overdose of another person:

(i) Such requesting person remained on the scene until medical assistance or law enforcement personnel arrived; and

(ii) Such requesting person cooperated with medical assistance and law enforcement personnel.

(2) The exception from criminal liability provided in subsection (1) of this section applies to any person who makes a request for emergency medical assistance and complies with the requirements of subsection (1) of this section.

(3) A person shall not be in violation of section 28-441 or subsection (3) of section 28-416 if such person was experiencing a drug overdose and the evidence for such violation was obtained as a result of the drug overdose and a request for medical assistance by another person made in compliance with subsection (1) of this section.

(4) A person shall not initiate or maintain an action against a peace officer or the state agency or political subdivision employing such officer based on the officer's compliance with subsections (1) through (3) of this section.

(5) Nothing in this section shall be interpreted to interfere with or prohibit the investigation, arrest, or prosecution of any person for, or affect the admissibility or use of evidence in, cases involving:

(a) Drug-induced homicide;

(b) Except as provided in subsections (1) through (3) of this section, violations of section 28-441 or subsection (3) of section 28-416; or

(6) As used in this section, drug overdose means an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled substance or the consumption or use of another substance with which a controlled substance was combined and which condition a layperson would reasonably believe requires emergency medical assistance.

Source:Laws 2017, LB487, § 8.

28-473. Transferred to section 38-1,144.

28-474. Transferred to section 38-1,145.

28-475. Opiates; receipt; identification required.

(1) Unless the individual taking receipt of dispensed opiates listed in Schedule II, III, or IV of section 28-405 is personally and positively known to the pharmacist or dispensing practitioner, the individual shall display a valid driver's or operator's license, a state identification card, a military identification card, an alien registration card, or a passport as proof of identification.

(2) This section does not apply to a patient who is a resident of a health care facility licensed pursuant to the Health Care Facility Licensure Act.

Source:Laws 2018, LB931, § 5.

Cross References

Health Care Facility Licensure Act, see section 71-401.

28-476. Hemp; carry or transport; requirements; peace officer; powers; violation; penalty.

(1) Any person other than the Department of Agriculture, a cultivator, a processor-handler, or an approved testing facility who is transporting hemp shall carry with such hemp being transported (a) a bill of lading indicating the owner of the hemp, the point of origin of the hemp, and the destination of the hemp and (b) either a copy of the test results pertaining to such hemp or other documentation affirming that the hemp was produced in compliance with the federal Agriculture Improvement Act of 2018.

(2)(a) No person shall carry or transport hemp in this state unless such hemp is:

(i) Produced in compliance with:

(A) For hemp originating in this state, the requirements of the federal Agriculture Improvement Act of 2018 under the Nebraska Hemp Farming Act and any rules and regulations adopted and promulgated thereunder, a tribal hemp production plan approved by the United States Secretary of Agriculture, or the United States Department of Agriculture Domestic Hemp Production Plan; or

(B) For hemp originating outside this state, the requirements of the federal Agriculture Improvement Act of 2018; and

(ii) Carried or transported as provided in section 2-515 or subsection (1) of this section.

(b) No person shall transport hemp in this state concurrently with any other plant material that is not hemp.

(3)(a) A peace officer may detain any person carrying or transporting hemp in this state if such person does not provide the documentation required by this section and section 2-515. Unless the peace officer has probable cause to believe the hemp is, or is being carried or transported with, marijuana or any other controlled substance, the peace officer shall immediately release the hemp and the person carrying or transporting such hemp upon production of such documentation.

(b) The failure of a person detained as described in this subsection to produce documentation required by this section shall constitute probable cause to believe the hemp may be marijuana or another controlled substance. In such case, a peace officer may collect such hemp for testing to determine the delta-9 tetrahydrocannabinol concentration in the hemp, and, if the peace officer has probable cause to believe the person detained is carrying or transporting marijuana or any other controlled substance in violation of state or federal law, the peace officer may seize and impound the hemp or marijuana or other controlled substance and arrest such person.

(c) This subsection does not limit or restrict in any way the power of a peace officer to enforce violations of the Uniform Controlled Substances Act and federal law regulating marijuana and other controlled substances.

(4) In addition to any other penalties provided by law, including those imposed under the Nebraska Hemp Farming Act, any person who intentionally violates this section shall be guilty of a Class IV misdemeanor and fined not more than one thousand dollars.

(5) This section does not apply to a person transporting hemp products purchased at retail in small amounts for personal or household use and not intended for resale.

(6) For purposes of this section:

(a) Agriculture Improvement Act of 2018 has the same meaning as in section 2-503;

(b) Approved testing facility has the same meaning as in section 2-503;

(d) Processor-handler has the same meaning as in section 2-503.

Source:Laws 2020, LB1152, § 16.

Cross References

Nebraska Hemp Farming Act, see section 2-501.

28-501. Building, defined.

As used in this article, unless the context otherwise requires, building shall mean a structure which has the capacity to contain, and is designed for the shelter of man, animals, or property, and includes ships, trailers, sleeping cars, aircraft, or other vehicles or places adapted for overnight accommodations of persons or animals, or for carrying on of business therein, whether or not a person or animal is actually present. If a building is divided into units for separate occupancy, any unit not occupied by the defendant is a building of another.

Source:Laws 1977, LB 38, § 100.

28-502. Arson, first degree; penalty.

(1) A person commits arson in the first degree if he or she intentionally damages a building or property contained within a building by starting a fire or causing an explosion when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person therein a reasonable probability.

(2) A person commits arson in the first degree if a fire is started or an explosion is caused in the perpetration of any robbery, burglary, or felony criminal mischief when another person is present in the building at the time and either (a) the actor knows that fact, or (b) the circumstances are such as to render the presence of a person therein a reasonable probability.

(3) Arson in the first degree is a Class II felony.

Source:Laws 1977, LB 38, § 101; Laws 1981, LB 83, § 1; Laws 2010, LB712, § 8.

Annotations

The crime of arson in the first degree requires that some damage occur to a building as a result of a fire ignited when someone is present in the building. Ignition of the building is not required. State v. Hohnstein, 213 Neb. 296, 328 N.W.2d 777 (1983).

28-503. Arson, second degree; penalty.

(1) A person commits arson in the second degree if he or she intentionally damages a building or property contained within a building by starting a fire or causing an explosion or if a fire is started or an explosion is caused in the perpetration of any robbery, burglary, or felony criminal mischief.

(2) The following affirmative defenses may be introduced into evidence upon prosecution for a violation of this section:

(a) No person other than the accused has a security or proprietary interest in the damaged building, or, if other persons have such interests, all of them consented to his or her conduct; or

(b) The accused's sole intent was to destroy or damage the building for a lawful and proper purpose.

(3) Arson in the second degree is a Class III felony.

Source:Laws 1977, LB 38, § 102; Laws 1981, LB 83, § 2; Laws 2010, LB712, § 9.

Annotations

To sustain a conviction for arson, it is necessary that the evidence disclose the burning of the property as charged and that the burning was caused by the willful act of some person criminally responsible beyond a reasonable doubt. State v. Workman, 213 Neb. 479, 329 N.W.2d 571 (1983).

28-504. Arson, third degree; penalty.

(1) A person commits arson in the third degree if he or she intentionally sets fire to, burns, causes to be burned, or by the use of any explosive, damages or destroys, or causes to be damaged or destroyed, any property of another person without such other person's consent. Such property shall not be contained within a building and shall not be a building or occupied structure.

(2) Arson in the third degree is a Class IV felony if the damages amount to one thousand five hundred dollars or more.

(3) Arson in the third degree is a Class I misdemeanor if the damages are five hundred dollars or more but less than one thousand five hundred dollars.

(4) Arson in the third degree is a Class II misdemeanor if the damages are less than five hundred dollars.

Source:Laws 1977, LB 38, § 103; Laws 2010, LB712, § 10; Laws 2015, LB605, § 27.

Annotations

Under this section, the amount of damages involved in the crime of third degree arson affects the severity of the punishment. Although the amount of damages is not an element of arson, the State must prove by evidence beyond a reasonable doubt the amount of damages to the property that was damaged by arson in order to prove that the arson was a Class IV felony. State v. Arellano, 262 Neb. 866, 636 N.W.2d 616 (2001).

28-505. Burning to defraud insurer; penalty.

Any person who, with the intent to deceive or harm an insurer, sets fire to or burns or attempts so to do, or who causes to be burned, or who aids, counsels or procures the burning of any building or personal property, of whatsoever class or character, whether the property of himself or of another, which shall at the time be insured by any person, company or corporation against loss or damage by fire, commits a Class IV felony.

Source:Laws 1977, LB 38, § 104.

28-506. Lawful burning of property; training and safety promotion purposes; permit.

Property may be lawfully destroyed by burning such structures as condemned by law, structures no longer having any value for habitation or business or no longer serving any useful value in the area in which situated, and any other combustible material that will serve to be used for test fires to educate and train members of organized fire departments and promote fire safety anywhere in Nebraska. Before any structure may be destroyed by fire for training and educational purposes it must be reported to the State Fire Marshal and a permit issued for that purpose. Any expense incurred in burning a structure shall be assumed by the organized fire department requesting this type of training for members of its department.

Source:Laws 1977, LB 38, § 105.

28-507. Burglary; penalty.

(1) A person commits burglary if such person willfully, maliciously, and forcibly breaks and enters any real estate or any improvements erected thereon with intent to commit any felony or with intent to steal property of any value.

(2) Burglary is a Class IIA felony.

Source:Laws 1977, LB 38, § 106; Laws 2015, LB605, § 28.

Annotations

1. Breaking

2. Elements

3. Evidence

4. Intent

5. Lesser-included offense

6. Miscellaneous

1. Breaking

It was not plain error for the trial court to not specifically instruct the jury that removal of an obstacle to entry was required to constitute breaking when trial court gave examples of the application of physical force which required the removal of an obstacle. State v. Greer, 257 Neb. 208, 596 N.W.2d 296 (1999).

The opening of a closed door is a "breaking" within the definition of burglary. State v. Tyrrell, 234 Neb. 901, 453 N.W.2d 104 (1990).

Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under subsection (1) of this section. State v. Zemunski, 230 Neb. 613, 433 N.W.2d 170 (1988).

Evidence of any act of physical force by which the obstruction to entering is removed, such as opening a closed screen door to enter an apartment, is sufficient to prove a breaking under this statute. State v. Sutton, 220 Neb. 128, 368 N.W.2d 492 (1985).

Breaking requires both the use of physical force, however slight, and the removal of an obstruction to entering. State v. Greer, 7 Neb. App. 770, 586 N.W.2d 654 (1998).

2. Elements

One commits burglary in violation of subsection (1) of this section when one, in the proscribed manner, breaks and enters any real property or improvements thereon with the proscribed intent; no actual theft or asportation of property is required. State v. Sardeson, 231 Neb. 586, 437 N.W.2d 473 (1989).

3. Evidence

Circumstantial evidence is sufficient to support a criminal conviction if such evidence and reasonable inferences drawn from the evidence establish the defendant's guilt beyond a reasonable doubt. State v. Zemunski, 230 Neb. 954, 434 N.W.2d 520 (1989).

4. Intent

Unless the State limits its burglary prosecution to establishing that the defendant intended to steal property, the State must specify which felony or felonies it believes the defendant intended to commit after the breaking and entering. State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).

Intent sufficient to support a conviction for burglary may be inferred from the facts and circumstances surrounding an illegal entry, and no actual theft or asportation of property is required. State v. Vaughn, 225 Neb. 38, 402 N.W.2d 300 (1987).

5. Lesser-included offense

Criminal trespass in violation of section 28-520(1) is not a lesser-included offense of burglary as defined in subsection (1) of this section. State v. Gonzales, 218 Neb. 43, 352 N.W.2d 571 (1984).

Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).

6. Miscellaneous

Where this section did not require a mandatory minimum sentence, the fact that the punishments for crimes of burglary were enhanced under section 29-2221 did not require the enhanced mandatory minimum penalties to be served consecutively. State v. Berney, 288 Neb. 377, 847 N.W.2d 732 (2014).

28-508. Possession of burglar's tools; penalty.

(1) A person commits the offense of possession of burglar's tools if:

(a) He knowingly possesses any explosive, tool, instrument, or other article adapted, designed, or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking; and

(b) He intends to use the explosive, tool, instrument, or article, or knows some person intends ultimately to use it, in the commission of an offense of the nature described in subdivision (1)(a) of this section.

(2) Possession of burglar's tools is a Class IV felony.

Source:Laws 1977, LB 38, § 107.

28-509. Terms, defined.

As used in sections 28-509 to 28-518, unless the context otherwise requires:

(1) Deprive shall mean:

(a) To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value, or with intent to restore only upon payment of reward or other compensation; or

(b) To dispose of the property of another so as to create a substantial risk that the owner will not recover it in the condition it was when the actor obtained it;

(2) Financial institution shall mean a bank, insurance company, credit union, building and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment;

(3) Movable property shall mean property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby may have no physical location. Immovable property shall mean all other property;

(4) Obtain shall mean:

(a) In relation to property, to bring about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another; or

(b) In relation to labor or service, to secure performance thereof;

(5) Property shall mean anything of value, including real estate, tangible and intangible personal property, contract rights, credit cards, charge plates, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer, choses in action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, and electric or other power;

(6) Property of another shall mean property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement;

(7) Receiving shall mean acquiring possession, control, or title, or lending on the security of the property; and

(8) Stolen shall mean property which has been the subject of theft or robbery or a vehicle which is received from a person who is then in violation of section 28-517.

Source:Laws 1977, LB 38, § 108; Laws 1982, LB 126, § 1.

28-510. Consolidation of theft offenses.

Conduct denominated theft in sections 28-509 to 28-518 constitutes a single offense embracing the separated offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under sections 28-509 to 28-518, notwithstanding the specification of a different manner in the indictment or information, subject only to the power of the court to insure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.

Source:Laws 1977, LB 38, § 110; Laws 1982, LB 126, § 2.

Annotations

Read in conjunction with this section, theft by unlawful taking under section 28-511 is the same offense as theft by receiving stolen property under section 28-517. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

A defendant is foreclosed from defending on the basis that his conduct supported one type of theft but that he was charged with another. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

A defendant was not denied his right to due process when he was charged with theft by deception and tried for theft by unlawful taking or disposition. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

This section creates a single offense of "theft" which may be committed by the violation of sections 28-509 to 28-517. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

This section gives adequate notice to a defendant that he may be charged with one manner of theft and convicted of theft by a different manner. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

This section has subsumed various forms of unlawful acquisitive behavior into a single offense of theft which may be committed by taking part in any one of several activities described in sections 28-509 to 28-517. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

This section provides that the offense of theft may be supported by evidence that it was committed via any manner described in sections 28-509 to 28-517, regardless of the manner by which the information alleges the theft occurred. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

The first sentence of this section does not purport to define but a single crime for which only one punishment may be imposed, as evidenced by the sundry statutes defining a variety of conduct as constituting thefts subjecting one to different consequences. State v. Schwab, 235 Neb. 972, 458 N.W.2d 459 (1990).

28-511. Theft by unlawful taking or disposition.

(1) A person is guilty of theft if he or she takes, or exercises control over, movable property of another with the intent to deprive him or her thereof.

(2) A person is guilty of theft if he or she transfers immovable property of another or any interest therein with the intent to benefit himself or herself or another not entitled thereto.

(3) Except as provided in subsection (4) of this section, it shall be presumed that a lessee's failure to return leased or rented movable property to the lessor after the expiration of a written lease or written rental agreement is done with intent to deprive if such lessee has been mailed notice by certified mail that such lease or rental agreement has expired and he or she has failed within ten days after such notice to return such property.

(4) A person is guilty of theft if he or she (a) rents or leases a motor vehicle under a written lease or rental agreement specifying the time and place for the return of the vehicle and fails to return the vehicle within seventy-two hours of written demand for return of the vehicle made upon him or her by certified mail to the address given by him or her for such purpose or (b) uses a fraudulent or stolen credit card to rent or lease a vehicle. Nothing in this subsection shall apply to any person who (i) through inadvertence, mistake, act of God, or other natural occurrence has unintentionally failed to return a rented motor vehicle or to inform the owner of the location of the vehicle or (ii) has had a rented motor vehicle stolen or otherwise converted from his or her possession and has filed the appropriate report with law enforcement authorities.

Source:Laws 1977, LB 38, § 110; Laws 1980, LB 696, § 4; Laws 1988, LB 606, § 1.

Annotations

Read in conjunction with section 28-510, theft by unlawful taking under this section is the same offense as theft by receiving stolen property under section 28-517. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

The Nebraska Legislature has unambiguously defined theft as a single offense which can be committed in several different ways. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

Sufficient evidence was presented to support a conviction of theft by unlawful taking or disposition where the defendant, who was contractually obligated to place money in escrow, did not place the money in escrow and subsequently lost the money through an investment. State v. Jonusas, 269 Neb. 644, 694 N.W.2d 651 (2005).

Subsection (1) of this section proscribes or condemns only that conduct in which criminal intent is present, distinguishing theft from activity which is otherwise permissible as noncriminal conduct. Consent is a valid defense to a charge of theft by taking. State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994).

A series of separate acts, each of which is a theft proscribed by subsection (2) of this section, does not constitute one criminal act or a continuing offense of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).

Neither the value of the property stolen nor the time at which it was appropriated are essential elements of the crime of theft. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).

Under subsection (2) of this section, the elements of theft by unlawful disposition are (1) a person's unauthorized transfer of another's immovable property (2) with the intent to benefit himself, herself, or another not entitled to the property or any interest in the property. State v. Schaaf, 234 Neb. 144, 449 N.W.2d 762 (1989).

The value of the property stolen is no longer an element of the crime and is important only in determining the penalty. State v. Culver, 233 Neb. 228, 444 N.W.2d 662 (1989).

28-511.01. Theft by shoplifting; penalty; photographic evidence.

(1) A person commits the crime of theft by shoplifting when he or she, with the intent of appropriating goods or merchandise to his or her own use without paying for the goods or merchandise or to deprive the owner of possession of such goods or merchandise or its retail value, in whole or in part, does any of the following:

(a) Conceals or takes possession of the goods or merchandise of any store or retail establishment;

(b) Alters the price tag or other price marking on goods or merchandise of any store or retail establishment;

(d) Interchanges the label or price tag from one item of a good or of merchandise with a label or price tag for another item of a good or of merchandise;

(e) Causes the cash register or other sales recording device to reflect less than the retail price of the goods or merchandise; or

(f) Alters, bypasses, disables, shields, or removes any security or alarm device attached to or housing any goods or merchandise of any store, including the use or possession of a security device countermeasure as defined in section 28-511.03, prior to purchase of the goods or merchandise.

(2) In any prosecution for theft by shoplifting, photographs of the shoplifted property may be accepted as prima facie evidence as to the identity of the property. Such photograph shall be accompanied by a written statement containing the following:

(a) A description of the property;

(b) The name of the owner or owners of the property;

(d) The time and date the photograph was taken;

(e) The name of the photographer; and

(f) Verification by the arresting officer.

The purpose of this subsection is to allow the owner or owners of shoplifted property the use of such property during pending criminal prosecutions.

Prior to allowing the use of the shoplifted property as provided in this section, legal counsel for the alleged shoplifter shall have a reasonable opportunity to inspect and appraise the property and may file a motion for retention of the property, which motion shall be granted if there is any reasonable basis for believing that the photographs and accompanying affidavit may be misleading.

Source:Laws 1982, LB 126, § 4; Laws 2010, LB894, § 2.

Annotations

This section does not apply equally to lawful and unlawful conduct, and in that context is not unconstitutional. State v. Sexton, 240 Neb. 466, 482 N.W.2d 567 (1992).

Where a defendant was convicted by a jury of shoplifting merchandise valued at $787 and the only evidence of value was the price at which the merchandise was offered for sale, such evidence was insufficient to prove value. State v. Ybarra, 9 Neb. App. 230, 609 N.W.2d 696 (2000).

28-511.02. Theft of rented or leased motor vehicle; where tried.

In any criminal prosecution for theft pursuant to subsection (4) of section 28-511, the accused shall be tried in the county where the motor vehicle was rented or leased or where the motor vehicle was recovered except as otherwise provided in section 25-412.03.

Source:Laws 1995, LB 371, § 28.

28-511.03. Possession of security device countermeasure; penalty.

(1) It shall be unlawful for any person, other than an authorized agent of a store or retail establishment, to possess, in that store, any security device countermeasure.

(2) For purposes of this section, security device countermeasure means a device which bypasses, disables, or removes an electronic or magnetic theft alarm sensor.

(3) Any person violating this section is guilty of a Class II misdemeanor.

Source:Laws 2010, LB894, § 3.

28-512. Theft by deception.

A person commits theft if he obtains property of another by deception. A person deceives if he intentionally:

(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; or

(2) Prevents another from acquiring information which would affect his judgment of a transaction; or

(3) Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or

(4) Uses a credit card, charge plate, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer (a) where such instrument has been stolen, forged, revoked, or canceled, or where for any other reason its use by the actor is unauthorized, or (b) where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument.

The word deceive does not include falsity as to matters having no pecuniary significance, or statements unlikely to deceive ordinary persons in the group addressed.

Source:Laws 1977, LB 38, § 111.

Annotations

Under subsection (1) of this section, the offense of theft by deception may take place over a period of time. State v. Grell, 233 Neb. 314, 444 N.W.2d 911 (1989).

It is the required element of guilty knowledge, criminal intent, which distinguishes a civil breach of contract from theft by deception—a person's knowingly creating a false impression in order to obtain another's property. State v. Ladehoff, 228 Neb. 812, 424 N.W.2d 361 (1988).

Subsection (2) of this section is constitutional. State v. Scott, 225 Neb. 146, 403 N.W.2d 351 (1987).

Another's property is obtained by deception if an actor, by a statement or conduct, creates or reinforces a false impression in that person with the result that such false impression, alone or with other influences, effectively induces another to part with his or her property. State v. Fleming, 223 Neb. 169, 388 N.W.2d 497 (1986).

Subsection (1) of this section is not unconstitutionally vague. State v. Sailors, 217 Neb. 693, 352 N.W.2d 860 (1984).

28-513. Theft by extortion.

(1) A person commits theft if he or she obtains property, money, or other thing of value of another by threatening to:

(a) Inflict bodily injury on anyone or commit any other criminal offense;

(b) Accuse anyone of a criminal offense;

(c) Expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his or her credit or business repute;

(d) Take or withhold action as an official, or cause an official to take or withhold action;

(e) Bring about or continue a strike, boycott, or other collective unofficial action, if the property, money, or other thing of value is not demanded or received for the benefit of the group in whose interest the actor purports to act;

(f) Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

(g) Distribute or otherwise make public an image or video of a person's intimate area or of a person engaged in sexually explicit conduct without that person's consent.

(2) It is an affirmative defense to prosecution based on subdivision (1)(b), (1)(c), or (1)(d) of this section that the property, money, or other thing of value obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was honestly claimed as restitution or indemnification for harm done in the circumstances to which such accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.

Source:Laws 1977, LB 38, § 112; Laws 2019, LB630, § 2.

28-514. Theft of property lost, mislaid, or delivered by mistake; penalty.

(1) A person who comes into control of property of another that he or she knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient commits theft if, with intent to deprive the owner thereof, he or she fails to take reasonable measures to restore the property to a person entitled to have it.

(2) Any person convicted of violating subsection (1) of this section shall be punished by the penalty prescribed in the next lower classification below the value of the item lost, mislaid, or delivered under a mistake pursuant to section 28-518.

(3) Any person convicted of violating subsection (1) of this section when the value of the property is five hundred dollars or less shall be guilty of a Class III misdemeanor for the first conviction, a Class II misdemeanor for the second conviction, and a Class I misdemeanor for the third or subsequent conviction.

Source:Laws 1977, LB 38, § 113; Laws 1989, LB 200, § 1; Laws 1992, LB 111, § 1; Laws 2015, LB605, § 29; Laws 2016, LB1094, § 7.

Annotations

This section prohibits a person from taking control of lost or mislaid property and doing nothing to restore the property to its owner. State v. Beyer, 260 Neb. 670, 619 N.W.2d 213 (2000).

28-515. Theft of services.

(1) A person commits theft if he or she obtains services, which he or she knows are available only for compensation, by deception or threat or by false token or other means to avoid payment for the service. Services include labor, professional service, telephone service, electric service, cable television service, or other public service, accommodation in hotels, restaurants, or elsewhere, admission to exhibitions, and use of vehicles or other movable property. When compensation for service is ordinarily paid immediately upon the rendering of such service, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay gives rise to a presumption that the service was obtained by deception as to intention to pay.

(2) A person commits theft if, having control over the disposition of services of others to which he or she is not entitled, he or she diverts such services to his or her own benefit or to the benefit of another not entitled thereto.

Source:Laws 1977, LB 38, § 114; Laws 1982, LB 126, § 3; Laws 1986, LB 464, § 1; Laws 2002, LB 1105, § 429.

28-515.01. Theft of telecommunications service; penalty.

(1) It is unlawful for any person to:

(a) Knowingly make or possess any device designed to or commonly used to obtain telecommunications service fraudulently from a licensed cable television franchisee with the intent to use such device in the commission of an offense described in subsection (1) of section 28-515;

(b) Knowingly tamper with, interfere with, or connect to any cables, wires, converters, or other devices used for the distribution of telecommunications service by any mechanical, electrical, acoustical, or other means without authority from the operator of the service with the intent of obtaining telecommunications service fraudulently; or

(c) Sell, give, transfer, or offer or advertise for sale a device which such person knows or should know is intended to be used for the purpose of obtaining telecommunications service fraudulently.

(2) For purposes of this section:

(a) Telecommunications service includes, but is not limited to, telephone service and cable television service; and

(b) Device includes, but is not limited to, instrument, apparatus, equipment, and plans or instructions for making or assembling the instrument, apparatus, or equipment.

(3) A violation of this section is a Class II misdemeanor.

Source:Laws 2002, LB 1105, § 430.

28-515.02. Electric current, gas, and water; avoiding meter measurement; reconnection; penalty.

(1) It is unlawful for any person:

(a) To connect any instrument, device, or contrivance with any wire supplying or intended to supply electricity or electric current or to connect any pipe or conduit supplying gas or water, without the knowledge and consent of the supplier of such products, in such manner that any portion thereof may be supplied to any instrument by or at which electricity, electric current, gas, or water may be consumed without passing through the meter made or provided for measuring or registering the amount or quantity thereof passing through it;

(b) To knowingly use or knowingly permit the use of electricity, electric current, gas, or water obtained unlawfully pursuant to this section;

(c) To reconnect electrical, gas, or water service without the knowledge and consent of the supplier of such service if the service has been disconnected pursuant to sections 70-1601 to 70-1615; or

(d) To willfully injure, alter, or by any instrument, device, or contrivance in any manner interfere with or obstruct the action or operation of any meter made or provided for measuring or registering the amount or quantity of electricity, electric current, gas, or water passing through it, without the knowledge and consent of the supplier of the electricity, electric current, gas, or water passing or intended to pass through such meter.

(2) Proof of the existence of any wire, pipe, or conduit connection or reconnection or of any injury, alteration, interference, or obstruction of a meter is prima facie evidence of the guilt of the person in possession of the premises where such connection, reconnection, injury, alteration, interference, or obstruction is proved to exist.

(3) A violation of this section is a Class III misdemeanor.

Source:Laws 1911, c. 47, §§ 1, 2, 4, 6, pp. 228, 229, 230, 231; R.S.1913, §§ 7423, 7424, 7426, 7427; C.S.1922, §§ 7116, 7117, 7119, 7120; Laws 1923, c. 86, § 1, p. 228; C.S.1929, §§ 86-320, 86-321, 86-323, 86-324; R.S.1943, § 86-329; Laws 1977, LB 39, § 327; Laws 1995, LB 92, § 1; R.S.1943, (1999), § 86-329; Laws 2002, LB 1105, § 431.

28-516. Unauthorized use of a propelled vehicle; affirmative defense; penalties.

(1) A person commits the offense of unauthorized use of a propelled vehicle if he or she intentionally exerts unauthorized control over another's propelled vehicle by operating it without the owner's consent.

(2) Propelled vehicle shall mean an automobile, airplane, motorcycle, motorboat, or other motor-propelled vehicle.

(3) It is an affirmative defense to prosecution under this section that the defendant reasonably believed that the owner would have authorized the use had he or she known of it.

(4) Unauthorized use of a propelled vehicle is a Class III misdemeanor for the first offense, a Class I misdemeanor for the second offense, and a Class IV felony for the third and any subsequent offenses.

Source:Laws 1977, LB 38, § 115; Laws 1993, LB 430, § 2; Laws 1995, LB 371, § 7.

28-517. Theft by receiving stolen property.

A person commits theft if he receives, retains, or disposes of stolen movable property of another knowing that it has been stolen, or believing that it has been stolen, unless the property is received, retained, or disposed with intention to restore it to the owner.

Source:Laws 1977, LB 38, § 116.

Annotations

In a prosecution for receiving stolen property, the court must instruct the jury on the subjective standard of "knowing . . . or believing" as it is used in this section. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

This section imposes a subjective standard of knowledge or belief. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

Read in conjunction with section 28-510, theft by receiving stolen property under this section is the same offense as theft by unlawful taking under section 28-511. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

The Nebraska Legislature has unambiguously defined theft as a single offense which can be committed in several different ways. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

The Nebraska Legislature has not made the offense of "theft by receiving" a continuous offense. State v. Nuss, 235 Neb. 107, 454 N.W.2d 482 (1990).

Applying subsection (8) of section 25-518, value is an essential element of the crime of theft by receiving stolen property. In re Interest of Shea B., 3 Neb. App. 750, 532 N.W.2d 52 (1995).

28-518. Grading of theft offenses; aggregation allowed; when.

(1) Theft constitutes a Class IIA felony when the value of the thing involved is five thousand dollars or more.

(2) Theft constitutes a Class IV felony when the value of the thing involved is one thousand five hundred dollars or more but less than five thousand dollars.

(3) Theft constitutes a Class I misdemeanor when the value of the thing involved is more than five hundred dollars but less than one thousand five hundred dollars.

(4) Theft constitutes a Class II misdemeanor when the value of the thing involved is five hundred dollars or less.

(5) For any second or subsequent conviction under subsection (3) of this section, any person so offending shall be guilty of a Class IV felony.

(6) For any second conviction under subsection (4) of this section, any person so offending shall be guilty of a Class I misdemeanor, and for any third or subsequent conviction under subsection (4) of this section, the person so offending shall be guilty of a Class IV felony.

(7) For a prior conviction to be used to enhance the penalty under subsection (5) or (6) of this section, the prior conviction must have occurred no more than ten years prior to the date of commission of the current offense.

(8) Amounts taken pursuant to one scheme or course of conduct from one or more persons may be aggregated in the indictment or information in determining the classification of the offense, except that amounts may not be aggregated into more than one offense.

(9) In any prosecution for theft under sections 28-509 to 28-518, value shall be an essential element of the offense that must be proved beyond a reasonable doubt.

Source:Laws 1977, LB 38, § 117; Laws 1978, LB 748, § 7; Laws 1982, LB 347, § 8; Laws 1992, LB 111, § 2; Laws 2009, LB155, § 7; Laws 2015, LB605, § 30; Laws 2023, LB50, § 6.
Effective Date: September 2, 2023

Annotations

1. Value

2. Aggregation

3. Miscellaneous

1. Value

Subsection (8) of this section requires only that some value be proved as an element of a theft offense, not that a particular threshold value be proved as an element of the offense. State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (2011).

While subsection (8) of this section now requires that intrinsic value be proved beyond a reasonable doubt as an element of the offense, proof of a specific value at the time of the theft is necessary only for gradation of the offense. State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).

The degree of the crime for grading purposes of this section must be measured by the value of the thing involved as obtained by defendant through deception, and the value of the thing involved as to the victim is immaterial. State v. Roche, Inc., 246 Neb. 568, 520 N.W.2d 539 (1994).

The greater the value of the property involved in a theft, the more severe the punishment which may be imposed on conviction for the theft; and the determination of value is a question for the fact finder, whose finding will not be set aside unless clearly erroneous. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

In a theft charge, the value of the thing involved is an element of the charge against defendant and must be proved by the State beyond a reasonable doubt and must be established by the jury. State v. Scott, 225 Neb. 146, 403 N.W.2d 351 (1987).

In reference to the crime of theft, value is established by evidence concerning the price at which property identical or reasonably similar to the property stolen is offered for sale and sold in proximity to the site of the theft. State v. Connor, 16 Neb. App. 871, 754 N.W.2d 774 (2008).

Pursuant to subsection (8) of this section, value is an essential element of the crime of theft by receiving stolen property. In re Interest of Shea B., 3 Neb. App. 750, 532 N.W.2d 52 (1995).

2. Aggregation

When items are stolen simultaneously from the same location, only one theft has occurred and the value of the items should be aggregated to determine the grade of the offense. State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).

Where a jury found that the defendant unlawfully took multiple items, the jury's finding that the defendant did not take the items "pursuant to one scheme or course of conduct" did not require that the defendant be found not guilty. State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).

Whether the theft of multiple items was "taken pursuant to one scheme or course of conduct" is not an essential element of a theft offense; instead, whether the items were "taken pursuant to one scheme or course of conduct" is relevant to the determination of whether the value of the items taken could be aggregated for purposes of grading the offense. State v. Duncan, 294 Neb. 162, 882 N.W.2d 650 (2016).

Subsection (7) of this section permits the value of all items of property taken pursuant to one scheme or course of conduct from one person to be aggregated in order to determine the classification of the theft offense, but specifically prohibits aggregation of individual values into more than one offense. State v. Miner, 273 Neb. 837, 733 N.W.2d 891 (2007).

An act of theft involving multiple items of property stolen simultaneously at the same place constitutes one offense, in which the value of the individual stolen items may be considered collectively for the aggregate or total value of the property stolen to determine the grade of the offense under this section. State v. Garza, 241 Neb. 256, 487 N.W.2d 551 (1992).

3. Miscellaneous

For enhancement as a third or subsequent offense under subsection (4), this section requires only that a person have at least two prior valid convictions of theft under subsection (4); it does not require that a person be progressively convicted from first offense to second offense before he or she can be found guilty of an enhanced third or subsequent offense. State v. McCarthy, 284 Neb. 572, 822 N.W.2d 386 (2012).

The defendant's prior two convictions for theft by shoplifting could be used to enhance his third conviction for theft by shoplifting, although the prior two convictions occurred before subsection (4) of this section was amended by 2015 Neb. Laws, L.B. 605, to increase the maximum value of the thing involved, since the defendant's third conviction would have been classified under subsection (4) under either the old or the new version of this subsection. State v. Sack, 24 Neb. App. 721, 897 N.W.2d 317 (2017).

A conviction under subsection (2) or (3) of this section does not include a conviction of a lesser offense under subsection (4) of this section for purposes of enhancement. State v. Long, 4 Neb. App. 126, 539 N.W.2d 443 (1995).

28-519. Criminal mischief; penalty.

(1) A person commits criminal mischief if he or she:

(a) Damages property of another intentionally or recklessly; or

(b) Intentionally tampers with property of another so as to endanger person or property; or

(2) Criminal mischief is a Class IV felony if the actor intentionally or maliciously causes pecuniary loss of five thousand dollars or more, or a substantial interruption or impairment of public communication, transportation, supply of water, gas, or power, or other public service.

(3) Criminal mischief is a Class I misdemeanor if the actor intentionally or maliciously causes pecuniary loss of one thousand five hundred dollars or more but less than five thousand dollars.

(4) Criminal mischief is a Class II misdemeanor if the actor intentionally or maliciously causes pecuniary loss of five hundred dollars or more but less than one thousand five hundred dollars.

(5) Criminal mischief is a Class III misdemeanor if the actor intentionally, maliciously, or recklessly causes pecuniary loss in an amount of less than five hundred dollars, or if his or her action results in no pecuniary loss.

Source:Laws 1977, LB 38, § 118; Laws 1982, LB 347, § 9; Laws 2002, LB 82, § 4; Laws 2015, LB605, § 31.

Cross References

Unlawful interference with utility poles and wires, penalty, see section 76-2325.01.

Annotations

Ownership of property is not an essential element of criminal mischief and is immaterial except to identify property as not that of the accused. State v. Flye, 245 Neb. 495, 513 N.W.2d 526 (1994).

Regarding the grades of criminal mischief, existence and amount of pecuniary loss are questions for the fact finder. A specific monetary amount, alleged in conjunction with "pecuniary loss" resulting from criminal mischief informs the court and the defendant the grade of offense charged and the potential punishment on conviction. "Pecuniary loss" as used in this section means monetary loss suffered by another as the result of the defendant's conduct which constitutes criminal mischief. State v. Pierce, 231 Neb. 966, 439 N.W.2d 435 (1989).

A violation of subsection (4) of this section is a petty offense for which a defendant has a statutory, but not constitutional, right to a jury trial. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987).

A factual basis existed for the finding that property alleged to have been feloniously destroyed exceeded three hundred dollars in value when, in the presentence report, damage caused by the defendant was estimated to total in excess of two thousand two hundred dollars. State v. Richter, 220 Neb. 551, 371 N.W.2d 125 (1985).

28-520. Criminal trespass, first degree; penalty.

(1) A person commits first degree criminal trespass if:

(a) He or she enters or secretly remains in any building or occupied structure, or any separately secured or occupied portion thereof, knowing that he or she is not licensed or privileged to do so; or

(b) He or she enters or remains in or on a public power infrastructure facility knowing that he or she does not have the consent of a person who has the right to give consent to be in or on the facility.

(2) First degree criminal trespass is a Class I misdemeanor.

(3) For purposes of this section, public power infrastructure facility means a power plant, an electrical station or substation, or any other facility which is used by a public power supplier as defined in section 70-2103 to support the generation, transmission, or distribution of electricity and which is surrounded by a fence or is otherwise enclosed.

Source:Laws 1977, LB 38, § 119; Laws 2009, LB238, § 1.

Annotations

The plain language of "knowing" in subdivision (1)(a) of this section, in the context of entering any building or occupied structure "knowing that he or she is not licensed or privileged to do so," imposes a subjective standard focused on the accused's actual knowledge. State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).

Criminal trespass in violation of subsection (1) of this section is not a lesser-included offense of burglary as defined in section 28-507(1). State v. Gonzales, 218 Neb. 43, 352 N.W.2d 571 (1984).

Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).

28-521. Criminal trespass, second degree; penalty.

(1) A person commits second degree criminal trespass if, knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:

(a) Actual communication to the actor; or

(b) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or

(2) A person commits second degree criminal trespass if, knowing that he or she is not licensed or privileged to do so, he or she intentionally causes an electronic device, such as an unmanned aircraft, to enter into, upon, or above the property of another, including such property owned by such person and leased or rented to another, with the intent to observe another person without his or her consent in a place of solitude or seclusion.

(3) For purposes of this section, unmanned aircraft means an aircraft, including an aircraft commonly known as a drone, which is operated without the possibility of direct human intervention from within or on the aircraft.

(4) Second degree criminal trespass is a Class III misdemeanor, except as provided for in subsection (5) of this section.

(5) Second degree criminal trespass is a Class II misdemeanor if the offender defies an order to leave personally communicated to him or her by the owner of the premises or other authorized person.

Source:Laws 1977, LB 38, § 120; Laws 2009, LB238, § 2; Laws 2022, LB922, § 6.

Annotations

In a trespass prosecution, a defendant may introduce evidence that an owner or other person empowered to license access to the property told the defendant that he or she could be on the property. Such statements are verbal acts, i.e., nonhearsay statements, because they have legal significance merely because they were spoken. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

An automobile, by itself, is not a "place" as to which notice against trespass may be given within the meaning of subsection (1)(c) of this section. In re Interest of W.D., 232 Neb. 581, 441 N.W.2d 608 (1989).

Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).

28-522. Criminal trespass; affirmative defenses.

It is an affirmative defense to prosecution under sections 28-520 and 28-521 that:

(1) A building or occupied structure involved in an offense under section 28-520 was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises or other person empowered to license access thereto would have licensed him to enter or remain; or

(4) The actor was in the process of navigating or attempting to navigate with a nonpowered vessel any stream or river in this state and found it necessary to portage or otherwise transport the vessel around any fence or obstructions in such stream or river.

Source:Laws 1977, LB 38, § 121.

Annotations

A person entering premises open to the public has the premises and the business has not reinstated its implied consent to entry. State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 (2019).

A valid license from any owner or other person empowered to license access to a property is sufficient to show that a defendant reasonably believed that he or she was licensed to be on the premises. A defendant need not show that every owner licensed his or her presence. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

Criminal trespass is not a lesser-included offense of burglary. State v. Miller, 215 Neb. 145, 337 N.W.2d 424 (1983).

An ownership interest is not an affirmative defense to the charge of criminal trespass. State v. Anderson, 14 Neb. App. 253, 706 N.W.2d 564 (2005).

28-523. Littering of public and private property; penalty.

(1) Any person who deposits, throws, discards, or otherwise disposes of any litter on any public or private property or in any waters commits the offense of littering unless:

(a) Such property is an area designated by law for the disposal of such material and such person is authorized by the proper public authority to so use such property; or

(b) The litter is placed in a receptacle or container installed on such property for such purpose.

(2) The word litter as used in this section shall mean all waste material susceptible of being dropped, deposited, discarded, or otherwise disposed of by any person upon any property in the state but does not include wastes of primary processes of farming or manufacturing. Waste material as used in this subsection shall mean any material appearing in a place or in a context not associated with that material's function or origin.

(3) Whenever litter is thrown, deposited, dropped, or dumped from any motor vehicle or watercraft in violation of this section, the operator of such motor vehicle or watercraft commits the offense of littering.

(4) A person who commits the offense of littering shall be guilty of a Class III misdemeanor. A person convicted of the offense of littering for the second time shall be guilty of a Class II misdemeanor. A person convicted of the offense of littering for the third or a subsequent time shall be guilty of a Class I misdemeanor.

Source:Laws 1977, LB 38, § 122; Laws 1978, LB 920, § 2; Laws 1979, LB 120, § 34; Laws 1981, LB 253, § 1; Laws 1994, LB 570, § 1; Laws 1997, LB 495, § 3.

28-524. Graffiti; penalty.

(1) Any person who knowingly and intentionally applies graffiti of any type on any building, public or private, or any other tangible property owned by any person, firm, or corporation or any public entity or instrumentality, without the express permission of the owner or operator of the property, commits the offense of unauthorized application of graffiti.

(2) Unauthorized application of graffiti is a Class III misdemeanor for a first offense and a Class IV felony for a second or subsequent offense.

(3) Upon conviction of an offense under this section, the court may, in addition to any other punishment imposed, order the defendant to clean up, repair, or replace the damaged property, keep the defaced property or another specified property in the community free of graffiti or other inscribed materials for up to one year, or order a combination of restitution and labor.

(4) Upon conviction of an offense under this section, the court may, in addition to any other punishment imposed, order the defendant to undergo counseling.

(5) Upon conviction of an offense under this section, the court may, in addition to any other punishment imposed, order the suspension of the defendant's motor vehicle operator's license for up to one year. A copy of an abstract of the court's conviction, including an adjudication of a juvenile, shall be transmitted to the director pursuant to sections 60-497.01 to 60-497.04.

(6) For purposes of this section, graffiti means any letter, word, name, number, symbol, slogan, message, drawing, picture, writing, or other mark of any kind visible to the public that is drawn, painted, chiseled, scratched, or etched on a rock, tree, wall, bridge, fence, gate, building, or other structure. Graffiti does not include advertising or any other letter, word, name, number, symbol, slogan, message, drawing, picture, writing, or other mark of any kind lawfully placed on property by an owner of the property, a tenant of the property, or an authorized agent for such owner or tenant.

Source:Laws 2009, LB63, § 6.

28-601. Terms, defined.

As used in sections 28-601 to 28-605, unless the context otherwise requires:

(1) Written instrument shall mean any paper, document, or other instrument containing written or printed matter used for purposes of reciting, embodying, conveying, or recording information, and any money, credit card, token, stamp, seal, badge, trademark, or any evidence or symbol of value, right, privilege, or identification which is capable of being used to the advantage or disadvantage of some person;

(2) Complete written instrument shall mean a written instrument which purports to be genuine and fully drawn with respect to every essential feature thereof;

(3) Incomplete written instrument shall mean one which contains some matter by way of content or authentication but which requires additional matter in order to render it a complete written instrument;

(4) To falsely make a written instrument shall mean to make or draw a written instrument, whether complete or incomplete, which purports to be an authentic creation of its ostensible maker, but which is not, either because the ostensible maker is fictitious or because, if real, he did not authorize the making or the drawing thereof;

(5) To falsely complete a written instrument shall mean to transform an incomplete written instrument into a complete one by adding, inserting, or changing matter without the authority of anyone entitled to grant such authority, so that the complete written instrument falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker;

(6) To falsely alter a written instrument shall mean to change a written instrument without the authority of anyone entitled to grant such authority, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or by any other means, so that such instrument in its thus altered form falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker;

(7) Forged instrument shall mean a written instrument which has been falsely made, completed, endorsed or altered. The terms forgery and counterfeit and their variants are intended to be synonymous in legal effect as used in this article;

(8) Possess shall mean to receive, conceal, or otherwise exercise control over; and

(9) Utter shall mean to issue, authenticate, transfer, sell, transmit, present, use, pass, or deliver, or to attempt or cause such uttering.

Source:Laws 1977, LB 38, § 123.

Annotations

Where the punishment of an offense created by statute is left to the discretion of the court, to be exercised within certain prescribed limits, a sentence imposed within such limits will not be disturbed on appeal unless there appears to be an abuse of discretion. State v. Harrington, 202 Neb. 356, 275 N.W.2d 294 (1979).

28-602. Forgery, first degree; penalty.

(1) A person commits forgery in the first degree if, with intent to deceive or harm, he falsely makes, completes, endorses, alters, or utters a written instrument which is or purports to be, or which is calculated to become or to represent if completed:

(a) Part of an issue of money, stamps, securities, or other valuable instruments issued by a government or governmental agency; or

(b) Part of an issue of stock, bonds, bank notes, or other instruments representing interests in or claims against a corporate or other organization or its property.

(2) Forgery in the first degree is a Class III felony.

Source:Laws 1977, LB 38, § 124.

28-603. Forgery, second degree; penalty; aggregation allowed; when.

(1) Whoever, with intent to deceive or harm, falsely makes, completes, endorses, alters, or utters any written instrument which is or purports to be, or which is calculated to become or to represent if completed, a written instrument which does or may evidence, create, transfer, terminate, or otherwise affect a legal right, interest, obligation, or status, commits forgery in the second degree.

(2) Forgery in the second degree is a Class IIA felony when the face value, or purported face value, or the amount of any proceeds wrongfully procured or intended to be procured by the use of such instrument, is five thousand dollars or more.

(3) Forgery in the second degree is a Class IV felony when the face value, or purported face value, or the amount of any proceeds wrongfully procured or intended to be procured by the use of such instrument, is one thousand five hundred dollars or more but is less than five thousand dollars.

(4) Forgery in the second degree is a Class I misdemeanor when the face value, or purported face value, or the amount of any proceeds wrongfully procured or intended to be procured by the use of such instrument, is five hundred dollars or more but is less than one thousand five hundred dollars.

(5) Forgery in the second degree is a Class II misdemeanor when the face value, or purported face value, or the amount of any proceeds wrongfully procured or intended to be procured by the use of such instrument, is less than five hundred dollars.

(6) For the purpose of determining the class of penalty for forgery in the second degree, the face values, or purported face values, or the amounts of any proceeds wrongfully procured or intended to be procured by the use of more than one such instrument, may be aggregated in the indictment or information if such instruments were part of the same scheme or course of conduct which took place within a sixty-day period and within one county. Such values or amounts shall not be aggregated into more than one offense.

Source:Laws 1977, LB 38, § 125; Laws 2003, LB 17, § 7; Laws 2009, LB155, § 13; Laws 2015, LB605, § 32.

Annotations

To sustain a conviction for forgery, it is not sufficient for the State to show that a signature is not that of the party whose name is used, but it must also affirmatively be shown that the signing was made without his or her authority. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).

The elements of the crime of uttering a forged instrument are (1) the offering of a forged instrument with the representation by words or acts that it is true or genuine, (2) the knowledge that same is false, forged, or counterfeited, and (3) the intent to defraud. State v. Tate, 222 Neb. 586, 385 N.W.2d 456 (1986).

28-604. Criminal possession of a forged instrument; penalty; aggregation allowed; when.

(1) Whoever, with knowledge that it is forged and with intent to deceive or harm, possesses any forged instrument covered by section 28-602 or 28-603 commits criminal possession of a forged instrument.

(2) Criminal possession of a forged instrument prohibited by section 28-602 is a Class IV felony.

(3) Criminal possession of a forged instrument prohibited by section 28-603, the amount or value of which is five thousand dollars or more, is a Class IV felony.

(4) Criminal possession of a forged instrument prohibited by section 28-603, the amount or value of which is one thousand five hundred dollars or more but less than five thousand dollars, is a Class I misdemeanor.

(5) Criminal possession of a forged instrument prohibited by section 28-603, the amount or value of which is five hundred dollars or more but less than one thousand five hundred dollars, is a Class II misdemeanor.

(6) Criminal possession of a forged instrument prohibited by section 28-603, the amount or value of which is less than five hundred dollars, is a Class III misdemeanor.

(7) For the purpose of determining the class of penalty for criminal possession of a forged instrument prohibited by section 28-603, the amounts or values of more than one such forged instrument may be aggregated in the indictment or information if such forged instruments were part of the same scheme or course of conduct which took place within a sixty-day period and within one county. Such amounts or values shall not be aggregated into more than one offense.

Source:Laws 1977, LB 38, § 126; Laws 2003, LB 17, § 8; Laws 2009, LB155, § 14; Laws 2015, LB605, § 33.

Annotations

Where the evidence offered no rational basis for convicting defendant of what he claimed to be the "lesser-included" offense of criminal possession of forged instrument, trial court did not err in refusing requested instruction. State v. Ebert, 212 Neb. 629, 324 N.W.2d 812 (1982).

28-605. Criminal possession of written instrument forgery devices; penalty.

(1) A person commits criminal possession of written instrument forgery devices when:

(a) He or she makes or possesses with knowledge of its character any plate, die, or other device, apparatus, equipment, or article specifically designed for use in counterfeiting, unlawfully simulating, or otherwise forging written instruments; or

(b) He or she makes or possesses any device, apparatus, equipment, or article capable of or adaptable to a use specified in subdivision (1)(a) of this section, with intent to use it himself or herself, or to aid or permit another to use it, for purposes of forgery; or

(c) Illegally possesses a genuine plate, die, or other device used in the production of written instruments, with intent to deceive or harm.

(2) Criminal possession of written instrument forgery devices is a Class IV felony.

Source:Laws 1977, LB 38, § 127; Laws 2016, LB1094, § 8.

28-606. Criminal simulation; penalty.

(1) A person commits a criminal simulation when:

(a) With intent to deceive or harm, he makes, alters, or represents an object in such fashion that it appears to have an antiquity, rarity, source or authorship, ingredient, or composition which it does not in fact have; or

(b) With knowledge of its true character and with intent to use to deceive or harm, he utters, misrepresents, or possesses any object so simulated.

(2) Criminal simulation is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 128.

28-607. Making, using, or uttering slugs; terms, defined; penalty.

(1) A person commits the offense of unlawfully using slugs, if he makes, uses, or utters a slug or slugs with intent to deprive a supplier of property or service sold or offered by means of a coin machine or with knowledge that he is facilitating such a deprivation by another person.

(2) As used in this section, unless the context otherwise requires:

(a) Slug shall mean an object which by size, shape, or any other quality is capable of being inserted, deposited, or otherwise used in a coin machine as an improper but effective substitute for a genuine coin, bill, or token;

(b) Coin machine shall mean a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed to receive a coin or bill of a specified denomination or a token made for the purpose and in return for the insertion or deposit thereof to mechanically offer, provide, assist in providing or permit the acquisition of property or a public or private service; and

(3) The making, using, or uttering of slugs of the value of one hundred dollars or more is a Class I misdemeanor.

(4) The making, using, or uttering of slugs of the value of less than one hundred dollars is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 129.

28-608. Transferred to section 28-638.

28-609. Impersonating a public servant; penalty.

(1) A person commits the offense of impersonating a public servant if he falsely pretends to be a public servant other than a peace officer and performs any act in that pretended capacity.

(2) It is no defense to a prosecution under this section that the office the actor pretended to hold did not in fact exist.

(3) Impersonating a public servant is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 131.

28-610. Impersonating a peace officer; penalty.

(1) A person commits the offense of impersonating a peace officer if he falsely pretends to be a peace officer and performs any act in that pretended capacity.

(2) Impersonating a peace officer is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 132.

28-611. Issuing or passing a bad check or similar order; penalty; collection procedures.

(1) Whoever obtains property, services, child support credit, spousal support credit, or present value of any kind by issuing or passing a check, draft, assignment of funds, or similar signed order for the payment of money, knowing that he or she does not have sufficient funds in or credit with the drawee for the payment of the check, draft, assignment of funds, or order in full upon presentation, commits the offense of issuing a bad check. Issuing a bad check is:

(a) A Class IIA felony if the amount of the check, draft, assignment of funds, or order is five thousand dollars or more;

(b) A Class IV felony if the amount of the check, draft, assignment of funds, or order is one thousand five hundred dollars or more, but less than five thousand dollars;

(c) A Class I misdemeanor if the amount of the check, draft, assignment of funds, or order is five hundred dollars or more, but less than one thousand five hundred dollars; and

(d) A Class II misdemeanor if the amount of the check, draft, assignment of funds, or order is less than five hundred dollars.

(2) The aggregate amount of any series of checks, drafts, assignments, or orders issued or passed within a sixty-day period in one county may be used in determining the classification of the offense pursuant to subsection (1) of this section, except that checks, drafts, assignments, or orders may not be aggregated into more than one offense.

(3) For any second or subsequent offense under subdivision (1)(c) or (1)(d) of this section, any person so offending shall be guilty of a Class IV felony.

(4) Whoever otherwise issues or passes a check, draft, assignment of funds, or similar signed order for the payment of money, knowing that he or she does not have sufficient funds in or credit with the drawee for the payment of the check, draft, assignment of funds, or order in full upon its presentation, shall be guilty of a Class II misdemeanor.

(5) Any person in violation of this section who makes voluntary restitution to the injured party for the value of the check, draft, assignment of funds, or order shall also pay ten dollars to the injured party and any reasonable handling fee imposed on the injured party by a financial institution.

(6) In any prosecution for issuing a bad check, the person issuing the check, draft, assignment of funds, or order shall be presumed to have known that he or she did not have sufficient funds in or credit with the drawee for the payment of the check, draft, assignment of funds, or order in full upon presentation if, within thirty days after issuance of the check, draft, assignment of funds, or order, he or she was notified that the drawee refused payment for lack of funds and he or she failed within ten days after such notice to make the check, draft, assignment of funds, or order good or, in the absence of such notice, he or she failed to make the check, draft, assignment of funds, or order good within ten days after notice that such check, draft, assignment of funds, or order has been returned to the depositor was sent to him or her by the county attorney or his or her deputy, by United States mail addressed to such person at his or her last-known address. Upon request of the depositor and the payment of ten dollars for each check, draft, assignment of funds, or order, the county attorney or his or her deputy shall be required to mail notice to the person issuing the check, draft, assignment of funds, or order as provided in this subsection. The ten-dollar payment shall be payable to the county treasurer and credited to the county general fund. No such payment shall be collected from any county office to which such a check, draft, assignment of funds, or order is issued in the course of the official duties of the office.

(7) Any person convicted of violating this section may, in addition to a fine or imprisonment, be ordered to make restitution to the party injured for the value of the check, draft, assignment of funds, or order and to pay ten dollars to the injured party and any reasonable handling fee imposed on the injured party by a financial institution. If the court, in addition to sentencing any person to imprisonment under this section, also enters an order of restitution, the time permitted to make such restitution shall not be concurrent with the sentence of imprisonment.

(8) The fact that restitution to the party injured has been made and that ten dollars and any reasonable handling fee imposed on the injured party by a financial institution have been paid to the injured party shall be a mitigating factor in the imposition of punishment for any violation of this section.

Source:Laws 1977, LB 38, § 133; Laws 1978, LB 748, § 8; Laws 1983, LB 208, § 1; Laws 1985, LB 445, § 1; Laws 1987, LB 254, § 1; Laws 1992, LB 111, § 3; Laws 2009, LB155, § 15; Laws 2015, LB605, § 34; Laws 2019, LB514, § 1.

Annotations

In order to violate subsection (3) of this section, an intent to defraud must exist at the time one issues an insufficient-fund check. State v. Hruza, 223 Neb. 837, 394 N.W.2d 643 (1986).

The presumption contained in subsection (4) of this section that the drawer of an insufficient-fund check who, after notice, does not make it good knew of the insufficiency when issuing the check is only a permissible inference of fact. State v. Hruza, 223 Neb. 837, 394 N.W.2d 643 (1986).

In order for the State to convict under this statute, the State must prove that the check was issued with the intent to defraud, and such intent must occur at the time the check is drawn. The maker of a postdated check will not be guilty of violating this statute when he or she has informed the payee at the time of its delivery that funds in the bank are not adequate to pay the check if presented immediately after issuance. State v. Papillon, 223 Neb. 325, 389 N.W.2d 553 (1986).

The essential elements of the crime defined in subsection (1)(a) of this section are the issuance of a check for more than one thousand dollars and obtaining of property of value, with no particular amount required (subject, of course, to the requirement that the act is done with the intent to defraud). State v. Wiley, 219 Neb. 740, 365 N.W.2d 844 (1985).

In prosecution under this section, trial court's instruction defining "thing of value" as definition appears in section 28-109(22) was correct. Trial court correctly refused defendant's request for instruction defining value as definition appears in U.C.C. section 3-303 in prosecution under this section. State v. Spaulding, 211 Neb. 575, 319 N.W.2d 449 (1982).

The prosecutor may relate the underlying facts upon which the court can find the defendant guilty when a plea of "no contest" has been entered. State v. Johnson, 209 Neb. 308, 307 N.W.2d 525 (1981).

By its terms, this section requires proof that one intended to defraud by obtaining property, services, or present value of any kind in exchange for a check or other order, knowing at the time of issuing such check or order that he has no account with the drawee, or, if he has such an account, knowing that he does not have sufficient funds in, or credit with, the drawee for the payment of such check or order in full upon its presentation. State v. Kock, 207 Neb. 731, 300 N.W.2d 824 (1981).

In order to warrant the imposition of the enhanced penalties for issuing a bad check under section 28-611(2), R.R.S.1943, prior convictions must have occurred under subdivision (1)(c) or (1)(d) of that statute. Prior convictions under previous "bad check" statutes may not be used to enhance the penalties under the "bad check" statute currently in effect. State v. Suhr, 207 Neb. 553, 300 N.W.2d 25 (1980).

28-611.01. Issuing a no-account check; penalty; aggregation allowed; when.

(1) Whoever issues or passes a check, draft, assignment of funds, or similar signed order for the payment of money, knowing that he or she has no account with the drawee at the time the check, draft, assignment of funds, or order is issued, commits the offense of issuing a no-account check. Issuing a no-account check is:

(a) A Class III felony if the amount of the check, draft, assignment of funds, or order is five thousand dollars or more;

(b) A Class IV felony if the amount of the check, draft, assignment of funds, or order is one thousand five hundred dollars or more, but less than five thousand dollars;

(c) A Class I misdemeanor if the amount of the check, draft, assignment of funds, or order is five hundred dollars or more, but less than one thousand five hundred dollars; and

(d) A Class II misdemeanor if the amount of the check, draft, assignment of funds, or order is less than five hundred dollars.

(3) For any second or subsequent offense under this section, any person so offending shall be guilty of:

(a) A Class III felony if the amount of the check, draft, assignment of funds, or order is one thousand five hundred dollars or more; and

(b) A Class IV felony if the amount of the check, draft, assignment of funds, or order is less than one thousand five hundred dollars.

Source:Laws 2009, LB155, § 16; Laws 2015, LB605, § 35.

28-612. False statement or book entry; destruction or secretion of records; penalty.

(1) A person commits a Class IV felony if he or she:

(a) Willfully and knowingly subscribes to, makes, or causes to be made any false statement or entry in the books of an organization; or

(b) Knowingly subscribes to or exhibits false papers with the intent to deceive any person or persons authorized to examine into the affairs of any such organization; or

(c) Makes, states, or publishes any false statement of the amount of the assets or liabilities of any such organization; or

(d) Fails to make true and correct entry in the books and records of such organization of its business and transactions in the manner and form prescribed by the Department of Banking and Finance; or

(e) Mutilates, alters, destroys, secretes, or removes any of the books or records of such organization, without the consent of the Director of Banking and Finance.

(2) As used in this section, organization means:

(a) Any trust company transacting a business under the Nebraska Trust Company Act;

(b) Any association organized for the purpose set forth in section 8-302;

(d) Any credit union transacting business in this state under the Credit Union Act.

Source:Laws 1977, LB 38, § 134; Laws 1983, LB 440, § 1; Laws 1984, LB 979, § 1; Laws 1995, LB 384, § 16; Laws 1996, LB 948, § 122; Laws 1998, LB 1321, § 77; Laws 2002, LB 1094, § 13; Laws 2003, LB 131, § 24; Laws 2017, LB140, § 150.

Cross References

Credit Union Act, see section 21-1701.

Nebraska Trust Company Act, see section 8-201.01.

28-613. Commercial bribery and breach of duty to act disinterestedly; penalty.

(1) A person commits a Class I misdemeanor if he or she solicits, accepts, or agrees to accept any benefit as consideration for knowingly violating or agreeing to violate a duty of fidelity to which he or she is subject as:

(a) Agent or employee; or

(b) Trustee, guardian, or other fiduciary; or

(d) Officer, director, partner, limited liability company member, manager, or other participant in the direction of the affairs of an incorporated or unincorporated association; or

(e) Duly elected or appointed representative or trustee of a labor organization or employee of a welfare trust fund; or

(f) Arbitrator or other purportedly disinterested adjudicator or referee.

(2) A person who holds himself or herself out to the public as being engaged in the business of making disinterested selection, appraisal, or criticism of commodities, property, or services commits a Class I misdemeanor if he or she solicits, accepts, or agrees to accept any benefit to alter, modify, or change his or her selection, appraisal, or criticism.

(3) A person commits a Class I misdemeanor if he or she confers or offers or agrees to confer any benefit the acceptance of which would be an offense under subsection (1) or (2) of this section.

Source:Laws 1977, LB 38, § 135; Laws 1993, LB 121, § 177; Laws 1994, LB 884, § 54.

28-614. Tampering with publicly exhibited contest; penalty; contest, participant, official, defined.

(1) A person commits the offense of tampering with a publicly exhibited contest if:

(a) He confers, or offers or agrees to confer, directly or indirectly, any benefit upon:

(i) A contest participant with intent to influence him not to give his best efforts in a publicly exhibited contest; or

(ii) A contest official with intent to influence him to perform improperly his duties in connection with a publicly exhibited contest;

(b) Being a contest participant or contest official, he intentionally solicits, accepts, or agrees to accept, directly or indirectly, any benefit from another person with intent that he will thereby be influenced:

(i) In the case of a contest participant, not to give his best efforts in a publicly exhibited contest; or

(ii) In the case of a contest official, to perform improperly his duties in connection with a publicly exhibited contest; or

(i) Tampers with any contest participant, contest official, animal, equipment, or other thing involved in the conduct or operation of the contest, in a manner contrary to the rules and usages purporting to govern the contest in question; or

(ii) Substitutes a contest participant, animal, equipment, or other thing involved in the conduct or operation of the contest, for the genuine person, animal, or thing.

(2) In this section:

(a) Publicly exhibited contest shall mean any professional or amateur sport, athletic game or contest, or race or contest involving machines, persons, or animals, viewed by the public, but shall not include an exhibition which does not purport to be and which is not represented as being such a sport, game, contest, or race;

(b) Contest participant shall mean any person who participates or expects to participate in a publicly exhibited contest as a player, contestant, or member of a team, or as a coach, manager, trainer, or other person directly associated with a player, contestant, or team; and

(c) Contest official shall mean any person who acts or expects to act in a publicly exhibited contest as an umpire, referee, or judge, or otherwise to officiate at a publicly exhibited contest.

(3) Tampering with a publicly exhibited contest is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 136.

28-615. Identification number, obscure, and article, defined.

As used in sections 28-615 to 28-617:

(1) Identification number shall mean a serial or motor number placed by a manufacturer upon an article as a permanent individual identifying mark;

(2) Obscure shall mean to destroy, remove, alter, conceal, or deface so as to render illegible by ordinary means of inspection; and

(3) Article shall mean any product made by a manufacturer and includes but is not limited to any appliance, radio, television, motor vehicle, tractor or other farm machinery.

Source:Laws 1977, LB 38, § 137.

28-616. Altering identification number; penalty.

(1) A person commits the offense of altering an identification number if, with the intent to deceive or harm, he obscures an identification number or in the course of business he sells, offers for sale, leases or otherwise disposes of an article knowing that an identification number thereon is obscured.

(2) Altering an identification number is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 138.

28-617. Receiving an altered article; penalty.

(1) A person commits the offense of receiving an altered article if, with the intent to deceive or harm another, he buys or receives any article knowing that an identification number thereon is obscured, without first ascertaining that the person so selling or delivering the same has a legal right to do so.

(2) Receiving an altered article is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 139.

28-618. Financial transactions; terms, defined.

For purposes of sections 28-618 to 28-630:

(1) Account holder shall mean the person or business entity named on the face of a financial transaction device for whose benefit the financial transaction device is issued by an issuer;

(2) Acquirer shall mean any business organization, financial institution, or agent of such organization or institution which authorizes a merchant to accept payment by financial transaction device for money, property, services, or anything else of value;

(3) Automated banking device shall mean any machine which, when properly activated by a financial transaction device or a personal identification code, may be used for any purpose for which a financial transaction device is issued;

(4) Counterfeit financial transaction device shall mean any financial transaction device which is fictitious, altered, forged, stolen, obtained as part of a scheme to defraud, or otherwise unlawfully obtained and which may or may not be embossed with account information or a company logo or any facsimile, false representation, depiction, or component of a financial transaction device;

(5) Embossing shall mean any process in which account numbers are placed on financial transaction devices that results in the number being raised from the surface of the device;

(6) Expired financial transaction device shall mean a financial transaction device which is no longer valid because the term shown on it has elapsed;

(7) Financial transaction device shall mean any instrument or device whether known as a credit card, credit plate, bank service card, banking card, check guarantee card, debit card, electronic funds transfer card, or account number representing a financial account. Such device shall affect the financial interest, standing, or obligation of the financial account for services or financial payments for money, credit, property, or services;

(8) Financial-transaction-device-making equipment shall mean any equipment, impression, machine, mechanism, plate, or other device designed, used, or capable of being used to produce a financial transaction device, a counterfeit financial transaction device, or any aspect or component of a financial transaction device;

(9) Holographic shall mean a photographic method that uses laser light to produce three-dimensional images;

(10) Intent to defraud shall mean an unlawful attempt to secure money, credit, property, or services from an issuer, without permission of the account holder, for the benefit of any person other than the account holder;

(11) Issuer shall mean any person or any financial or business entity that acquires financial rights by issuing, canceling, controlling, or distributing a financial transaction device;

(12) Magnetic encoding shall mean any electronically encoded account holder information which is placed on a magnetic strip on the financial transaction device and is capable of being read by an electronic terminal such as an automatic teller machine or an electronic terminal at a merchant location also known as a point-of-sale terminal;

(13) Personal identification code shall mean any grouping of letters, numbers, or symbols assigned to the account holder of a financial transaction device by the issuer to permit authorized electronic access of that account;

(14) Receives or receiving shall mean acquiring possession or control of or accepting as security for a loan a financial transaction device;

(15) Revoked financial transaction device shall mean a financial transaction device which is no longer valid because permission to use it has been suspended or terminated by the issuer;

(16) Sales form shall mean any written, electronic, magnetic, or printed record of a financial transaction involving use of a financial transaction device;

(17) Sales form processing services shall mean services provided to enable a person to obtain payment or credit for sales forms;

(18) Sales form processor shall mean any bank, financial institution, or other entity which with authority from a bona fide association of issuers provides sales form processing services;

(19) Service mark shall mean a word, name, symbol, or other device or any combination thereof to identify the goods or services of the entity from the goods and services of another entity;

(20) To falsely alter a financial transaction device shall mean to change such device without the authority of anyone entitled to grant such authority, whether in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or any other means, so that such device in its altered form falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible issuer;

(21) To falsely complete a financial transaction device shall mean to transform an incomplete device into a complete one by adding, inserting, or changing matter without the authority of anyone entitled to grant such authority, so that the complete device falsely appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible issuer;

(22) To falsely make a financial transaction device shall mean to make or manufacture a device, whether complete or incomplete, which purports to be an authentic creation of its ostensible issuer but which is fictitious or, if real, the ostensible issuer did not authorize the making or the manufacturing thereof; and

(23) Traffic shall mean to distribute, dispense, sell, transfer, or otherwise dispose of property or to buy, receive, possess, obtain control of, or use property with the intent to dispense, distribute, sell, transfer, or otherwise dispose of such property.

Source:Laws 1989, LB 372, § 2; Laws 1993, LB 81, § 55.

Annotations

By the plain language of subsection (7) of this section, the Legislature intended to include both tangible items such as credit cards and the account numbers reflected on such cards within the definition of a financial transaction device. As defined in subsection (7) of this section, a "financial transaction device" must be something which is capable of being used to execute a transaction in a financial account. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001).

28-619. Issuing a false financial statement for purposes of obtaining a financial transaction device; penalties.

(1) A person commits the offense of issuing a false financial statement for purposes of obtaining a financial transaction device if, upon filing an application for a financial transaction device with an issuer, such person (a) knowingly makes or causes to be made a statement or report which is false in some material respect and reasonably relied upon relative to his or her name, occupation, financial condition, assets, or liabilities, (b) willfully and materially overvalues any assets, or (c) willfully omits or materially undervalues any indebtedness with the intent of influencing the issuer to issue a financial transaction device.

(2) Any person issuing a false financial statement for the purposes of obtaining a financial transaction device, when such device is used in violation of this section to obtain money, property, or services, shall be guilty of a Class I misdemeanor.

(3) Any person issuing two or more false financial statements for purposes of obtaining two or more financial transaction devices, when such devices are used in violation of this section to obtain money, property, or services, shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 3; Laws 1996, LB 899, § 1.

28-620. Unauthorized use of a financial transaction device; penalties; prosecution of offense.

(1) A person commits the offense of unauthorized use of a financial transaction device if such person uses such device in an automated banking device, to imprint a sales form, or in any other manner:

(a) For the purpose of obtaining money, credit, property, or services or for making financial payment, with intent to defraud;

(b) With notice that the financial transaction device is expired, revoked, or canceled;

(d) When for any reason his or her use of the financial transaction device is unauthorized either by the issuer or by the account holder.

(2) For purposes of this section, notice shall mean either notice given in person or notice given in writing to the account holder, by registered or certified mail, return receipt requested, duly stamped and addressed to such account holder at his or her last address known to the issuer. Such notice shall be evidenced by a returned receipt signed by the account holder which shall be prima facie evidence that the notice was received.

(3) Any person committing the offense of unauthorized use of a financial transaction device shall be guilty of:

(a) A Class II misdemeanor if the total value of the money, credit, property, or services obtained or the financial payments made are less than five hundred dollars within a six-month period from the date of the first unauthorized use;

(b) A Class I misdemeanor if the total value of the money, credit, property, or services obtained or the financial payments made are five hundred dollars or more but less than one thousand five hundred dollars within a six-month period from the date of the first unauthorized use;

(c) A Class IV felony if the total value of the money, credit, property, or services obtained or the financial payments made are one thousand five hundred dollars or more but less than five thousand dollars within a six-month period from the date of the first unauthorized use; and

(d) A Class IIA felony if the total value of the money, credit, property, or services obtained or the financial payments made are five thousand dollars or more within a six-month period from the date of the first unauthorized use.

(4) Any prosecution under this section may be conducted in any county where the person committed the offense or any one of a series of offenses to be aggregated.

(5) Once aggregated and filed, no separate prosecution for an offense arising out of the same series of offenses aggregated and filed shall be allowed in any county.

Source:Laws 1989, LB 372, § 4; Laws 1994, LB 379, § 1; Laws 2002, LB 276, § 3; Laws 2015, LB605, § 36.

28-621. Criminal possession of a financial transaction device; penalties.

(1) A person commits the offense of criminal possession of a financial transaction device if, with the intent to defraud, such person has in his or her possession or under his or her control any financial transaction device issued to a different account holder or which he or she knows or reasonably should know to be lost, stolen, forged, altered, or counterfeited.

(2) Any person committing the offense of criminal possession of one financial transaction device shall be guilty of a Class III misdemeanor.

(3) Any person committing the offense of criminal possession of two or three financial transaction devices, each issued to different account holders, shall be guilty of a Class IV felony.

(4) Any person committing the offense of criminal possession of four or more financial transaction devices, each issued to different account holders, shall be guilty of a Class IIA felony.

Source:Laws 1989, LB 372, § 5; Laws 2015, LB605, § 37.

Annotations

Under this section and section 28-622, an employee is deemed to have "stolen" credit card statements if he or she physically removes such statements from his or her employer's premises with the knowledge that such statements will be used unlawfully and without the employer's authorization or knowledge. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001).

28-622. Unlawful circulation of a financial transaction device in the first degree; penalty.

(1) A person commits the offense of unlawful circulation of a financial transaction device in the first degree if such person sells or has in his or her possession or under his or her control with the intent to deliver, circulate, or sell two or more financial transaction devices which he or she knows or reasonably should know to be lost, stolen, forged, altered, counterfeited, or delivered under a mistake as to the identity or address of the account holder.

(2) Any person committing the offense of unlawful circulation of a financial transaction device in the first degree shall be guilty of a Class IIA felony.

Source:Laws 1989, LB 372, § 7; Laws 2015, LB605, § 38.

Annotations

Under section 28-621 and this section, an employee is deemed to have "stolen" credit card statements if he or she physically removes such statements from his or her employer's premises with the knowledge that such statements will be used unlawfully and without the employer's authorization or knowledge. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001).

28-623. Unlawful circulation of a financial transaction device in the second degree; penalty.

(1) A person commits the offense of unlawful circulation of a financial transaction device in the second degree if such person sells or has in his or her possession or under his or her control with the intent to deliver, circulate, or sell any financial transaction device which he or she knows or reasonably should know to be lost, stolen, forged, altered, counterfeited, or delivered under a mistake as to the identity or address of the account holder.

(2) Any person committing the offense of unlawful circulation of a financial transaction device in the second degree shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 6.

28-624. Criminal possession of a blank financial transaction device; penalties.

(1) A person commits the offense of criminal possession of a blank financial transaction device if, without the authorization of the issuer or manufacturer, such person has in his or her possession, has under his or her control, or receives from another person a blank financial transaction device, with intent to use or to cause the use of such device.

(2) Any person committing the offense of criminal possession of a blank financial transaction device shall be guilty of a Class I misdemeanor.

(3) Any person committing the offense of criminal possession of two or more blank financial transaction devices shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 8.

28-625. Criminal sale of a blank financial transaction device; penalties; blank financial transaction device, defined.

(1) A person commits the offense of criminal sale of a blank financial transaction device if, without the authorization of the issuer or manufacturer, such person has in his or her possession, has under his or her control, or receives from another person a blank financial transaction device, with intent to deliver, circulate, or sell or to cause the delivery, circulation, or sale of such device.

(2) Any person committing the offense of criminal sale of one blank financial transaction device shall be guilty of a Class IV felony.

(3) Any person committing the offense of criminal sale of two or more blank financial transaction devices shall be guilty of a Class III felony.

For purposes of section 28-624 and this section, a blank financial transaction device shall mean a device that has at least one or more characteristics of a financial transaction device but does not contain all of the characteristics of a financial transaction device including, but not limited to, a financial transaction device which has not been embossed or magnetically encoded with the name of the account holder, personal identification code, expiration date, or other proprietary institutional information.

Source:Laws 1989, LB 372, § 9.

28-626. Criminal possession of a financial transaction forgery device; penalty.

(1) A person commits the offense of criminal possession of a financial transaction forgery device if (a) such person possesses any tool, photographic equipment, printing equipment, or any other device or group or combination of devices adapted, designed, or commonly used for committing or facilitating the commission of an offense involving the unauthorized manufacturing, printing, embossing, or magnetic encoding of a financial transaction device or the altering or addition of any service marks or holographic images to a financial transaction device and (b) intends to use the device or devices possessed or knows that some person intends to use the device or devices possessed in the commission of such an offense.

(2) Any person committing the offense of criminal possession of a financial transaction forgery device shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 10; Laws 2016, LB1094, § 9.

28-627. Unlawful manufacture of a financial transaction device; penalty.

(1) A person commits the offense of unlawful manufacture of a financial transaction device if, with intent to defraud, such person:

(a) Falsely makes or manufactures, by printing, embossing, or magnetically encoding, a financial transaction device;

(b) Falsely alters or adds service marks, optical characters, or holographic images to a device which is, purports to be, or is circulated to become or represent if completed a financial transaction device; or

(c) Falsely completes a financial transaction device by adding to an incomplete device to make it appear to be a complete one.

(2) Any person committing the offense of unlawful manufacture of a financial transaction device shall be guilty of a Class IIA felony.

Source:Laws 1989, LB 372, § 11; Laws 2015, LB605, § 39.

28-628. Laundering of sales forms; penalty.

A person other than a sales form processor commits the offense of laundering of sales forms if such person presents for payment to any sales form processor a sales form which was not originated as a result of a sales transaction between such person and the account holder named on such sales form.

Any person committing the offense of laundering of sales forms shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 12.

28-629. Unlawful acquisition of sales form processing services; penalty.

A person commits the offense of unlawful acquisition of sales form processing services if, upon applying for such services with a sales form processor, such person makes or causes to be made a statement or report which is false in some material respect relative to the type of goods or services provided by such person to his or her customers or the method by which such person solicits or concludes sales transactions with his or her customers.

Any person committing the offense of unlawful acquisition of sales form processing services shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 13.

28-630. Unlawful factoring of a financial transaction device; penalty.

(1) A person commits the offense of unlawful factoring of a financial transaction device if such person or any agent or employee of such person is authorized by any acquirer to furnish money, property, services, or anything else of value and, with intent to defraud the account holder, acquirer, or issuer, presents for payment a financial transaction device transaction record to the issuer or acquirer.

(2) Any person committing the offense of unlawful factoring of a financial transaction device shall be guilty of a Class IV felony.

Source:Laws 1989, LB 372, § 14.

28-631. Fraudulent insurance act; penalties.

(1) A person or entity commits a fraudulent insurance act if he or she:

(a) Knowingly and with intent to defraud or deceive presents, causes to be presented, or prepares with knowledge or belief that it will be presented to or by an insurer, or any agent of an insurer, any statement as part of, in support of, or in denial of a claim for payment or other benefit from an insurer or pursuant to an insurance policy knowing that the statement contains any false, incomplete, or misleading information concerning any fact or thing material to a claim;

(b) Assists, abets, solicits, or conspires with another to prepare or make any statement that is intended to be presented to or by an insurer or person in connection with or in support of any claim for payment or other benefit from an insurer or pursuant to an insurance policy knowing that the statement contains any false, incomplete, or misleading information concerning any fact or thing material to the claim;

(c) Makes any false or fraudulent representations as to the death or disability of a policy or certificate holder or a covered person in any statement or certificate for the purpose of fraudulently obtaining money or benefit from an insurer;

(d) Knowingly and willfully transacts any contract, agreement, or instrument which violates this section;

(e) Receives money for the purpose of purchasing insurance and converts the money to the person's own benefit;

(f) Willfully embezzles, abstracts, purloins, misappropriates, or converts money, funds, premiums, credits, or other property of an insurer or person engaged in the business of insurance;

(g) Knowingly and with intent to defraud or deceive issues fake or counterfeit insurance policies, certificates of insurance, insurance identification cards, or insurance binders;

(h) Knowingly and with intent to defraud or deceive possesses fake or counterfeit insurance policies, certificates of insurance, insurance identification cards, or insurance binders;

(i) Knowingly and with intent to defraud or deceive makes any false entry of a material fact in or pertaining to any document or statement filed with or required by the Department of Insurance;

(j) Knowingly and with the intent to defraud or deceive provides false, incomplete, or misleading information to an insurer concerning the number, location, or classification of employees for the purpose of lessening or reducing the premium otherwise chargeable for workers' compensation insurance coverage;

(k) Knowingly and with intent to defraud or deceive removes, conceals, alters, diverts, or destroys assets or records of an insurer or person engaged in the business of insurance or attempts to remove, conceal, alter, divert, or destroy assets or records of an insurer or person engaged in the business of insurance;

(l) Willfully operates as or aids and abets another operating as a discount medical plan organization in violation of subsection (1) of section 44-8306; or

(m) Willfully collects fees for purported membership in a discount medical plan organization but purposefully fails to provide the promised benefits.

(2)(a) A violation of subdivisions (1)(a) through (f) of this section is a Class III felony when the amount involved is five thousand dollars or more.

(b) A violation of subdivisions (1)(a) through (f) of this section is a Class IV felony when the amount involved is one thousand five hundred dollars or more but less than five thousand dollars.

(c) A violation of subdivisions (1)(a) through (f) of this section is a Class I misdemeanor when the amount involved is five hundred dollars or more but less than one thousand five hundred dollars.

(d) A violation of subdivisions (1)(a) through (f) of this section is a Class II misdemeanor when the amount involved is less than five hundred dollars.

(e) For any second or subsequent conviction under subdivision (2)(c) of this section, the violation is a Class IV felony.

(f) A violation of subdivisions (1)(g), (i), (j), (k), (l), and (m) of this section is a Class IV felony.

(g) A violation of subdivision (1)(h) of this section is a Class I misdemeanor.

(3) Amounts taken pursuant to one scheme or course of conduct from one person, entity, or insurer may be aggregated in the indictment or information in determining the classification of the offense, except that amounts may not be aggregated into more than one offense.

(4) In any prosecution under this section, if the amounts are aggregated pursuant to subsection (3) of this section, the amount involved in the offense shall be an essential element of the offense that must be proved beyond a reasonable doubt.

(5) A prosecution under this section shall be in lieu of an action under section 44-6607.

(6) For purposes of this section:

(a) Insurer means any person or entity transacting insurance as defined in section 44-102 with or without a certificate of authority issued by the Director of Insurance. Insurer also means health maintenance organizations, legal service insurance corporations, prepaid limited health service organizations, dental and other similar health service plans, discount medical plan organizations, and entities licensed pursuant to the Intergovernmental Risk Management Act and the Comprehensive Health Insurance Pool Act. Insurer also means an employer who is approved by the Nebraska Workers' Compensation Court as a self-insurer; and

(b) Statement includes, but is not limited to, any notice, statement, proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, bill for services, diagnosis, prescription, hospital or medical records, X-rays, test result, or other evidence of loss, injury, or expense, whether oral, written, or computer-generated.

Source:Laws 1995, LB 385, § 10; Laws 1997, LB 272, § 1; Laws 2000, LB 930, § 1; Laws 2002, LB 547, § 1; Laws 2008, LB855, § 2; Laws 2009, LB208, § 1; Laws 2015, LB605, § 40.

Cross References

Comprehensive Health Insurance Pool Act, see section 44-4201.

Intergovernmental Risk Management Act, see section 44-4301.

28-632. Payment cards; terms, defined.

For purposes of this section and sections 28-633 and 28-634:

(1) Encoding machine means an electronic device that is used to encode information onto a payment card;

(2) Merchant means:

(a) An owner or operator of any retail mercantile establishment or any agent, employee, lessee, consignee, officer, director, franchisee, or independent contractor of such owner or operator;

(b) An establishing financial institution as defined in section 8-157.01; or

(c) A person who receives from an authorized user of a payment card, or someone the person believes to be an authorized user, a payment card or information from a payment card, or what the person believes to be a payment card or information from a payment card, as the instrument for obtaining, purchasing, or receiving goods, services, money, or anything else of value from the person;

(3) Payment card means a credit card, charge card, debit card, or any other card that is issued to an authorized card user and that allows the user to obtain, purchase, or receive goods, services, money, or anything else of value from a merchant;

(4) Person means an individual, firm, partnership, association, corporation, limited liability company, or other business entity; and

(5) Scanning device means a scanner, a reader, a wireless access device, a radio-frequency identification scanner, near-field communication technology, or any other electronic device that is used to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on a payment card.

Source:Laws 2002, LB 276, § 4; Laws 2018, LB773, § 1.

28-633. Payment cards; prohibited acts; violation; penalty.

(1) A person that accepts a payment card for the transaction of business shall print no more than the last five digits of the payment card account number upon any receipt provided to the payment card holder.

(2) This section applies only to receipts that are electronically printed and does not apply to any transaction in which the only means of recording the payment card number is by handwriting or by an imprint or copy of the payment card.

(3) A violation of this section is a Class III misdemeanor for the first offense and a Class I misdemeanor for a second or subsequent offense.

(4)(a) This section becomes operative on January 1, 2004, with respect to any cash register or other machine or device that electronically prints receipts for payment card transactions and that is originally put into use on or after January 1, 2004.

(b) This section becomes operative on January 1, 2007, with respect to any cash register or other machine or device that electronically prints receipts for payment card transactions and that is originally put into use before January 1, 2004.

Source:Laws 2002, LB 276, § 5.

28-634. Payment cards; prohibited acts relating to scanning device or encoding machine; violation; penalty.

(1) It is unlawful for a person to intentionally and knowingly:

(a) Use a scanning device to access, read, scan, obtain, memorize, or store, temporarily or permanently, information encoded on a payment card without the permission of the authorized user of the payment card, the issuer of the authorized user's payment card, or a merchant;

(b) Possess a scanning device with the intent to obtain information encoded on a payment card without the permission of the authorized user, the issuer of the authorized user’s payment card, or a merchant or possess a scanning device with knowledge that some other person intends to use the scanning device to obtain information encoded on a payment card without the permission of the authorized user, the issuer of the authorized user’s payment card, or a merchant;

(c) Use an encoding machine to place information encoded on a payment card onto a different card without the permission of the authorized user of the card from which the information was obtained, the issuer of the authorized user's payment card, or a merchant; or

(d) Possess an encoding machine with the intent to place information encoded on a payment card onto a different payment card without the permission of the user, the issuer of the authorized user’s payment card, or a merchant.

(2) A violation of this section is a Class IV felony for the first offense and a Class IIIA felony for a second or subsequent offense.

Source:Laws 2002, LB 276, § 6; Laws 2018, LB773, § 2.

28-635. Repealed. Laws 2019, LB7, § 7.

28-636. Criminal impersonation; identity theft; identity fraud; terms, defined.

For purposes of sections 28-636 to 28-640:

(1) Personal identification document means a birth certificate, motor vehicle operator's license, state identification card, public, government, or private employment identification card, social security card, visa work permit, firearm owner's identification card, certificate issued under section 69-2404, or passport or any document made or altered in a manner that it purports to have been made on behalf of or issued to another person or by the authority of a person who did not give that authority. Personal identification document does not include a financial transaction device as defined in section 28-618;

(2) Personal identification number means a combination of numerals or letters selected for a customer of a financial institution, a merchant, or any other third party which is used in conjunction with an access device to initiate an electronic funds transfer transaction;

(3) Personal identifying information means any name or number that may be used, alone or in conjunction with any other information, to identify a specific person including a person's: (a) Name; (b) date of birth; (c) address; (d) motor vehicle operator's license number or state identification card number as assigned by the State of Nebraska or another state; (e) social security number or visa work permit number; (f) public, private, or government employer, place of employment, or employment identification number; (g) maiden name of a person's mother; (h) number assigned to a person's credit card, charge card, or debit card, whether issued by a financial institution, corporation, or other business entity; (i) number assigned to a person's depository account, savings account, or brokerage account; (j) personal identification number; (k) electronic identification number, address, or routing code used to access financial information; (l) digital signature; (m) telecommunications identifying information or access device; (n) unique biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; and (o) other number or information which can be used to access a person's financial resources; and

(4) Telecommunications identifying information or access device means a card, plate, code, account number, mobile identification number, or other telecommunications service, equipment, or instrument identifier or means of account access that alone or in conjunction with other telecommunications identifying information or another telecommunications access device may be used to: (a) Obtain money, goods, services, or any other thing of value; or (b) initiate a transfer of funds other than a transfer originated solely by a paper instrument.

Source:Laws 2009, LB155, § 8; Laws 2015, LB348, § 3.

Annotations

"Person" in the context of the term "[p]ersonal identification document" for purposes of this section means a real person and not a fictitious person. State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).

28-637. Criminal impersonation; identity theft; identity fraud; venue; victim; contact local law enforcement agency.

For purposes of sections 28-636 to 28-640:

(1) Notwithstanding any other provision of law, venue for the prosecution and trial of violations of sections 28-636 to 28-640 may be commenced and maintained in any county in which an element of the offense occurred, including the county where a victim resides; and

(2) If a person or entity reasonably believes that he, she, or it has been the victim of a violation of sections 28-636 to 28-640, the victim may contact a local law enforcement agency which has jurisdiction over the victim's residence, place of business, or registered address. Notwithstanding that jurisdiction may lie elsewhere for investigation and prosecution of a crime of identity theft, the local law enforcement agency shall take the complaint and provide the complainant with a copy of the complaint and refer the complaint to a law enforcement agency in the appropriate jurisdiction.

Source:Laws 2009, LB155, § 9.

28-638. Criminal impersonation; penalty; restitution.

(1) A person commits the crime of criminal impersonation if he or she:

(a) Pretends to be a representative of some person or organization and does an act in his or her fictitious capacity with the intent to gain a pecuniary benefit for himself, herself, or another and to deceive or harm another;

(b) Carries on any profession, business, or any other occupation without a license, certificate, or other authorization required by law;

(c) Knowingly provides false personal identifying information or a false personal identification document to a court or a law enforcement officer; or

(d) Knowingly provides false personal identifying information or a false personal identification document to an employer for the purpose of obtaining employment.

(2)(a) Criminal impersonation, as described in subdivisions (1)(a) and (1)(b) of this section, is a Class III felony if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was five thousand dollars or more. Any second or subsequent conviction under this subdivision is a Class II felony.

(b) Criminal impersonation, as described in subdivisions (1)(a) and (1)(b) of this section, is a Class IV felony if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was one thousand five hundred dollars or more but less than five thousand dollars. Any second or subsequent conviction under this subdivision is a Class III felony.

(c) Criminal impersonation, as described in subdivisions (1)(a) and (1)(b) of this section, is a Class I misdemeanor if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was five hundred dollars or more but less than one thousand five hundred dollars. Any second or subsequent conviction under this subdivision is a Class IV felony.

(d) Criminal impersonation, as described in subdivisions (1)(a) and (1)(b) of this section, is a Class II misdemeanor if no credit, money, goods, services, or other thing of value was gained or was attempted to be gained, or if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was less than five hundred dollars. Any second conviction under this subdivision is a Class I misdemeanor, and any third or subsequent conviction under this subdivision is a Class IV felony.

(e) Criminal impersonation, as described in subdivision (1)(c) of this section, is a Class IV felony. Any second conviction under this subdivision is a Class III felony, and any third or subsequent conviction under this subdivision is a Class II felony.

(f) Criminal impersonation, as described in subdivision (1)(d) of this section, is a Class II misdemeanor. Any second or subsequent conviction under this subdivision is a Class I misdemeanor.

(g) A person found guilty of violating this section may, in addition to the penalties under this subsection, be ordered to make restitution pursuant to sections 29-2280 to 29-2289.

Source:Laws 1977, LB 38, § 130; Laws 2002, LB 276, § 2; R.S.1943, (2008), § 28-608; Laws 2009, LB155, § 10; Laws 2015, LB605, § 41.

Annotations

"Person" in the context of the term "personal identifying information" for purposes of this section means a real person and not a fictitious person. State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).

28-639. Identity theft; penalty; restitution.

(1) A person commits the crime of identity theft if he or she knowingly takes, purchases, manufactures, records, possesses, or uses any personal identifying information or entity identifying information of another person or entity without the consent of that other person or entity or creates personal identifying information for a fictional person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment or with the intent to gain a pecuniary benefit for himself, herself, or another.

(2) Identity theft is not:

(a) The lawful obtaining of credit information in the course of a bona fide consumer or commercial transaction;

(b) The lawful, good faith exercise of a security interest or a right of setoff by a creditor or a financial institution;

(c) The lawful, good faith compliance by any person when required by any warrant, levy, garnishment, attachment, court order, or other judicial or administrative order, decree, or directive; or

(d) The investigative activities of law enforcement.

(3)(a) Identity theft is a Class IIA felony if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was five thousand dollars or more. Any second or subsequent conviction under this subdivision is a Class II felony.

(b) Identity theft is a Class IV felony if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was one thousand five hundred dollars or more but less than five thousand dollars. Any second or subsequent conviction under this subdivision is a Class III felony.

(c) Identity theft is a Class I misdemeanor if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was five hundred dollars or more but less than one thousand five hundred dollars. Any second or subsequent conviction under this subdivision is a Class IV felony.

(d) Identity theft is a Class II misdemeanor if no credit, money, goods, services, or other thing of value was gained or was attempted to be gained, or if the credit, money, goods, services, or other thing of value that was gained or was attempted to be gained was less than five hundred dollars. Any second conviction under this subdivision is a Class I misdemeanor, and any third or subsequent conviction under this subdivision is a Class IV felony.

(e) A person found guilty of violating this section may, in addition to the penalties under this subsection, be ordered to make restitution pursuant to sections 29-2280 to 29-2289.

Source:Laws 2009, LB155, § 11; Laws 2015, LB605, § 42.

28-640. Identity fraud; penalty; restitution.

(1) A person commits the crime of identity fraud if he or she without lawful authority:

(a) Makes, counterfeits, alters, or mutilates any personal identification document with the intent to deceive another; or

(b) Willfully and knowingly obtains, possesses, uses, sells or furnishes or attempts to obtain, possess, or furnish to another person for any purpose of deception a personal identification document.

(2)(a) Identity fraud is a Class I misdemeanor. Any second or subsequent conviction under this subdivision is a Class IV felony.

(b) A person found guilty of violating this section may, in addition to the penalties under this subsection, be ordered to make restitution pursuant to sections 29-2280 to 29-2289.

Source:Laws 2009, LB155, § 12.

28-641. Counterfeit airbags; act, how cited.

Sections 28-641 to 28-644 shall be known and may be cited as the Counterfeit Airbag Prevention Act.

Source:Laws 2019, LB7, § 2.

28-642. Counterfeit airbags; terms, defined.

For purposes of the Counterfeit Airbag Prevention Act, unless the context otherwise requires:

(1) Airbag means a motor vehicle inflatable occupant restraint system device that is part of a supplemental restraint system;

(2) Counterfeit supplemental restraint system component means a supplemental restraint system component that displays a mark identical or substantially similar to the genuine mark of a motor vehicle manufacturer or a supplier of parts to the manufacturer of a motor vehicle without authorization from such manufacturer or supplier;

(3) Nonfunctional airbag means an airbag that meets any of the following criteria:

(a) The airbag was previously deployed or damaged;

(b) The airbag has an electric fault that is detected by the motor vehicle's diagnostic system when the installation procedure is completed and (i) the motor vehicle is returned to the customer who requested the work to be performed or (ii) ownership is intended to be transferred;

(c) The airbag includes a part or object installed in a motor vehicle to mislead the owner or operator of the motor vehicle into believing that a functional airbag has been installed; or

(d) The airbag is subject to the prohibitions of subsection (j) of 49 U.S.C. 30120, as such section existed on January 1, 2019; and

(4) Supplemental restraint system means an inflatable restraint system as defined in 49 C.F.R. 571.208, as such regulation existed on January 1, 2019, designed for use in conjunction with an active safety system. A supplemental restraint system includes one or more airbags and all components required to ensure that an airbag works as designed by the motor vehicle manufacturer, including both of the following:

(a) The airbag operates as necessary in the event of a crash; and

(b) The airbag is designed in accordance with federal motor vehicle safety standards for the specific make, model, and year of the motor vehicle in which it is or will be installed.

Source:Laws 2019, LB7, § 3.

28-643. Counterfeit airbags; prohibited acts.

A person violates the Counterfeit Airbag Prevention Act if the person does any of the following:

(1) Knowingly and intentionally manufactures, imports, installs, reinstalls, distributes, sells, or offers for sale any device intended to replace a supplemental restraint system component in any motor vehicle if the device is a counterfeit supplemental restraint system component or a nonfunctional airbag or does not meet federal safety requirements as provided in 49 C.F.R. 571.208, as such regulation existed on January 1, 2019;

(2) Knowingly and intentionally sells, installs, or reinstalls a device that causes a motor vehicle's diagnostic system to fail to warn when the motor vehicle is equipped with a counterfeit supplemental restraint system component or a nonfunctional airbag or when no airbag is installed;

(3) Knowingly and intentionally represents to another person that a counterfeit supplemental restraint system component or nonfunctional airbag installed in a motor vehicle is not a counterfeit supplemental restraint system component or a nonfunctional airbag; or

(4) Causes another person to violate this section or assists another person in violating this section.

Source:Laws 2019, LB7, § 4.

28-644. Counterfeit airbags; violations; penalties.

(1) Except as otherwise provided in this section, a violation of the Counterfeit Airbag Prevention Act is a Class IV felony.

(2) A violation of the act is a Class IIIA felony if the defendant has been previously convicted of a violation of the act.

(3) A violation of the act is a Class III felony if the violation resulted in an individual suffering bodily injury.

(4) A violation of the act is a Class IIA felony if the violation resulted in an individual suffering serious bodily injury.

(5) A violation of the act is a Class II felony if the violation resulted in the death of an individual.

Source:Laws 2019, LB7, § 5.

28-645. Criminal impersonation by stolen valor; penalty; restitution.

(1) A person commits the offense of criminal impersonation by stolen valor if such person:

(a)(i) Pretends to be an active member or veteran of the United States Navy, Army, Air Force, Marines, Coast Guard, or Space Force, including armed forces reserves and the National Guard, through the unauthorized manufacture, sale, possession, or use of military regalia or gear, including the wearing of military uniforms or the use of falsified military identification; and

(ii) Does an act in such fictitious capacity with the intent to:

(A) Gain a pecuniary benefit for such person or another person; and

(B) Deceive or harm another person; or

(b) With the intent to deceive or harm another, fraudulently represents such person to be a recipient of the Congressional Medal of Honor, Distinguished Service Cross, Navy Cross, Air Force Cross, Silver Star, Purple Heart, Combat Infantryman Badge, Combat Action Badge, Combat Medical Badge, Combat Action Ribbon, Air Force Combat Action Medal, or another similar award or honor and obtains money, property, or anything of value through such fraudulent representation.

(2) A violation of this section is a Class I misdemeanor.

(3) A person found guilty of violating this section may, in addition to the penalty under subsection (2) of this section, be ordered to make restitution pursuant to sections 29-2280 to 29-2289.

Source:Laws 2022, LB922, § 7.

28-701. Bigamy; penalty; exception.

(1) If any married person, having a husband or wife living, shall marry any other person, he shall be deemed guilty of bigamy, unless as an affirmative defense it appears that at the time of the subsequent marriage:

(a) The accused reasonably believes that the prior spouse is dead; or

(b) The prior spouse had been continually absent for a period of five years during which the accused did not know the prior spouse to be alive; or

(2) Any unmarried person who knowingly marries a person who is married commits bigamy.

(3) Bigamy is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 140.

Annotations

A bigamy prosecution can be based on a voidable marriage. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021).

28-702. Incestuous marriages; declared void.

Incestuous marriages are marriages between parents and children, grandparents and grandchildren of every degree, between brothers and sisters of the half as well as the whole blood, and between uncles and nieces, aunts and nephews. Incestuous marriages are declared to be absolutely void. This section shall extend to children and relations born out of wedlock.

Source:Laws 1977, LB 38, § 141.

28-703. Incest; penalty.

(1) Any person who shall knowingly intermarry or engage in sexual penetration with any person who falls within the degrees of consanguinity set forth in section 28-702 or any person who engages in sexual penetration with his or her stepchild who is under nineteen years of age commits incest.

(2) Incest is a Class III felony, except that incest with a person who is under eighteen years of age is a Class IIA felony.

(3)(a) For purposes of this section, the definitions found in section 28-318 shall be used.

(b) The testimony of a victim shall be entitled to the same weight as the testimony of victims of other crimes under this code.

Source:Laws 1977, LB 38, § 142; Laws 1978, LB 748, § 9; Laws 1985, LB 89, § 1; Laws 2015, LB605, § 43.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Incest of an adult is not a registrable offense under the Sex Offender Registration Act. State v. Aguilar-Moreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009).

For purposes of the incest statute, a "minor" is defined as a child under the age of 19. State v. Johnson, 12 Neb. App. 247, 670 N.W.2d 802 (2003).

28-704. Repealed. Laws 1995, LB 22, § 1.

28-705. Abandonment of spouse, child, or dependent stepchild; prohibited acts; penalty.

(1) Any person who abandons and neglects or refuses to maintain or provide for his or her spouse or his or her child or dependent stepchild, whether such child is born in or out of wedlock, commits abandonment of spouse, child, or dependent stepchild.

(2) For the purposes of this section, child shall mean an individual under the age of sixteen years.

(3) When any person abandons and neglects to provide for his or her spouse or his or her child or dependent stepchild for three consecutive months or more, it shall be prima facie evidence of intent to violate the provisions of subsection (1) of this section.

(4) A designation of assets for or use of income by an individual in accordance with section 68-922 shall be considered just cause for failure to use such assets or income to provide medical support of such individual's spouse.

(5) Abandonment of spouse, child, or dependent stepchild is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 144; Laws 1978, LB 748, § 11; Laws 1988, LB 419, § 10; Laws 1989, LB 362, § 1; Laws 2006, LB 1248, § 51.

28-706. Criminal nonsupport; penalty; exceptions.

(1) Any person who intentionally fails, refuses, or neglects to provide proper support which he or she knows or reasonably should know he or she is legally obliged to provide to a spouse, minor child, minor stepchild, or other dependent commits criminal nonsupport.

(2) A parent or guardian who refuses to pay hospital costs, medical costs, or any other costs arising out of or in connection with an abortion procedure performed on a minor child or minor stepchild does not commit criminal nonsupport if:

(a) Such parent or guardian was not consulted prior to the abortion procedure; or

(b) After consultation, such parent or guardian refused to grant consent for such procedure, and the abortion procedure was not necessary to preserve the minor child or stepchild from an imminent peril that substantially endangered her life or health.

(3) Support includes, but is not limited to, food, clothing, medical care, and shelter.

(5) This section does not exclude any applicable civil remedy.

(6) Except as provided in subsection (7) of this section, criminal nonsupport is a Class II misdemeanor.

(7) Criminal nonsupport is a Class IV felony if it is in violation of any order of any court.

Source:Laws 1977, LB 38, § 145; Laws 1978, LB 920, § 3; Laws 1988, LB 419, § 11; Laws 1989, LB 362, § 2; Laws 2006, LB 1248, § 52.

Annotations

To prove that a defendant has failed, refused, or neglected to provide proper support under this section, the State is not required to prove that a defendant has an ability to pay; however, a defendant may present evidence of inability to pay in order to disprove intent. State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015).

An assertion that defendant did not pay child support in mistaken belief that the trial court's order relieved him of such responsibility if visitation rights were terminated does not negate the intent necessary for violation of this section. State v. Beck, 238 Neb. 449, 471 N.W.2d 128 (1991).

Under subsection (1) of this section, "intentionally" means willfully or purposely, and not accidentally or involuntarily. State v. Bright, 238 Neb. 348, 470 N.W.2d 181 (1991).

A prison sentence imposed for failure to support one's children does not constitute an imprisonment for debt within the prohibition contained in Article 1, section 20, of the Constitution of Nebraska, nor does it constitute cruel and unusual punishment. State v. Reuter, 216 Neb. 325, 343 N.W.2d 907 (1984).

Prosecution under section 28-449 of the old criminal code could be brought for failure to support wife, child, or stepchild, even though a child support judgment, either incident to a decree of divorce or separation or otherwise, has been entered against the person charged. Where a person prosecuted under such section has previously been ordered to pay child support in a divorce decree, the measure of his liability is the amount provided in the decree. State v. Easley, 207 Neb. 443, 299 N.W.2d 439 (1980).

Intent is an essential element of the crime of nonsupport. State v. Noll, 3 Neb. App. 410, 527 N.W.2d 644 (1995).

A defendant in a State-initiated paternity action has an absolute right to be represented by counsel, and the trial court in such an action must make an initial determination regarding whether the defendant is indigent and whether the defendant should be appointed counsel. State v. Yelli, 3 Neb. App. 148, 524 N.W.2d 353 (1994).

Intent is one of the essential elements of the crime of criminal nonsupport. State v. Noll, 2 Neb. App. 73, 507 N.W.2d 44 (1993).

28-707. Child abuse; privileges not available; penalties.

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be:

(a) Placed in a situation that endangers his or her life or physical or mental health;

(b) Cruelly confined or cruelly punished;

(d) Placed in a situation to be sexually exploited through sex trafficking of a minor as defined in section 28-830 or by allowing, encouraging, or forcing such minor child to engage in debauchery, public indecency, or obscene or pornographic photography, films, or depictions;

(e) Placed in a situation to be sexually abused as defined in section 28-319, 28-319.01, or 28-320.01; or

(f) Placed in a situation to be a trafficking victim as defined in section 28-830.

(2) The statutory privilege between patient and physician, between client and professional counselor, and between husband and wife shall not be available for excluding or refusing testimony in any prosecution for a violation of this section.

(3) Child abuse is a Class I misdemeanor if the offense is committed negligently and does not result in serious bodily injury as defined in section 28-109 or death.

(4) Child abuse is a Class IIIA felony if the offense is committed knowingly and intentionally and does not result in serious bodily injury as defined in section 28-109 or death.

(5) Child abuse is a Class IIIA felony if the offense is committed negligently and results in serious bodily injury as defined in section 28-109.

(6) Child abuse is a Class IIA felony if the offense is committed negligently and results in the death of such child.

(7) Child abuse is a Class II felony if the offense is committed knowingly and intentionally and results in serious bodily injury as defined in such section.

(8) Child abuse is a Class IB felony if the offense is committed knowingly and intentionally and results in the death of such child.

(9) For purposes of this section, negligently refers to criminal negligence and means that a person knew or should have known of the danger involved and acted recklessly, as defined in section 28-109, with respect to the safety or health of the minor child.

Source:Laws 1977, LB 38, § 146; Laws 1982, LB 347, § 10; Laws 1993, LB 130, § 3; Laws 1993, LB 430, § 3; Laws 1994, LB 908, § 1; Laws 1996, LB 645, § 15; Laws 1997, LB 364, § 9; Laws 2006, LB 1199, § 9; Laws 2010, LB507, § 3; Laws 2012, LB799, § 2; Laws 2013, LB255, § 1; Laws 2015, LB605, § 44; Laws 2019, LB519, § 9.

Cross References

Appointment of guardian ad litem, see section 43-272.01.

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Constitutionality

2. Lesser-included offense

3. Jury instructions

4. Elements

5. Miscellaneous

1. Constitutionality

Subsections (1)(a) and (c) of this section are not void for vagueness and are thus constitutional. State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).

2. Lesser-included offense

Negligent child abuse and intentional child abuse are lesser-included offenses of child abuse resulting in serious bodily injury and child abuse resulting in death. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

Misdemeanor child abuse is a lesser-included offense of felony child abuse. State v. Parks, 253 Neb. 939, 573 N.W.2d 453 (1998).

Misdemeanor child abuse is a lesser-included offense of felony child abuse. It is the defendant's state of mind which differentiates the offenses—if the abuse is committed knowingly and intentionally, it is a felony; if committed negligently, it is a misdemeanor. State v. Nguth, 13 Neb. App. 783, 701 N.W.2d 852 (2005).

3. Jury instructions

Where a jury instruction properly reflects the State's alternative theories of guilt under different subsections of this section, a jury can convict the defendant if it finds the defendant committed any of the prohibited acts, and an appellate court will affirm the conviction if the evidence was sufficient to support any of the State's theories of guilt. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014).

Involuntary manslaughter is a lesser-included offense of child abuse resulting in death, and the jury should be so instructed if there is a rational basis upon which it could conclude that the defendant committed child abuse negligently, but not knowingly and intentionally. State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).

Jury instruction given by trial court adequately distinguished the crimes of intentional child abuse and negligent child abuse. State v. Fitzgerald, 1 Neb. App. 315, 493 N.W.2d 357 (1992).

4. Elements

To convict a defendant of knowing and intentional child abuse resulting in death, the State must prove the defendant knowingly and intentionally caused or permitted the child to be abused in one or more of the ways defined in subsection (1) of this section, and also must prove the offense resulted in the child's death. It is not necessary to prove the defendant intended the abuse to result in the child's death. State v. Montoya, 304 Neb. 96, 933 N.W.2d 558 (2019).

Criminal endangerment in subsection (1) of this section, providing that a "person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be . . . [p]laced in a situation that endangers his or her life or physical or mental health," encompasses not only conduct directed at the child, but also conduct that presents the likelihood of injury due to the child's having been placed in a situation caused by the defendant's conduct. State v. Ferguson, 301 Neb. 697, 919 N.W.2d 863 (2018).

Criminal endangerment in subsection (1)(a) of this section encompasses not only conduct directed at the child but also conduct which presents the likelihood of injury due to the child's having been placed in a situation caused by the defendant's conduct. State v. Mendez-Osorio, 297 Neb. 520, 900 N.W.2d 776 (2017).

The State is not required to prove a minor child was in the exclusive care or custody of the defendant when the child abuse occurred. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 699 (2016).

Evidence must be sufficient for the factfinder to conclude beyond a reasonable doubt that the unlawful conduct resulted in death. State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).

"Endangers" as used in subsection (1)(a) of this section means to expose a minor child's life or health to danger or the peril of probable harm or loss. State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).

The term cruelly punished as used in this statute has acquired a relatively widely accepted connotation in the law and is capable of an easily understood meaning. State v. Sinica, 220 Neb. 792, 372 N.W.2d 445 (1985).

This section only requires proof of the status of the victim as a minor child; it does not require proof of the victim's actual identity or birth date. State v. Thomas, 25 Neb. App. 256, 904 N.W.2d 295 (2017).

5. Miscellaneous

This section contains multiple gradations of felony child abuse, depending upon the result of the abusive conduct. State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).

Under subsection (2) of this section, the statutory privilege between patient and professional counselor is not available in a prosecution for child abuse. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).

A general finding of guilt under this section would not be a finding of felony assault because it is possible to commit the crime of child abuse by means other than by felony assault. In re Interest of Janet J., 12 Neb. App. 42, 666 N.W.2d 741 (2003).

28-708. Repealed. Laws 1988, LB 463, § 50.

28-709. Contributing to the delinquency of a child; penalty; definitions.

(1) Any person who, by any act, encourages, causes, or contributes to the delinquency or need for special supervision of a child under eighteen years of age, so that such child becomes, or will tend to become, a delinquent child, or a child in need of special supervision, commits contributing to the delinquency of a child.

(2) The following definitions shall be applicable to this section:

(a) Delinquent child shall mean any child under the age of eighteen years who has violated any law of the state or any city or village ordinance; and

(b) A child in need of special supervision shall mean any child under the age of eighteen years (i) who, by reason of being wayward or habitually disobedient, is uncontrolled by his parent, guardian, or custodian; (ii) who is habitually truant from school or home; or (iii) who deports himself so as to injure or endanger seriously the morals or health of himself or others.

(3) Contributing to the delinquency of a child is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 148.

Annotations

This section prohibits any person from engaging in conduct that encourages, causes, or contributes to a child's becoming or tending to become either a delinquent child under subsection (2)(a) or a child in need of special supervision under subsection (2)(b). A defendant's requests that a child under 18 years of age meet him during the evening or in the early hours of the morning for sexual encounters encourages, causes, and contributes to the child's violations of Nebraska state law and a city ordinance. A defendant who engages in conduct clearly prohibited by subsection (1) of this section lacks standing to challenge the constitutionality of this section on vagueness grounds. State v. VanAckeren, 263 Neb. 222, 639 N.W.2d 112 (2002).

The act of affording shelter to a runaway rather than immediately contacting the authorities does not necessarily constitute contributing to the delinquency of a child, especially when the person affording shelter did not induce or encourage the youth to leave home in the first place. Evidence that defendant harbored an underage runaway and withheld information regarding the youth's whereabouts from her parents and the police for several hours was insufficient as a matter of law to sustain a conviction for contributing to the delinquency of a child where the youth was not exposed to any unlawful or immoral activity and defendant's actions resulted in a reunion with the parents. State v. Hird, 239 Neb. 331, 476 N.W.2d 229 (1991).

Subsection (1) of this section is addressed to the conduct of the person accused of contributing to the delinquency of a child, not the conduct of the child. The statute does not require that the child actually become delinquent or in need of special supervision, but only that the defendant encourage the child to become delinquent or to need special supervision so that the child will "tend to become a delinquent child or a child in need of special supervision." State v. Brister, 231 Neb. 263, 435 N.W.2d 679 (1989).

Constitutionality of this section will not be considered when raised for the first time on appeal. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982).

28-710. Act, how cited; terms, defined.

(1) Sections 28-710 to 28-727 shall be known and may be cited as the Child Protection and Family Safety Act.

(2) For purposes of the Child Protection and Family Safety Act:

(a) Alternative response means a comprehensive assessment of (i) child safety, (ii) the risk of future child abuse or neglect, (iii) family strengths and needs, and (iv) the provision of or referral for necessary services and support. Alternative response is an alternative to traditional response and does not include an investigation or a formal determination as to whether child abuse or neglect has occurred, and the subject of the report shall not be entered into the central registry of child protection cases maintained pursuant to section 28-718;

(b) Child abuse or neglect means knowingly, intentionally, or negligently causing or permitting a minor child to be:

(i) Placed in a situation that endangers his or her life or physical or mental health;

(ii) Cruelly confined or cruelly punished;

(iii) Deprived of necessary food, clothing, shelter, or care;

(iv) Left unattended in a motor vehicle if such minor child is six years of age or younger;

(v) Placed in a situation to be sexually abused;

(vi) Placed in a situation to be sexually exploited through sex trafficking of a minor as defined in section 28-830 or by allowing, encouraging, or forcing such person to engage in debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or

(vii) Placed in a situation to be a trafficking victim as defined in section 28-830;

(c) Child advocacy center means a community-based organization that (i) provides an appropriate site for conducting forensic interviews as defined in section 28-728 and referring victims of child abuse or neglect and appropriate caregivers for such victims to needed evaluation, services, and supports, (ii) assists county attorneys in facilitating case reviews, developing and updating protocols, and arranging training opportunities for the teams established pursuant to sections 28-728 and 28-729, and (iii) is a member, in good standing, of a state chapter as defined in 34 U.S.C. 20302;

(d) Comprehensive assessment means an analysis of child safety, risk of future child abuse or neglect, and family strengths and needs on a report of child abuse or neglect using an evidence-informed and validated tool. Comprehensive assessment does not include a finding as to whether the child abuse or neglect occurred but does determine the need for services and support, if any, to address the safety of children and the risk of future abuse or neglect;

(e) Department means the Department of Health and Human Services;

(f) Investigation means fact gathering by the department, using an evidence-informed and validated tool, or by law enforcement related to the current safety of a child and the risk of future child abuse or neglect that determines whether child abuse or neglect has occurred and whether child protective services are needed;

(g) Kin caregiver means a person with whom a child in foster care has been placed or with whom a child is residing pursuant to a temporary living arrangement in a non-court-involved case, who has previously lived with or is a trusted adult that has a preexisting, significant relationship with the child or with a sibling of such child placed pursuant to section 43-1311.02;

(h) Law enforcement agency means the police department or town marshal in incorporated municipalities, the office of the sheriff in unincorporated areas, and the Nebraska State Patrol;

(i) Non-court-involved case means an ongoing case opened by the department following a report of child abuse or neglect in which the department has determined that ongoing services are required to maintain the safety of a child or alleviate the risk of future abuse or neglect and in which the family voluntarily engages in child protective services without a filing in a juvenile court;

(j) Out-of-home child abuse or neglect means child abuse or neglect occurring outside of a child's family home, including in day care homes, foster homes, day care centers, residential child-caring agencies as defined in section 71-1926, other child care facilities or institutions, and the community. Out-of-home child abuse or neglect also includes cases in which the subject of the report of child abuse or neglect is not a member of the child's household, no longer has access to the child, is unknown, or cannot be identified;

(k) Relative caregiver means a person with whom a child is placed by the department and who is related to the child, or to a sibling of such child pursuant to section 43-1311.02, by blood, marriage, or adoption or, in the case of an Indian child, is an extended family member as defined in section 43-1503;

(l) Report means any communication received by the department or a law enforcement agency pursuant to the Child Protection and Family Safety Act that describes child abuse or neglect and contains sufficient content to identify the child who is the alleged victim of child abuse or neglect;

(m) Review, Evaluate, and Decide Team means an internal team of staff within the department and shall include no fewer than two supervisors or administrators and two staff members knowledgeable on the policies and practices of the department, including, but not limited to, the structured review process. County attorneys, child advocacy centers, or law enforcement agency personnel may attend team reviews upon request of a party;

(n) School employee means a person nineteen years of age or older who is employed by a public, private, denominational, or parochial school approved or accredited by the State Department of Education;

(o) Student means a person less than nineteen years of age enrolled in or attending a public, private, denominational, or parochial school approved or accredited by the State Department of Education, or who was such a person enrolled in or who attended such a school within ninety days of any violation of section 28-316.01;

(p) Traditional response means an investigation by a law enforcement agency or the department pursuant to section 28-713 which requires a formal determination of whether child abuse or neglect has occurred; and

(q) Subject of the report of child abuse or neglect or subject of the report means the person or persons identified in the report as responsible for the child abuse or neglect.

Source:Laws 1977, LB 38, § 149; Laws 1979, LB 505, § 1; Laws 1982, LB 522, § 3; Laws 1985, LB 447, § 10; Laws 1988, LB 463, § 42; Laws 1992, LB 1184, § 9; Laws 1994, LB 1035, § 2; Laws 1996, LB 1044, § 71; Laws 1997, LB 119, § 1; Laws 2005, LB 116, § 1; Laws 2013, LB265, § 29; Laws 2014, LB853, § 1; Laws 2019, LB519, § 10; Laws 2020, LB881, § 9; Laws 2020, LB1061, § 1.

Annotations

Under the "evidence of abuse . . . or child abuse or neglect" provision of section 71-6903(3), the pregnant woman must establish that a parent or guardian, who occupies that role in relation to her at the time she files her petition for waiver of parental consent, has either abused her as defined in section 28-351 or subjected her to child abuse or neglect as defined in this section. In re Petition of Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013).

28-710.01. Legislative declarations.

(1) The Legislature declares that the public policy of the State of Nebraska is to protect children whose health or welfare may be jeopardized by abuse or neglect. The Legislature recognizes that most families want to keep their children safe, but circumstances or conditions sometimes interfere with their ability to do so. Families and children are best served by interventions that engage their protective capacities and address immediate safety concerns and ongoing risks of child abuse or neglect. In furtherance of this public policy and the family policy and principles set forth in sections 43-532 and 43-533, it is the intent of the Legislature to strengthen the family and make the home, school, and community safe for children by promoting responsible child care in all settings and to provide, when necessary, a safe temporary or permanent home environment for abused or neglected children.

(2) In addition, it is the policy of this state to: Require the reporting of child abuse or neglect in home, school, and community settings; provide for alternative response to reports as permitted by law and the rules and regulations of the department; provide for traditional response to reports as required by law and the rules and regulations of the department; and provide protective and supportive services designed to preserve and strengthen the family in appropriate cases.

Source:Laws 2014, LB853, § 2; Laws 2020, LB1061, § 2.

28-711. Child subjected to abuse or neglect; report; contents; toll-free number.

(1) When any physician, any medical institution, any nurse, any school employee, any social worker, the Inspector General appointed under section 43-4317, or any other person has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number established by subsection (2) of this section. Such report may be made orally by telephone with the caller giving his or her name and address, shall be followed by a written report, and to the extent available shall contain the address and age of the abused or neglected child, the address of the person or persons having custody of the abused or neglected child, the nature and extent of the child abuse or neglect or the conditions and circumstances which would reasonably result in such child abuse or neglect, any evidence of previous child abuse or neglect including the nature and extent, and any other information which in the opinion of the person may be helpful in establishing the cause of such child abuse or neglect and the identity of the perpetrator or perpetrators. Law enforcement agencies receiving any reports of child abuse or neglect under this subsection shall notify the department pursuant to section 28-718 on the next working day by telephone or mail.

(2) The department shall establish a statewide toll-free number to be used by any person any hour of the day or night, any day of the week, to make reports of child abuse or neglect. Reports of child abuse or neglect not previously made to or by a law enforcement agency shall be made immediately to such agency by the department.

Source:Laws 1977, LB 38, § 150; Laws 1979, LB 505, § 2; Laws 1982, LB 522, § 4; Laws 1988, LB 463, § 43; Laws 2002, LB 1105, § 432; Laws 2005, LB 116, § 2; Laws 2012, LB821, § 39.

28-712. Reports of child abuse or neglect; department; determination; alternative response; department; use; advisory committee; recommendations; rules and regulations.

(1) Upon receipt of a report pursuant to section 28-711, the department shall determine whether to (a) accept the report for traditional response and an investigation pursuant to section 28-713, (b) accept the report for alternative response pursuant to section 28-712.01, (c) accept the report for screening by the Review, Evaluate, and Decide Team to determine eligibility for alternative response, or (d) classify the report as requiring no further action by the department.

(2)(a) The Nebraska Children's Commission shall appoint an advisory committee to examine the department's alternative response to reports of child abuse or neglect and to make recommendations to the Legislature, the department, and the commission regarding (i) the receipt and screening of reports of child abuse or neglect by the department, (ii) the ongoing use of alternative response, (iii) the ongoing use of traditional response, and (iv) the provision of services within alternative response and non-court-involved cases to ensure child safety, to reduce the risk of child abuse or neglect, and to engage families. The advisory committee may request, receive, and review data from the department regarding such processes.

(b) The members of the advisory committee shall include, but not be limited to, a representative of (i) the department, (ii) law enforcement agencies, (iii) county attorneys or other prosecutors, (iv) the state chapter of child advocacy centers as defined in 34 U.S.C. 20302, (v) attorneys for parents, (vi) guardians ad litem, (vii) a child welfare advocacy organization, (viii) families with experience in the child welfare system, (ix) family caregivers, (x) the Foster Care Review Office, and (xi) the office of Inspector General of Nebraska Child Welfare. Members of the advisory committee shall be appointed for terms of two years. The Nebraska Children's Commission shall appoint the chairperson of the advisory committee and may fill vacancies on the advisory committee as they occur.

(3) The department shall adopt and promulgate rules and regulations to carry out this section and sections 28-710.01, 28-712.01, and 28-713. Such rules and regulations shall include, but not be limited to, provisions on (a) the transfer of cases from alternative response to traditional response, (b) notice to families subject to a comprehensive assessment and served through alternative response of the alternative response process and their rights, including the opportunity to challenge agency determinations, (c) the provision of services through alternative response, and (d) the collection, sharing, and reporting of data.

Source:Laws 2014, LB853, § 3; Laws 2017, LB225, § 1; Laws 2020, LB1061, § 3.

28-712.01. Reports of child abuse or neglect; alternative response assigned; criteria; Review, Evaluate, and Decide Team; duties; department; duties; Inspector General's review.

(1)(a) The department may assign a report for alternative response consistent with the Child Protection and Family Safety Act.

(b) No report involving any of the following shall be assigned to alternative response but shall be immediately forwarded to law enforcement or the county attorney:

(i) Murder in the first or second degree as defined in section 28-303 or 28-304 or manslaughter as defined in section 28-305;

(ii) Assault in the first, second, or third degree or assault by strangulation or suffocation as defined in section 28-308, 28-309, 28-310, or 28-310.01;

(iii) Sexual abuse, including acts prohibited by section 28-319, 28-319.01, 28-320, 28-320.01, 28-320.02, 28-322.01, 28-322.02, 28-322.03, 28-322.04, 28-322.05, 28-703, or 28-707;

(iv) Labor trafficking of a minor or sex trafficking of a minor as defined in section 28-830;

(v) Neglect of a minor child that results in serious bodily injury as defined in section 28-109, requires hospitalization of the child, or results in an injury to the child that requires ongoing medical care, behavioral health care, or physical or occupational therapy, including a growth delay, which may be referred to as failure to thrive, that has been diagnosed by a physician and is due to parental neglect;

(vi) Physical abuse to the head or torso of a child or physical abuse that results in bodily injury;

(vii) An allegation that requires a forensic interview at a child advocacy center or coordination with the child abuse and neglect investigation team pursuant to section 28-728;

(viii) Out-of-home child abuse or neglect;

(ix) An allegation being investigated by a law enforcement agency at the time of the assignment;

(x) A history of termination of parental rights;

(xi) Absence of a caretaker without having given an alternate caregiver authority to make decisions and grant consents for necessary care, treatment, and education of a child or without having made provision to be contacted to make such decisions or grant such consents;

(xii) Domestic violence involving a caretaker in situations in which the alleged perpetrator has access to the child or caretaker;

(xiii) A household member illegally manufactures methamphetamine or opioids;

(xiv) A child has had contact with methamphetamine or other nonprescribed opioids, including a positive drug screening or test; or

(xv) For a report involving an infant, a household member tests positive for methamphetamine or nonprescribed opioids at the birth of such infant.

(c) The department may adopt and promulgate rules and regulations to (i) provide additional ineligibility criteria for assignment to alternative response and (ii) establish additional criteria requiring review by the Review, Evaluate, and Decide Team.

(d) A report that includes any of the following may be eligible for alternative response but shall first be reviewed by the Review, Evaluate, and Decide Team prior to assignment to alternative response:

(i) Domestic assault as defined in section 28-323 or domestic violence in the family home;

(ii) Use of alcohol or controlled substances as defined in section 28-401 or 28-405 by a caregiver that impairs the caregiver's ability to care and provide safety for the child; or

(iii) A family member residing in the home or a caregiver that has been the subject of a report accepted for traditional response or assigned to alternative response in the past six months.

(2) The Review, Evaluate, and Decide Team shall convene to review reports pursuant to the department's rules, regulations, and policies, to evaluate the information, and to determine assignment for alternative response or traditional response. The team shall utilize consistent criteria to review the severity of the allegation of child abuse or neglect, access to the perpetrator, vulnerability of the child, family history including previous reports, parental cooperation, parental or caretaker protective factors, and other information as deemed necessary. At the conclusion of the review, the report shall be assigned to either traditional response or alternative response. Decisions of the team shall be made by consensus. If the team cannot come to consensus, the report shall be assigned for a traditional response.

(3) In the case of an alternative response, the department shall complete a comprehensive assessment. The department shall transfer the case being given alternative response to traditional response if the department determines that a child is unsafe or if the concern for the safety of the child is due to a temporary living arrangement. Upon completion of the comprehensive assessment, if it is determined that the child is safe, participation in services offered to the family receiving an alternative response is voluntary, the case shall not be transferred to traditional response based upon the family's failure to enroll or participate in such services, and the subject of the report shall not be entered into the central registry of child protection cases maintained pursuant to section 28-718.

(4) The department shall, by the next working day after receipt of a report of child abuse or neglect, enter into the tracking system of child protection cases maintained pursuant to section 28-715 all reports of child abuse or neglect received under this section that are opened for alternative response and any action taken.

(5) The department shall make available to the appropriate investigating law enforcement agency, child advocacy center, and county attorney a copy of all reports relative to a case of suspected child abuse or neglect. Aggregate, nonidentifying data regarding reports of child abuse or neglect receiving an alternative response shall be made available quarterly to requesting agencies outside the department. Such alternative response data shall include, but not be limited to, the nature of the initial child abuse or neglect report, the age of the child or children, the nature of services offered, the location of the cases, the number of cases per month, and the number of alternative response cases that were transferred to traditional response. Other than the office of Inspector General of Nebraska Child Welfare, the Public Counsel, law enforcement agency personnel, child advocacy center employees, and county attorneys, no other agency or individual shall be provided specific, identifying reports of child abuse or neglect being given alternative response. The office of Inspector General of Nebraska Child Welfare shall have access to all reports relative to cases of suspected child abuse or neglect subject to traditional response and those subject to alternative response. The department and the office shall develop procedures allowing for the Inspector General's review of cases subject to alternative response. The Inspector General shall include in the report pursuant to section 43-4331 a summary of all cases reviewed pursuant to this subsection.

Source:Laws 2014, LB853, § 4; Laws 2017, LB225, § 2; Laws 2020, LB1061, § 4.

28-713. Reports of child abuse or neglect; law enforcement agency; department; duties; rules and regulations.

(1) Unless a report is assigned to alternative response, upon the receipt of a call reporting child abuse and neglect as required by section 28-711, it is the duty of the law enforcement agency to investigate the report, to take immediate steps to protect the child, and to institute legal proceedings consistent with section 43-247 if the child is seriously endangered in the child's surroundings and immediate removal is necessary for the protection of the child. The law enforcement agency may request assistance from the department during the investigation and shall, by the next working day, notify either the hotline established under section 28-711 or the department of receipt of the report, including whether or not an investigation is being undertaken by the law enforcement agency. A copy of all reports, whether or not an investigation is being undertaken, shall be provided to the department.

(2)(a) When a report is assigned for traditional response, the department shall utilize an evidence-informed and validated tool to assess the safety of the child at the time of the assessment, the risk of future child abuse or neglect, the need for services to protect and assist the child and to preserve the family, and whether the case shall be entered into the central registry pursuant to section 28-720. As part of such investigation, the department may request assistance from the appropriate law enforcement agency or refer the matter to the county attorney to initiate legal proceedings.

(b) If in the course of an investigation the department finds a child is seriously endangered in the child's surroundings and immediate removal is necessary for the protection of the child, the department shall make an immediate request for the county attorney to institute legal proceedings consistent with section 43-247.

(3) When a report contains an allegation of out-of-home child abuse or neglect, a law enforcement agency or the department shall immediately notify each person having custody of each child who has allegedly been abused or neglected that such report has been made unless the person to be notified is the subject of such report. The department or the law enforcement agency shall provide such person with information about the nature of the alleged child abuse or neglect and any other necessary information. The department shall also provide such social services as are necessary and appropriate under the circumstances to protect and assist the child and to preserve the family.

(4)(a) In situations of alleged out-of-home child abuse or neglect, if the subject of the report of child abuse or neglect is a school employee and the child is a student in the school to which such school employee is assigned for work, the department shall immediately notify the Commissioner of Education of receipt of the report, including whether or not an investigation is being undertaken by the law enforcement agency or the department.

(b) In situations of alleged out-of-home child abuse or neglect, if the subject of the report of child abuse or neglect is a child care provider or a child care staff member as defined by subdivision (5)(h) of section 71-1912, the Division of Children and Family Services of the Department of Health and Human Services shall immediately notify the Division of Public Health of the Department of Health and Human Services of receipt of the report, including whether or not an investigation is being undertaken by the law enforcement agency or the department.

(5) The department shall, by the next working day after receiving a report of child abuse or neglect under this section, make a written report or a summary on forms provided by the department to the proper law enforcement agency in the county and enter in the tracking system of child protection cases maintained pursuant to section 28-715 all reports of child abuse or neglect opened for investigation and any action taken.

(6) The department shall, upon request, make available to the appropriate investigating law enforcement agency and the county attorney a copy of all reports relative to a case of suspected child abuse or neglect.

(7)(a) In addition to the responsibilities under subsections (1) through (6) of this section, upon the receipt of any report that a child is a reported or suspected victim of sex trafficking of a minor or labor trafficking of a minor as defined in section 28-830 and without regard to the subject of the report, the department shall:

(i) Assign the case to staff for an in-person investigation. The department shall assign a report for investigation regardless of whether or not the subject of the report is a member of the child's household or family or whether the subject is known or unknown, including cases of out-of-home child abuse and neglect;

(ii) Conduct an in-person investigation and appropriately coordinate with law enforcement agencies, the local child advocacy center, and the child abuse and neglect investigation team under section 28-729;

(iii) Use specialized screening and assessment instruments to identify whether the child is a victim of sex trafficking of a minor or labor trafficking of a minor or at high risk of becoming such a victim and determine the needs of the child and family to prevent or respond to abuse, neglect, and exploitation. On or before December 1, 2019, the department shall develop and adopt these instruments in consultation with knowledgeable organizations and individuals, including representatives of child advocacy centers, behavioral health providers, child welfare and juvenile justice service providers, law enforcement representatives, and prosecutors; and

(iv) Provide for or refer and connect the child and family to services deemed appropriate by the department in the least restrictive environment, or provide for safe and appropriate placement, medical services, mental health care, or other needs as determined by the department based upon the department's assessment of the safety, risk, and needs of the child and family to respond to or prevent abuse, neglect, and exploitation.

(b) On or before July 1, 2020, the department shall adopt rules and regulations on the process of investigation, screening, and assessment of reports of child abuse or neglect and the criteria for opening an ongoing case upon allegations of sex trafficking of a minor or labor trafficking of a minor.

(8) When a preponderance of the evidence indicates that a child is a victim of abuse or neglect as a result of being a trafficking victim as defined in section 28-830, the department shall identify the child as a victim of trafficking, regardless of whether the subject of the report is a member of the child's household or family or whether the subject is known or unknown. The child shall be included in the department's data and reporting on the numbers of child victims of abuse, neglect, and trafficking.

Source:Laws 1977, LB 38, § 152; Laws 1979, LB 505, § 4; Laws 1982, LB 522, § 5; Laws 1988, LB 463, § 45; Laws 1992, LB 1184, § 10; Laws 1996, LB 1044, § 72; Laws 1997, LB 119, § 2; Laws 1997, LB 307, § 13; Laws 2005, LB 116, § 3; Laws 2007, LB296, § 37; Laws 2014, LB853, § 5; Laws 2019, LB519, § 11; Laws 2020, LB881, § 10; Laws 2020, LB1061, § 5; Laws 2022, LB1173, § 7.

28-713.01. Cases of child abuse or neglect; completion of investigation; notice; when; right to amend or expunge information.

(1) Upon completion of the investigation pursuant to section 28-713:

(a) In situations of alleged out-of-home child abuse or neglect, the person or persons having custody of the allegedly abused or neglected child or children shall be given written notice of the results of the investigation and any other information the law enforcement agency or department deems necessary. Such notice and information shall be sent by first-class mail;

(b) The subject of the report of child abuse or neglect shall be given written notice of the determination of the case and whether the subject of the report of child abuse or neglect will be entered into the central registry of child protection cases maintained pursuant to section 28-718 under the criteria provided in section 28-720; and

(c) If the subject of the report of child abuse or neglect is a school employee and the child is a student in the school to which such school employee is assigned for work, the notice described in subdivision (1)(b) of this section shall also be sent to the Commissioner of Education.

(2) If the subject of the report will be entered into the central registry, the notice to the subject shall be sent by certified mail with return receipt requested or first-class mail to the last-known address of the subject of the report of child abuse or neglect and shall include:

(a) The nature of the report;

(b) The classification of the report under section 28-720;

(c) Notification of the right of the subject of the report of child abuse or neglect to request the department to amend or expunge identifying information from the report or to remove the substantiated report from the central registry in accordance with section 28-723; and

(d) If the subject of the report of child abuse or neglect is a minor child who is twelve years of age or older but younger than nineteen years of age:

(i) Notification of the mandatory expungement hearing to be held according to section 28-721, a waiver form to waive the hearing, and an explanation of the hearing process;

(ii) An explanation of the implications of being entered in the central registry as a subject;

(iii) Notification of any other procedures determined appropriate in rules and regulations adopted and promulgated by the department; and

(iv) Provision of a copy of all notice materials required to be provided to the subject under this subsection to the minor child's attorney of record, parent or guardian, and guardian ad litem, if applicable.

(3) If the subject of the report will not be entered into the central registry, the notice to the subject shall be sent by first-class mail and shall include:

(a) The nature of the report; and

(b) The classification of the report under section 28-720.

Source:Laws 1994, LB 1035, § 3; Laws 1997, LB 119, § 3; Laws 2005, LB 116, § 4; Laws 2012, LB1051, § 17; Laws 2014, LB853, § 6; Laws 2015, LB292, § 1; Laws 2020, LB881, § 11.

28-713.02. Non-court-involved cases; right of parent; caregiver authority; department; powers and duties.

(1) In all non-court-involved cases in which a child lives temporarily with a kin caregiver or a relative caregiver until reunification can be safely achieved:

(a) A parent shall have the right to have his or her child returned to such parent's home upon demand unless the child is seriously endangered by the child's surroundings and removal is necessary for the child's protection; and

(b) The kin caregiver or the relative caregiver shall have temporary parental authority to exercise powers regarding the care, custody, and property of the child except (i) the power to consent to marriage and adoption of the child and (ii) for other limitations placed on the delegation of parental authority to the kin caregiver or the relative caregiver by the parent.

(2) If a child is seriously endangered and removal is necessary, the department shall inform the parent that he or she may be referred for a court-involved case or for a petition to be filed pursuant to subdivision (3)(a) of section 43-247.

(3) The department may reimburse a kin caregiver or a relative caregiver for facilitating services for the child and shall notify such caregiver if such caregiver is eligible for the child-only Temporary Assistance for Needy Families program established in 42 U.S.C. 601 et seq., and any other public benefit for which such caregiver may be eligible, and shall assist such caregiver in applying for such program or benefit.

(4) In all non-court-involved cases, the department shall provide a written notice of rights to any parent, and, if applicable, to any kin caregiver or relative caregiver, that complies with due process and includes notice (a) of the specific factual basis of the department's involvement, (b) of the possibility that a petition under section 43-247 could be filed in the future if it is determined that the safety of the child is not or cannot be assured, and (c) that the participation of the parent, kin caregiver, or relative caregiver in receiving prevention services could be relevant evidence presented in any future proceedings.

(5) Nothing in this section shall be construed to affect the otherwise existing rights of a child or parent who is involved in a non-court-involved case.

Source:Laws 2020, LB1061, § 6.

28-713.03. Rules and regulations.

(1) The department shall adopt and promulgate rules and regulations consistent with Laws 2020, LB1061, and shall revoke any rules and regulations inconsistent with Laws 2020, LB1061, by July 1, 2021.

(2) The department shall adopt and promulgate rules and regulations regarding (a) the maximum time allowed between receiving a report of child abuse or neglect and an assigned caseworker making contact with the affected family, (b) the maximum amount of time between receipt of a report and the completion of an assessment or investigation, (c) the transfer of cases from alternative response to traditional response, (d) the criteria and process to be used by the Review, Evaluate, and Decide Team, and (e) the process used to accept and categorize reports, including the operation of the hotline established under section 28-711.

(3) The department shall adopt and promulgate rules and regulations describing the process for non-court-involved cases, the right of any child, parent, kin caregiver, or relative caregiver to an administrative appeal of any department action or inaction in a non-court-involved case, and the process for finding that a child is seriously endangered.

Source:Laws 2020, LB1061, § 7.

28-714. Privileged communications; not grounds for excluding evidence.

The privileged communication between patient and physician, between client and professional counselor, and between husband and wife shall not be a ground for excluding evidence in any judicial proceeding resulting from a report of child abuse or neglect required by section 28-711.

Source:Laws 1977, LB 38, § 153; Laws 1993, LB 130, § 4; Laws 1994, LB 1035, § 4; Laws 2005, LB 116, § 5.

28-715. Tracking system; department; duties; use authorized.

The department shall retain all information from all reports of suspected child abuse or neglect required by section 28-711 and all records generated as a result of such reports in a tracking system of child protection cases. The tracking system shall be used for statistical purposes as well as a reference for future investigations if subsequent reports of child abuse or neglect are made involving the same victim or subject of a report of child abuse or neglect.

Source:Laws 1977, LB 38, § 154; Laws 1979, LB 505, § 5; Laws 1988, LB 463, § 46; Laws 2005, LB 116, § 6.

28-716. Person participating in an investigation or the making of a report or providing information or assistance; immune from liability; civil or criminal.

Any person participating in an investigation or the making of a report of child abuse or neglect required by section 28-711 pursuant to or participating in a judicial proceeding resulting therefrom or providing information or assistance, including a medical evaluation or consultation in connection with an investigation, a report, or a judicial proceeding pursuant to a report of child abuse or neglect, shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements.

Source:Laws 1977, LB 38, § 155; Laws 1994, LB 1035, § 5; Laws 2005, LB 116, § 7; Laws 2020, LB1148, § 3.

Annotations

The immunity from liability under state law provided by this section does not apply to a claim advanced under federal law, even if that claim is litigated in a Nebraska court. Shearer v. Leuenberger, 256 Neb. 566, 591 N.W.2d 762 (1999).

The immunity provision set forth in this section which relates to mandatory reporting of suspected child abuse or neglect does not prohibit the juvenile court from acquiring jurisdiction of juveniles determined to be within the meaning of section 43-247(3)(a), even when such reporting is made by the parent of the subject juvenile(s). In re Interest of B.B. et al., 29 Neb. App. 1, 951 N.W.2d 526 (2020).

28-717. Violation; penalty.

Any person who willfully fails to make any report of child abuse or neglect required by section 28-711 shall be guilty of a Class III misdemeanor.

Source:Laws 1977, LB 38, § 156; Laws 1994, LB 1035, § 6; Laws 2005, LB 116, § 8.

28-718. Child protection cases; central registry; name-change order; treatment; fee; waiver.

(1) There shall be a central registry of child protection cases maintained in the department containing records of all reports of child abuse or neglect opened for investigation as provided in section 28-713 and classified as either court substantiated or agency substantiated as provided in section 28-720.

(2) The department shall determine whether a name-change order received from the clerk of a district court pursuant to section 25-21,271 is for a person on the central registry of child protection cases and, if so, shall include the changed name with the former name in the registry and file or cross-reference the information under both names.

(3) The department may charge a reasonable fee in an amount established by the department in rules and regulations to recover expenses in carrying out central registry records checks. The fee shall not exceed three dollars for each request to check the records of the central registry. The department shall remit the fees to the State Treasurer for credit to the Health and Human Services Cash Fund. The department may waive the fee if the requesting party shows the fee would be an undue financial hardship. The department shall use the fees to defray costs incurred to carry out such records checks. The department may adopt and promulgate rules and regulations to carry out this section.

Source:Laws 1979, LB 505, § 6; Laws 2005, LB 116, § 9; Laws 2009, LB122, § 1; Laws 2010, LB147, § 3; Laws 2014, LB853, § 7; Laws 2017, LB225, § 3.

28-719. Child abuse and neglect records; access; when.

Upon complying with identification requirements established by regulation of the department, or when ordered by a court of competent jurisdiction, any person legally authorized by section 28-722, 28-726, or 28-727 to have access to records relating to child abuse and neglect may request and shall be immediately provided the information requested in accordance with the requirements of the Child Protection and Family Safety Act. Except for such information provided to department personnel and county attorneys, such information shall not include the name and address of the person making the report of child abuse or neglect. The names and other identifying data and the dates and the circumstances of any persons requesting or receiving information from the central registry of child protection cases maintained pursuant to section 28-718 shall be entered in the central registry record.

Source:Laws 1979, LB 505, § 7; Laws 2005, LB 116, § 10; Laws 2014, LB853, § 8; Laws 2020, LB1148, § 4.

28-720. Cases; central registry; classification; expungement; department; report.

(1) All cases entered into the central registry of child protection cases maintained pursuant to section 28-718 shall be classified as one of the following:

(a) Court substantiated, if a court of competent jurisdiction has entered a judgment of guilty against the subject of the report of child abuse or neglect upon a criminal complaint, indictment, or information or there has been an adjudication of jurisdiction of a juvenile court over the child under subdivision (3)(a) of section 43-247 which relates or pertains to the report of child abuse or neglect;

(b) Court pending, if a criminal complaint, indictment, or information or a juvenile petition under subdivision (3)(a) of section 43-247, which relates or pertains to the subject of the report of abuse or neglect, has been filed and is pending in a court of competent jurisdiction; or

(c) Agency substantiated, if the department's determination of child abuse or neglect against the subject of the report of child abuse or neglect was supported by a preponderance of the evidence and based upon an investigation pursuant to section 28-712.01 or 28-713.

(2) If a case described in subdivision (1)(b) of this section is dismissed by the court or a juvenile petition under subdivision (3)(a) of section 43-247 is redesignated to indicate there is no fault on the part of the parent, guardian, or custodian, the case shall be immediately expunged from the central registry of child protection cases.

(3)(a) If the subject of the report of child abuse or neglect is a minor child who is younger than twelve years of age, the case shall not be entered into the central registry of child protection cases.

(b) If a juvenile petition is filed under subdivision (3)(a) of section 43-247 indicating that the juvenile is without proper support through no fault of his or her parent, guardian, or custodian, the case shall not be entered into the central registry of child protection cases.

(4) If the subject of the report of child abuse or neglect is a minor child who is twelve years of age or older but younger than nineteen years of age, the case shall not be classified as court pending in the central registry of child protection cases.

(5) The department shall report annually, on or before September 15, to the Governor and electronically to the chairpersons of the Health and Human Services Committee of the Legislature and the Judiciary Committee of the Legislature the number of cases entered into the central registry of child protection cases in which the subject is a minor child, the ages of such subjects who are children, and the number of such cases classified as court substantiated or agency substantiated.

Source:Laws 1979, LB 505, § 8; Laws 2005, LB 116, § 11; Laws 2009, LB122, § 2; Laws 2014, LB853, § 9; Laws 2015, LB292, § 2.

28-720.01. Unfounded reports; how treated.

All reports of child abuse or neglect which are not under subdivision (1)(a), (b), or (c) of section 28-720 shall be considered unfounded and shall be maintained only in the tracking system of child protection cases pursuant to section 28-715 and not in the central registry of child protection cases maintained pursuant to section 28-718.

Source:Laws 2005, LB 116, § 12; Laws 2014, LB853, § 10; Laws 2015, LB292, § 3.

28-721. Central registry; record; amend, expunge, or remove; mandatory expungement hearing; waiver; department; duties.

(1) At any time, the department may amend, expunge, or remove from the central registry of child protection cases maintained pursuant to section 28-718 any record upon good cause shown and upon notice to the subject of the report of child abuse or neglect.

(2)(a) If the subject of the report of child abuse or neglect is a minor child who is twelve years of age or older but younger than nineteen years of age, the subject is entered into the central registry of child protection cases maintained under section 28-718, and the case involving that minor child is classified as court substantiated or agency substantiated as provided in section 28-720, the department shall conduct a mandatory expungement hearing within sixty days after the subject receives the notification required under section 28-713.01 unless the subject and the subject's attorney of record, parent, guardian, or guardian ad litem sign and return a waiver form as provided under section 28-713.01 within thirty days after receipt. The department shall not, as guardian, sign a waiver form for any subject in its custody. If such subject remains on the central registry of child protection cases, the department shall conduct a second mandatory expungement hearing within sixty days after the subject's nineteenth birthday unless the subject signs and returns a waiver form as provided under section 28-713.01 within thirty days after receipt.

(b) The department may conduct the mandatory expungement hearing by any means, including by telephone.

(c) If a mandatory expungement hearing is held regarding the subject of a report of child abuse or neglect who is a minor child and the subject is entered into the central registry of child protection cases maintained under section 28-718, the subject may make a subsequent request under subsection (1) of this section or section 28-723.

Source:Laws 1979, LB 505, § 9; Laws 2005, LB 116, § 13; Laws 2007, LB296, § 38; Laws 2014, LB853, § 11; Laws 2015, LB292, § 4.

28-722. Central registry; subject of report; access to information.

Upon request, a subject of the report of child abuse or neglect or, if such subject is a minor or otherwise legally incompetent, the guardian or guardian ad litem of the subject, shall be entitled to receive a copy of all information contained in the central registry of child protection cases maintained pursuant to section 28-718 pertaining to his or her case. The department shall not release data that would be harmful or detrimental or that would identify or locate a person who, in good faith, made a report of child abuse or neglect or cooperated in a subsequent investigation unless ordered to do so by a court of competent jurisdiction.

Source:Laws 1979, LB 505, § 10; Laws 2005, LB 116, § 14; Laws 2014, LB853, § 12.

28-723. Subject of report; request to amend, expunge, or remove information; denied; hearing; decision; appeal.

At any time subsequent to the completion of the department's investigation, the subject of the report of child abuse or neglect may request the department to amend, expunge identifying information from, or remove the record of the report from the central registry of child protection cases maintained pursuant to section 28-718. If the department refuses to do so or does not act within thirty days, the subject of the report of child abuse or neglect shall have the right to a fair hearing within the department to determine whether the record of the report of child abuse or neglect should be amended, expunged, or removed on the grounds that it is inaccurate or that it is being maintained in a manner inconsistent with the Child Protection and Family Safety Act. Such fair hearing shall be held within a reasonable time after the subject's request and at a reasonable place and hour. In such hearings, the burden of proving the accuracy and consistency of the record shall be on the department. A juvenile court finding of child abuse or child neglect shall be presumptive evidence that the report was not unfounded. The hearing shall be conducted by the chief executive officer of the department or his or her designated agent, who is hereby authorized and empowered to order the amendment, expunction, or removal of the record to make it accurate or consistent with the requirements of the act. The decision shall be made in writing, at the close of the hearing or within thirty days thereof, and shall state the reasons upon which it is based. Decisions of the department may be appealed under the Administrative Procedure Act.

Source:Laws 1979, LB 505, § 11; Laws 1982, LB 522, § 6; Laws 2005, LB 116, § 15; Laws 2014, LB853, § 13.

Cross References

Administrative Procedure Act, see section 84-920.

Annotations

The Department of Health and Human Services Regulation and Licensure must prove the accuracy and consistency of a central registry report of child abuse or neglect by a preponderance of the evidence in a hearing to expunge, amend, or remove a report under this section. Benitez v. Rasmussen, 261 Neb. 806, 626 N.W.2d 209 (2001).

28-724. Record; amendment, expunction, or removal; notice.

Written notice of any amendment, expunction, or removal of any record in the central registry of child protection cases maintained pursuant to section 28-718 shall be served upon the subject of the report of child abuse or neglect. The department shall inform any other individuals or agencies which received such record of any amendment, expunction, or removal of such record.

Source:Laws 1979, LB 505, § 12; Laws 1982, LB 522, § 7; Laws 2005, LB 116, § 16; Laws 2014, LB853, § 14.

28-725. Information, report; confidential; violation; penalty.

All information of the department concerning reports of child abuse or neglect of noninstitutional children, including information in the tracking system of child protection cases maintained pursuant to section 28-715 or records in the central registry of child protection cases maintained pursuant to section 28-718, and all information of the department generated as a result of such reports or records, shall be confidential and shall not be disclosed except as specifically authorized by the Child Protection and Family Safety Act and section 81-3126 or other applicable law. The subject of the report of child abuse or neglect may authorize any individual or organization to receive the following information from the central registry of child protection cases maintained pursuant to section 28-718 which relates or pertains to him or her: (1) The date of the alleged child abuse or neglect; and (2) the classification of the case pursuant to section 28-720. Permitting, assisting, or encouraging the unauthorized release of any information contained in such reports or records shall be a Class V misdemeanor.

Source:Laws 1979, LB 505, § 13; Laws 1982, LB 522, § 8; Laws 2002, LB 642, § 7; Laws 2005, LB 116, § 17; Laws 2008, LB782, § 2; Laws 2014, LB853, § 15.

28-726. Information; access.

Except as provided in this section and sections 28-722 and 81-3126, no person, official, or agency shall have access to information in the tracking system of child protection cases maintained pursuant to section 28-715 or in records in the central registry of child protection cases maintained pursuant to section 28-718 unless in furtherance of purposes directly connected with the administration of the Child Protection and Family Safety Act. Such persons, officials, and agencies having access to such information shall include, but not be limited to:

(1) A law enforcement agency investigating a report of known or suspected child abuse or neglect;

(2) A county attorney in preparation of a child abuse or neglect petition or termination of parental rights petition;

(3) A physician who has before him or her a child whom he or she reasonably suspects may be abused or neglected;

(4) An agency having the legal responsibility or authorization to care for, treat, or supervise an abused or neglected child or a parent, a guardian, or other person responsible for the abused or neglected child's welfare who is the subject of the report of child abuse or neglect;

(5) Any person engaged in bona fide research or auditing. No information identifying the subjects of the report of child abuse or neglect shall be made available to the researcher or auditor;

(6) The Foster Care Review Office and the designated local foster care review board when the information relates to a child in a foster care placement as defined in section 43-1301. The information provided to the office and local board shall not include the name or identity of any person making a report of suspected child abuse or neglect;

(7) The designated protection and advocacy system authorized pursuant to the Developmental Disabilities Assistance and Bill of Rights Act of 2000, 42 U.S.C. 15001, as the act existed on January 1, 2005, and the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C. 10801, as the act existed on September 1, 2001, acting upon a complaint received from or on behalf of a person with developmental disabilities or mental illness;

(8) The person or persons having custody of the abused or neglected child in situations of alleged out-of-home child abuse or neglect;

(9) The department, as required or authorized by state law, federal law, federal regulation, or applicable federal program provisions and in furtherance of its programs;

(10) A probation officer administering juvenile intake services pursuant to section 29-2260.01, conducting court-ordered predispositional investigations prior to disposition, or supervising a juvenile upon disposition; and

(11) A child advocacy center pursuant to team protocols and in connection with a specific case under review or investigation by a child abuse and neglect investigation team or a child abuse and neglect treatment team convened by a county attorney.

Source:Laws 1979, LB 505, § 14; Laws 1982, LB 522, § 9; Laws 1988, LB 463, § 47; Laws 1990, LB 1222, § 1; Laws 1992, LB 643, § 2; Laws 1994, LB 1035, § 7; Laws 1997, LB 119, § 4; Laws 2001, LB 214, § 2; Laws 2002, LB 642, § 8; Laws 2005, LB 116, § 18; Laws 2007, LB296, § 39; Laws 2008, LB782, § 3; Laws 2012, LB998, § 1; Laws 2013, LB561, § 1; Laws 2014, LB853, § 16; Laws 2020, LB1148, § 5.

28-727. Report; person making; receive summary of findings and actions; when.

Upon request, a physician or the person in charge of an institution, school, facility, or agency making a legally mandated report of child abuse or neglect pursuant to section 28-711 shall receive a summary of the findings of and actions taken by the department in response to his or her report. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.

Source:Laws 1979, LB 505, § 15; Laws 1982, LB 522, § 10; Laws 2005, LB 116, § 19.

28-728. Legislative findings and intent; child abuse and neglect investigation team; child advocacy center; child abuse and neglect treatment team; powers and duties.

(1) The Legislature finds that child abuse and neglect are community problems requiring a coordinated response by law enforcement, child advocacy centers, prosecutors, the Department of Health and Human Services, and other agencies or entities designed to protect children. It is the intent of the Legislature to create a child abuse and neglect investigation team in each county or contiguous group of counties and to create a child abuse and neglect treatment team in each county or contiguous group of counties.

(2) Each county or contiguous group of counties will be assigned by the Department of Health and Human Services to a child advocacy center. The purpose of a child advocacy center is to provide a child-focused location for conducting forensic interviews and medical evaluations for alleged child victims of abuse and neglect and for coordinating a multidisciplinary team response that supports the physical, emotional, and psychological needs of children who are alleged victims of abuse or neglect. Each child advocacy center shall meet accreditation criteria set forth by the National Children's Alliance. Nothing in this section shall prevent a child from receiving treatment or other services at a child advocacy center which has received or is in the process of receiving accreditation.

(3) Each county attorney or the county attorney representing a contiguous group of counties is responsible for convening the child abuse and neglect investigation team and ensuring that protocols are established and implemented. A representative of the child advocacy center assigned to the team shall assist the county attorney in facilitating case review, developing and updating protocols, and arranging training opportunities for the team. Each team must have protocols which, at a minimum, shall include procedures for:

(a) Mandatory reporting of child abuse and neglect as outlined in section 28-711 to include training to professionals on identification and reporting of abuse;

(b) Assigning roles and responsibilities between law enforcement and the Department of Health and Human Services for the initial response;

(c) Outlining how reports will be shared between law enforcement and the Department of Health and Human Services under sections 28-712.01 and 28-713;

(d) Coordinating the investigative response including, but not limited to:

(i) Defining cases that require a priority response;

(ii) Contacting the reporting party;

(iii) Arranging for a video-recorded forensic interview at a child advocacy center for children who are three to eighteen years of age and are alleged to be victims of sexual abuse or serious physical abuse or neglect, have witnessed a violent crime, are found in a drug-endangered environment, or have been recovered from a kidnapping;

(iv) Assessing the need for and arranging, when indicated, a medical evaluation of the alleged child victim;

(v) Assessing the need for and arranging, when indicated, appropriate mental health services for the alleged child victim or nonoffender caregiver;

(vi) Conducting collateral interviews with other persons with information pertinent to the investigation including other potential victims;

(vii) Collecting, processing, and preserving physical evidence including photographing the crime scene as well as any physical injuries as a result of the alleged child abuse and neglect; and

(viii) Interviewing the alleged perpetrator;

(e) Reducing the risk of harm to alleged child abuse and neglect victims;

(f) Ensuring that the child is in safe surroundings, including removing the perpetrator when necessary or arranging for temporary custody of the child when the child is seriously endangered in his or her surroundings and immediate removal appears to be necessary for the child's protection as provided in section 43-248;

(g) Sharing of case information between team members; and

(h) Outlining what cases will be reviewed by the investigation team including, but not limited to:

(i) Cases of sexual abuse, serious physical abuse and neglect, drug-endangered children, and serious or ongoing domestic violence;

(ii) Cases determined by the Department of Health and Human Services to be high or very high risk for further maltreatment; and

(iii) Any other case referred by a member of the team when a system-response issue has been identified.

(4) Each county attorney or the county attorney representing a contiguous group of counties is responsible for convening the child abuse and neglect treatment team and ensuring that protocols are established and implemented. A representative of the child advocacy center appointed to the team shall assist the county attorney in facilitating case review, developing and updating protocols, and arranging training opportunities for the team. Each team must have protocols which, at a minimum, shall include procedures for:

(a) Case coordination and assistance, including the location of services available within the area;

(b) Case staffings and the coordination, development, implementation, and monitoring of treatment or safety plans particularly in those cases in which ongoing services are provided by the Department of Health and Human Services or a contracted agency but the juvenile court is not involved;

(d) Assisting those child abuse and neglect victims who are abused and neglected by perpetrators who do not reside in their homes; and

(e) Working with multiproblem status offenders and delinquent youth.

(5) For purposes of sections 28-728 to 28-730, forensic interview means a video-recorded interview of an alleged child victim conducted at a child advocacy center by a professional with specialized training designed to elicit details about alleged incidents of abuse or neglect, and such interview may result in intervention in criminal or juvenile court.

Source:Laws 1992, LB 1184, § 1; Laws 1996, LB 1044, § 73; Laws 1999, LB 594, § 6; Laws 2006, LB 1113, § 24; Laws 2007, LB296, § 40; Laws 2012, LB993, § 1; Laws 2014, LB853, § 17; Laws 2020, LB1148, § 6.

28-729. Teams; members; training; child advocacy center; duties; meetings.

(1) A child abuse and neglect investigation team shall include a representative from the county attorney's office, a representative from the Division of Children and Family Services of the Department of Health and Human Services, a representative from each law enforcement agency which has jurisdiction within the county or contiguous group of counties, a representative from the child advocacy center, and representatives from such other agencies as determined by the team.

(2) A child abuse and neglect treatment team shall include a representative from the Division of Children and Family Services of the Department of Health and Human Services, a juvenile probation officer, a representative from each of the mental health profession and the medical profession actively practicing within the county or contiguous group of counties, a representative from each school district which provides services within the county or contiguous group of counties, a representative from the child advocacy center, and representatives from such other agencies as determined by the team. For purposes of this subsection, more than one school district may be represented by the same individual.

(3) The teams established pursuant to this section and section 28-728 shall be encouraged to expand their membership to include the various relevant disciplines which exist within the county or contiguous group of counties. The additional members shall have the requisite experience necessary as determined by the core members of the teams. Consistent with requirements set out by the teams, all members of both teams shall attend child abuse and neglect training on an annual basis. Such training shall be no less than eight hours annually and consist of the following components:

(a) Child abuse and neglect investigation procedures;

(b) Legal requirements and procedures for successful prosecution of child abuse and neglect cases;

(c) Roles and responsibilities of child protective services, law enforcement agencies, county attorneys, child advocacy centers, the Attorney General, and judges;

(d) Characteristics of child development and family dynamics;

(e) Recognition of various types of abuse and neglect;

(f) Duty of public and private individuals and agencies, including schools, governmental agencies, physicians, and child advocates, to report suspected or known child abuse;

(g) Multidisciplinary approaches to providing services to children; and

(h) Continually identifying and improving weaknesses in the current child protection system and developing ongoing best practices.

(4) The representative of the child advocacy center shall report the name and address of each team member and the number of times the team met within a calendar year to the Nebraska Commission on Law Enforcement and Criminal Justice.

(5) Each team shall meet at a location agreed to by the team. The number of meetings of the team shall be secondary to the caseload of the team, but each team shall meet at least quarterly. Each team may substitute a telephone conference call among team members in lieu of meeting in person. If a team fails to convene, the commission shall notify the Child Protection Division of the office of the Attorney General and the division shall appoint the team members or convene the team pursuant to sections 28-728 to 28-730. Nothing in this section shall relieve the county attorney from ensuring that the teams meet as required by this section.

Source:Laws 1992, LB 1184, § 2; Laws 1996, LB 1044, § 74; Laws 2006, LB 1113, § 25; Laws 2012, LB993, § 2.

28-730. Records and information; access; disclosure; limitation; review of cases; immunity; violation; penalty; video recording of forensic interviews; maintain; release or use; prohibited; exceptions.

(1) Notwithstanding any other provision of law regarding the confidentiality of records and when not prohibited by the federal Privacy Act of 1974, as amended, juvenile court records and any other pertinent information that may be in the possession of school districts, law enforcement agencies, county attorneys, the Attorney General, the Department of Health and Human Services, child advocacy centers, and other team members concerning a child whose case is being investigated or discussed by a child abuse and neglect investigation team or a child abuse and neglect treatment team shall be shared with the respective team members as part of the discussion and coordination of efforts for investigative or treatment purposes. Upon request by a team, any individual or agency with information or records concerning a particular child shall share all relevant information or records with the team as determined by the team pursuant to the appropriate team protocol. Only a team which has accepted the child's case for investigation or treatment shall be entitled to access to such information.

(2) All information acquired by a team member or other individuals pursuant to protocols developed by the team shall be confidential and shall not be disclosed except to the extent necessary to perform case consultations, to carry out a treatment plan or recommendations, or for use in a legal proceeding instituted by a county attorney or the Child Protection Division of the office of the Attorney General. Information, documents, or records otherwise available from the original sources shall not be immune from discovery or use in any civil or criminal action merely because the information, documents, or records were presented during a case consultation if the testimony sought is otherwise permissible and discoverable. Any person who presented information before the team or who is a team member shall not be prevented from testifying as to matters within the person's knowledge.

(3) Each team may review any case arising under the Nebraska Criminal Code when a child is a victim or any case arising under the Nebraska Juvenile Code. A member of a team who participates in good faith in team discussion or any person who in good faith cooperates with a team by providing information or records about a child whose case has been accepted for investigation or treatment by a team shall be immune from any civil or criminal liability. The provisions of this subsection or any other section granting or allowing the grant of immunity from liability shall not be extended to any person alleged to have committed an act of child abuse or neglect.

(4) A member of a team who publicly discloses information regarding a case consultation in a manner not consistent with sections 28-728 to 28-730 shall be guilty of a Class III misdemeanor.

(5) A child advocacy center shall maintain the video recording of all forensic interviews conducted at that child advocacy center. Such maintenance shall be in accordance with child abuse and neglect investigation team protocols established pursuant to section 28-728. The recording may be maintained digitally if adequate security measures are in place to ensure no unauthorized access.

(6) Information obtained through forensic interviews may be shared with members of child abuse and neglect investigation teams and child abuse and neglect treatment teams.

(7) A custodian of a video recording of a forensic interview shall not release or use the video recording or copies of such recording or consent, by commission or omission, to the release or use of the video recording or copies to or by any other party without a court order, notwithstanding any consent or release by the child victim or child witness, except that:

(a) The child advocacy center where a forensic interview is conducted may use the video recording for purposes of supervision and peer review required to meet national accreditation standards;

(b) Any custodian shall release or consent to the release or use of the video recording upon request to law enforcement agencies authorized to investigate, or agencies authorized to prosecute, any juvenile or criminal conduct described in the forensic interview;

(c) Any custodian shall release or consent to the release or use of the video recording upon request pursuant to a request under the Office of Inspector General of Nebraska Child Welfare Act;

(d) Any custodian shall provide secure access to view a video recording of a forensic interview upon request by a representative of the Department of Health and Human Services for purposes of classifying cases of child abuse and neglect pursuant to section 28-720 or determining the risk of harm to the child and needed social services of the family pursuant to section 28-713. Such representative shall be subject to the same release and use restrictions as any custodian under this subsection; and

(e) Any custodian shall release or consent to the release or use of the video recording pursuant to a court order issued under section 29-1912 or 29-1926.

Source:Laws 1992, LB 1184, § 3; Laws 1996, LB 1044, § 75; Laws 2006, LB 1113, § 26; Laws 2020, LB1148, § 7.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

Office of Inspector General of Nebraska Child Welfare Act, see section 43-4301.

28-731. Teams; exempt from Open Meetings Act.

The teams established by sections 28-728 to 28-730 shall not be considered a public body for purposes of the Open Meetings Act.

Source:Laws 1992, LB 1184, § 4; Laws 2004, LB 821, § 10.

Cross References

Open Meetings Act, see section 84-1407.

28-732. Repealed. Laws 2012, LB 993, § 4.

28-733. Repealed. Laws 2012, LB 993, § 4.

28-734. Repealed. Laws 2008, LB 782, § 5.

28-735. Repealed. Laws 2008, LB 782, § 5.

28-736. Repealed. Laws 2008, LB 782, § 5.

28-737. Repealed. Laws 2008, LB 782, § 5.

28-738. Repealed. Laws 2008, LB 782, § 5.

28-739. Repealed. Laws 2008, LB 782, § 5.

28-801. Prostitution; penalty; affirmative defense; immunity from prosecution; law enforcement officer; duties.

(1) Except as provided in subsection (5) of this section, any person who performs, offers, or agrees to perform any act of sexual contact or sexual penetration, as those terms are defined in section 28-318, with any person not his or her spouse, in exchange for money or other thing of value, commits prostitution.

(2) Any person convicted of violating subsection (1) of this section shall be punished as follows:

(a) If such person has had no prior convictions or has had one prior conviction, such person shall be guilty of a Class II misdemeanor. If the court places such person on probation, such order of probation shall include, as one of its conditions, that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment; and

(b) If such person has had two or more prior convictions, such person shall be guilty of a Class I misdemeanor. If the court places such person on probation, such order of probation shall include, as one of its conditions, that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment.

(3) It is an affirmative defense to prosecution under this section that such person was a trafficking victim as defined in section 28-830.

(4) For purposes of this section, prior conviction means any conviction on or after July 14, 2006, for violation of subsection (1) of this section or any conviction on or after July 14, 2006, for violation of a city or village ordinance relating to prostitution.

(5) If the law enforcement officer determines, after a reasonable detention for investigative purposes, that a person suspected of or charged with a violation of subsection (1) of this section is (a) a person engaging in those acts as a direct result of being a trafficking victim as defined in section 28-830, such person shall be immune from prosecution for a prostitution offense or (b) a person under eighteen years of age, such person shall be immune from prosecution for a prostitution offense under this section and shall be subject to temporary custody under section 43-248 and further disposition under the Nebraska Juvenile Code. A law enforcement officer who takes a person under eighteen years of age into custody under this section shall immediately report an allegation of a violation of section 28-831 to the Department of Health and Human Services which shall commence an investigation within twenty-four hours under the Child Protection and Family Safety Act.

Source:Laws 1977, LB 38, § 157; Laws 1985, LB 19, § 1; Laws 1987, LB 176, § 1; Laws 1989, LB 116, § 1; Laws 2006, LB 1086, § 7; Laws 2013, LB255, § 2; Laws 2014, LB853, § 18; Laws 2016, LB843, § 1.

Cross References

Child Protection and Family Safety Act, see section 28-710.

Nebraska Juvenile Code, see section 43-2,129.

28-801.01. Solicitation of prostitution; penalty; affirmative defense.

(1) Any person who solicits another person not his or her spouse to perform any act of sexual contact or sexual penetration, as those terms are defined in section 28-318, in exchange for money or other thing of value, commits solicitation of prostitution.

(2) Any person convicted of violating subsection (1) of this section shall be punished as follows:

(a) If such person has had no prior convictions, such person shall be guilty of a Class I misdemeanor and pay a fine of not less than two hundred fifty dollars, unless the person solicited is under the age of eighteen years, in which case such person violating this section shall be guilty of a Class IV felony. If the court places such person on probation, such order of probation shall include in its conditions (i) the payment of a fine of not less than two hundred fifty dollars, (ii) that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment, and (iii) that such person shall satisfactorily attend and complete, at his or her own expense, an educational program designed to educate participants on the effect of prostitution on the participants' health, on the person solicited, and on the community; and

(b) If such person has had one or more prior convictions, such person shall be guilty of a Class IV felony and pay a fine of not less than five hundred dollars. If the court places such person on probation, such order of probation shall include in its conditions (i) the payment of a fine of not less than five hundred dollars, (ii) that such person shall satisfactorily attend and complete an appropriate mental health and substance abuse assessment conducted by a licensed mental health professional or substance abuse professional authorized to complete such assessment, and (iii) that such person shall satisfactorily attend and complete, at his or her own expense, an educational program designed to educate participants on the effect of prostitution on the participants' health, on the person solicited, and on the community.

(3) It is an affirmative defense to prosecution under this section that such person was a trafficking victim as defined in section 28-830.

Source:Laws 2006, LB 1086, § 8; Laws 2013, LB255, § 3; Laws 2015, LB294, § 9.

28-802. Pandering; penalty.

(1) A person commits pandering if such person:

(a) Entices another person to become a prostitute;

(b) Procures or harbors therein an inmate for a house of prostitution or for any place where prostitution is practiced or allowed;

(c) Inveigles, entices, persuades, encourages, or procures any person to come into or leave this state for the purpose of prostitution or debauchery; or

(d) Receives or gives or agrees to receive or give any money or other thing of value for procuring or attempting to procure any person to become a prostitute or commit an act of prostitution or come into this state or leave this state for the purpose of prostitution or debauchery.

(2) Pandering is a Class II felony.

Source:Laws 1977, LB 38, § 158; Laws 2012, LB1145, § 1; Laws 2013, LB255, § 4; Laws 2015, LB294, § 10; Laws 2017, LB289, § 7.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

This section does not violate the constitutional guarantee of equal protection, nor does it violate the constitutional prohibition against cruel and unusual punishment. State v. Ruzicka, 218 Neb. 594, 357 N.W.2d 457 (1984).

Debauching a minor is not a lesser-included offense of pandering. Mingus v. Fairbanks, 211 Neb. 81, 317 N.W.2d 770 (1982).

28-803. Pandering; evidence.

(1) Any person referred to in section 28-802 shall be a competent witness in any prosecution thereunder to testify to any and all matters, including conversation with the accused, or by the accused with third persons, in his presence, notwithstanding having married the accused either before or after the violation of any of the provisions of such section; and the act and state of marriage shall not be a defense to any violation of such section.

(2) Pandering shall be an exception to the husband-wife privilege as provided in section 27-505.

Source:Laws 1977, LB 38, § 159; Laws 1978, LB 748, § 12.

28-804. Keeping a place of prostitution; penalty.

(1) Any person who has or exercises control over the use of any place which offers seclusion or shelter for the practice of prostitution and who knowingly grants or permits the use of such place for the purpose of prostitution commits the offense of keeping a place of prostitution.

(2) Keeping a place of prostitution is a Class IV felony, unless any person using such place for the practice of prostitution is under the age of eighteen years, in which case any person convicted of keeping a place of prostitution shall be guilty of a Class III felony.

Source:Laws 1977, LB 38, § 160; Laws 2013, LB255, § 5; Laws 2015, LB294, § 11.

28-804.01. Prostitution cases; incriminating testimony; how treated.

In all cases arising under sections 28-801 to 28-804, no person shall be excused from testifying against another person by reason of such testimony tending to incriminate the person testifying, but the testimony so given, unless voluntary, shall in no case be used against the person so testifying in any criminal prosecution or otherwise.

Source:Laws 1978, LB 618, § 1; Laws 2006, LB 1086, § 9.

28-805. Debauching a minor; penalty.

(1) Any person not a minor commits the offense of debauching a minor if he or she shall debauch or deprave the morals of any boy or girl under the age of seventeen years by:

(a) Lewdly inducing such boy or girl carnally to know any other person; or

(b) Soliciting any such boy or girl to visit a house of prostitution or other place where prostitution, debauchery, or other immoral practices are permitted or encouraged, for the purpose of prostitution or sexual penetration; or

(c) Arranging or assisting in arranging any meeting for such purpose between any such boy or girl and any female or male of dissolute character or any inmate of any place where prostitution, debauchery, or other immoral practices are permitted or encouraged; or

(d) Arranging or aiding or assisting in arranging any meeting between any such boy or girl and any other person for the purpose of sexual penetration.

(2) Debauching a minor is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 161; Laws 1979, LB 378, § 12.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Debauching a minor is not a lesser-included offense of pandering. Mingus v. Fairbanks, 211 Neb. 81, 317 N.W.2d 770 (1982).

The words "any other person" are construed to mean any person other than the victim. State v. Parmer, 210 Neb. 92, 313 N.W.2d 237 (1981).

28-806. Public indecency; penalty.

(1) A person, eighteen years of age or over, commits public indecency if such person performs or procures, or assists any other person to perform, in a public place and where the conduct may reasonably be expected to be viewed by members of the public:

(a) An act of sexual penetration; or

(b) An exposure of the genitals of the body done with intent to affront or alarm any person; or

(2) Public indecency is a Class II misdemeanor.

(3) It shall not be a violation of this section for an individual to breast-feed a child in a public place.

Source:Laws 1977, LB 38, § 162; Laws 2019, LB209, § 4.

28-807. Terms, defined.

As used in sections 28-807 to 28-829, unless the context otherwise requires:

(1) Adult shall mean any married person or any unmarried person of the age of eighteen years or older;

(2) Commercial film and photographic print processor shall mean any person who for compensation develops exposed photographic film into negatives, slides, or prints or who for compensation makes prints from negatives or slides. The term shall include, but not be limited to, any employee of such a person but shall not include employees of law enforcement agencies and prosecuting attorneys involved in the investigation and prosecution of criminal offenses or to persons involved in legitimate medical, scientific, or educational activities;

(3) Distribute shall mean to transfer possession, whether with or without consideration, by any means;

(4) Disseminate shall mean to manufacture, issue, publish, sell, lend, distribute, transmit, exhibit, or present materials or to offer in person or through an agent or by placing an advertisement for the same, whether with or without consideration, or agree to do the same;

(5) Knowingly shall mean having general knowledge of, reason to know, or a belief or reasonable ground for belief which warrants further inspection or inquiry of the character and content of any material, taken as a whole, described in this section, which is reasonably susceptible to examination by the defendant;

(6) Harmful to minors shall mean that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it (a) predominantly appeals to the prurient, shameful, or morbid interest of minors, (b) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (c) is lacking in serious literary, artistic, political, or scientific value for minors;

(7) Material or work shall mean any book, magazine, newspaper, comic book, pamphlet, or other printed or written material or any picture, drawing, photograph, figure, image, motion picture, whether or not positive or negative exhibited or screened, play, nightclub, live performance, television production, other pictorial representation or electric reproduction, recording transcription, mechanical or otherwise, or other articles, equipment, machines, or materials;

(8) Minor shall mean any unmarried person under the age of eighteen years;

(9) Nudity shall mean the showing of the human, post-pubertal male or female genitals, pubic area, or buttocks with less than a full opaque covering, the depiction of covered male genitals in a discernibly turgid state, or the showing of the female breast with less than a full opaque covering of any portion thereof below the top of the nipple;

(10) Obscene shall mean (a) that an average person applying contemporary community standards would find that the work, material, conduct, or live performance taken as a whole predominantly appeals to the prurient interest or a shameful or morbid interest in nudity, sex, or excretion, (b) the work, material, conduct, or live performance depicts or describes in a patently offensive way sexual conduct specifically set out in sections 28-807 to 28-829, and (c) the work, conduct, material, or live performance taken as a whole lacks serious literary, artistic, political, or scientific value;

(11) Place shall mean any building, structure, or place or any separate part or portion thereof or the ground itself;

(12) Person shall mean any individual, partnership, limited liability company, firm, association, corporation, trustee, lessee, agent, assignee, or other legal entity;

(13) Performance, whether with or without consideration, shall mean any play, motion picture, dance, or other exhibition performed before an audience;

(14) Promote shall mean to manufacture, issue, sell, give, provide, lend, mail, deliver, transfer, transmit, publish, distribute, circulate, disseminate, present, exhibit, or place an order for advertising or to knowingly offer in person or through an agent or agree to do the same;

(15) Sexual conduct shall mean acts of masturbation, homosexuality, sodomy, sexual intercourse, or prolonged physical contact with a person's clothed or unclothed genitals, pubic area, or buttocks or, if such person is female, breast;

(16) Sexual excitement shall mean the condition of human male or female genitals when in a state of sexual stimulation or arousal; and

(17) Sadomasochistic abuse shall mean flagellation or torture by or upon a nude person or a person clad in undergarments, a mask, or a bizarre costume or the condition of being fettered, bound, or otherwise physically restrained when performed to predominantly appeal to the shameful or morbid interest.

Source:Laws 1977, LB 38, § 163; Laws 1978, LB 748, § 13; Laws 1988, LB 117, § 1; Laws 1993, LB 121, § 178.

Annotations

In reviewing a determination of whether certain material is obscene pursuant to the three-part obscenity test, the appellate court should give appropriate deference to the trier of fact on the "prurient interest" and "patently offensive" prongs of the test because these issues depend on the knowledge of "contemporary community standards" which are uniquely within the province of the trier of fact. However, the third prong of the test, whether the material has artistic value, is subject to de novo review because it does not depend on community standards. Tipp-It, Inc. v. Conboy, 257 Neb. 219, 596 N.W.2d 304 (1999).

The definition of obscenity provided in this section is patterned upon, and coextensive with, the language of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). State v. Harrold, 256 Neb. 829, 593 N.W.2d 299 (1999).

Films which have little plot and which consist of scene after scene of sexual intercourse, lesbianism, homosexuality, cunnilingus, and fellatio are obscene as that term is defined. State v. Embassy Corp., 215 Neb. 631, 340 N.W.2d 160 (1983).

Subsection (10) of this statute is not unconstitutionally vague. State v. Embassy Corp., 215 Neb. 631, 340 N.W.2d 160 (1983).

28-808. Obscene literature and material; sale to minor, unlawful; penalty.

(1) It shall be unlawful for a person knowingly to sell, deliver, distribute, display for sale, or provide to a minor or knowingly to possess with intent to sell, deliver, distribute, display for sale, or provide to a minor:

(a) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body or any replica, article, or device having the appearance of either male or female genitals which predominantly pruriently, shamefully, or morbidly depicts nudity, sexual conduct, sexual excitement, or sadomasochistic abuse and which, taken as a whole, is harmful to minors; or

(b) Any book, pamphlet, magazine, printed matter however produced, or sound recording which contains any matter enumerated in subdivision (1)(a) of this section or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse of a predominantly prurient, shameful, or morbid nature and which, taken as a whole, is harmful to minors.

(2) Any person who violates this section shall be guilty of a Class I misdemeanor.

Source:Laws 1977, LB 38, § 164; Laws 1988, LB 117, § 2.

28-809. Obscene motion picture, show, or presentation; admit minor; unlawful; penalty.

(1) It shall be unlawful for any person knowingly to exhibit to a minor or knowingly to provide to a minor an admission ticket or pass or knowingly to admit a minor to premises whereon there is exhibited a motion picture, show, or other presentation which, in whole or in part, predominantly pruriently, shamefully, or morbidly depicts nudity, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.

(2) Any person who violates this section shall be guilty of a Class I misdemeanor.

Source:Laws 1977, LB 38, § 165; Laws 1988, LB 117, § 3.

28-810. Prosecution; defense.

It shall be a defense to a prosecution under sections 28-808 and 28-809 that:

(1) Such person had reasonable cause to believe that the minor involved was eighteen years of age or more, and that such reasonable cause is based on but not limited to the presentation by the minor exhibited to such person of a draft card, driver's license, birth certificate, or other official or apparently official document purporting to establish that such minor was eighteen years of age or more;

(2) The minor was accompanied by his parent or guardian and such person had reasonable cause to believe that the person accompanying the minor was the parent or guardian of that minor;

(3) Such person had reasonable cause to believe that the person was the parent or guardian of the minor; and

(4) Such person's activity falls within the defenses to a prosecution contained in section 28-815.

Source:Laws 1977, LB 38, § 166.

28-811. False representation; unlawful employment of minor; exceptions; penalty.

(1) It shall be unlawful for any minor to falsely represent to any person mentioned in section 28-808 or 28-809, or to his or her agent, that such minor is eighteen years of age or older with the intent to procure any materials set forth in section 28-808 or with the intent to procure such minor's admission to any motion picture, show, or other presentation as set forth in section 28-809.

(2) It shall be unlawful for any person to knowingly make a false representation to any person mentioned in section 28-808 or 28-809, or to his or her agent, that he or she is the parent or guardian of any minor or that any minor is eighteen years of age with the intent to procure any material set forth in section 28-808 or with the intent to procure such minor's admission to any motion picture, show, or other presentation as set forth in section 28-809.

(3) It shall be unlawful for any person to hire as an employee a minor whose duties it will be to assist in any manner the sale, delivery, distribution, or exhibition of material declared obscene by sections 28-807 to 28-829, except that this section shall not apply if such minor's parents or legal guardian should consent to such employment by giving the employer a written affidavit prior to the minor's employment.

(4) Any person who violates this section shall be guilty of a Class II misdemeanor.

Source:Laws 1977, LB 38, § 167; Laws 1988, LB 117, § 4.

28-812. Repealed. Laws 1988, LB 117, § 8.

28-813. Obscene literature or material; prepares; distributes; promotes; penalty.

(1) It shall be unlawful for a person knowingly to (a) print, copy, manufacture, prepare, produce, or reproduce obscene material for the purpose of sale or distribution, (b) publish, circulate, sell, rent, lend, transport in interstate commerce, distribute, or exhibit any obscene material, (c) have in his or her possession with intent to sell, rent, lend, transport, or distribute any obscene material, or (d) promote any obscene material or performance.

(2) It shall be unlawful for a person to place an order for any advertising promoting the sale or distribution of material represented or held out to be obscene, whether or not such material exists in fact or is obscene. In all cases in which a charge for a violation of this section is brought against a person who cannot be found in this state, the executive authority of this state may demand extradition of such person from the executive authority of the state in which such person may be found.

(3) A person commits an offense of promoting obscene material if knowing its content and character he or she (a) disseminates for monetary consideration any obscene material, (b) produces, presents, or directs obscene performances for monetary consideration, or (c) participates for monetary consideration in that part of a performance which makes it obscene.

(4) Any person who violates this section shall be guilty of a Class I misdemeanor.

Source:Laws 1977, LB 38, § 169; Laws 1988, LB 117, § 5; Laws 2006, LB 1113, § 27.

Annotations

Films which have little plot and which consist of scene after scene of sexual intercourse, lesbianism, homosexuality, cunnilingus, and fellatio are obscene as the term is defined. State v. Embassy Corp., 215 Neb. 631, 340 N.W.2d 160 (1983).

Subsection (1) of this statute is not unconstitutionally vague. State v. Embassy Corp., 215 Neb. 631, 340 N.W.2d 160 (1983).

28-813.01. Sexually explicit conduct; visual depiction; unlawful; penalty; affirmative defense; forfeiture of property.

(1) It shall be unlawful for a person nineteen years of age or older to knowingly possess any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers. Violation of this subsection is a Class IIA felony.

(2) It shall be unlawful for a person under nineteen years of age to knowingly and intentionally possess any visual depiction of sexually explicit conduct which has a child other than the defendant as one of its participants or portrayed observers. Violation of this subsection is a Class I misdemeanor. A second or subsequent conviction under this subsection is a Class IV felony.

(3) It shall be an affirmative defense to a charge made pursuant to subsection (2) of this section that:

(a)(i) The defendant was less than nineteen years of age; (ii) the visual depiction of sexually explicit conduct portrays a child who is fifteen years of age or older; (iii) the visual depiction was knowingly and voluntarily generated by the child depicted therein; (iv) the visual depiction was knowingly and voluntarily provided by the child depicted in the visual depiction; (v) the visual depiction contains only one child; (vi) the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant; and (vii) the defendant did not coerce the child in the visual depiction to either create or send the visual depiction; or

(b)(i) The defendant was less than eighteen years of age; (ii) the difference in age between the defendant and the child portrayed is less than four years; (iii) the visual depiction was knowingly and voluntarily generated by the child depicted therein; (iv) the visual depiction was knowingly and voluntarily provided by the child depicted in the visual depiction; (v) the visual depiction contains only one child; (vi) the defendant has not provided or made available the visual depiction to another person except the child depicted who originally sent the visual depiction to the defendant; and (vii) the defendant did not coerce the child in the visual depiction to either create or send the visual depiction.

(4) Any person who violates subsection (1) or (2) of this section and has previously been convicted of a violation of this section or section 28-308, 28-309, 28-310, 28-311, 28-313, 28-314, 28-315, 28-319, 28-319.01, 28-320.01, 28-833, 28-1463.03, or 28-1463.05 or subsection (1) or (2) of section 28-320 shall be guilty of a Class IC felony for each offense.

(5) In addition to the penalties provided in this section, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of this section.

(6) The definitions in section 28-1463.02 shall apply to this section.

Source:Laws 1988, LB 117, § 6; Laws 2003, LB 111, § 1; Laws 2009, LB97, § 15; Laws 2015, LB605, § 45; Laws 2016, LB1106, § 7; Laws 2019, LB630, § 3.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

A person knowingly possesses child pornography in violation of this section when he or she knows of the nature or character of the material and of its presence and has dominion or control over it. State v. Mucia, 292 Neb. 1, 871 N.W.2d 221 (2015).

“Possess” under this section includes constructive possession. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).

Where a person, using file-sharing software, intentionally searches for, downloads, views, and then deletes child pornography computer files, that person has “knowingly possess[ed]” child pornography. State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).

28-813.02. Commercial film and photographic print processor; immune from liability; when.

Any commercial film and photographic print processor who has knowledge of or observes, within the scope of his or her professional capacity or employment, and who participates in an investigation or the making of any report pertaining to any film, photograph, videotape, negative, or slide depicting a child under the age of eighteen years engaged in an act of sexually explicit conduct, as defined in section 28-1463.02, or participates in a judicial proceeding resulting from such participation shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements.

Source:Laws 1988, LB 117, § 7.

28-814. Criminal prosecutions; trial by jury; waiver; instructions to jury; expert witness.

(1) Criminal prosecutions involving the ultimate issue of obscenity, as distinguished from the issue of probable cause, shall be tried by jury, unless the defendant shall waive a jury trial in writing or by statement in open court entered on the record.

(2) The judge shall instruct the jury that the guidelines in determining whether a work, material, conduct, or live exhibition is obscene are: (a) The average person applying contemporary community standards would find the work taken as a whole goes substantially beyond contemporary limits of candor in description or presentation of such matters and predominantly appeals to the prurient, shameful, or morbid interest; (b) the work depicts in a patently offensive way sexual conduct specifically referred to in sections 28-807 to 28-829; (c) the work as a whole lacks serious literary, artistic, political, or scientific value; and (d) in applying these guidelines to the determination of whether or not the work, material, conduct, or live exhibition is obscene, each element of each guideline must be established beyond a reasonable doubt.

(3) In any proceeding, civil or criminal, under sections 28-807 to 28-829, where there is an issue as to whether or not the matter is obscene, either party shall have the right to introduce, in addition to all other relevant evidence, the testimony of expert witnesses on such issue as to any artistic, literary, scientific, political, or other societal value in the determination of the issue of obscenity.

Source:Laws 1977, LB 38, § 170; Laws 2018, LB193, § 49.

28-815. Prosecution; defense.

It shall be a defense to a prosecution under section 28-813 that:

(1) Such person's activity consists of teaching in regularly established and recognized educational institutions, galleries or libraries, or the publication or use of standard textbooks, films, tapes or visual aids of any such institution, or the practice of licensed practitioners of medicine or of pharmacy in their regular business or profession, or the possession by established schools teaching art, or by public art galleries, or artists or models in the necessary line of their art, or to relevant references to, or accounts or portrayal of, nudity, sex, or excretion in religion, art, literature, history, science, medicine, public health, law, the judicial process, law enforcement, education, public libraries, or news reports and news pictures by any form of news media of general circulation;

(2) Such person has no financial interest in an activity, product, or event entitling such person to participate in the promotion, management, proceeds, or profits of the activity, product, or event, and such person's only connection with the activity, product, or event entitles such person to a reasonable salary or wages for services actually rendered; and

(3) The provisions of sections 28-807 to 28-829 with respect to the exhibition or the possession with the intent to exhibit of any obscene film shall not apply to a motion picture projectionist, usher, or ticket taker acting within the scope of his employment if such projectionist, usher, or ticket taker has no financial interest in the place wherein he is so employed. Such person shall be required to give testimony regarding such employment in all judicial proceedings brought under sections 28-807 to 28-829 when granted immunity by the trial judge.

Source:Laws 1977, LB 38, § 171.

28-816. Violations; declaratory judgment.

Any city, village, or county, through its chief law enforcement officer in which a person, firm or corporation violates or is about to violate sections 28-807 to 28-829 or has in his or its possession with intent to so violate, or is about to acquire possession with intent to so violate, any work, material, conduct or live performance which is obscene or an instrument of obscene use, or purports to be for such use or purpose, may maintain an action in the district court against such person, firm or corporation for a declaratory judgment under the Uniform Declaratory Judgments Act for the purpose of obtaining a judicial determination as to whether or not such work, material, conduct or live performance is obscene.

Source:Laws 1977, LB 38, § 172.

Cross References

Uniform Declaratory Judgments Act, see section 25-21,164.

28-817. Prosecution; temporary restraining order or injunction; when.

(1) The plaintiff, after the commencement of such action may, if he deems it necessary in order to prevent the continued use of such work, material, conduct or live performance, request a temporary restraining order or injunction against such person, firm or corporation to prevent the violation or further violation except as provided in this section.

(2) No other temporary restraining order or injunction shall issue in advance of final adjudication by the trial court in actions brought under the provisions of sections 28-816 to 28-818 when the question of whether the work, material, conduct or live performance is obscene is in issue. If an injunction is requested, any party to the action shall be entitled to a trial of the issues within ten calendar days after service of the summons has been completed, and a decision shall be rendered by the court within two judicial days of the conclusion of the trial.

Source:Laws 1977, LB 38, § 173.

28-818. Order or judgment of injunction; contents.

If an order or judgment of injunction be entered, such order or judgment shall contain either a provision directing the person to surrender to the sheriff or police the work, material, conduct or live performance which has been adjudicated to be obscene for seizure and impoundment by the court or to destroy or remove the same from the state. No order or judgment directing such firm, person, corporation or other legal entity to destroy or to remove such work, material, conduct or live performance from the state under such supervision as the court may direct shall issue until after a final judgment has been made as the result of an appeal or in the absence of an appeal. The court shall require satisfactory proof of compliance with such order.

Source:Laws 1977, LB 38, § 174.

28-819. Action; service of summons; effect.

Every person who sells, distributes, or acquires possession with intent to sell, exhibit, or distribute any of the work, material, conduct or live performance described in section 28-808, after service upon him of summons in such action, shall be chargeable with knowledge of the contents thereof in any subsequent prosecution.

Source:Laws 1977, LB 38, § 175.

28-820. Declaratory judgment; use of.

Any person who exhibits, sells or distributes, or is about to exhibit, sell or distribute or has in his or its possession with intent to sell or distribute, or is about to acquire possession with intent to exhibit, sell or distribute, any work, material, conduct or live performance shall, if such person has genuine doubt as to the question of whether such work, material, conduct or live performance is in fact within the terms and provisions of sections 28-807 to 28-829, have the right to bring an action in the district court for declaratory judgment under the Uniform Declaratory Judgments Act against the appropriate chief law enforcement officer of the city, village or county in which the work, material, conduct or live performance is located or is intended to be disseminated, distributed, or exhibited, for a judicial determination as to whether or not such work, material, conduct or live performance is obscene. Any such action may be consolidated with a pending action brought under the provisions of sections 28-816 to 28-818, and the defendant in any action brought under this section may seek a declaratory judgment or request a temporary restraining order or an injunction therein in accordance with the provisions of sections 28-816 to 28-818.

Source:Laws 1977, LB 38, § 176.

Cross References

Uniform Declaratory Judgments Act, see section 25-21,164.

Annotations

The State bears the burden of proving beyond a reasonable doubt all three elements of obscenity. Main Street Movies, Inc. v. Wellman, 257 Neb. 559, 598 N.W.2d 754 (1999).

Proof beyond a reasonable doubt is the most appropriate standard in civil obscenity cases, instituted pursuant to this section. Tipp-It, Inc. v. Conboy, 257 Neb. 219, 596 N.W.2d 304 (1999).

28-821. Conviction more than twice; continue business dealing in obscene work or conduct; effect.

Any person who is convicted more than twice under sections 28-807 to 28-829 and continues to use, occupy, establish or conduct a business selling, distributing, disseminating, or exhibiting any obscene work, material, conduct or live performance shall be deemed to be maintaining a nuisance and shall be enjoined as provided for in sections 28-807 to 28-829.

Source:Laws 1977, LB 38, § 177.

28-822. Nuisance; action to abate; punished as for contempt; when.

Whenever a nuisance exists as provided for in sections 28-807 to 28-829, any city, village, or county, through its chief law enforcement officer, may bring an action in equity to abate such a nuisance and to perpetually enjoin the person maintaining the same from further maintenance thereof. If any person continues to use the building or place for such purpose he shall be punished as for contempt.

Source:Laws 1977, LB 38, § 178.

28-823. Temporary injunction; where brought; hearing; restraining order; issuance; inventory; rights of owner of property.

The action provided for in section 28-821 shall be brought in the district court of the county in which the act of nuisance is being conducted. After filing of the petition, application for a temporary injunction may be made to the district court or judge thereof who shall grant a hearing within ten calendar days after the filing.

When such application for temporary injunction is made, the court or judge thereof may, on application of the complainant, issue a restraining order as otherwise provided for in sections 25-1062 to 25-1080, restraining the defendant and all other persons from removing or in any manner interfering with the personal property and contents of the place where such nuisance is being conducted until the decision of the court or judge granting or refusing such temporary injunction and until the further order of the court thereon. The officers serving such restraining order shall forthwith make and return into court an inventory of the personal property and contents situated in and used in conducting or maintaining such nuisance and further violations of sections 28-807 to 28-829. The owner of any real or personal property closed or restrained or to be closed or restrained may appear between the filing of the complaint and the hearing on the application for permanent injunction, and upon payment of all costs incurred and upon the filing of a bond by the owner of the real property with sureties to be approved by the clerk of the district court in the full value of the property to be ascertained by the court, conditioned that such owner will immediately abate the nuisance and prevent the same from being established or kept until the decision of the court is rendered on the application for a permanent injunction, and the court, if satisfied with the good faith of the owner of the real property and of innocence on the part of the owner of the personal property of any knowledge of the use of such personal property as a nuisance and that, with reasonable care and diligence, such owner could not have known thereof, shall deliver such real or personal property, or both, to the respective owners thereof, and discharge or refrain from issuing at the time of the hearing on the application for the temporary injunction any order closing such real property or restraining the removal or interference with such personal property. The release of any real or personal property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subjected. In no event shall any work, material, conduct or live performance not adjudicated to be obscene under sections 28-807 to 28-829 be enjoined.

Source:Laws 1977, LB 38, § 179.

28-824. Trial; precedence; evidence; admissible; existence of nuisance; enjoin defendant.

The action provided for in sections 28-807 to 28-829 shall be set down for trial and shall have precedence over all other cases except crimes, election contests, or injunctions. In such action evidence of the general reputation of the place or an admission or finding of guilt of any person under the criminal laws of this state against obscenity at any such place shall be admissible for the purpose of proving the existence of such nuisance and shall be prima facie evidence of such nuisance and of knowledge of and acquiescence and participation therein on the part of the person charged with maintaining such nuisance. If the existence of the nuisance is established upon the trial, a judgment shall be entered which shall perpetually enjoin the defendant or the same defendant acting directly or indirectly through other persons from further maintaining the nuisance at the place complained of or at any other location whether within or without the judicial district of the court hearing such proceedings for a period of three years.

Source:Laws 1977, LB 38, § 180.

28-825. Nuisance; existence; order of abatement; closing order.

If the existence of a nuisance is admitted or established in an action as provided for in sections 28-807 to 28-829, an order of abatement shall be entered as a part of the judgment in the case, which order shall direct the removal from the place of all personal property and contents used in conducting the nuisance, and not already released under authority of the court as provided in section 28-823, and shall direct the sale of such thereof as belonging to the defendants notified or appearing in the manner provided for the sale of personal property under execution. Such order shall also require the renewal for one year of any bond furnished by the owner of the real property as provided for in sections 28-807 to 28-829 or, if not so furnished, shall continue for one year any closing order issued at the time of the granting of the temporary injunction or, if no such closing order was then issued, shall include an order directing the effectual closing of the place against its use for any illegal purpose unless otherwise released. The owner of any place closed and not released under bond may then appear and obtain such release in the manner and upon fulfilling the requirements provided for in sections 28-807 to 28-829. The release of the property under this section shall not release it from any judgment, lien, penalty, or liability to which it may be subject. Owners of unsold personal property and contents so seized may appear and claim the same within ten days after such order of abatement is made and prove innocence to the satisfaction of the court of any knowledge of such use thereof and that with reasonable care and diligence they could not have known thereof. Every defendant in the action is presumed to have had knowledge of the general reputation of the place. If such innocence is established, such unsold personal property and contents shall be delivered to the owner, otherwise it shall be sold as provided in this section and all consideration received is recoverable as damages to the county where the nuisance was located.

Source:Laws 1977, LB 38, § 181; Laws 1978, LB 748, § 14.

28-826. Tenant or occupant of building; use to commit violations; conviction; right of possession in owner.

If a tenant or occupant of a building or tenement under lawful title used such place for the purposes of committing a violation of sections 28-807 to 28-829, and if such tenant or occupant is convicted of such violation, such conviction shall make the lease or other title which he holds void at the option of the owner, and without any act of the owner, cause the right of possession to revert and vest in such owner, who may without further process of law make immediate entry upon the premises and retake possession.

Source:Laws 1977, LB 38, § 182.

28-827. Material or work; adjudicated obscene; contraband; proceeds of sale to county; other copies; disposal.

Material or work introduced in evidence and judicially adjudicated to be obscene is contraband and there are no property rights therein. All monetary consideration received for such work, material, conduct or live performance is recoverable as damages to the county where sold or exhibited. The defendant, as part of the court order, shall be required to remove from the state all other identical copies owned or controlled by such defendant within five days after a court determination of obscenity thereof or the same shall be deemed forfeited to the state for destruction by the state.

Source:Laws 1977, LB 38, § 183; Laws 1978, LB 748, § 15.

28-828. Proceeding, civil or criminal; application to court for copy of material; order; contempt of court, when.

In any proceeding, civil or criminal under sections 28-807 to 28-829, the party charged with possession of any obscene material shall be required, upon application by petitioner and order of the court, to provide one copy of such material to petitioner to be used in the preparation and trial of such proceedings. Failure to comply with this section shall be punishable as contempt of court.

Source:Laws 1977, LB 38, § 184.

28-829. Sections; uniform application; laws and regulations of political subdivisions; void.

In order to provide for the uniform application of sections 28-807 to 28-829 within this state, it is intended that the sole and only regulation of the commercial distribution of any work, material, conduct or live performance described as obscene shall be under sections 28-807 to 28-829, and no municipality, county, or other governmental unit within this state shall make any law, ordinance or regulation relating to obscenity, or licenses or taxes respecting the obscene work, material, conduct or live performance as regulated by the state under sections 28-807 to 28-829. All such laws, ordinances, regulations, special or discriminatory taxes, or licenses, whether enacted or issued before or after sections 28-807 to 28-829, shall be void, unenforceable, and of no effect.

Source:Laws 1977, LB 38, § 185.

28-830. Human trafficking; forced labor or services; terms, defined.

For purposes of sections 28-830 and 28-831, the following definitions apply:

(1) Actor means a person who solicits, procures, or supervises the services or labor of another person;

(2) Commercial sexual activity means any sex act on account of which anything of value is given, promised to, or received by any person;

(3) Debt bondage means inducing another person to provide:

(a) Commercial sexual activity in payment toward or satisfaction of a real or purported debt; or

(b) Labor or services in payment toward or satisfaction of a real or purported debt if:

(i) The reasonable value of the labor or services is not applied toward the liquidation of the debt; or

(ii) The length of the labor or services is not limited and the nature of the labor or services is not defined;

(4) Financial harm means theft by extortion as described by section 28-513;

(5) Forced labor or services means labor or services that are performed or provided by another person and are obtained or maintained through:

(a) Inflicting or threatening to inflict serious personal injury, as defined by section 28-318, on another person;

(b) Physically restraining or threatening to physically restrain the other person;

(c) Abusing or threatening to abuse the legal process against another person to cause arrest or deportation for violation of federal immigration law;

(d) Controlling or threatening to control another person's access to a controlled substance listed in Schedule I, II or III of section 28-405;

(e) Exploiting another person's substantial functional impairment as defined in section 28-368 or substantial mental impairment as defined in section 28-369;

(f) Knowingly destroying, concealing, removing, confiscating, or possessing any actual or purported passport or other immigration document or any other actual or purported government identification document of the other person; or

(g) Causing or threatening to cause financial harm to another person, including debt bondage;

(6) Labor or services means work or activity of economic or financial value;

(7) Labor trafficking means knowingly recruiting, enticing, harboring, transporting, providing, or obtaining by any means or attempting to recruit, entice, harbor, transport, provide, or obtain by any means a person eighteen years of age or older intending or knowing that the person will be subjected to forced labor or services;

(8) Labor trafficking of a minor means knowingly recruiting, enticing, harboring, transporting, providing, or obtaining by any means or attempting to recruit, entice, harbor, transport, provide, or obtain by any means a minor intending or knowing that the minor will be subjected to forced labor or services;

(9) Maintain means, in relation to labor or services, to secure continued performance thereof, regardless of any initial agreement by the other person to perform such type of service;

(10) Minor means a person younger than eighteen years of age;

(11) Sex trafficking means knowingly recruiting, enticing, harboring, transporting, providing, soliciting, or obtaining by any means or knowingly attempting to recruit, entice, harbor, transport, provide, solicit, or obtain by any means a person eighteen years of age or older for the purpose of having such person engage without consent, as defined in section 28-318, in commercial sexual activity, sexually explicit performance, or the production of pornography or to cause or attempt to cause a person eighteen years of age or older to engage without consent, as defined in section 28-318, in commercial sexual activity, sexually explicit performance, or the production of pornography;

(12) Sex trafficking of a minor means knowingly recruiting, enticing, harboring, transporting, providing, soliciting, or obtaining by any means or knowingly attempting to recruit, entice, harbor, transport, provide, solicit, or obtain by any means a minor for the purpose of having such minor engage in commercial sexual activity, sexually explicit performance, or the production of pornography or to cause or attempt to cause a minor to engage in commercial sexual activity, sexually explicit performance, or the production of pornography;

(13) Sexually explicit performance means a live or public play, dance, show, or other exhibition intended to arouse or gratify sexual desire or to appeal to prurient interests; and

(14) Trafficking victim means a person subjected to any act or acts prohibited by section 28-831.

Source:Laws 2006, LB 1086, § 10; Laws 2013, LB1, § 1; Laws 2013, LB255, § 6; Laws 2014, LB998, § 4; Laws 2017, LB289, § 8.

28-831. Human trafficking; labor trafficking or sex trafficking; labor trafficking of a minor or sex trafficking of a minor; prohibited acts; penalties.

(1) Any person who engages in labor trafficking of a minor or sex trafficking of a minor is guilty of a Class IB felony.

(2) Any person who engages in labor trafficking or sex trafficking is guilty of a Class II felony.

(3) Any person, other than a trafficking victim, who knowingly benefits from or participates in a venture which has, as part of the venture, an act that is in violation of this section is guilty of a Class IIA felony.

(4) It is not a defense in a prosecution under this section (a) that consent was given by the minor victim, (b) that the defendant believed that the minor victim gave consent, or (c) that the defendant believed that the minor victim was an adult.

Source:Laws 2006, LB 1086, § 11; Laws 2013, LB255, § 7; Laws 2014, LB998, § 5; Laws 2015, LB294, § 12; Laws 2017, LB289, § 9.

Annotations

A defendant's knowledge of the victim's age is not an essential element of the offense of sex trafficking of a minor. State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

28-832. Repealed. Laws 2013, LB 1, § 3.

28-833. Enticement by electronic communication device; penalty.

(1) A person commits the offense of enticement by electronic communication device if he or she is nineteen years of age or over and knowingly and intentionally utilizes an electronic communication device to contact a child under sixteen years of age or a peace officer who is believed by such person to be a child under sixteen years of age and in so doing:

(a) Uses or transmits any indecent, lewd, lascivious, or obscene language, writing, or sound;

(b) Transmits or otherwise disseminates any visual depiction of sexually explicit conduct as defined in section 28-1463.02; or

(2) Enticement by electronic communication device is a Class IV felony.

(3) Enticement by electronic communication device is deemed to have been committed either at the place where the communication was initiated or where it was received.

(4) For purposes of this section, electronic communication device means any device which, in its ordinary and intended use, transmits by electronic means writings, sounds, visual images, or data of any nature to another electronic communication device.

Source:Laws 2007, LB142, § 2.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Where a prosecution involves a minor child rather than a decoy, a defendant's knowledge that the recipient is under age 16 is an element of the crime of enticement by electronic communication device. State v. Paez, 302 Neb. 676, 925 N.W.2d 75 (2019).

This section is not overbroad and thus, does not violate the First Amendment. State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

This section proscribes a person age 19 or older from knowingly and intentionally using an electronic communication device to contact a child under age 16, or peace officer whom the person believes to be a child under age 16, and using language that conjures up repugnant sexual images. State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

28-901. Obstructing government operations; penalty.

(1) A person commits the offense of obstructing government operations if he intentionally obstructs, impairs, or perverts the administration of law or other governmental functions by force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act, except that this section does not apply to flight by a person charged with crime, refusal to submit to arrest, failure to perform a legal duty other than an official duty, or any other means of avoiding compliance with law without affirmative interference with governmental functions.

(2) Obstructing government operations is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 186.

Annotations

A police chief's failure to forward, in accordance with section 29-424, to the county attorney a citation charging a city employee with a crime in order to prevent the city employee's employment from being terminated was obstructing government operations as set forth in subsection (1) of this section. The police chief obstructed or impaired a governmental function by failing to forward the citation to the county attorney, as required by section 29-424, because the action of failing to forward the citation impaired the county attorney's performance of its prosecutorial functions. The police chief did not have discretion to remove the citation of the city employee from the packet of citations to be sent to the county attorney such to conclude that he did not breach section 29-424. State v. Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).

A defendant may not be convicted of obstructing government operations by a physical act unless the public servant was engaged in a specific authorized act at the time of the physical interference. State v. Stolen, 276 Neb. 548, 755 N.W.2d 596 (2008).

The physical act component of this section consists of disjunctive, or independent, elements; force or violence is not required in all circumstances involving obstruction of government operations by physical act, partially overruling State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994). State v. Stolen, 276 Neb. 548, 755 N.W.2d 596 (2008).

This section proscribes three separate means of committing obstruction of government operations; the physical act component must consist of some physical interference, force, violence, or obstacle. State v. Stolen, 276 Neb. 548, 755 N.W.2d 596 (2008).

Failure to volunteer information is not a physical act that violates this section. Nor are mere words, even those words deliberately intended to frustrate law enforcement, physical acts. State v. Fahlk, 246 Neb. 834, 524 N.W.2d 39 (1994).

The offense must consist of physical interference or some unlawful act. State v. Douglas, 217 Neb. 199, 349 N.W.2d 870 (1984).

The defendant's cleaning of a campsite and removal of alcohol containers were physical acts contemplated by the plain language of this section. State v. Stolen, 16 Neb. App. 121, 741 N.W.2d 168 (2007).

28-902. Physical injury related to criminal offense; report by health care provider; sexual assault; duties of health care provider; law enforcement agency; duties; violation; penalty.

(1) Except as provided in subsection (2) of this section, every health care provider shall immediately report to law enforcement every case in which the health care provider is consulted for medical care for physical injury which appears to have been received in connection with, or as a result of, the commission of a criminal offense. Such report shall include the name of the victim, a brief description of the victim's physical injury, and, if ascertainable, the victim's residential address and the location of the offense. Any other law or rule of evidence relative to confidential communications is suspended insofar as compliance with this section is concerned.

(2) When a health care provider is consulted for medical care for physical injury which reasonably appears to have been received in connection with, or as a result of, the commission of an actual or attempted sexual assault and the victim was eighteen years of age or older at the time of such actual or attempted sexual assault, the health care provider shall:

(a) Provide the victim with information detailing the reporting options available under subdivision (2)(b) of this section;

(b) Ask the victim either:

(i) To provide written consent to report such actual or attempted sexual assault as provided in subsection (1) of this section. If the victim provides such written consent, the health care provider shall make the report required by subsection (1) of this section and submit to law enforcement a sexual assault evidence collection kit if one has been obtained; or

(ii) To sign a written acknowledgment that such actual or attempted sexual assault will not be reported except as provided in subdivision (2)(c) or subsection (3) of this section, but that the health care provider will submit to law enforcement a sexual assault evidence collection kit, if one has been obtained, using an anonymous reporting protocol. A health care provider may use the anonymous reporting protocol developed by the Attorney General under section 84-218 or may use a different anonymous reporting protocol;

(c) Regardless of the victim's decision under subdivision (2)(b) of this section, if the victim is suffering from a serious bodily injury, or any bodily injury where a deadly weapon was used to inflict such injury, which appears to have been received in connection with, or as a result of, the commission of an actual or attempted sexual assault, the health care provider shall report such injury to law enforcement as provided in subsection (1) of this section; and

(d) Unless declined by the victim, refer him or her to an advocate.

(3) When a health care provider is consulted for medical care for physical injury which reasonably appears to have been received in connection with, or as a result of, the commission of an actual or attempted sexual assault, the health care provider shall, regardless of the victim's age or the victim's decision under subdivision (2)(b) of this section, provide law enforcement with a sexual assault evidence collection kit if one has been obtained.

(4) A law enforcement agency receiving a sexual assault evidence collection kit under this section shall preserve such kit for twenty years after the date of receipt or as otherwise ordered by a court.

(5) Any health care provider who knowingly fails to make any report required by subsection (1) of this section is guilty of a Class III misdemeanor. If multiple health care providers are involved in the consultation of a person in a given occurrence, this section does not require each health care provider to make a separate report, so long as one of such health care providers makes the report required by this section.

(6) For purposes of this section:

(a) Advocate has the same meaning as in section 29-4302;

(b) Anonymous reporting protocol means a reporting protocol that allows the identity of the victim, his or her personal or identifying information, and the details of the sexual assault or attempted sexual assault to remain confidential and undisclosed by the health care provider, other than submission to law enforcement of any sexual assault evidence collection kit, unless and until the victim consents to the release of such information;

(c) Health care provider means any of the following individuals who are licensed, certified, or registered to perform specified health services consistent with state law: A physician, physician assistant, nurse, or advanced practice registered nurse;

(d) Law enforcement means a law enforcement agency in the county in which the consultation occurred; and

(e) Victim means the person seeking medical care.

Source:Laws 1977, LB 38, § 187; Laws 2018, LB1132, § 1.

28-903. Refusing to aid a peace officer; penalty.

(1) A person commits the offense of refusing to aid a peace officer if, upon request by a person known to him to be a peace officer, he unreasonably refuses or fails to aid such peace officer in:

(a) Apprehending any person charged with or convicted of any offense against any of the laws of this state; or

(b) Securing such offender when apprehended; or

(2) Refusing to aid a peace officer is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 188.

28-904. Resisting arrest; penalty; affirmative defense.

(1) A person commits the offense of resisting arrest if, while intentionally preventing or attempting to prevent a peace officer, acting under color of his or her official authority, from effecting an arrest of the actor or another, he or she:

(a) Uses or threatens to use physical force or violence against the peace officer or another; or

(b) Uses any other means which creates a substantial risk of causing physical injury to the peace officer or another; or

(2) It is an affirmative defense to prosecution under this section if the peace officer involved was out of uniform and did not identify himself or herself as a peace officer by showing his or her credentials to the person whose arrest is attempted.

(3) Resisting arrest is (a) a Class I misdemeanor for the first such offense and (b) a Class IIIA felony for any second or subsequent such offense.

(4) Resisting arrest through the use of a deadly or dangerous weapon is a Class IIIA felony.

Source:Laws 1977, LB 38, § 189; Laws 1982, LB 465, § 2; Laws 1997, LB 364, § 10.

Annotations

In prosecutions for assaulting a peace officer, obstructing a peace officer, or resisting arrest, a trial court must instruct the jury on the issue of self-defense when there is any evidence adduced which raises a legally cognizable claim that the peace officer used unreasonable force in making the arrest. State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997).

This is a serious offense for which a jury trial is constitutionally required unless knowingly and intelligently waived by the defendant. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).

It is an affirmative defense to prosecution under this section if the peace officer involved was out of uniform and did not identify himself as a peace officer by showing his credentials to the person whose arrest is attempted. State v. Daniels, 220 Neb. 480, 370 N.W.2d 179 (1985).

Where there was evidence that the arrester communicated his intention to arrest the arrestee, the arrestee understood the intention, and the arrester had the apparent ability to control the arrestee, a jury instruction on resisting arrest was not necessary. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).

Because neither "substantial" nor "substantial force" were defined in either this section or section 28-109, and definitions of such were also absent in the relevant Nebraska case law, the district court's jury instruction, which gave a partial and incomplete dictionary definition, misstated the issue and had a tendency to confuse the jury. The jury reached a guilty verdict 10 minutes after receiving the erroneous supplemental instruction, and thus, the verdict rendered was not surely unattributable to the error and not harmless; the conviction was reversed and the cause remanded for a new trial. State v. Gaudreault, 30 Neb. App. 501, 969 N.W.2d 695 (2022).

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:Laws 1977, LB 38, § 190; Laws 1980, LB 696, § 5; Laws 1981, LB 76, § 1; Laws 1993, LB 235, § 2; Laws 2001, LB 38, § 2; Laws 2008, LB624, § 1.

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).

28-906. Obstructing a peace officer; penalty.

(1) A person commits the offense of obstructing a peace officer, when, by using or threatening to use violence, force, physical interference, or obstacle, he or she intentionally obstructs, impairs, or hinders (a) the enforcement of the penal law or the preservation of the peace by a peace officer or judge acting under color of his or her official authority or (b) a police animal assisting a peace officer acting pursuant to the peace officer's official authority.

(2) For purposes of this section, police animal means a horse or dog owned or controlled by the State of Nebraska or any county, city, or village for the purpose of assisting a peace officer acting pursuant to his or her official authority.

(3) Obstructing a peace officer is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 191; Laws 1995, LB 283, § 1; Laws 2012, LB721, § 1.

Annotations

"Interference" means the action or fact of interfering or intermeddling (with a person, et cetera, or in some action). State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

It is not necessary under this section for a defendant to engage in some sort of physical act. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

"Obstacle" means something that stands in the way or that obstructs progress (literal and figurative); a hindrance, impediment, or obstruction. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

To show a violation of this section, the State must prove that (1) the defendant intentionally obstructed, impaired, or hindered either a peace officer, a judge, or a police animal assisting a peace officer; (2) at the time the defendant did so, the peace officer or judge was acting under color of his or her official authority to enforce the penal law or preserve the peace; and (3) the defendant did so by using or threatening to use either violence, force, physical interference, or obstacle. State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).

The mere verbal refusal to provide information to an officer does not constitute an obstacle to the enforcement of the penal laws as contemplated by this section. State v. Yeutter, 252 Neb. 857, 566 N.W.2d 387 (1997).

"Preservation of the peace," as used in this statute, means maintaining the tranquillity enjoyed by members of a community where good order reigns. In re Interest of Richter, 226 Neb. 874, 415 N.W.2d 476 (1987).

The act of running away from an officer does obstruct, impair, or hinder the officer's efforts to preserve the peace. In re Interest of Richter, 226 Neb. 874, 415 N.W.2d 476 (1987).

Words "violence, force, physical interference, or obstacle" are of common usage and understandable by those of ordinary intelligence and, thus, not unconstitutionally vague. State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986).

The evidence was sufficient to convict the defendant under subsection (1) of this section where the defendant fled in his vehicle because he feared being arrested after he had been questioned by an officer, ordered to exit his vehicle, and approached by two officers and where the defendant disobeyed the officers' orders to get on the ground after the ensuing chase through a residential area. State v. Ellingson, 13 Neb. App. 931, 703 N.W.2d 273 (2005).

There must be some sort of affirmative physical act, or threat thereof, for a violation of this section to occur. State v. Owen, 7 Neb. App. 153, 580 N.W.2d 566 (1998).

28-907. False reporting; penalty.

(1) A person commits the offense of false reporting if he or she:

(a) Furnishes material information he or she knows to be false to any peace officer or other official with the intent to instigate an investigation of an alleged criminal matter or to impede the investigation of an actual criminal matter;

(b) Furnishes information he or she knows to be false alleging the existence of the need for the assistance of an emergency medical service or emergency care provider or an emergency in which human life or property are in jeopardy to any hospital, emergency medical service, or other person or governmental agency;

(c) Furnishes any information, or causes such information to be furnished or conveyed by electric, electronic, telephonic, or mechanical means, knowing the same to be false concerning the need for assistance of a fire department or any personnel or equipment of such department;

(d) Furnishes any information he or she knows to be false concerning the location of any explosive in any building or other property to any person; or

(e) Furnishes material information he or she knows to be false to any governmental department or agency with the intent to instigate an investigation or to impede an ongoing investigation and which actually results in causing or impeding such investigation.

(2)(a) False reporting pursuant to subdivisions (1)(a) through (d) of this section is a Class I misdemeanor.

(b) False reporting pursuant to subdivision (1)(e) of this section is an infraction.

Source:Laws 1977, LB 38, § 192; Laws 1982, LB 347, § 12; Laws 1994, LB 907, § 1; Laws 1997, LB 138, § 36; Laws 2020, LB1002, § 4.

Annotations

1. Elements

2. Miscellaneous

1. Elements

Subsection (1)(a) of this section includes other officials besides police officers who have the authority to investigate actual criminal matters. Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720 N.W.2d 372 (2006).

Subsection (1)(a) of this section prohibits a person from furnishing material information he or she knows to be false to any peace officer or other official with the intent to impede the investigation of an actual criminal matter. Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720 N.W.2d 372 (2006).

To commit the crime of false reporting one need not actually impede a police investigation, but must furnish false information with the intent to impede the investigation of a criminal matter. State v. Gonzales, 224 Neb. 659, 399 N.W.2d 832 (1987).

"To impede the investigation of an actual criminal matter" includes the impeding of the gathering of information as to the identity of a defendant named in an arrest warrant. State v. Nissen, 224 Neb. 60, 395 N.W.2d 560 (1986).

The phrase "the investigation of an actual criminal matter" requires that there be a legitimate and valid investigation of facts which could constitute a predicate criminal offense. State v. Ewing, 221 Neb. 462, 378 N.W.2d 158 (1985).

The defendant's allegedly false statements to the 911 emergency dispatch service concerning crimes being committed at a certain address were made to a peace officer for purposes of the criminal statute prohibiting false reporting of a criminal matter; although the 911 emergency dispatch service was not a branch of law enforcement, it acted as an intermediary used by the general public to reach peace officers, and statements made to the emergency dispatch service were made with the intent to summon a law enforcement officer to that address. State v. Halligan, 20 Neb. App. 87, 818 N.W.2d 650 (2012).

2. Miscellaneous

The purpose of subsection (1)(a) of this section is to prevent the public from willfully furnishing erroneous information to law enforcement officers and thus interfering with the performance of their duties. Interference with an officer's duties includes false statements that impede an officer's gathering of information. Nebraska Legislature on behalf of State v. Hergert, 271 Neb. 976, 720 N.W.2d 372 (2006).

Evidence was sufficient for juvenile court to find beyond a reasonable doubt that defendant had violated provisions of this section. In re Interest of McManaman, 222 Neb. 263, 383 N.W.2d 45 (1986).

Purpose of statute is to prevent wasted time and efforts of law enforcement personnel by discouraging public from willfully furnishing erroneous information to law enforcement officers which may interfere with performance of their duties. In re Interest of McManaman, 222 Neb. 263, 383 N.W.2d 45 (1986).

A local ordinance which did not explicitly require that the false statement be material or be given with the intent to instigate or impede a criminal investigation is not inconsistent with this section where the ordinance does not restrict anything expressly permitted by this section and the provisions are able to coexist. In re Interest of Genevieve C., 13 Neb. App. 665, 698 N.W.2d 462 (2005).

A person must have reliable knowledge of the principal's identity to be guilty as an accessory under section 28-204. Merely reporting false information about a crime without knowledge of the principal's identity constitutes the misdemeanor of false reporting, as defined by this section. State v. Anderson, 10 Neb. App. 163, 626 N.W.2d 627 (2001).

28-908. Interfering with a fireman on official duty; penalty; fireman, defined.

(1) A person commits the offense of interfering with a fireman if at any time and place where any fireman is discharging or attempting to discharge any official duties, he willfully:

(a) Resists or interferes with the lawful efforts of any fireman in the discharge or attempt to discharge an official duty; or

(b) Disobeys the lawful orders given by any fireman while performing his duties; or

(c) Engages in any disorderly conduct which delays or prevents a fire from being extinguished within a reasonable time; or

(d) Forbids or prevents others from assisting or extinguishing a fire or exhorts another person, as to whom he has no legal right or obligation to protect or control, not to assist in extinguishing a fire.

(2) As used in this section, fireman shall mean any person who is an officer, employee, or member of a fire department or fire-protection or firefighting agency of the federal government, the State of Nebraska, a city, county, city and county, district, or other public or municipal corporation or political subdivision of the state, whether such person is a volunteer or partly paid or fully paid, while he is actually engaged in firefighting, fire supervision, fire suppression, fire prevention, or fire investigation.

(3) Interference with a fireman on official duty is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 193.

28-909. Falsifying records of a public utility; penalty.

(1) Any person who shall knowingly falsify or direct or authorize the falsifying of any record of a public utility operating in the State of Nebraska in any manner affecting directly or indirectly the value of its investment or the rate of return or earnings or expenditures of such public utility or who shall certify any reports of the investment, operating receipts, or expenditures of such public utilities to any regulatory body, whether state or municipal, under any statute, order, resolution, or ordinance lawfully passed, knowing such reports so certified to contain any item or element of rebate, secret charge, bonus, or gratuity paid or promised to any officer, stockholder, agent, or other person, directly or indirectly, or knowing such report to be untrue or incomplete in any particular, without disclosing this information in such report, shall be guilty of falsifying records of a public utility.

(2) Falsifying records of a public utility is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 194.

28-910. Filing false reports with regulatory bodies; penalty.

(1) Any firm or corporation operating a public utility in this state which shall file with any regulatory body, whether state or municipal, under any statute, order, resolution, or ordinance lawfully passed, any report or reports containing false statements, knowing the same to be false, affecting directly or indirectly, the value of its investment or the rate of return or earnings or expenditures of such public utility shall be guilty of filing false reports with regulatory bodies.

(2) Filing false reports with regulatory bodies is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 195.

28-911. Abuse of public records; penalty; public record, defined.

(1) A person commits abuse of public records, if:

(a) He knowingly makes a false entry in or falsely alters any public record; or

(b) Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes, or impairs the availability of any public record; or

(c) Knowing he lacks the authority to retain the record, he refuses to deliver up a public record in his possession upon proper request of any person lawfully entitled to receive such record; or

(d) He makes, presents, or uses any record, document, or thing, knowing it to be false, and with the intention that it be taken as a genuine part of the public record.

(2) As used in this section, the term public record includes all official books, papers, or records created, received, or used by or in any governmental office or agency.

(3) Abuse of public records is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 196.

28-912. Escape; official detention, defined; knowingly permitting an escape; penalty; defense to prosecution.

(1) A person commits escape if he or she unlawfully removes himself or herself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. Official detention means arrest, detention in or transportation to any facility for custody of persons under charge or conviction of crime or contempt or for persons alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes. Official detention does not include supervision of probation or parole or constraint incidental to release on bail.

(2) A public servant concerned in detention commits an offense if he or she knowingly permits an escape. Any person who knowingly causes or facilitates an escape commits a Class IV felony.

(3) Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:

(a) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; and

(b) The detaining authority did not act in good faith under color of law.

(4) Except as provided in subsections (5) and (6) of this section, escape is a Class IV felony.

(5) Escape is a Class III felony when:

(a) The detainee was under arrest for or detained on a felony charge or following conviction for the commission of an offense; or

(b) A public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape from a detention facility or from transportation thereto.

(6) Escape is a Class IIA felony when the actor employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape.

Source:Laws 1977, LB 38, § 197; Laws 2015, LB605, § 46.

Annotations

A juvenile is being held in detention pursuant to official proceedings when he flees from a transportation employee that is escorting him to a medical appointment. In re Interest of Matthew P., 275 Neb. 189, 745 N.W.2d 574 (2008).

When an incarcerated criminal defendant is charged with escape under subsection (1) of this section, no prejudice results from trying the defendant while he or she is wearing jail clothing. State v. Sorich, 226 Neb. 547, 412 N.W.2d 484 (1987).

Some degree of custody is essential before one can be considered to be in official detention. Constructive, as distinguished from physical, restraint sufficient to constitute a constructive seizure or detention of an arrestee exists where an officer has the intention to effect an arrest, that intention has in some way been communicated to the arrestee, the arrestee understands that he is under legal restraint, and the officer has apparent present power to control the person even though he has not yet asserted physical control. State v. Hicks, 225 Neb. 322, 404 N.W.2d 923 (1987).

Nebraska's escape statute defines one offense and sets out factors which, if present, change the range of the penalty. State v. Heathman, 224 Neb. 19, 395 N.W.2d 538 (1986).

A person on work release is within the custody and control of the Nebraska Penal and Correctional Complex. Walking away from work release is an "escape" within the meaning of this statute. State v. Stafford, 213 Neb. 595, 330 N.W.2d 739 (1983); State v. Ford, 213 Neb. 594, 330 N.W.2d 497 (1983); State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983).

For purposes of this section, constructive restraint takes place when an officer has the intention to effect an arrest and that intention has been communicated to the arrestee who understands that he is under legal restraint and the officer has the apparent present power to control the arrestee even though he has not asserted physical control. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).

A person who is serving a jail sentence pursuant to official proceedings commits the crime of escape when that person flees while in the custody of a police detective who has removed the person from the jail facility in furtherance of law enforcement purposes. State v. Farr, 209 Neb. 163, 306 N.W.2d 854 (1981).

If a prisoner escapes from jail while he is being held on a charge of violation of probation, the fact that the charge may be unfounded does not prevent him from being guilty of escape. State v. Greaser, 207 Neb. 668, 300 N.W.2d 197 (1981).

Legal custody is an essential element of the crime of escape. State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980).

28-912.01. Juvenile; escapes; prohibited acts; penalty.

Any person who entices or attempts to entice a juvenile away from a facility or program when the juvenile has been legally placed with or committed to the Office of Juvenile Services or who knowingly harbors, transports, conceals, or aids in harboring, transporting, or concealing any juvenile who has escaped from the custody of the Office of Juvenile Services is guilty of a Class IV felony.

Source:Laws 1901, c. 51, § 12, p. 408; R.S.1913, § 7380; C.S.1922, § 7039; C.S.1929, § 83-1110; R.S.1943, § 83-473; Laws 1969, c. 817, § 81, p. 3111; Laws 1977, LB 39, § 315; Laws 1993, LB 31, § 45; Laws 1994, LB 988, § 36; R.S.1943, (1994), § 83-473; Laws 1998, LB 1073, § 9.

28-913. Implements for escape; other contraband; penalty.

(1) A person commits an offense if he unlawfully introduces within a detention facility, or unlawfully provides an inmate with, any weapon, tool, or other thing which may be useful for escape. An inmate commits an offense if he unlawfully procures, makes, or otherwise provides himself with, or has in his possession, any such implement of escape. Unlawfully means surreptitiously or contrary to law, regulation, or order of the detaining authority.

(2) Introducing escape implements is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 198.

Annotations

The crime of escape may, but does not necessarily, include the use of force. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).

28-914. Loitering about a penal institution; penalty.

(1) Any person who loiters about a penal institution in this state and engages in an unauthorized conversation with or passes any unauthorized message or messages to any inmate of such institution, or fails or refuses to leave the immediate vicinity of a penal institution when ordered to do so by a peace officer or correctional official, commits the offense of loitering about a penal institution.

(2) Loitering about a penal institution is a Class III misdemeanor.

(3) For purposes of this section, penal institution includes a jail, prison, penitentiary, house of correction, or other place of penal detention.

Source:Laws 1977, LB 38, § 199; Laws 1995, LB 352, § 1.

28-915. Perjury; subornation of perjury; penalty.

(1) A person is guilty of perjury if, in any (a) official proceeding he or she makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of a statement previously made, when the statement is material and he or she does not believe it to be true or (b) official proceeding in the State of Nebraska he or she makes a false statement in any unsworn declaration meeting the requirements of the Uniform Unsworn Foreign Declarations Act under penalty of perjury when the statement is material and he or she does not believe it to be true. Perjury is a Class III felony.

(2) A person is guilty of subornation of perjury if he or she persuades, procures, or suborns any other person to commit perjury. Subornation of perjury is a Class III felony.

(3) A falsification shall be material, regardless of the admissibility of the statement under rules of evidence, if it could have affected the course or outcome of the proceeding. It shall not be a defense that the declarant mistakenly believed the falsification to be immaterial. Whether a falsification is material in a given factual situation shall be a question of law.

(4) It shall not be a defense to prosecution under this section that the oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement. A document purporting to be made upon oath or affirmation at any time when the actor presents it as being so verified shall be deemed to have been duly sworn or affirmed. A document purporting to meet the requirements of the Uniform Unsworn Foreign Declarations Act shall be deemed to have been made under penalty of perjury.

(5) No person shall be guilty of an offense under this section if he or she retracted the falsification in the course of the proceeding in which it was made before it became manifest that the falsification was or would be exposed and before the falsification substantially affected the proceeding.

(6) When the defendant made inconsistent statements under oath or equivalent affirmation, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single count alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.

(7) No person shall be convicted of an offense under this section when proof of falsity rests solely upon contradiction by testimony of a single person other than the defendant.

Source:Laws 1977, LB 38, § 200; Laws 1987, LB 451, § 3; Laws 2017, LB57, § 1.

Cross References

Uniform Unsworn Foreign Declarations Act, see section 49-1801.

Annotations

For an oath to be "required by law" as a foundation for the crime of perjury in violation of subsection (1) of this section, a specific statute must explicitly require that an oath be administered. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986).

To sustain a conviction for perjury outside a judicial proceeding, there must exist a valid statute which requires the making of a statement under oath. State v. Douglas, 222 Neb. 833, 388 N.W.2d 801 (1986).

In a prosecution for perjury, the falsity of the accused's sworn testimony cannot be established by the testimony of one witness alone, but may be established by testimony of one witness plus corroborative facts and circumstances sufficient to exclude all reasonable doubt of the guilt of the accused. State v. Mayhew, 216 Neb. 761, 346 N.W.2d 237 (1984).

In the absence of a statute imposing civil liability, the policy is to grant witnesses immunity from civil liability for damages resulting from false statements made by them, and to leave the matter of liability for perjury to the criminal law. Stolte v. Blackstone, 213 Neb. 113, 328 N.W.2d 462 (1982).

False sworn deposition testimony given for use in a pending criminal proceeding was considered to have been made in connection with an official proceeding where the statement was material to the accused's guilt or innocence; the statement could therefore form the basis for a charge of subornation of perjury. State v. Meehan, 7 Neb. App. 639, 585 N.W.2d 459 (1998).

28-915.01. False statement under oath or affirmation; penalty; applicability of section.

(1) A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, or makes a false statement in an unsworn declaration that meets the requirements of the Uniform Unsworn Foreign Declarations Act, when he or she does not believe the statement to be true, is guilty of a Class I misdemeanor if the falsification:

(a) Occurs in an official proceeding; or

(b) Is intended to mislead a public servant in performing his or her official function.

(2) A person who makes a false statement under oath or equivalent affirmation, or swears or affirms the truth of such a statement previously made, or makes a false statement in an unsworn declaration that meets the requirements of the Uniform Unsworn Foreign Declarations Act, when he or she does not believe the statement to be true, is guilty of a Class II misdemeanor if the statement is one which is required by law to be sworn or affirmed before a notary or other person authorized to administer oaths.

(3) Subsections (4) through (7) of section 28-915 shall apply to subsections (1) and (2) of this section.

(4) This section shall not apply to reports, statements, affidavits, or other documents made or filed pursuant to the Nebraska Political Accountability and Disclosure Act.

Source:Laws 1987, LB 451, § 4; Laws 2007, LB464, § 1; Laws 2013, LB79, § 1; Laws 2017, LB57, § 2.

Cross References

Nebraska Political Accountability and Disclosure Act, see section 49-1401.

Uniform Unsworn Foreign Declarations Act, see section 49-1801.

Annotations

A person can be convicted of making a false statement under oath when making a statement based on a belief that he or she knows is false. Perjury can be proved either by two witnesses or by one witness, together with material and independently established corroborative facts sufficient to amount to the testimony of another witness. State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558 (1992).

28-916. Terms, defined.

As used in sections 28-916 to 28-923, unless the context otherwise requires:

(1) Juror means any person who is a member of any petit jury or grand jury, impaneled by any court of this state or by any public servant authorized by law to impanel a jury. The word juror also includes any person who has been drawn or summoned to attend as a potential juror;

(2) Testimony means oral or written statements, documents, or any other evidence that may be offered by or through a witness in an official proceeding; and

(3) Official proceeding means a proceeding heard or which may be heard before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or deposition in connection with any such proceeding.

Source:Laws 1977, LB 38, § 201; Laws 2020, LB387, § 40.

28-916.01. Terms, defined.

As used in this section and sections 28-915, 28-915.01, 28-919, and 28-922, unless the context otherwise requires:

(1) Administrative proceeding shall mean any proceeding, other than a judicial proceeding, the outcome of which is required to be based on a record or documentation prescribed by law, or in which law or regulation is particularized in application to individuals;

(2) Benefit shall mean gain or advantage, or anything regarded by the beneficiary as gain or advantage, including benefit to any other person or entity in whose welfare he or she is interested, but not an advantage promised generally to a group or class of voters as a consequence of public measures which a candidate engages to support or oppose;

(3) Government shall include any branch, subdivision, or agency of the government of the state or any locality within it;

(4) Harm shall mean loss, disadvantage, or injury, or anything so regarded by the person affected, including loss, disadvantage, or injury to any other person or entity in whose welfare he or she is interested;

(5) Pecuniary benefit shall mean benefit in the form of money, property, commercial interests, or anything else the primary significance of which is economic gain;

(6) Public servant shall mean any officer or employee of government, including legislators and judges, and any person participating as juror, advisor, consultant, or otherwise, in performing a governmental function, but the term shall not include witnesses;

(7) Official proceeding shall mean a proceeding heard or which may be heard before any legislative, judicial, administrative, or other governmental agency or official authorized to take evidence under oath, including any referee, hearing examiner, commissioner, notary, or other person taking testimony or deposition in connection with any such proceeding; and

(8) Statement shall mean any representation, but shall include a representation of opinion, belief, or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.

Source:Laws 1987, LB 451, § 2; Laws 2019, LB496, § 1.

Annotations

A proceeding is not made official by the formality with which it is conducted; instead, its officiality depends on its purpose and the authority from which it derives. Hence, a false sworn statement made for use in a pending judicial proceeding was considered to have been made in connection with an official proceeding for purposes of subornation of perjury. State v. Meehan, 7 Neb. App. 639, 585 N.W.2d 459 (1998).

28-917. Bribery; penalty.

(1) A person commits bribery if:

(a) He offers, confers, or agrees to confer any benefit upon a public servant or peace officer with the intent to influence that public servant or peace officer to violate his public duty, or oath of office, thereby influencing the public servant's or peace officer's vote, opinion, judgment, exercise of discretion, or other action or inaction in his official capacity; or

(b) While a public servant or peace officer, he solicits, accepts, or agrees to accept any benefit upon an agreement or understanding that he will violate his public duty or oath of office by changing or amending his vote, opinion, judgment, exercise of discretion, or other action or inaction as a public servant or peace officer.

(2) It is no defense to prosecution under this section that the person sought to be influenced was not qualified to act in the desired way, whether because he had not yet assumed office, lacked jurisdiction, or for any other reason.

(3) Bribery is a Class IV felony.

Source:Laws 1977, LB 38, § 202.

Annotations

This section does not repeal by implication section 49-14,101. This section prohibits anyone from conferring or offering to confer "any benefit" upon a public servant with the intent to influence that public servant's actions in his official capacity. State v. Null, 247 Neb. 192, 526 N.W.2d 220 (1995).

The crime of felony bribery is not committed unless the acts of the defendant actually influence a public servant's or peace officer's vote, opinion, judgment, exercise of discretion, or other action or inaction in his or her official capacity. State v. Kao, 3 Neb. App. 727, 531 N.W.2d 555 (1995).

28-918. Bribery of a witness; penalty; witness receiving bribe; penalty.

(1) A person commits bribery of a witness if he offers, confers, or agrees to confer any benefit upon a witness or a person he believes is about to be called as a witness in any official proceeding with intent to:

(a) Influence him to testify falsely or unlawfully withhold any testimony; or

(b) Induce him to avoid legal process summoning him to testify; or

(2) Bribery of a witness is a Class IV felony.

(3) A person who is a witness or has been called as a witness in any official proceeding commits a Class IV felony if he accepts or agrees to accept any benefit from any other person for the purposes set forth in subsection (1) of this section.

Source:Laws 1977, LB 38, § 203.

28-919. Tampering with witness or informant; jury tampering; penalty.

(1) A person commits the offense of tampering with a witness or informant if, believing that an official proceeding or investigation of a criminal or civil matter is pending or about to be instituted, he or she attempts to induce or otherwise cause a witness or informant to:

(a) Testify or inform falsely;

(b) Withhold any testimony, information, document, or thing;

(d) Absent himself or herself from any proceeding or investigation to which he or she has been legally summoned.

(2) A person commits the offense of jury tampering if, with intent to influence a juror's vote, opinion, decision, or other action in a case, he or she attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.

(3) Tampering with witnesses or informants is a Class IV felony, except that if such offense involves a pending criminal proceeding which alleges a violation of another offense classified:

(a) As a Class II misdemeanor or a lower classification or a violation of a city or village ordinance, the offense is a Class I misdemeanor; or

(b) As a Class II felony or a higher classification, the offense is a Class II felony.

(4) Jury tampering is a Class IV felony, except that if such offense involves a pending criminal proceeding which alleges a violation of another offense classified as a Class II felony or a higher classification, the offense is a Class II felony.

Source:Laws 1977, LB 38, § 204; Laws 1994, LB 906, § 1; Laws 2019, LB496, § 2.

Annotations

A defendant's reasons for attempting to induce a witness to commit any of the acts enumerated in this section are not relevant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).

Evidence was sufficient to support a conviction for tampering with a witness, where after the victim reported that she was sexually assaulted, the defendant relayed a message asking the victim to drop the charges; by doing so, the defendant essentially asked the victim to inform falsely or to withhold information. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).

Sufficient evidence was presented from which a jury could conclude beyond a reasonable doubt that the defendant intended to persuade the victim, who is also the witness, to withhold any further information concerning the rape she had reported. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).

A person who has knowledge of a relevant fact or occurrence sufficient to testify in respect to it is a witness for the purpose of this section, even if such knowledge is not firsthand. State v. Cisneros, 248 Neb. 372, 535 N.W.2d 703 (1995).

A witness, for purposes of this provision, is one who has knowledge of a relevant fact or occurrence sufficient to testify in respect to it. State v. McCoy, 227 Neb. 494, 418 N.W.2d 250 (1988).

28-920. Bribery of a juror; penalty; juror receiving bribe; penalty.

(1) A person commits bribery of a juror if he offers, confers, or agrees to confer any benefit upon a juror with intent to influence the juror's vote, opinion, decision, or other action as a juror.

(2) Bribery of a juror is a Class IV felony.

(3) A juror commits a Class IV felony if he accepts or agrees to accept any benefit from another person for the purpose of influencing his vote, opinion, decision, or other action as a juror.

Source:Laws 1977, LB 38, § 205.

28-921. Repealed. Laws 1994, LB 906, § 2.

28-922. Tampering with physical evidence; penalty; physical evidence, defined.

(1) A person commits the offense of tampering with physical evidence if, believing that an official proceeding is pending or about to be instituted and acting without legal right or authority, he or she:

(a) Destroys, mutilates, conceals, removes, or alters physical evidence with the intent to impair its verity or availability in the pending or prospective official proceeding; or

(b) Knowingly makes, presents, or offers any false physical evidence with intent that it be introduced in the pending or prospective official proceeding.

(2) Physical evidence, as used in this section, shall mean any article, object, document, record, or other thing of physical substance.

(3) Tampering with physical evidence is a Class IV felony, except that if such offense involves a pending criminal proceeding which alleges a violation of another offense classified:

(a) As a Class II misdemeanor or a lower classification or a violation of a city or village ordinance, the offense is a Class I misdemeanor; or

(b) As a Class II felony or a higher classification, the offense is a Class II felony.

Source:Laws 1977, LB 38, § 207; Laws 2019, LB496, § 3.

Annotations

The crime of tampering with physical evidence, as defined by subdivision (1)(a) of this section, does not include mere abandonment of physical evidence in the presence of law enforcement. State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).

To conceal or remove physical evidence, within the meaning of subdivision (1)(a) of this section, is to act in a way that will prevent it from being disclosed or recognized. State v. Lasu, 278 Neb. 180, 768 N.W.2d 447 (2009).

28-923. Simulating legal process; penalty.

(1) A person commits the offense of simulating legal process if he sends, delivers, or mails or in any manner shall cause to be sent, delivered, or mailed, any paper or document simulating or intended to simulate a summons, complaint, writ, or other court process of any kind, to any person, firm, company, or corporation, for the purpose and intent of forcing payment of any alleged claim, debt, or legal obligation.

(2) Simulating legal process is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 208.

28-924. Official misconduct; penalty.

(1) A public servant commits official misconduct if he knowingly violates any statute or lawfully adopted rule or regulation relating to his official duties.

(2) Official misconduct is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 209.

Annotations

Failure by a county attorney to reside in the county he or she holds office in is not official misconduct. Hynes v. Hogan, 251 Neb. 404, 558 N.W.2d 35 (1997).

28-925. Misuse of official information; penalty.

(1) Any public servant, in contemplation of official action by himself or by a governmental unit with which he is associated, or in reliance on information to which he has access in his official capacity and which has not been made public, commits misuse of official information if he:

(a) Acquires pecuniary interest in any property, transaction, or enterprise which may be affected by such information or official action; or

(b) Speculates or wagers on the basis of such information or official action; or

(c) Aids, advises, or encourages another to do any of the foregoing with intent to confer on any person a special pecuniary benefit.

(2) Misuse of official information is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 210.

28-926. Oppression under color of office; penalty.

(1) Any public servant or peace officer who, by color of or in the execution of his office, shall designedly, willfully, or corruptly injure, deceive, harm, or oppress any person, or shall attempt to injure, deceive, harm, or oppress any person, commits oppression under color of office, and shall be answerable to the party so injured, deceived, or harmed or oppressed in treble damages.

(2) Oppression under color of office is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 211.

Annotations

This section is penal in nature and makes no provision for plaintiff to elect between actual and treble damages. An action pursuant to this section is one "upon a statute for a penalty" and is subject to the 1-year statute of limitations of section 25-208. LaBenz Trucking v. Snyder, 246 Neb. 468, 519 N.W.2d 259 (1994).

Because this section is a criminal statute, a prosecution and conviction of public servants for the crime of oppression under color of office is necessary before any damages or penalties will be assessed. Cole v. Wilson, 11 Neb. App. 837, 661 N.W.2d 706 (2003).

This section is purely criminal in nature and does not provide for an independent civil remedy. Cole v. Wilson, 11 Neb. App. 837, 661 N.W.2d 706 (2003).

Treble damages under this section would not be payable to the individual who was oppressed. Cole v. Wilson, 11 Neb. App. 837, 661 N.W.2d 706 (2003).

28-927. Neglecting to serve a warrant; penalty; forfeiture of office.

(1) When any warrant legally issued by any magistrate in this state in any criminal case shall be delivered into the hands of any sheriff or other officer to be executed, whose duty it shall be to execute such warrant, it is hereby made the duty of such sheriff or other officer to serve the same immediately, and if such sheriff or other officer shall neglect or delay to serve any such warrant, delivered to him or her as aforesaid, when in his or her power to serve the same, either alone or by calling upon assistance according to law, he or she commits the offense of neglecting to serve a warrant.

(2) Neglecting to serve a warrant is a Class II misdemeanor if the offense charged for which the warrant was issued is a felony.

(3) Neglecting to serve a warrant is a Class III misdemeanor if the offense charged for which the warrant was issued is a misdemeanor.

(4) Any sheriff or other officer who is convicted under this section shall immediately forfeit his or her office.

Source:Laws 1977, LB 38, § 212; Laws 1988, LB 1030, § 20.

28-928. Mutilating a flag; penalty; flag, defined.

(1) A person commits the offense of mutilating a flag if such person intentionally casts contempt or ridicule upon a flag by mutilating, defacing, defiling, burning, or trampling upon such flag.

(2) Flag as used in this section shall mean any flag, ensign, banner, standard, colors, or replica or representation thereof which is an official or commonly recognized symbol of the United States or the State of Nebraska.

(3) Mutilation of a flag is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 213.

28-929. Assault on an officer, an emergency responder, certain employees, or a health care professional in the first degree; penalty.

(1) A person commits the offense of assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the first degree if:

(a) He or she intentionally or knowingly causes serious bodily injury:

(i) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;

(ii) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or

(iii) To a health care professional; and

(b) The offense is committed while such officer, firefighter, emergency care provider, or employee is engaged in the performance of his or her official duties or while the health care professional is on duty at a hospital or a health clinic.

(2) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the first degree shall be a Class ID felony.

Source:Laws 1982, LB 465, § 3; Laws 2005, LB 538, § 1; Laws 2009, LB63, § 7; Laws 2010, LB771, § 4; Laws 2012, LB677, § 1; Laws 2014, LB811, § 17; Laws 2020, LB1002, § 5.

Cross References

Sex Offender Commitment Act, see section 71-1201.

28-929.01. Assault on an emergency care provider or a health care professional; terms, defined.

For purposes of sections 28-929, 28-929.02, 28-930, 28-931, and 28-931.01:

(1) Emergency care provider means (a) an emergency medical responder; (b) an emergency medical technician; (c) an advanced emergency medical technician; (d) a community paramedic; (e) a critical care paramedic; or (f) a paramedic, as those persons are licensed and classified under the Emergency Medical Services Practice Act;

(2) Health care professional means a physician or other health care practitioner who is licensed, certified, or registered to perform specified health services consistent with state law who practices at a hospital or a health clinic;

(3) Health clinic has the definition found in section 71-416; and

(4) Hospital has the definition found in section 71-419.

Source:Laws 2012, LB677, § 4; Laws 2014, LB811, § 18; Laws 2020, LB1002, § 6.

Cross References

Emergency Medical Services Practice Act, see section 38-1201.

28-929.02. Assault on a health care professional; hospital and health clinic; sign required.

Every hospital and health clinic shall display at all times in a prominent place a printed sign with a minimum height of twenty inches and a minimum width of fourteen inches, with each letter to be a minimum of one-fourth inch in height, which shall read as follows:

WARNING: ASSAULTING A HEALTH CARE PROFESSIONAL WHO IS ENGAGED IN THE PERFORMANCE OF HIS OR HER OFFICIAL DUTIES, INCLUDING STRIKING A HEALTH CARE PROFESSIONAL WITH ANY BODILY FLUID, IS A SERIOUS CRIME WHICH MAY BE PUNISHABLE AS A FELONY.

Source:Laws 2012, LB677, § 5; Laws 2018, LB913, § 1.

28-930. Assault on an officer, an emergency responder, certain employees, or a health care professional in the second degree; penalty.

(a) He or she:

(i) Intentionally or knowingly causes bodily injury with a dangerous instrument:

(A) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;

(B) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or

(ii) Recklessly causes bodily injury with a dangerous instrument:

(A) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;

(B) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or

(2) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the second degree shall be a Class II felony.

Source:Laws 1982, LB 465, § 4; Laws 2005, LB 538, § 2; Laws 2009, LB63, § 8; Laws 2010, LB771, § 5; Laws 2012, LB677, § 2; Laws 2014, LB811, § 19; Laws 2020, LB1002, § 7.

Cross References

Sex Offender Commitment Act, see section 71-1201.

Annotations

Pepper spray is a dangerous instrument, as it is an object which, because of its nature and the manner and intention of its use, is capable of inflicting bodily injury. State v. Simmons, 23 Neb. App. 462, 872 N.W.2d 293 (2015).

In determining whether an off-duty officer working in a secondary employment capacity is performing official duties within the meaning of this section, one should examine the nature of the acts the officer is performing at the time of the incident as well as the circumstances surrounding those acts and the secondary employment. State v. Wilen, 4 Neb. App. 132, 539 N.W.2d 650 (1995).

There is no crime in this state for attempted reckless assault on a peace officer in the second degree. State v. Hemmer, 3 Neb. App. 769, 531 N.W.2d 559 (1995).

28-931. Assault on an officer, an emergency responder, certain employees, or a health care professional in the third degree; penalty.

(a) He or she intentionally, knowingly, or recklessly causes bodily injury:

(i) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;

(ii) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or

(iii) To a health care professional; and

(2) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the third degree shall be a Class IIIA felony.

Source:Laws 1982, LB 465, § 5; Laws 1997, LB 364, § 11; Laws 2005, LB 538, § 3; Laws 2010, LB771, § 6; Laws 2012, LB677, § 3; Laws 2014, LB811, § 20; Laws 2020, LB1002, § 8.

Cross References

Sex Offender Commitment Act, see section 71-1201.

Annotations

The status of the victim under this section is an element of the crime and is not a subsequent offense penalty enhancement. State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).

For purposes of this section, the State must prove that the victim assaulted was a peace officer engaged in the performance of his or her official duties, but is not required to prove that the defendant was so aware. State v. Cebuhar, 252 Neb. 796, 567 N.W.2d 129 (1997).

Evidence that defendant hit a police officer with his right forearm and poked the officer in the eye when the officer attempted to prevent defendant from leaving an interviewing room while under arrest was sufficient to sustain the jury's guilty verdicts. Proof that the officer sustained bruises or other visible injuries is not required to prove third degree assault on an officer under this section. State v. Green, 240 Neb. 639, 483 N.W.2d 748 (1992).

A deputy sheriff is a peace officer. Assault on a peace officer in the third degree is committed when an on-duty deputy sheriff is slapped, and the deputy sheriff suffers physical pain. State v. Melton, 239 Neb. 576, 477 N.W.2d 154 (1991).

A police officer is a peace officer for purposes of this section. State v. Fly, 236 Neb. 408, 461 N.W.2d 421 (1990).

Jury properly advised that only reasonably necessary force may be used when making an arrest and that a person attacked so as to cause fear of bodily injury may use reasonable necessary force in defense. State v. Wallace, 223 Neb. 465, 390 N.W.2d 530 (1986).

An employee of the Douglas County Board of Corrections is considered a jailer and, therefore, a peace officer for the purposes of this section. State v. Parks, 8 Neb. App. 491, 596 N.W.2d 712 (1999).

28-931.01. Assault on an officer, an emergency responder, certain employees, or a health care professional using a motor vehicle; penalty.

(a) By using a motor vehicle to run over or to strike an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional or by using a motor vehicle to collide with an officer's, an emergency responder's, a state correctional employee's, a Department of Health and Human Services employee's, or a health care professional's motor vehicle, he or she intentionally and knowingly causes bodily injury:

(i) To a peace officer, a probation officer, a firefighter, an emergency care provider, or an employee of the Department of Correctional Services;

(ii) To an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act; or

(iii) To a health care professional; and

(2) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional using a motor vehicle shall be a Class IIIA felony.

Source:Laws 1995, LB 371, § 31; Laws 1997, LB 364, § 12; Laws 2005, LB 538, § 4; Laws 2010, LB771, § 7; Laws 2014, LB811, § 21; Laws 2020, LB1002, § 9.

Cross References

Sex Offender Commitment Act, see section 71-1201.

28-932. Confined person; person in legal custody of Department of Correctional Services; dangerous sex offender; assault; penalty; sentence.

(1) Any person (a)(i) who is legally confined in a jail or an adult correctional or penal institution, (ii) who is otherwise in legal custody of the Department of Correctional Services, or (iii) who is committed as a dangerous sex offender under the Sex Offender Commitment Act and (b) who intentionally, knowingly, or recklessly causes bodily injury to another person shall be guilty of a Class IIIA felony, except that if a deadly or dangerous weapon is used to commit such assault, he or she shall be guilty of a Class IIA felony.

(2) Sentences imposed under subsection (1) of this section shall be consecutive to any sentence or sentences imposed for violations committed prior to the violation of subsection (1) of this section and shall not include any credit for time spent in custody prior to sentencing unless the time in custody is solely related to the offense for which the sentence is being imposed under this section.

Source:Laws 1982, LB 465, § 6; Laws 1997, LB 364, § 13; Laws 2010, LB771, § 8; Laws 2015, LB605, § 47.

Cross References

Sex Offender Commitment Act, see section 71-1201.

Annotations

Before there can be a violation of this section, a bodily injury must occur to another person that is proximately caused by an intentional, knowing, or reckless overt act of a legally confined person or the legally confined person's accomplice. State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).

This section primarily prohibits a lawfully confined person from injuring another person by intentionally, knowingly, or recklessly committing a battery upon the other person. State v. Auman, 232 Neb. 341, 440 N.W.2d 254 (1989).

The use of a deadly or dangerous weapon in the commission of an assault by a confined person is an element of the offense which must be submitted to the jury and proved beyond a reasonable doubt, because the use of a weapon increases the offense of assault by a confined person from a Class IIIA felony to a Class IIA felony. State v. Jenkins, 28 Neb. App. 931, 950 N.W.2d 124 (2020).

To prove legal confinement under this section, the State is required to prove only that the defendant was technically in the custody of law enforcement, not that the defendant was substantively confined in a lawful manner. State v. McKay, 15 Neb. App. 169, 723 N.W.2d 644 (2006).

28-933. Confined person; person in legal custody of Department of Correctional Services; dangerous sex offender; offenses against another person; penalty; sentence.

(1) Any person (a)(i) who is legally confined in a jail or an adult correctional or penal institution, (ii) who is otherwise in legal custody of the Department of Correctional Services, or (iii) who is committed as a dangerous sex offender under the Sex Offender Commitment Act and (b) who commits (i) assault in the first, second, or third degree as defined in sections 28-308 to 28-310, (ii) terroristic threats as defined in section 28-311.01, (iii) kidnapping as defined in section 28-313, or (iv) false imprisonment in the first or second degree as defined in sections 28-314 and 28-315, against any person for the purpose of compelling or inducing the performance of any act by such person or any other person shall be guilty of a Class II felony.

(2) Sentences imposed under subsection (1) of this section shall be served consecutive to any sentence or sentences imposed for violations committed prior to the violation of subsection (1) of this section and shall not include any credit for time spent in custody prior to sentencing unless the time in custody is solely related to the offense for which the sentence is being imposed under this section.

Source:Laws 1982, LB 465, § 7; Laws 1986, LB 956, § 13; Laws 2010, LB771, § 9.

Cross References

Sex Offender Commitment Act, see section 71-1201.

28-934. Assault with a bodily fluid against a public safety officer; penalty; order to collect evidence.

(1) Any person who knowingly and intentionally strikes any public safety officer with any bodily fluid is guilty of assault with a bodily fluid against a public safety officer.

(2) Except as provided in subsection (3) of this section, assault with a bodily fluid against a public safety officer is a Class I misdemeanor.

(3) Assault with a bodily fluid against a public safety officer is a Class IIIA felony if the person committing the offense strikes with a bodily fluid the eyes, mouth, or skin of a public safety officer and knew the source of the bodily fluid was infected with the human immunodeficiency virus, hepatitis B, or hepatitis C at the time the offense was committed.

(4) Upon a showing of probable cause by affidavit to a judge of this state that an offense as defined in subsection (1) of this section has been committed and that identifies the probable source of the bodily fluid or bodily fluids used to commit the offense, the judge shall grant an order or issue a search warrant authorizing the collection of any evidence, including any bodily fluid or medical records or the performance of any medical or scientific testing or analysis, that may assist with the determination of whether or not the person committing the offense or the person from whom the person committing the offense obtained the bodily fluid or bodily fluids is infected with the human immunodeficiency virus, hepatitis B, or hepatitis C.

(5) As used in this section:

(a) Bodily fluid means any naturally produced secretion or waste product generated by the human body and shall include, but not be limited to, any quantity of human blood, urine, saliva, mucus, vomitus, seminal fluid, or feces; and

(b) Public safety officer includes any of the following persons who are engaged in the performance of their official duties at the time of the offense: A peace officer; a probation officer; a firefighter; an emergency care provider as defined in section 28-929.01; a health care professional as defined in section 28-929.01; an employee of a county, city, or village jail; an employee of the Department of Correctional Services; an employee of the secure youth confinement facility operated by the Department of Correctional Services, if the person committing the offense is committed to such facility; an employee of a youth rehabilitation and treatment center; or an employee of the Department of Health and Human Services if the person committing the offense is committed as a dangerous sex offender under the Sex Offender Commitment Act.

Source:Laws 2011, LB226, § 2; Laws 2014, LB811, § 22; Laws 2018, LB913, § 2; Laws 2020, LB1002, § 10; Laws 2021, LB273, § 1.

Cross References

Sex Offender Commitment Act, see section 71-1201.

28-935. Fraudulently filing a financing statement, lien, or document; penalty.

(1) A person commits the offense of fraudulently filing a financing statement, lien, or document if the person directly, or through an intermediary, submits for filing or recording in the public record, as defined in section 28-911:

(a) Any document purporting to create a nonconsensual common-law lien, as defined in section 52-1901, knowing or having reason to know that the lien is a nonconsensual common-law lien;

(b) A financing statement pursuant to article 9, Uniform Commercial Code, knowing or having reason to know that the financing statement is not based on a bona fide security agreement or was not authorized or authenticated by the alleged debtor identified in the financing statement or an authorized representative of the alleged debtor; or

(c) Any document filed in an attempt to harass an entity, individual, or public official or obstruct a government operation or judicial proceeding, knowing or having reason to know such document contained false information.

(2) Fraudulently filing a financing statement, lien, or document is a Class IV felony.

(3) Lack of belief in the jurisdiction or authority of the state or of the government of the United States is no defense to prosecution under this section.

Source:Laws 2013, LB3, § 2.

28-936. Electronic communication device; possession within facility; provided to inmate; penalty; seizure; disposition.

(1) A person commits an offense if he or she intentionally introduces within a facility, or intentionally provides an inmate of a facility with, any electronic communication device. An inmate commits an offense if he or she intentionally procures, makes, or otherwise provides himself or herself with, or has in his or her possession, any electronic communication device.

(2) This section does not apply to:

(a) An attorney or an attorney's agent visiting an inmate who is a client of such attorney;

(b) The Public Counsel or any employee of his or her office;

(d) An emergency responder or a firefighter responding to emergency incidents within a facility; or

(e) Any person acting with the permission of the Director of Correctional Services or in accordance with rules, regulations, or policies of the Department of Correctional Services.

(3) For purposes of this section:

(a) Facility has the same meaning as in section 83-170; and

(b) Electronic communication device means any device which, in its ordinary and intended use, transmits by electronic means writings, sounds, visual images, or data of any nature to another electronic communication device. Electronic communication device does not include any device provided to an inmate by the Department of Correctional Services.

(4) A violation of this section is a Class I misdemeanor.

(5) An electronic communication device involved in a violation of this section shall be subject to seizure by the Department of Correctional Services or a peace officer, and disposition may be made in accordance with the method of disposition directed for contraband in sections 29-818 and 29-820.

Source:Laws 2019, LB686, § 3.

28-1001. Repealed. Laws 1990, LB 50, § 13.

28-1002. Repealed. Laws 1990, LB 50, § 13.

28-1003. Transferred to section 28-1010.

28-1004. Terms, defined.

As used in this section and section 28-1005, unless the context otherwise requires:

(1) Bearbaiting shall mean the pitting of any animal against a bear;

(2) Cockfighting shall mean the pitting of a fowl against another fowl;

(3) Dogfighting shall mean the pitting of a dog against another dog; and

(4) Pitting shall mean bringing animals together in combat.

Source:Laws 1988, LB 170, § 2.

28-1005. Dogfighting, cockfighting, bearbaiting, or pitting an animal against another; prohibited acts; penalty.

(1) No person shall knowingly:

(a) Promote, engage in, or be employed at dogfighting, cockfighting, bearbaiting, or pitting an animal against another;

(b) Receive money for the admission of another person to a place kept for such purpose;

(d) Permit any act as described in this subsection to occur on any premises owned or controlled by him or her.

(2) Any person violating subsection (1) of this section shall be guilty of a Class IIIA felony and shall also be subject to section 28-1019.

(3) No person shall knowingly and willingly be present at and witness as a spectator dogfighting, cockfighting, bearbaiting, or the pitting of an animal against another as prohibited in subsection (1) of this section. Any person who violates any provision of this subsection shall be guilty of a Class IIIA felony and shall also be subject to section 28-1019.

Source:Laws 1988, LB 170, § 3; Laws 2003, LB 273, § 3; Laws 2013, LB329, § 1; Laws 2015, LB605, § 48.

28-1005.01. Ownership or possession of animal fighting paraphernalia; penalty.

(1) No person shall knowingly or intentionally own or possess animal fighting paraphernalia with the intent to commit a violation of section 28-1005.

(2)(a) For purposes of this section, except as provided in subdivision (b) of this subsection, animal fighting paraphernalia means equipment, products, and materials of any kind that are used, intended for use, or designed for use in the training, preparation, conditioning, or furtherance of the pitting of an animal against another as defined in section 28-1004. Animal fighting paraphernalia includes, but is not limited to, the following:

(i) A breaking stick, which means a device designed for insertion behind the molars of a dog for the purpose of breaking the dog's grip on another animal or object;

(ii) A cat mill, which means a device that rotates around a central support with one arm designed to secure a dog and one arm designed to secure a cat, rabbit, or other small animal beyond the grasp of the dog;

(iii) A treadmill, which means an exercise device consisting of an endless belt on which the animal walks or runs without changing place;

(iv) A fighting pit, which means a walled area designed to contain an animal fight;

(v) A springpole, which means a biting surface attached to a stretchable device, suspended at a height sufficient to prevent a dog from reaching the biting surface while touching the ground;

(vi) A heel, which means any edged or pointed instrument designed to be attached to the leg of a fowl;

(vii) A boxing glove or muff, which means a fitted protective covering for the spurs of a fowl; and

(viii) Any other instrument commonly used in the furtherance of pitting an animal against another.

(b) Animal fighting paraphernalia does not include equipment, products, or materials of any kind used by a veterinarian licensed to practice veterinary medicine and surgery in this state.

(3) Any person violating subsection (1) of this section is guilty of a Class I misdemeanor and may also be subject to section 28-1019.

Source:Laws 2010, LB252, § 2; Laws 2013, LB329, § 2.

28-1006. Investigation; arrest; seizure of property; reimbursement of expenses.

(1) It shall be the duty of the sheriff, a police officer, or the Nebraska State Patrol to make prompt investigation of and arrest for any violation of section 28-1005 or 28-1005.01.

(2) Any equipment, device, or other property or things involved in any violation of section 28-1005 or 28-1005.01 shall be subject to seizure, and disposition may be made in accordance with the method of disposition directed for contraband in sections 29-818 and 29-820.

(3) Any animal involved in any violation of section 28-1005 or 28-1005.01 shall be subject to seizure. Distribution or disposition shall be made as provided in section 28-1012.01 and in such manner as the court may direct. The court may give preference to adoption alternatives through humane societies or comparable institutions and to the protection of such animal's welfare. For a humane society or comparable institution to be considered as an adoption alternative under this subsection, it must first be licensed by the Department of Agriculture as having passed the inspection requirements in the Commercial Dog and Cat Operator Inspection Act and paid the fee for inspection under the act. The court may prohibit an adopting or purchasing party from selling such animal for a period not to exceed one year.

(4) In addition to any other sentence given for a violation of section 28-1005 or 28-1005.01, the sentencing court may order the defendant to reimburse a public or private agency for expenses incurred in conjunction with the care, impoundment, or disposal, including adoption, of an animal involved in the violation of section 28-1005 or 28-1005.01. Whenever the court believes that such reimbursement may be a proper sentence or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the expenses incurred. The court may order that reimbursement be made immediately, in specified installments, or within a specified period of time, not to exceed five years after the date of judgment.

Source:Laws 1988, LB 170, § 4; Laws 1997, LB 551, § 1; Laws 2002, LB 82, § 5; Laws 2010, LB252, § 3; Laws 2010, LB712, § 11; Laws 2015, LB360, § 1.

Cross References

Commercial Dog and Cat Operator Inspection Act, see section 54-625.

28-1007. Sections, how construed.

Sections 28-1004 to 28-1006 shall not be construed to amend or in any manner change the authority of the Game and Parks Commission under the Game Law, to prohibit any conduct authorized or permitted in the Game Law, or to prohibit the training of animals for any purpose not prohibited by law.

Source:Laws 1988, LB 170, § 5; Laws 1998, LB 922, § 393; Laws 2010, LB252, § 4.

Cross References

Game Law, see section 37-201.

28-1008. Terms, defined.

For purposes of sections 28-1008 to 28-1017, 28-1019, and 28-1020:

(1) Abandon means to leave any animal in one's care, whether as owner or custodian, for any length of time without making effective provision for its food, water, or other care as is reasonably necessary for the animal's health;

(2) Animal means any vertebrate member of the animal kingdom. Animal does not include an uncaptured wild creature or a livestock animal as defined in section 54-902;

(3) Cruelly mistreat means to knowingly and intentionally kill, maim, disfigure, torture, beat, kick, hit, strike in any manner, mutilate, burn, scald, or otherwise inflict harm upon any animal;

(4) Cruelly neglect means to fail to provide any animal in one's care, whether as owner or custodian, with food, water, or other care as is reasonably necessary for the animal's health;

(5) Humane killing means the destruction of an animal by a method which causes the animal a minimum of pain and suffering;

(6) Law enforcement officer means any member of the Nebraska State Patrol, any county or deputy sheriff, any member of the police force of any city or village, or any other public official authorized by a city or village to enforce state or local animal control laws, rules, regulations, or ordinances. Law enforcement officer also includes a special investigator appointed as a deputy state sheriff as authorized pursuant to section 81-201 while acting within the authority of the Director of Agriculture under the Commercial Dog and Cat Operator Inspection Act;

(7) Mutilation means intentionally causing permanent injury, disfigurement, degradation of function, incapacitation, or imperfection to an animal. Mutilation does not include conduct performed by a veterinarian licensed to practice veterinary medicine and surgery in this state or conduct that conforms to accepted veterinary practices;

(8) Owner or custodian means any person owning, keeping, possessing, harboring, or knowingly permitting an animal to remain on or about any premises owned or occupied by such person;

(9) Police animal means a horse or dog owned or controlled by the State of Nebraska or any county, city, or village for the purpose of assisting a law enforcement officer in the performance of his or her official enforcement duties;

(10) Repeated beating means intentional successive strikes to an animal by a person resulting in serious injury or illness or death to the animal;

(11) Serious injury or illness includes any injury or illness to any animal which creates a substantial risk of death or which causes broken bones, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ; and

(12) Torture means intentionally subjecting an animal to extreme pain, suffering, or agony. Torture does not include conduct performed by a veterinarian licensed to practice veterinary medicine and surgery in this state or conduct that conforms to accepted veterinary practices.

Source:Laws 1990, LB 50, § 1; Laws 1995, LB 283, § 2; Laws 2003, LB 273, § 4; Laws 2006, LB 856, § 11; Laws 2007, LB227, § 1; Laws 2008, LB764, § 2; Laws 2008, LB1055, § 2; Laws 2009, LB494, § 1; Laws 2010, LB865, § 13; Laws 2012, LB721, § 2; Laws 2015, LB360, § 2; Laws 2022, LB851, § 1.

Cross References

Commercial Dog and Cat Operator Inspection Act, see section 54-625.

28-1009. Abandonment; cruel neglect; harassment of a police animal; penalty.

(1) A person who intentionally, knowingly, or recklessly abandons or cruelly neglects an animal is guilty of a Class I misdemeanor unless the abandonment or cruel neglect results in serious injury or illness or death of the animal, in which case it is a Class IV felony.

(2)(a) Except as provided in subdivision (b) of this subsection, a person who cruelly mistreats an animal is guilty of a Class I misdemeanor for the first offense and a Class IIIA felony for any subsequent offense.

(b) A person who cruelly mistreats an animal is guilty of a Class IIIA felony if such cruel mistreatment involves the knowing and intentional torture, repeated beating, or mutilation of the animal.

(3) A person commits harassment of a police animal if he or she knowingly and intentionally teases or harasses a police animal in order to distract, agitate, or harm the police animal for the purpose of preventing such animal from performing its legitimate official duties. Harassment of a police animal is a Class IV misdemeanor unless the harassment is the proximate cause of the death of the police animal, in which case it is a Class IIIA felony.

(4) A person convicted of a Class I misdemeanor under this section may also be subject to section 28-1019. A person convicted of a felony under this section shall also be subject to section 28-1019.

Source:Laws 1990, LB 50, § 2; Laws 1995, LB 283, § 3; Laws 2002, LB 82, § 6; Laws 2003, LB 273, § 5; Laws 2007, LB227, § 2; Laws 2013, LB329, § 3; Laws 2014, LB674, § 1; Laws 2015, LB605, § 49; Laws 2022, LB829, § 1.

Annotations

Under section 28-1019, if a person is convicted of a Class IV felony under this section, the sentencing court shall order such person not to own, possess, or reside with any animal for at least 5 years and no more than 15 years after the date of conviction. State v. Meduna, 18 Neb. App. 818, 794 N.W.2d 160 (2011).

Under subsection (1) of this section, a person who intentionally, knowingly, or recklessly abandons or cruelly neglects an animal is guilty of a Class I misdemeanor, unless the abandonment or cruel neglect results in serious injury or illness or death of the animal, in which case it is a Class IV felony. State v. Meduna, 18 Neb. App. 818, 794 N.W.2d 160 (2011).

28-1009.01. Violence on a service animal; interference with a service animal; penalty.

(1) A person commits the offense of violence on a service animal when he or she (a) intentionally injures, harasses, or threatens to injure or harass or (b) attempts to intentionally injure, harass, or threaten an animal that he or she knows or has reason to believe is a service animal for a blind or visually impaired person, a deaf or hard of hearing person, or a physically limited person.

(2) A person commits the offense of interference with a service animal when he or she (a) intentionally impedes, interferes, or threatens to impede or interfere or (b) attempts to intentionally impede, interfere, or threaten to impede or interfere with an animal that he or she knows or has reason to believe is a service animal for a blind or visually impaired person, a deaf or hard of hearing person, or a physically limited person.

(3) Evidence that the defendant initiated or continued conduct toward an animal as described in subsection (1) or (2) of this section after being requested to avoid or discontinue such conduct by the blind, visually impaired, deaf or hard of hearing, or physically limited person being served or assisted by the animal shall create a rebuttable presumption that the conduct of the defendant was initiated or continued intentionally.

(4) For purposes of this section:

(a) Blind person means a person with totally impaired vision or with vision, with or without correction, which is so severely impaired that the primary means of receiving information is through other sensory input, including, but not limited to, braille, mechanical reproduction, synthesized speech, or readers;

(b) Deaf person means a person with totally impaired hearing or with hearing, with or without amplification, which is so severely impaired that the primary means of receiving spoken language is through other sensory input, including, but not limited to, lip reading, sign language, finger spelling, or reading;

(c) Hard of hearing person means a person who is unable to hear air conduction thresholds at an average of forty decibels or greater in the person's better ear;

(d) Physically limited person means a person having limited ambulatory abilities, including, but not limited to, having a permanent impairment or condition that requires the person to use a wheelchair or to walk with difficulty or insecurity to the extent that the person is insecure or exposed to danger; and

(e) Visually impaired person means a person having a visual acuity of 20/200 or less in the person's better eye with correction or having a limitation to the person's field of vision so that the widest diameter of the visual field subtends an angular distance not greater than twenty degrees.

(5) Violence on a service animal or interference with a service animal is a Class III misdemeanor.

Source:Laws 1997, LB 814, § 1; Laws 2008, LB806, § 11; Laws 2019, LB248, § 5.

28-1009.02. Repealed. Laws 2010, LB 865, § 17.

28-1009.03. Repealed. Laws 2010, LB 865, § 17.

28-1010. Indecency with an animal; penalty.

A person commits indecency with an animal when such person subjects an animal to sexual penetration as defined in section 28-318. Indecency with an animal is a Class III misdemeanor. A person convicted under this section may also be subject to section 28-1019.

Source:Laws 1977, LB 38, § 216; Laws 1978, LB 748, § 16; R.S.1943, (1989), § 28-1003; Laws 1990, LB 50, § 3; Laws 2009, LB97, § 16; Laws 2013, LB329, § 4.

28-1011. Violations; liability for expenses.

(1) In addition to any other sentence given for a violation of section 28-1009 or 28-1010, the sentencing court may order the defendant to reimburse a public or private agency for any unreimbursed expenses incurred in conjunction with the care, impoundment, seizure, or disposal of an animal involved in the violation of such section. Whenever the court believes that such reimbursement may be a proper sentence or the prosecuting attorney requests, the court shall order that the presentence investigation report include documentation regarding the nature and amount of the expenses incurred. The court may order that reimbursement be made immediately, in specified installments, or within a specified period of time, not to exceed five years after the date of judgment.

(2) Even if reimbursement for expenses is not ordered under subsection (1) of this section, the defendant shall be liable for all unreimbursed expenses incurred by a public or private agency in conjunction with the care, impoundment, seizure, or disposal of an animal. The expenses shall be a lien upon the animal.

Source:Laws 1990, LB 50, § 5; Laws 1997, LB 551, § 2; Laws 2015, LB360, § 3.

28-1012. Law enforcement officer; powers and duties; immunity; seizure; court powers.

(1) A law enforcement officer who has reason to believe that an animal has been abandoned or is being cruelly neglected or cruelly mistreated may seek a warrant authorizing entry upon private property to inspect, care for, or impound the animal.

(2) It shall be the duty of a law enforcement officer who has reason to believe that an animal has been abandoned or is being cruelly neglected or cruelly mistreated to make prompt investigation of such violation. A law enforcement officer may, in lieu of making an arrest, issue a citation to the owner or custodian as prescribed in sections 29-422 to 29-429.

(3) Any equipment, device, or other property or things involved in a violation of section 28-1009 or 28-1010 shall be subject to seizure, and distribution or disposition may be made in such manner as the court may direct. Any animal involved in a violation of section 28-1009 or 28-1010 shall be subject to seizure. Distribution or disposition shall be made under section 28-1012.01 as the court may direct.

(4) Any law enforcement officer acting under this section shall not be liable for damage to property if such damage is not the result of the officer's negligence.

Source:Laws 1990, LB 50, § 4; Laws 1997, LB 551, § 3; Laws 2002, LB 82, § 7; Laws 2010, LB712, § 12; Laws 2015, LB360, § 4; Laws 2022, LB851, § 2.

28-1012.01. Animal seized; court powers; county attorney; duties; hearing; notice; animal abandoned or cruelly neglected or mistreated; bond or other security; appeal; section, how construed.

(1) Any animal seized under a search warrant or validly seized without a warrant may be kept on the property of the owner or custodian by the law enforcement officer seizing the animal. When a criminal complaint has been filed in connection with a seized animal, the court in which such complaint was filed shall have exclusive jurisdiction for disposition of the animal and to determine any rights therein, including questions respecting the title, possession, control, and disposition thereof as provided in this section.

(2) Within ten business days after the date an animal has been seized pursuant to section 28-1006 or 28-1012, the county attorney of the county where the animal was seized shall file an application with the court having appropriate jurisdiction for a hearing to determine the disposition and the cost for the care of the animal. Notice of such hearing shall be given to the owner or custodian from whom such animal was seized and to any holder of a lien or security interest of record in such animal specifying the date, time, and place of such hearing. Such notice shall be served by personal or residential service or by certified mail. If such notice cannot be served by such methods, service may be made by publication in the county where such animal was seized. Such publication shall be made after application and order of the court. The hearing shall be held as soon as practicable and not more than ten business days after the date of application for the hearing unless otherwise determined and ordered by the court.

(3) If the court finds that probable cause exists that an animal has been abandoned or cruelly neglected or mistreated, the court may:

(a) Order immediate forfeiture of the animal to the agency that took custody of the animal and authorize appropriate disposition of the animal including adoption, donation to a suitable shelter, humane destruction, or any other manner of disposition approved by the court. The court may consider adoption alternatives through humane societies or comparable institutions and the protection of such animal's welfare. For a humane society or comparable institution to be considered as an adoption alternative under this subsection, it must first be licensed by the Department of Agriculture as having passed the inspection requirements in the Commercial Dog and Cat Operator Inspection Act and paid the fee for inspection under the act. The court may prohibit an adopting or purchasing party from selling such animal for a period not to exceed one year;

(b) Issue an order to the owner or custodian setting forth the conditions under which custody of the animal shall be returned to the owner or custodian from whom the animal was seized or to any other person claiming an interest in the animal. Such order may include any management actions deemed necessary and prudent by the court, including reducing the number of animals harbored or owned by the owner or custodian by humane destruction or forfeiture and securing necessary care, including veterinary care, sufficient for the maintenance of any remaining animals; or

(c) Order the owner or custodian from whom the animal was seized to post a bond or other security or to otherwise order payment in an amount that is sufficient to reimburse all reasonable expenses, as determined by the court, for the care of the animal including veterinary care incurred by the agency from the date of seizure and necessitated by the possession of the animal. Payments shall be for a succeeding thirty-day period with the first payment due on or before the tenth day following the hearing. Payments for each subsequent thirty-day period, if any, shall be due on or before the tenth day of such period. The bond or security shall be placed with, or payments ordered under this subdivision shall be paid to, the agency that took custody of the animal. The agency shall provide an accounting of expenses to the court when the animal is no longer in the custody of the agency or upon request by the court. The county attorney of the county where the animal was seized may apply to the court for a subsequent hearing under this section at any time. The hearing shall be held as soon as practicable and not more than ten business days after the date of application for the hearing unless otherwise determined and ordered by the court. When all expenses covered by the bond or security are exhausted and subsequent bond or security has not been posted, or if a person becomes delinquent in his or her payments for the expenses of the animal, the animal shall be forfeited to the agency.

(4) If custody of an animal is returned to the owner or custodian prior to seizure, any proceeds of a bond or security or any payment or portion of payment ordered under this section not used for the care of the animal during the time the animal was held by the agency shall be returned to the owner or custodian.

(5) Nothing in this section shall prevent the humane destruction of a seized animal at any time as determined necessary by a licensed veterinarian or as authorized by court order.

(6) An appeal may be filed within ten days after a hearing held under this section. Any person filing an appeal shall post a bond or security sufficient to pay reasonable costs of care of the animal for thirty days. Such bond or surety shall be required for each succeeding thirty-day period until the appeal is final.

(7) If the owner or custodian from whom the animal was seized is found not guilty in an associated criminal proceeding, all funds paid for the expenses of the animal remaining after the actual expenses incurred by the agency have been paid shall be returned to the owner or custodian.

(8) This section shall not preempt any ordinance of a city of the metropolitan or primary class.

Source:Laws 2015, LB360, § 5; Laws 2022, LB829, § 2.

Cross References

Commercial Dog and Cat Operator Inspection Act, see section 54-625.

28-1013. Sections; exemptions.

Sections 28-1008 to 28-1017 and 28-1019 shall not apply to:

(1) Care or treatment of an animal or other conduct by a veterinarian or veterinary technician licensed under the Veterinary Medicine and Surgery Practice Act that occurs within the scope of his or her employment, that occurs while acting in his or her professional capacity, or that conforms to commonly accepted veterinary practices;

(2) Commonly accepted care or treatment of a police animal by a law enforcement officer in the normal course of his or her duties;

(3) Research activity carried on by any research facility currently meeting the standards of the federal Animal Welfare Act, 7 U.S.C. 2131 et seq., as such act existed on January 1, 2010;

(4) Commonly accepted practices of hunting, fishing, or trapping;

(5) Humane killing of an animal by the owner or by his or her agent or a veterinarian upon the owner's request;

(6) Use of reasonable force against an animal, other than a police animal, which is working, including killing, capture, or restraint, if the animal is outside the owned or rented property of its owner or custodian and is injuring or posing an immediate threat to any person or other animal;

(7) Killing of house or garden pests; and

(8) Commonly accepted animal training practices.

Source:Laws 1990, LB 50, § 6; Laws 1995, LB 283, § 4; Laws 2003, LB 273, § 6; Laws 2007, LB463, § 1127; Laws 2008, LB764, § 5; Laws 2008, LB1055, § 4; Laws 2009, LB494, § 2; Laws 2010, LB865, § 14; Laws 2015, LB360, § 6.

Cross References

Veterinary Medicine and Surgery Practice Act, see section 38-3301.

28-1013.01. Repealed. Laws 2010, LB 865, § 17.

28-1013.02. Repealed. Laws 2010, LB 865, § 17.

28-1014. Local regulation; authorized.

Any city, village, or county may adopt and promulgate rules, regulations, and ordinances which are not inconsistent with the provisions of sections 28-1008 to 28-1017, 28-1019, and 28-1020 for the protection of the public, public health, and animals within its jurisdiction.

Source:Laws 1990, LB 50, § 7; Laws 2003, LB 273, § 7; Laws 2008, LB764, § 8; Laws 2008, LB1055, § 5; Laws 2009, LB494, § 3; Laws 2015, LB360, § 7.

28-1015. Ownership by child; applicability of penalties.

When an animal is owned by a minor child, the parent of such minor child with whom the child resides or legal guardian with whom the child resides shall be subject to the penalties provided under sections 28-1008 to 28-1017, 28-1019, and 28-1020 if the animal is abandoned or cruelly neglected.

Source:Laws 1990, LB 50, § 8; Laws 2003, LB 273, § 8; Laws 2008, LB764, § 9; Laws 2008, LB1055, § 6; Laws 2009, LB494, § 4; Laws 2015, LB360, § 8.

28-1016. Game and Parks Commission; Game Law; sections, how construed.

Nothing in sections 28-1008 to 28-1017, 28-1019, and 28-1020 shall be construed as amending or changing the authority of the Game and Parks Commission as established in the Game Law or to prohibit any conduct authorized or permitted by such law.

Source:Laws 1990, LB 50, § 9; Laws 2003, LB 273, § 9; Laws 2008, LB764, § 10; Laws 2008, LB1055, § 7; Laws 2009, LB494, § 5; Laws 2015, LB360, § 9.

Cross References

Game Law, see section 37-201.

28-1017. Animal abandonment, cruel neglect, or cruel mistreatment; report required by certain employees; violation; penalty.

(1) For purposes of this section:

(a) Reasonably suspects means a basis for reporting knowledge or a set of facts that would lead a person of ordinary care and prudence to believe and conscientiously entertain a strong suspicion that criminal activity is at hand or that a crime has been committed; and

(b) Employee means any employee of a governmental agency dealing with child or adult protective services, animal control, or animal abuse.

(2) Any employee, while acting in his or her professional capacity or within the scope of his or her employment, who observes or is involved in an incident which leads the employee to reasonably suspect that an animal has been abandoned, cruelly neglected, or cruelly mistreated shall report such to the entity or entities that investigate such reports in that jurisdiction.

(3) The report of an employee shall be made within two working days of acquiring the information concerning the animal by facsimile transmission of a written report presented in the form described in subsection (6) of this section or by telephone. When an immediate response is necessary to protect the health and safety of the animal or others, the report of an employee shall be made by telephone as soon as possible.

(4) Nothing in this section shall be construed to impose a duty to investigate observed or reasonably suspected animal abandonment, cruel neglect, or cruel mistreatment. Any person making a report under this section is immune from liability except for false statements of fact made with malicious intent.

(5) A report made by an employee pursuant to this section shall include:

(a) The reporter's name and title, business address, and telephone number;

(b) The name, if known, of the animal owner or custodian, whether a business or individual;

(c) A description of the animal or animals involved, person or persons involved, and location of the animal or animals and the premises; and

(d) The date, time, and a description of the observation or incident which led the reporter to reasonably suspect animal abandonment, cruel neglect, or cruel mistreatment and any other information the reporter believes may be relevant.

(6) A report made by an employee pursuant to this section may be made on preprinted forms prepared by the entity or entities that investigate reports of animal abandonment, cruel neglect, or cruel mistreatment in that jurisdiction. The form shall include space for the information required under subsection (5) of this section.

(7) When two or more employees jointly have observed or reasonably suspected animal abandonment, cruel neglect, or cruel mistreatment and there is agreement between or among them, a report may be made by one person by mutual agreement. Any such reporter who has knowledge that the person designated to report has failed to do so shall thereafter make the report.

(8) Any employee failing to report under this section shall be guilty of an infraction.

Source:Laws 2003, LB 273, § 1; Laws 2009, LB494, § 6.

28-1018. Sale of puppy or kitten; prohibited acts; penalty.

(1) A person, other than an animal control facility, animal rescue, or animal shelter, who sells a puppy or kitten under eight weeks of age without its mother is guilty of a Class V misdemeanor.

(2) For purposes of this section:

(a) Animal control facility means a facility operated by the state or any political subdivision of the state for the purpose of impounding or harboring seized, stray, homeless, abandoned, or unwanted animals;

(b) Animal rescue means a person or group of persons who hold themselves out as an animal rescue, accept or solicit for dogs or cats with the intention of finding permanent adoptive homes or providing lifelong care for such dogs or cats, or who use foster homes as defined in section 54-626 as the primary means of housing dogs or cats; and

(c) Animal shelter means a facility used to house or contain dogs or cats and owned, operated, or maintained by an incorporated humane society, animal welfare society, society for the prevention of cruelty to animals, or other nonprofit organization devoted to the welfare, protection, and humane treatment of such animals.

Source:Laws 2003, LB 17, § 5; Laws 2006, LB 856, § 12; Laws 2010, LB910, § 1.

28-1019. Conviction; order prohibiting ownership, possession, or residing with animal; duration; violation; penalty; seizure of animal.

(1)(a) If a person is convicted of a felony under section 28-1005 or 28-1009, the sentencing court shall order such person not to own, possess, or reside with any animal for at least five years after the date of conviction, but such time restriction shall not exceed fifteen years. Any person violating such court order shall be guilty of a Class I misdemeanor.

(b) If a person is convicted of a Class I misdemeanor under section 28-1005.01 or 28-1009 or a Class III misdemeanor under section 28-1010, the sentencing court may order such person not to own, possess, or reside with any animal after the date of conviction, but such time restriction, if any, shall not exceed five years. Any person violating such court order shall be guilty of a Class IV misdemeanor.

(c) Any animal involved in a violation of a court order under subdivision (a) or (b) of this subsection shall be subject to seizure by law enforcement. Distribution or disposition shall be made under section 28-1012.01.

(2) This section shall not apply to any person convicted under section 28-1005, 28-1005.01, or 28-1009 if a licensed physician confirms in writing that ownership or possession of or residence with an animal is essential to the health of such person.

Source:Laws 2008, LB1055, § 3; Laws 2010, LB252, § 5; Laws 2010, LB712, § 13; Laws 2014, LB674, § 2; Laws 2015, LB360, § 10; Laws 2022, LB829, § 3.

Annotations

If a person is convicted of a Class IV felony under section 28-1009, the sentencing court shall order such person not to own, possess, or reside with any animal for at least 5 years and no more than 15 years after the date of conviction. State v. Meduna, 18 Neb. App. 818, 794 N.W.2d 160 (2011).

28-1020. Animal abandonment, cruel neglect, or cruel mistreatment; report required by animal health care professional; immunity from liability.

(1) Any animal health care professional, while acting in his or her professional capacity or within the scope of his or her employment, who observes or is involved in an incident which leads the animal health care professional to reasonably suspect that an animal has been abandoned, cruelly neglected, or cruelly mistreated, shall report such treatment to an entity that investigates such reports in the appropriate jurisdiction.

(2) Nothing in this section shall be construed to impose a duty to investigate observed or reasonably suspected abandonment, cruel neglect, or cruel mistreatment of an animal. Any person making a report under this section is immune from liability except for false statements of fact made with malicious intent.

(3) For purposes of this section, an animal health care professional means a licensed veterinarian as defined in section 38-3310 or a licensed veterinary technician as defined in section 38-3311.

Source:Laws 2009, LB494, § 7.

28-1101. Terms, defined.

As used in this article, unless the context otherwise requires:

(1) A person advances gambling activity if, acting other than as a player, he or she engages in conduct that materially aids any form of gambling activity. Conduct of this nature includes, but shall not be limited to, conduct directed toward (a) the creation or establishment of the particular game, contest, scheme, device, or activity involved, (b) the acquisition or maintenance of premises, paraphernalia, equipment, or apparatus therefor, or (c) engaging in the procurement, sale, or offering for sale within this state of any chance, share, or interest in a lottery of another state or government whether or not such chance, share, or interest is an actual lottery ticket, receipt, contingent promise to pay, order to purchase, or other record of such interest except as provided in the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, the Nebraska Racetrack Gaming Act, or section 9-701;

(2) Bookmaking shall mean advancing gambling activity by unlawfully accepting bets from members of the public as a business upon the outcome of future contingent events;

(3) A person profits from gambling activity if, other than as a player, he or she accepts or receives money or other property pursuant to an agreement or understanding with any person whereby he or she participates or is to participate in the proceeds of gambling activity;

(4) A person engages in gambling if he or she bets something of value upon the outcome of a future event, which outcome is determined by an element of chance, or upon the outcome of a game, contest, or election, or conducts or participates in any bingo, lottery by the sale of pickle cards, lottery, raffle, gift enterprise, or other scheme not authorized or conducted in accordance with the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, the Nebraska Racetrack Gaming Act, or section 9-701, but a person does not engage in gambling by:

(a) Entering into a lawful business transaction;

(b) Playing an amusement device or a coin-operated mechanical game which confers as a prize an immediate, unrecorded right of replay not exchangeable for something of value;

(d) Conducting or participating in any bingo, lottery by the sale of pickle cards, lottery, raffle, game of chance, or gift enterprise conducted in accordance with the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, the Nebraska Racetrack Gaming Act, or section 9-701;

(5) Gambling device shall mean any device, machine, paraphernalia, writing, paper, instrument, article, or equipment that is used or usable for engaging in gambling, whether that activity consists of gambling between persons or gambling by a person involving the playing of a machine. Gambling device shall also include any mechanical gaming device, computer gaming device, electronic gaming device, or video gaming device which has the capability of awarding something of value, free games redeemable for something of value, instant-win tickets which also provide the possibility of participating in a subsequent drawing or event, or tickets or stubs redeemable for something of value, except as authorized in the furtherance of parimutuel wagering. Supplies, equipment, cards, tickets, stubs, and other items used in any bingo, lottery by the sale of pickle cards, other lottery, raffle, game of chance, or gift enterprise conducted in accordance with the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, the Nebraska Racetrack Gaming Act, or section 9-701 are not gambling devices within this definition;

(6) Something of value shall mean any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service or entertainment; and

(7) Prize contest shall mean any competition in which one or more competitors are awarded something of value as a consequence of winning or achieving a certain result in the competition and (a) the value of such awards made to competitors participating in the contest does not depend upon the number of participants in the contest or upon the amount of consideration, if any, paid for the opportunity to participate in the contest or upon chance and (b) the value or identity of such awards to be made to competitors is published before the competition begins.

Source:Laws 1977, LB 38, § 217; Laws 1978, LB 900, § 1; Laws 1979, LB 152, § 1; Laws 1983, LB 259, § 36; Laws 1983, LB 374, § 1; Laws 1984, LB 744, § 1; Laws 1984, LB 949, § 72; Laws 1986, LB 1027, § 192; Laws 1991, LB 849, § 64; Laws 1993, LB 138, § 66; Laws 1995, LB 343, § 6; Initiative Law 2020, No. 430, § 8.

Cross References

Constitutional provisions, see Article III, section 24, Constitution of Nebraska.

Nebraska Bingo Act, see section 9-201.

Nebraska County and City Lottery Act, see section 9-601.

Nebraska Lottery and Raffle Act, see section 9-401.

Nebraska Pickle Card Lottery Act, see section 9-301.

Nebraska Racetrack Gaming Act, see section 9-1101.

Nebraska Small Lottery and Raffle Act, see section 9-501.

State Lottery Act, see section 9-801.

Annotations

The language of this section, strictly construed, simply and plainly asserts that an activity is gambling in Nebraska if its outcome is predominantly caused by chance. American Amusements Co. v. Nebraska Dept. of Rev., 282 Neb. 908, 807 N.W.2d 492 (2011).

A gambling device is one which is used or usable to bet something of value on the outcome of a future event, which outcome is determined by an element of chance, unless the device falls within one of the exceptions contained in subsection (4) of this section. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

Free replay credits are a credit or promise involving extension of a service or entertainment and are thus something of value. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

The definition of "gambling device" contained in subsection (5) of this section, when taken in the context of section 28-1107, is not unconstitutionally overbroad. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

A lottery is a game of chance in which the winner is determined by mere luck, not by skill, and contains the elements of consideration, a prize, and chance. Video Consultants v. Douglas, 219 Neb. 868, 367 N.W.2d 697 (1985).

The sale of pickle cards constitutes a lottery under this section as it has the requisite elements of consideration, prize, and chance. CONtact, Inc. v. State, 212 Neb. 584, 324 N.W.2d 804 (1982).

28-1102. Promoting gambling, first degree; penalty.

(1) A person commits the offense of promoting gambling in the first degree if he or she knowingly advances or profits from unlawful gambling activity by:

(a) Engaging in bookmaking to the extent that he or she receives or accepts in any one day one or more bets totaling one thousand five hundred dollars or more; or

(b) Receiving, in connection with any unlawful gambling scheme or enterprise, one thousand five hundred dollars or more of money played in the scheme or enterprise in any one day.

(2) Promoting gambling in the first degree is, for the first offense, a Class I misdemeanor, for the second offense, a Class IV felony, and for the third and all subsequent offenses, a Class III felony. No person shall be charged with a second or subsequent offense under this section unless the prior offense or offenses occurred after August 24, 1979.

Source:Laws 1977, LB 38, § 218; Laws 1979, LB 152, § 2; Laws 2015, LB605, § 50.

28-1103. Promoting gambling, second degree; penalty.

(1) A person commits the offense of promoting gambling in the second degree if he or she knowingly advances or profits from any unlawful gambling activity by:

(a) Engaging in bookmaking to the extent that he or she receives or accepts in any one day one or more bets totaling less than one thousand five hundred dollars;

(b) Receiving, in connection with any unlawful gambling scheme or enterprise, less than one thousand five hundred dollars of money played in the scheme or enterprise in any one day; or

(2) Promoting gambling in the second degree is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 219; Laws 1979, LB 152, § 3; Laws 2015, LB605, § 51.

28-1104. Promoting gambling, third degree; penalty.

(1) A person commits the offense of promoting gambling in the third degree if he or she knowingly participates in unlawful gambling as a player by betting less than five hundred dollars in any one day.

(2) Promoting gambling in the third degree is a Class IV misdemeanor.

Source:Laws 1977, LB 38, § 220; Laws 1979, LB 152, § 4; Laws 2015, LB605, § 52.

28-1105. Possession of gambling records; penalty.

(1) A person commits the offense of possession of gambling records if, other than as a player, he or she knowingly possesses any writing, paper, instrument, or article which is:

(a) Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise and such writing, paper, instrument, or article has been used for the purpose of recording, memorializing, or registering any bet, wager, or other gambling information; or

(b) Of a kind commonly used in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise or other scheme not conducted pursuant to the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, the Nebraska Racetrack Gaming Act, or section 9-701 and such writing, paper, instrument, or article has been used for the purpose of recording, memorializing, or registering any bet, wager, or other gambling information not permitted by such acts or section.

(2) Possession of gambling records in the first degree is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 221; Laws 1979, LB 152, § 5; Laws 1983, LB 259, § 37; Laws 1985, LB 408, § 39; Laws 1986, LB 1027, § 193; Laws 1991, LB 849, § 65; Laws 1993, LB 138, § 67; Initiative Law 2020, No. 430, § 9.

Cross References

Nebraska Bingo Act, see section 9-201.

Nebraska County and City Lottery Act, see section 9-601.

Nebraska Lottery and Raffle Act, see section 9-401.

Nebraska Pickle Card Lottery Act, see section 9-301.

Nebraska Racetrack Gaming Act, see section 9-1101.

Nebraska Small Lottery and Raffle Act, see section 9-501.

State Lottery Act, see section 9-801.

28-1105.01. Gambling debt collection; penalty.

(1) A person commits the offense of gambling debt collection if he or she employs any force or intimidation or threatens force or intimidation in order to collect any debt which results from gambling as defined by sections 9-510, 28-1101 to 28-1109, and 28-1117.

(2) Gambling debt collection is a Class III felony.

Source:Laws 1979, LB 152, § 6.

28-1106. Repealed. Laws 1979, LB 152, § 12.

28-1107. Possession of a gambling device; penalty; affirmative defense.

(1) A person commits the offense of possession of a gambling device if he or she manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing that it shall be used in the advancement of unlawful gambling activity.

(2) The owner or operator of a retail establishment who is not a manufacturer, distributor, or seller of mechanical amusement devices as defined under the Mechanical Amusement Device Tax Act, shall have an affirmative defense to possession of a gambling device described in subsection (1) of this section if the device bears an unexpired mechanical amusement device decal as required by such act. However, such affirmative defense may be overcome if the owner or operator had actual knowledge that operation of the device constituted unlawful gambling activity at any time such device was operated on the premises of the retail establishment.

(3) Notwithstanding any other provisions of this section, any mechanical game or device classified by the federal government as an illegal gambling device and requiring a federal Gambling Device Tax Stamp as required by the Internal Revenue Service in its administration of 26 U.S.C. 4461 and 4462, amended July 1, 1965, by Public Law 89-44, is hereby declared to be illegal.

(4) Possession of a gambling device is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 223; Laws 1978, LB 900, § 2; Laws 1979, LB 152, § 7; Laws 1987, LB 523, § 4; Laws 2019, LB538, § 1.

Cross References

Mechanical Amusement Device Tax Act, see section 77-3011.

Annotations

Subsection (1) of this section is severable from the remaining invalid portion of the statute. Evidence that devices were seen in bars being played by patrons shows knowledge that defendant tavern owners knew the machines, with no purpose except as "gambling devices," were used in gambling activity and was sufficient to prove defendants violated subsection (1) of this section. Subsection (2) of this section is unconstitutional for being in contravention of the express provisions of Neb. Const. art. III, section 24, which defines "games of chance" and "prize." State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 473 N.W.2d 428 (1991).

Coin-operated electronic and video machines equipped with reset switches and meters permanently recording replays awarded are gambling devices within the meaning of this section. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).

A gambling device is one which is used or usable to bet something of value on the outcome of a future event, which outcome is determined by an element of chance, unless the device falls within one of the exceptions contained in section 28-1101(4). State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

Free replay credits are a credit or promise involving extension of a service or entertainment and are thus something of value. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

Statutes prohibiting possession or use of gambling devices and providing their forfeiture are a valid exercise of the State's power. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

The definition of "gambling device" contained in section 28-1101(5), when taken in the context of this section, is not unconstitutionally overbroad. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

28-1108. Prosecution; affirmative defense.

In any prosecution under this article, it shall be an affirmative defense that the writing, paper, instrument, or article possessed by the defendant was neither used nor intended to be used in the advancement of an unlawful gambling activity.

Source:Laws 1977, LB 38, § 224; Laws 1979, LB 152, § 8.

28-1109. Proof of possession of gambling device; prima facie evidence.

Proof of possession of any gambling device shall be prima facie evidence of possession thereof with knowledge of its contents and character.

Source:Laws 1977, LB 38, § 225; Laws 1979, LB 152, § 9.

28-1110. Gambling; prosecution; not in violation of jurisdiction where conducted; no defense.

It shall be no defense to a prosecution under any provision of this article relating to gambling that the gambling is conducted outside this state and is not in violation of the laws of the jurisdiction in which it is conducted.

Source:Laws 1977, LB 38, § 226; Laws 1986, LB 1027, § 194.

28-1111. Gambling device or record; money used as a bet or stake; other property; forfeited to state; hearing.

In addition to any penalty provided in section 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of section 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

Source:Laws 1977, LB 38, § 227; Laws 2016, LB1106, § 8.

Annotations

28-1112. Defendant, status as a player; affirmative defense, when.

In any prosecution for an offense defined in this article, when the defendant's status as a player constitutes an excusing condition, the fact that the defendant was a player shall constitute an affirmative defense.

Source:Laws 1977, LB 38, § 228.

28-1113. Article, how construed.

Nothing in this article shall be construed to:

(1) Apply to or prohibit wagering on the results of horseraces by the parimutuel or certificate method when conducted by licensees within the racetrack enclosure at licensed horserace meetings;

(2) Prohibit or punish the conducting or participating in any bingo, lottery by the sale of pickle cards, lottery, raffle, or gift enterprise when conducted in accordance with the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, or section 9-701; or

(3) Apply to or prohibit the operation of games of chance, whether using a gambling device or otherwise, by authorized gaming operators within licensed racetrack enclosures or the participation or playing of such games of chance, whether participated in or played using a gambling device or otherwise, by individuals twenty-one years of age or older within licensed racetrack enclosures as provided in the Nebraska Racetrack Gaming Act.

Source:Laws 1977, LB 38, § 229; Laws 1979, LB 164, § 19; Laws 1983, LB 259, § 38; Laws 1984, LB 949, § 73; Laws 1986, LB 1027, § 195; Laws 1991, LB 849, § 66; Laws 1993, LB 138, § 68; Initiative Law 2020, No. 430, § 10.

Cross References

Nebraska Bingo Act, see section 9-201.

Nebraska County and City Lottery Act, see section 9-601.

Nebraska Lottery and Raffle Act, see section 9-401.

Nebraska Pickle Card Lottery Act, see section 9-301.

Nebraska Racetrack Gaming Act, see section 9-1101.

Nebraska Small Lottery and Raffle Act, see section 9-501.

State Lottery Act, see section 9-801.

28-1114. Transferred to section 9-701.

28-1115. Transferred to section 9-510.

28-1116. Transferred to section 9-608.

28-1116.01. Transferred to section 9-609.

28-1116.02. Repealed. Laws 1986, LB 1027, § 225.

28-1117. Proof of occurrence of sporting event; prima facie evidence.

In any prosecution under this article in which it is necessary to prove the occurrence of a sporting event, a published report of its occurrence in any daily newspaper, magazine, or other periodically printed publication of general circulation shall be admissible in evidence and shall constitute prima facie evidence of the occurrence of the event.

Source:Laws 1979, LB 152, § 11.

28-1201. Terms, defined; applicability.

For purposes of sections 28-1201 to 28-1212.04, unless the context otherwise requires:

(1) Case means (a) a hard-sided or soft-sided box, container, or receptacle intended or designed for the primary purpose of storing or transporting a firearm or (b) the firearm manufacturer's original packaging. This definition does not apply to section 28-1204.04;

(2) Concealed handgun means a handgun that is entirely obscured from view. If any part of the handgun is capable of being seen or observed by another person, it is not a concealed handgun;

(3) Firearm means any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or frame or receiver of any such weapon;

(4) Fugitive from justice means any person who has fled or is fleeing from any peace officer to avoid prosecution or incarceration for a felony;

(5) Handgun means any firearm with a barrel less than sixteen inches in length or any firearm designed to be held and fired by the use of a single hand;

(6) Juvenile means any person under the age of eighteen years;

(7) Knife means:

(a) Any dagger, dirk, knife, or stiletto with a blade over three and one-half inches in length and which, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury; or

(b) Any other dangerous instrument which is capable of inflicting cutting, stabbing, or tearing wounds and which, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury;

(8) Knuckles and brass or iron knuckles means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles;

(9) Machine gun means any firearm, whatever its size and usual designation, that shoots automatically more than one shot, without manual reloading, by a single function of the trigger;

(10)(a) Minor means a person who is under twenty-one years of age.

(b) Minor does not include a person who is eighteen years of age or older if the person is (i) a member of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers' Training Corps or (ii) a peace officer or other duly authorized law enforcement officer;

(11)(a) Prohibited person means:

(i) A person prohibited from possessing a firearm or ammunition by state law, including, but not limited to, section 28-1206; or

(ii) A person prohibited from possessing a firearm or ammunition by 18 U.S.C. 922(d) or (g), as such section existed on January 1, 2023.

(b) This definition does not apply to the use of the term prohibited person in section 28-1206;

(12) Qualified law enforcement officer and qualified retired law enforcement officer have the same meanings as in 18 U.S.C. 926B and 926C, respectively, as such sections existed on January 1, 2023;

(13) School means a public, private, denominational, or parochial elementary, vocational, or secondary school, a private postsecondary career school as defined in section 85-1603, a community college, a public or private college, a junior college, or a university;

(14) Short rifle means a rifle having a barrel less than sixteen inches long or an overall length of less than twenty-six inches; and

(15) Short shotgun means a shotgun having a barrel or barrels less than eighteen inches long or an overall length of less than twenty-six inches.

Source:Laws 1977, LB 38, § 233; Laws 1994, LB 988, § 2; Laws 2009, LB63, § 9; Laws 2009, LB430, § 6; Laws 2017, LB558, § 1; Laws 2018, LB990, § 2; Laws 2023, LB77, § 7.
Effective Date: September 2, 2023

Annotations

Given the amendment to section 28-1202 and the amendment to the term "knife" as defined in subsection (5) of this section, any knife with a blade over 3 1/2 inches in length is a deadly weapon per se, and the manner or intended use of such deadly weapon is not an element of the crime charged. State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016).

The Legislature intended the words "with a blade over three and one-half inches" to apply to daggers, dirks, knives, and stilettos, such that any of these items having blades over 3 1/2 inches are "knives" under subsection (4) of this section. Daggers, dirks, knives, or stilettos with blades over 3 1/2 inches are knives per se. When a case involves an instrument not specifically named in subsection (4) of this section, the State bears the burden of proving that the instrument is a dangerous instrument capable of inflicting cutting, stabbing, or tearing wounds, and thus is a "knife" for purposes of section 28-1205(1). State v. Bottolfson, 259 Neb. 470, 610 N.W.2d 378 (2000).

A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).

The evidence was sufficient to support a conviction for use of a deadly weapon to commit a felony, even though a crime laboratory report indicated that the defendant's handgun was inoperable. The evidence indicated that the defendant used a weapon designed to expel a projectile, as the report stated that the handgun was a semiautomatic pistol with a matching magazine. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).

28-1202. Minor or prohibited person; carrying concealed weapon; penalty.

(1) A minor or a prohibited person shall not carry a weapon or weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles, or any other deadly weapon.

(2) A violation of this section is a Class I misdemeanor for a first offense and a Class IV felony for a second or subsequent offense.

Source:Laws 1977, LB 38, § 234; Laws 1984, LB 1095, § 1; Laws 2006, LB 454, § 22; Laws 2009, LB63, § 10; Laws 2021, LB236, § 3; Laws 2023, LB77, § 8.
Effective Date: September 2, 2023

Annotations

A weapon is concealed on or about the person if it is concealed in such proximity to the passenger of a motor vehicle as to be convenient of access and within immediate physical reach. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

Constructive possession does not establish the elements of this section of "carry[ing] a concealed weapon 'on or about his or her person.'" State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 (2021).

Evidence that a machete was "tucked down by the center console" area of a vehicle and that an officer did not see it when he looked in the vehicle was sufficient to support a conviction for carrying a concealed weapon. State v. Lowman, 308 Neb. 482, 954 N.W.2d 905 (2021).

Given the amendment to this section and the amendment to the term "knife" as defined in section 28-1201(5), any knife with a blade over 3 1/2 inches in length is a deadly weapon per se, and the manner or intended use of such deadly weapon is not an element of the crime charged. State v. Nguyen, 293 Neb. 493, 881 N.W.2d 566 (2016).

In order to be a deadly weapon per se under subsection (1) of this section, the weapon must be one specifically enumerated in the statute. Whether an object or weapon not specifically named in the statute is a deadly weapon is a question of fact to be determined by the trier of fact, and the resolution of that fact question will depend on the evidence adduced as to the use or intended use of the object or weapon. State v. Williams, 218 Neb. 57, 352 N.W.2d 576 (1984).

Whether an object or weapon not specifically enumerated in subsection (1) of this section was a deadly weapon is a question of fact to be decided by the trier of fact. State v. Kanger, 215 Neb. 128, 337 N.W.2d 422 (1983).

Section 28-1202(1), R.S.Supp.,1978, combined with the definition of "deadly weapon" found in section 28-109, R.S.Supp.,1978, is sufficiently definite to meet the requirements of the First and Fifth Amendments to the U.S. Constitution and Art. I, section 3, of the Constitution of Nebraska. State v. Valencia, 205 Neb. 719, 290 N.W.2d 181 (1980).

When a person is charged with violation of this section, the State need not prove that a revolver or gun is operable in order to establish that it is a "firearm". The test is whether evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has the characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the trier of fact in a prosecution for carrying a concealed weapon. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).

Any instrument that consists of finger rings or guards made of a hard substance and that is designed, made, or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles is per se a deadly weapon under this section. State v. Lewis, 6 Neb. App. 867, 577 N.W.2d 774 (1998).

28-1202.01. Carrying concealed handgun; locations; restrictions; posting of prohibition; violation; penalty; affirmative defense; applicability.

(1) Except as otherwise provided in this section, a person, other than a minor or a prohibited person, may carry a concealed handgun anywhere in Nebraska, with or without a permit under the Concealed Handgun Permit Act.

(2) Except as provided in subsection (10) of this section, a person shall not carry a concealed handgun into or onto any place or premises where the person, persons, entity, or entities in control of the place or premises or employer in control of the place or premises has prohibited the carrying of concealed handguns into or onto the place or premises.

(3) Except as provided in subsection (10) of this section, a person shall not carry a concealed handgun into or onto any: Police, sheriff, or Nebraska State Patrol station or office; detention facility, prison, or jail; courtroom or building which contains a courtroom; polling place during a bona fide election; meeting of the governing body of a county, public school district, municipality, or other political subdivision; meeting of the Legislature or a committee of the Legislature; financial institution; professional or semiprofessional athletic event; building, grounds, vehicle, or sponsored activity or athletic event of any public, private, denominational, or parochial elementary, vocational, or secondary school, a private postsecondary career school as defined in section 85-1603, a community college, or a public or private college, junior college, or university; place of worship; hospital, emergency room, or trauma center; political rally or fundraiser; establishment having a license issued under the Nebraska Liquor Control Act that derives over one-half of its total income from the sale of alcoholic liquor; place where the possession or carrying of a firearm is prohibited by state or federal law; or any other place or premises where handguns are prohibited by state law.

(4)(a) A financial institution may authorize its security personnel to carry concealed handguns in the financial institution while on duty so long as each member of the security personnel, as authorized, is not otherwise prohibited by state law from possessing or carrying a concealed handgun and is in compliance with sections 28-1202.02 to 28-1202.04.

(b) A place of worship may authorize its security personnel to carry concealed handguns on its property if:

(i) Each member of the security personnel, as authorized, is not otherwise prohibited by state law from possessing or carrying a concealed handgun and is in compliance with sections 28-1202.02 to 28-1202.04;

(ii) Written notice is given to the congregation; and

(iii) For leased property, the carrying of concealed handguns on the property does not violate the terms of any real property lease agreement between the place of worship and the lessor.

(5) If a person, persons, entity, or entities in control of the place or premises or an employer in control of the place or premises prohibits the carrying of concealed handguns into or onto the place or premises and such place or premises are open to the public, a person does not violate this section unless the person, persons, entity, or entities in control of the place or premises or employer in control of the place or premises has posted conspicuous notice that carrying a concealed handgun is prohibited in or on the place or premises or has made a request, directly or through an authorized representative or management personnel, that the person remove the concealed handgun from the place or premises.

(6) A person carrying a concealed handgun in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area, which is open to the public, used by any location listed in subsection (2) or (3) of this section, does not violate this section if, prior to exiting the vehicle, the handgun is locked inside the glove box, trunk, or other compartment of the vehicle, a storage box securely attached to the vehicle, or, if the vehicle is a motorcycle, other than an autocycle, a hardened compartment securely attached to the motorcycle. This subsection does not apply to any parking area used by such location when the carrying of a concealed handgun into or onto such parking area is prohibited by federal law.

(7) An employer may prohibit employees or other persons from carrying concealed handguns in vehicles owned by the employer.

(8) A violation of this section is a Class III misdemeanor for a first offense and a Class I misdemeanor for any second or subsequent offense.

(9)(a) Except as provided in subdivision (9)(b) of this section, it is an affirmative defense to a violation of subsection (3) of this section that the defendant was engaged in any lawful business, calling, or employment at the time the defendant was carrying a concealed handgun and the circumstances in which the defendant was placed at the time were such as to justify a prudent person in carrying a concealed handgun for the defense of his or her person, property, or family.

(b) The affirmative defense provided for in this subsection:

(i) Does not prevent a prosecution for a violation of section 28-1204.04; and

(ii) Is not available if the defendant refuses to remove the concealed handgun from the place or premises after a person in control of the place or premises has made a request, directly or through an authorized representative or management personnel, that the defendant remove the concealed handgun from the place or premises.

(10) Subsections (2) and (3) of this section do not apply to a qualified law enforcement officer or qualified retired law enforcement officer carrying a concealed handgun pursuant to 18 U.S.C. 926B or 926C, respectively, as such sections existed on January 1, 2023.

Source:Laws 2006, LB 454, § 15; Laws 2007, LB97, § 1; Laws 2009, LB430, § 12; Laws 2018, LB909, § 120; R.S.1943, (2018), § 69-2441; Laws 2023, LB77, § 9.
Effective Date: September 2, 2023

Cross References

Concealed Handgun Permit Act, see section 69-2427

Nebraska Liquor Control Act, see section 53-101.

28-1202.02. Carrying concealed handgun; consumption of alcohol or controlled substance; effect; applicability; violation; penalty.

(1) Except as provided in subsections (2), (3), and (4) of this section, a person not otherwise prohibited by state law from possessing or carrying a concealed handgun shall not carry a concealed handgun while such person:

(a) Is consuming alcohol; or

(b) Has remaining in such person's blood, urine, or breath any previously consumed alcohol or any controlled substance as defined in section 28-401.

(2) A person does not violate this section if the controlled substance in such person's blood, urine, or breath was lawfully obtained and was taken in therapeutically prescribed amounts.

(3) A person does not violate this section if:

(a) Such person is storing or transporting a handgun in a motor vehicle for any lawful purpose or transporting a handgun directly to or from a motor vehicle to or from any place where such handgun may be lawfully possessed or carried by such person; and

(b) Such handgun is unloaded, kept separate from ammunition, and enclosed in a case.

(4) This section does not apply to a qualified law enforcement officer or qualified retired law enforcement officer carrying a concealed handgun pursuant to 18 U.S.C. 926B or 926C, respectively, as such sections existed on January 1, 2023.

(5) A violation of this section is a Class III misdemeanor for a first offense and a Class I misdemeanor for any second or subsequent offense.

Source:Laws 2023, LB77, § 10.
Effective Date: September 2, 2023

28-1202.03. Carrying concealed handgun; identification document, required; applicability; violation; penalty.

(1)(a) This section applies to a person who is not otherwise prohibited by state law from possessing or carrying a concealed handgun.

(b) This section does not apply to a qualified law enforcement officer or qualified retired law enforcement officer carrying a concealed handgun pursuant to 18 U.S.C. 926B or 926C, respectively, as such sections existed on January 1, 2023.

(2) Except as provided in subsection (3) of this section, any time a person is carrying a concealed handgun, such person shall also carry such person's identification document. The person shall display the identification document when asked to do so by a peace officer or by emergency services personnel.

(3) A person is not required to comply with this section if:

(b) Such handgun is unloaded, kept separate from ammunition, and enclosed in a case.

(4) For purposes of this section:

(a) Emergency services personnel means a volunteer or paid firefighter or rescue squad member or a person licensed to provide emergency medical services pursuant to the Emergency Medical Services Practice Act or authorized to provide emergency medical services pursuant to the EMS Personnel Licensure Interstate Compact; and

(b) Identification document means a valid:

(i) Driver's or operator's license;

(ii) State identification card;

(iii) Military identification card;

(iv) Alien registration card; or

(v) Passport.

(5) A violation of this section is a Class III misdemeanor for a first offense and a Class I misdemeanor for any second or subsequent offense.

Source:Laws 2023, LB77, § 11.
Effective Date: September 2, 2023

Cross References

Emergency Medical Services Practice Act, see section 38-1201.

EMS Personnel Licensure Interstate Compact, see section 38-3801.

28-1202.04. Carrying concealed handgun; contact with peace officer or emergency services personnel; procedures for securing handgun; applicability; violation; penalty.

(1)(a) This section applies to a person who is not otherwise prohibited by state law from possessing or carrying a concealed handgun.

(2) Except as provided in subsection (5) of this section, whenever a person who is carrying a concealed handgun is contacted by a peace officer or by emergency services personnel, the person shall immediately inform the peace officer or emergency services personnel that the person is carrying a concealed handgun.

(3) Except as provided in subsection (5) of this section, during contact with a person carrying a concealed handgun, a peace officer or emergency services personnel may secure the handgun or direct that it be secured during the duration of the contact if the peace officer or emergency services personnel determines that it is necessary for the safety of any person present, including the peace officer or emergency services personnel. The person shall submit to the order to secure the handgun.

(4)(a) When the peace officer has determined that the person is not a threat to the safety of any person present, including the peace officer, and the person has not committed any other violation that would result in his or her arrest, the peace officer shall return the handgun to the person before releasing the person from the scene and breaking contact.

(b) When emergency services personnel have determined that the person is not a threat to the safety of any person present, including emergency services personnel, and if the person is physically and mentally capable of possessing the handgun, the emergency services personnel shall return the handgun to the person before releasing the person from the scene and breaking contact. If the person is transported for treatment to another location, the handgun shall be turned over to any peace officer. The peace officer shall provide a receipt which includes the make, model, caliber, and serial number of the handgun.

(5) A person is not required to comply with subsections (2) and (3) of this section if:

(b) Such handgun is unloaded, kept separate from ammunition, and enclosed in a case.

(6) For purposes of this section:

(a) Contact with a peace officer means any time a peace officer personally stops, detains, questions, or addresses a person for an official purpose or in the course of his or her official duties, and contact with emergency services personnel means any time emergency services personnel provide treatment to a person in the course of their official duties; and

(b) Emergency services personnel has the same meaning as in section 28-1202.03.

(7) A violation of:

(a) Subsection (2) of this section is a Class III misdemeanor for a first offense, a Class I misdemeanor for a second offense, and a Class IV felony for a third or subsequent offense; and

(b) Subsection (3) of this section is a Class I misdemeanor.

Source:Laws 2006, LB 454, § 14; R.S.1943, (2018), § 69-2440; Laws 2023, LB77, § 12.
Effective Date: September 2, 2023

28-1203. Transportation or possession of machine guns, short rifles, or short shotguns; penalty; exception.

(1) Any person or persons who shall transport or possess any machine gun, short rifle, or short shotgun commits a Class IV felony.

(2) The provisions of this section shall not be held to prohibit any act by peace officers, members of the United States armed services, or members of the National Guard of this state, in the lawful discharge of their duties, or persons qualified under the provisions of federal law relating to the short rifle, short shotgun, or machine gun.

Source:Laws 1977, LB 38, § 235; Laws 1978, LB 748, § 17.

Annotations

Under subsection (1) of this section, the possessory standard for controlled substances (i.e., a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance) is equally applicable to possession of a firearm. State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).

Subsection (1) of this section is not vitiated by the "Right to Bear Arms" amendment of 1988, is a valid exercise of the State's police power in reasonable regulation of certain firearms, and does not contravene Neb. Const. art. I, sec. 1. State v. LaChapelle, 234 Neb. 458, 451 N.W.2d 689 (1990).

The requirement of "possession" for purposes of subsection (1) of this section may be satisfied by actual or constructive possession of any of the items named in subsection (1). State v. Frieze, 3 Neb. App. 263, 525 N.W.2d 646 (1994).

28-1204. Unlawful possession of a handgun; exceptions; penalty.

(1) Any person under the age of eighteen years who possesses a handgun commits the offense of unlawful possession of a handgun.

(2) This section does not apply to the issuance of handguns to members of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers Training Corps, when on duty or training, or to the temporary loan of handguns for instruction under the immediate supervision of a parent or guardian or adult instructor.

(3) Unlawful possession of a handgun is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 236; Laws 1978, LB 748, § 18; Laws 2009, LB63, § 11.

Annotations

When a person is charged with violation of this section, the State need not prove that a revolver or gun is operable in order to establish that it is a "firearm". The test is whether evidence of possession of a revolver or gun of prohibited description, which is in apparently good condition and has the characteristics and appearance commonly understood to be those of the firearm it purports to be, is prima facie evidence sufficient to go to the trier of fact in a prosecution for being a person under the age of 18 in possession of a pistol, revolver, or any other form of short-barreled hand firearm. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).

28-1204.01. Unlawful transfer of a firearm to a juvenile; exceptions; penalty; county attorney; duty.

(1) Any person who knowingly and intentionally does or attempts to sell, provide, loan, deliver, or in any other way transfer the possession of a firearm to a juvenile commits the offense of unlawful transfer of a firearm to a juvenile. The county attorney shall have a copy of the petition served upon the owner of the firearm, if known, in person or by registered or certified mail at his or her last-known address.

(2) This section does not apply to the transfer of a firearm, other than a handgun, to a juvenile:

(a) From a person related to such juvenile within the second degree of consanguinity or affinity if the transfer of physical possession of such firearm does not occur until such time as express permission has been obtained from the juvenile's parent or guardian;

(b) For a legitimate and lawful sporting purpose; or

(3) This section applies to the transfer of a handgun except as specifically provided in subsection (2) of section 28-1204.

(4) Unlawful transfer of a firearm to a juvenile is a Class III felony.

Source:Laws 1994, LB 988, § 4; Laws 2009, LB63, § 12.

28-1204.02. Confiscation of firearm; disposition.

Any firearm in the possession of a person in violation of section 28-1204 or 28-1204.01 shall be confiscated by a peace officer or other authorized law enforcement officer. Such firearm shall be held by the agency employing such officer until it no longer is required as evidence.

Source:Laws 1994, LB 988, § 3.

Cross References

Disposition of confiscated firearm, see section 28-1204.04.

28-1204.03. Firearms and violence; legislative findings.

The Legislature finds that:

(1) Increased violence at schools has become a national, state, and local problem;

(2) Increased violence and the threat of violence has a grave and detrimental impact on the educational process in Nebraska schools;

(3) Increased violence has caused fear and concern among not only the schools and students but the public at large;

(4) Firearms have contributed greatly to the increase of fear and concern among our citizens;

(5) Schools have a duty to protect their students and provide an environment which promotes and provides an education in a nonthreatening manner;

(6) An additional danger of firearms at schools is the risk of accidental discharge and harm to students and staff;

(7) Firearms are an immediate and inherently dangerous threat to the safety and well-being of an educational setting; and

(8) The ability to confiscate and remove firearms quickly from school grounds is a legitimate and necessary tool to protect students and the educational process.

Source:Laws 1994, LB 988, § 5; Laws 2009, LB430, § 7.

28-1204.04. Unlawful possession of a firearm at a school; penalty; exceptions; confiscation of certain firearms; disposition.

(1) Any person who possesses a firearm in a school, on school grounds, in a school-owned vehicle, or at a school-sponsored activity or athletic event is guilty of the offense of unlawful possession of a firearm at a school. Unlawful possession of a firearm at a school is a Class IV felony. This subsection shall not apply to (a) the issuance of firearms to or possession by members of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers Training Corps or peace officers or other duly authorized law enforcement officers when on duty or training, (b) the possession of firearms by peace officers or other duly authorized law enforcement officers when contracted by a school to provide school security or school event control services, (c) firearms which may lawfully be possessed by the person receiving instruction, for instruction under the immediate supervision of an adult instructor, (d) firearms which may lawfully be possessed by a member of a college or university firearm team, to include rifle, pistol, and shotgun disciplines, within the scope of such person's duties as a member of the team, (e) firearms which may lawfully be possessed by a person employed by a college or university in this state as part of an agriculture or a natural resources program of such college or university, within the scope of such person's employment, (f) firearms contained within a private vehicle operated by a nonstudent adult which are not loaded and (i) are encased or (ii) are in a locked firearm rack that is on a motor vehicle, (g) firearms which may lawfully be possessed by a person for the purpose of using them, with the approval of the school, in a historical reenactment, in a hunter education program, or as part of an honor guard, or (h) a handgun carried as a concealed handgun by a valid holder of a permit issued under the Concealed Handgun Permit Act in a vehicle or on his or her person while riding in or on a vehicle into or onto any parking area, which is open to the public and used by a school if, prior to exiting the vehicle, the handgun is locked inside the glove box, trunk, or other compartment of the vehicle, a storage box securely attached to the vehicle, or, if the vehicle is a motorcycle, other than an autocycle, a hardened compartment securely attached to the motorcycle while the vehicle is in or on such parking area, except as prohibited by federal law. For purposes of this subsection, encased means enclosed in a case that is expressly made for the purpose of containing a firearm and that is completely zipped, snapped, buckled, tied, or otherwise fastened with no part of the firearm exposed.

(2) Any firearm possessed in violation of subsection (1) of this section shall be confiscated without warrant by a peace officer or may be confiscated without warrant by school administrative or teaching personnel. Any firearm confiscated by school administrative or teaching personnel shall be delivered to a peace officer as soon as practicable.

(3) Any firearm confiscated by or given to a peace officer pursuant to subsection (2) of this section shall be declared a common nuisance and shall be held by the peace officer prior to his or her delivery of the firearm to the property division of the law enforcement agency which employs the peace officer. The property division of such law enforcement agency shall hold such firearm for as long as the firearm is needed as evidence. After the firearm is no longer needed as evidence, it shall be destroyed in such manner as the court may direct.

(4) Whenever a firearm is confiscated and held pursuant to this section or section 28-1204.02, the peace officer who received such firearm shall cause to be filed within ten days after the confiscation a petition for destruction of such firearm. The petition shall be filed in the district court of the county in which the confiscation is made. The petition shall describe the firearm held, state the name of the owner, if known, allege the essential elements of the violation which caused the confiscation, and conclude with a prayer for disposition and destruction in such manner as the court may direct. At any time after the confiscation of the firearm and prior to court disposition, the owner of the firearm seized may petition the district court of the county in which the confiscation was made for possession of the firearm. The court shall release the firearm to such owner only if the claim of ownership can reasonably be shown to be true and either (a) the owner of the firearm can show that the firearm was taken from his or her property or place of business unlawfully or without the knowledge and consent of the owner and that such property or place of business is different from that of the person from whom the firearm was confiscated or (b) the owner of the firearm is acquitted of the charge of unlawful possession of a handgun in violation of section 28-1204, unlawful transfer of a firearm to a juvenile, or unlawful possession of a firearm at a school. No firearm having significant antique value or historical significance as determined by the Nebraska State Historical Society shall be destroyed. If a firearm has significant antique value or historical significance, it shall be sold at auction and the proceeds shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source:Laws 1994, LB 988, § 6; Laws 2002, LB 82, § 8; Laws 2009, LB63, § 13; Laws 2009, LB430, § 8; Laws 2011, LB512, § 1; Laws 2014, LB390, § 1; Laws 2018, LB321, § 1; Laws 2018, LB909, § 1.

Cross References

Concealed Handgun Permit Act, see section 69-2427.

28-1204.05. Unlawful possession of a firearm by a prohibited juvenile offender; penalty; exceptions; reinstatement of right to possess firearm; procedure; court; considerations; order; how construed.

(1) Except as provided in subsections (3) and (4) of this section, a person under the age of twenty-five years who knowingly possesses a firearm commits the offense of possession of a firearm by a prohibited juvenile offender if he or she has previously been adjudicated an offender in juvenile court for an act which would constitute a felony or an act which would constitute a misdemeanor crime of domestic violence.

(2) Possession of a firearm by a prohibited juvenile offender is a Class IV felony for a first offense and a Class IIIA felony for a second or subsequent offense.

(3) Subsection (1) of this section does not apply to the possession of firearms by members of the armed forces of the United States, active or reserve, National Guard of this state, or Reserve Officers Training Corps or peace officers or other duly authorized law enforcement officers when on duty or training.

(4)(a) Prior to reaching the age of twenty-five years, a person subject to the prohibition of subsection (1) of this section may file a petition for exemption from such prohibition and thereby have his or her right to possess a firearm reinstated. A petitioner who is younger than nineteen years of age shall petition the juvenile court in which he or she was adjudicated for the underlying offense. A petitioner who is nineteen years of age or older shall petition the district court in the county in which he or she resides.

(b) In determining whether to grant a petition filed under subdivision (4)(a) of this section, the court shall consider:

(i) The behavior of the person after the underlying adjudication;

(ii) The likelihood that the person will engage in further criminal activity; and

(iii) Any other information the court considers relevant.

(c) The court may grant a petition filed under subdivision (4)(a) of this section and issue an order exempting the person from the prohibition of subsection (1) of this section when in the opinion of the court the order will be in the best interests of the person and consistent with the public welfare.

(5) The fact that a person subject to the prohibition under subsection (1) of this section has reached the age of twenty-five or that a court has granted a petition under subdivision (4)(a) of this section shall not be construed to mean that such adjudication has been set aside. Nothing in this section shall be construed to authorize the setting aside of such an adjudication or conviction except as otherwise provided by law.

(6) For purposes of this section, misdemeanor crime of domestic violence has the same meaning as in section 28-1206.

Source:Laws 2018, LB990, § 3.

Annotations

The prohibition on possessing firearms in this section is not punishment imposed for a prior juvenile adjudication. In re Interest of Zoie H., 304 Neb. 868, 937 N.W.2d 801 (2020).

28-1205. Use of a deadly weapon to commit a felony; possession of a deadly weapon during the commission of a felony; carrying a firearm or destructive device during the commission of a dangerous misdemeanor; penalty; separate and distinct offense; proof of possession.

(1)(a) Any person who uses a firearm, a knife, brass or iron knuckles, or any other deadly weapon to commit any felony which may be prosecuted in a court of this state commits the offense of use of a deadly weapon to commit a felony.

(b) Use of a deadly weapon, other than a firearm, to commit a felony is a Class II felony.

(2)(a) Any person who possesses a firearm, a knife, brass or iron knuckles, or a destructive device during the commission of any felony which may be prosecuted in a court of this state commits the offense of possession of a deadly weapon during the commission of a felony.

(b) Possession of a deadly weapon, other than a firearm, during the commission of a felony is a Class III felony.

(3)(a) Any person who carries a firearm or a destructive device during the commission of a dangerous misdemeanor commits the offense of carrying a firearm or destructive device during the commission of a dangerous misdemeanor.

(b) A violation of this subsection is a:

(i) Class I misdemeanor for a first or second offense; and

(ii) A Class IV felony for any third or subsequent offense.

(4) A violation of this section shall be treated as a separate and distinct offense from the underlying crimes being committed, and a sentence imposed under this section shall be consecutive to any other sentence imposed.

(5) Possession of a deadly weapon may be proved through evidence demonstrating either actual or constructive possession of a firearm, a knife, brass or iron knuckles, or a destructive device during, immediately prior to, or immediately after the commission of a felony.

(6) For purposes of this section:

(a) Dangerous misdemeanor means a misdemeanor violation of any of the following offenses:

(i) Stalking under section 28-311.03;

(ii) Knowing violation of a harassment protection order under section 28-311.09;

(iii) Knowing violation of a sexual assault protection order under section 28-311.11;

(iv) Domestic assault under section 28-323;

(v) Assault of an unborn child in the third degree under section 28-399;

(vi) Theft by shoplifting under section 28-511.01;

(vii) Unauthorized use of a propelled vehicle under section 28-516;

(viii) Criminal mischief under section 28-519 if such violation arises from an incident involving the commission of a misdemeanor crime of domestic violence;

(ix) Impersonating a police officer under section 28-610;

(x) Resisting arrest under section 28-904;

(xi) Operating a motor vehicle or vessel to avoid arrest under section 28-905;

(xii) Obstructing a peace officer under section 28-906;

(xiii) Knowing violation of a domestic abuse protection order under section 42-924; or

(xiv) Any attempt under section 28-201 to commit an offense described in subdivisions (6)(a)(i) through (xiii) of this section;

(b) Destructive device has the same meaning as in section 28-1213;

(d) Use of a deadly weapon includes the discharge, employment, or visible display of any part of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony or communication to another indicating the presence of a firearm, a knife, brass or iron knuckles, any other deadly weapon, or a destructive device during, immediately prior to, or immediately after the commission of a felony, regardless of whether such firearm, knife, brass or iron knuckles, deadly weapon, or destructive device was discharged, actively employed, or displayed.

Source:Laws 1977, LB 38, § 237; Laws 1995, LB 371, § 8; Laws 2009, LB63, § 14; Laws 2023, LB77, § 13.
Effective Date: September 2, 2023

Annotations

1. Constitutionality

2. Deadly weapon

3. Evidence

4. Generally

5. Lesser-included offense

6. Sentencing

7. To commit any felony

1. Constitutionality

Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and use of a deadly weapon to commit a felony under this section in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

It is an open question as to whether a defendant has a right to be told of the mandatory consecutive nature of a sentence imposed for using a firearm to commit a felony. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).

The consecutive sentence requirement of this statute is constitutional. State v. Stratton, 220 Neb. 854, 374 N.W.2d 31 (1985).

2. Deadly weapon

The operability of a firearm is not relevant to whether it is a firearm under subdivision (1)(a) of this section. State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).

To sustain a conviction under the use prong of this section, the State must show that the defendant actively employed a deadly weapon for the purpose of committing a felony. Mere storage of a weapon at a residence where drugs are dealt is insufficient to support a conviction for the use of a deadly weapon under this section. The term possession, as used in this section, includes only actual possession; actual possession is defined as including only those weapons on one's person or within one's immediate control, which is the area within which one might immediately gain possession of a weapon. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999).

A defendant who aids and abets the use of a deadly weapon in the commission of a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

Pursuant to subsection (1) of this section, a "deadly weapon" is any instrument which, in the manner it is used or intended to be used, is capable of producing a bodily injury involving a substantial risk of (1) death, (2) serious permanent disfigurement, or (3) protracted loss or impairment of the function of any organ or body part. The weapon need not actually produce such injuries, but need only be used in a manner which makes it capable of producing them. Under the facts of this case, a 14- by 3- by 3/4-inch wooden "spanking board" could be found to be a deadly weapon. State v. Ayres, 236 Neb. 824, 464 N.W.2d 316 (1991).

A firearm does not have to be operable in order for the defendant to be guilty of use of a deadly weapon to commit a felony. State v. Clark, 10 Neb. App. 758, 637 N.W.2d 671 (2002).

3. Evidence

4. Generally

Malice is not an element of first degree assault, and, as such, "sudden quarrel" would not be applicable to negate it. A similar rationale applies to use of a deadly weapon to commit a felony, which does not have malice as an element. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).

The crime of using a deadly weapon to commit a felony under this section is an independent offense from the underlying felony. State v. Miller, 284 Neb. 498, 822 N.W.2d 360 (2012).

A defendant must commit an underlying or predicate felony before he or she can be convicted of use of a deadly weapon to commit a felony. State v. Sepulveda, 278 Neb. 972, 775 N.W.2d 40 (2009).

This statutory language expressly provides that the Legislature intended the crime of using a deadly weapon to commit a felony to remain an independent offense from the underlying felony. There can be no question that the Legislature intended that one using a deadly weapon be subjected to cumulative punishments for committing the underlying felony and for the use of the weapon to commit it. State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).

When the felony which serves as a basis of the use of a weapon charge is an unintentional crime, the accused cannot be convicted of use of a weapon to commit a felony. State v. Pruett, 263 Neb. 99, 638 N.W.2d 809 (2002).

Pursuant to subsection (1) of this section, a defendant can be convicted of a use of a deadly weapon to commit a felony charge under an aiding and abetting theory. State v. Leonor, 263 Neb. 86, 638 N.W.2d 798 (2002).

Where the record reflects the use of multiple weapons in the commission of a single felony, the use of each weapon may constitute a separate violation of this section. State v. Decker, 261 Neb. 382, 622 N.W.2d 903 (2001).

This section defines a separate and distinct crime, and conviction of violation of this section is not enhancement with respect to conviction of felony in which firearm was used. State v. Dandridge, 209 Neb. 885, 312 N.W.2d 286 (1981).

Pursuant to a plea agreement which was explained and was entered into knowingly, voluntarily, and intelligently, a defendant can be convicted of and sentenced to imprisonment for both an underlying charge of manslaughter, an unintentional crime, and a charge of use of a weapon to commit a felony, an intentional crime. State v. Drinkwalter, 14 Neb. App. 944, 720 N.W.2d 415 (2006).

Because a reckless terroristic threat is an intentional crime, it cannot be the underlying felony for the use of a weapon charge. State v. Rye, 14 Neb. App. 133, 705 N.W.2d 236 (2005).

When instructing the jury on multiple counts under this section, the trial court need not repeat the "use" instruction for each separate count charged. State v. Charles, 4 Neb. App. 211, 541 N.W.2d 69 (1995).

A defendant acquitted on the underlying felony charge cannot be convicted of an offense under this section involving that felony; but a defendant convicted of the underlying felony might still be acquitted on a charge under this section. State v. Smith, 3 Neb. App. 564, 529 N.W.2d 116 (1995).

A defendant cannot be convicted under this section when defendant has been acquitted of the underlying felony. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).

5. Lesser-included offense

Use of a firearm or other deadly weapon in the commission of a felony is not a lesser-included offense of assault in the second degree. State v. Jackson, 217 Neb. 332, 348 N.W.2d 866 (1984).

6. Sentencing

Pursuant to subsection (3) of this section, two separate sentences of 15 to 20 years' imprisonment for the use of a deadly weapon in the commission of two separate first degree murders can be served consecutively to the respective murder convictions, even when one of the murder convictions is based on accomplice liability. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).

Pursuant to subsection (3) of this section, the trial court's failure to impose defendant's sentence for use of a firearm consecutively to his life imprisonment sentence is plain error. State v. Russell, 248 Neb. 723, 539 N.W.2d 8 (1995).

Although it is within the trial court's discretion to direct that sentences imposed for separate crimes be served consecutively, this section does not permit such discretion in sentencing. State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).

Where defendant was convicted of two separate and distinct felonies, the sentences were within statutory limits and appropriately imposed consecutively. State v. Reynolds, 242 Neb. 874, 496 N.W.2d 872 (1993).

The language of subsection (3) of this section, to the effect that sentences under its provisions must be imposed consecutively to any sentence imposed for the predicate felony, is mandatory and not within the discretion of the sentencing court. State v. Trevino, 230 Neb. 494, 432 N.W.2d 503 (1988).

Although subsection (3) of this section mandates that a sentence imposed hereunder must be served consecutive to any other sentence, whether or not a defendant needs to be specifically apprised of such matter is factually dependent. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).

Failure to advise the defendant that sentence for use of a weapon to commit a felony was required to run consecutively with any other sentence imposed was not prejudicial when defendant was advised of the combined minimum sentence which he could serve. State v. Lyman, 230 Neb. 457, 432 N.W.2d 43 (1988).

Where a defendant is not informed that consecutive sentences are mandated by subsection (3) of this statute, he has been misinformed by the court, and his plea is not voluntary. State v. Golden, 226 Neb. 863, 415 N.W.2d 469 (1987).

Under subsection (3) of this section, only those crimes defined in this section are treated as distinct offenses from the felony committed, and only the sentences imposed under this section are required to be consecutive to any other sentence imposed. State v. Elliott, 21 Neb. App. 962, 845 N.W.2d 612 (2014).

The trial court's sentencing arrangement ordering consecutive sentences for the second robbery and use of a deadly weapon convictions to be served concurrently with the first sentences for robbery and use of a deadly weapon convictions constituted plain error because it had the effect of making one of the sentences for use of a deadly weapon run concurrently with the other sentence for use of a deadly weapon. State v. Schnell, 17 Neb. App. 211, 757 N.W.2d 732 (2008).

7. To commit any felony

The language "to commit any felony," as it is used in this section, is synonymous with "for the purpose of committing any felony." State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989).

28-1206. Possession of a deadly weapon by a prohibited person; penalty.

(1) A person commits the offense of possession of a deadly weapon by a prohibited person if he or she:

(a) Possesses a firearm, a knife, or brass or iron knuckles and he or she:

(i) Has previously been convicted of a felony;

(ii) Is a fugitive from justice;

(iii) Is the subject of a current and validly issued domestic violence protection order, harassment protection order, or sexual assault protection order and is knowingly violating such order; or

(iv) Is on probation pursuant to a deferred judgment for a felony under section 29-2292; or

(b) Possesses a firearm or brass or iron knuckles and he or she has been convicted within the past seven years of a misdemeanor crime of domestic violence.

(2) The felony conviction may have been had in any court in the United States, the several states, territories, or possessions, or the District of Columbia.

(3)(a) Possession of a deadly weapon which is not a firearm by a prohibited person is a Class III felony.

(b) Possession of a deadly weapon which is a firearm by a prohibited person is a Class ID felony for a first offense and a Class IB felony for a second or subsequent offense.

(4) Subdivision (1)(a)(i) of this section shall not prohibit:

(a) Possession of archery equipment for lawful purposes; or

(b) If in possession of a recreational license, possession of a knife for purposes of butchering, dressing, or otherwise processing or harvesting game, fish, or furs.

(5)(a) For purposes of this section, misdemeanor crime of domestic violence means a crime that:

(i) Is classified as a misdemeanor under the laws of the United States or the District of Columbia or the laws of any state, territory, possession, or tribe;

(ii) Has, as an element, the use or attempted use of physical force or the threatened use of a deadly weapon; and

(iii) Is committed by another against his or her spouse, his or her former spouse, a person with whom he or she has a child in common whether or not they have been married or lived together at any time, or a person with whom he or she is or was involved in a dating relationship as defined in section 28-323.

(b) For purposes of this section, misdemeanor crime of domestic violence also includes the following offenses, if committed by a person against his or her spouse, his or her former spouse, a person with whom he or she is or was involved in a dating relationship as defined in section 28-323, or a person with whom he or she has a child in common whether or not they have been married or lived together at any time:

(i) Assault in the third degree under section 28-310;

(ii) Stalking under subsection (1) of section 28-311.04;

(iii) False imprisonment in the second degree under section 28-315;

(iv) First offense domestic assault in the third degree under subsection (1) of section 28-323; or

(v) Any attempt or conspiracy to commit any of such offenses.

(i) The person was represented by counsel in the case or knowingly and intelligently waived the right to counsel in the case; and

(ii) In the case of a prosecution for a misdemeanor crime of domestic violence for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either:

(A) The case was tried to a jury; or

(B) The person knowingly and intelligently waived the right to have the case tried to a jury.

(6) In addition, for purposes of this section:

(a) Archery equipment means:

(i) A longbow, recurve bow, compound bow, or nonelectric crossbow that is drawn or cocked with human power and released by human power; and

(ii) Target or hunting arrows, including arrows with broad, fixed, or removable heads or that contain multiple sharp cutting edges;

(b) Domestic violence protection order means a protection order issued pursuant to section 42-924;

(c) Harassment protection order means a protection order issued pursuant to section 28-311.09 or that meets or exceeds the criteria set forth in section 28-311.10 regarding protection orders issued by a court in any other state or a territory, possession, or tribe;

(d) Recreational license means a state-issued license, certificate, registration, permit, tag, sticker, or other similar document or identifier evidencing permission to hunt, fish, or trap for furs in the State of Nebraska; and

(e) Sexual assault protection order means a protection order issued pursuant to section 28-311.11 or that meets or exceeds the criteria set forth in section 28-311.12 regarding protection orders issued by a court in any other state or a territory, possession, or tribe.

Source:Laws 1977, LB 38, § 238; Laws 1978, LB 748, § 19; Laws 1995, LB 371, § 9; Laws 2009, LB63, § 15; Laws 2010, LB771, § 10; Laws 2017, LB289, § 10; Laws 2017, LB478, § 1; Laws 2018, LB848, § 1; Laws 2019, LB686, § 4.

Annotations

1. Felon in possession

2. Miscellaneous

1. Felon in possession

In the sufficiency of evidence context, the State is not required to prove that a defendant charged with violating this section had or waived counsel at the time of a prior conviction as an essential element of the crime. State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).

To prove that a defendant has a prior felony conviction in a felon in possession case, convictions obtained after Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regularity such that records of conviction are admissible, unless the defendant can show that he or she did not have or waive counsel at the time of conviction. State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).

Before a prior felony conviction can be used to prove that a defendant is a felon in a felon in possession case, the State must prove either that the prior felony conviction was counseled or that counsel was waived. State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

Use of a prior conviction to establish status as a felon and then enhance a sentence does not constitute impermissible double enhancement. State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).

Possession of a knife by a convicted felon is not unlawful under the plain language of this section. State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).

Nebraska law explicitly and unequivocally prohibits a felon from being in possession of a firearm. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

This section punishes the specific conduct of possession of a firearm by a person previously convicted of a felony, not the underlying felony. State v. Peters, 261 Neb. 416, 622 N.W.2d 918 (2001).

In order to use a prior conviction as proof that a defendant has been convicted of a felony for purposes of the felon in possession statute, the State must establish that at the time of the prior conviction, the defendant had or waived counsel. State v. Portsche, 258 Neb. 926, 606 N.W.2d 794 (2000).

The release of a convicted felon from probation and the restoration of his or her civil rights does not nullify the conviction under the terms of subsection (1) of this section. State v. Illig, 237 Neb. 598, 467 N.W.2d 375 (1991).

Pursuant to subsection (1) of this section, a convicted felon may not possess a firearm for purposes of self-defense. State v. Harrington, 236 Neb. 500, 461 N.W.2d 752 (1990).

Possession of a firearm by a felon on two separate days, absent any evidence of an interruption in that possession, is a single continuing offense where the statute does not specify any means for dividing an uninterrupted possession into separate offenses, and the former instance of possession is included in the offense for the latter. State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).

Statute prohibiting felon from possessing a firearm includes purchase and possession of antique firearm. State v. Tharp, 22 Neb. App. 454, 854 N.W.2d 651 (2014).

To have "previously been convicted of a felony", as the phrase is used in subsection (1) of this section, a defendant need not have commenced serving his or her sentence for the previous conviction. State v. Moore, 3 Neb. App. 417, 527 N.W.2d 223 (1995).

2. Miscellaneous

Subsection (1) of this section is not unconstitutionally overbroad. State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

Prosecution for both unlawful discharge of a firearm under section 28-1212.02 and possession of a deadly weapon by a felon under this section does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

A pistol is a firearm. State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).

This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

Pursuant to subsection (1) of this section, the doctrine of constructive possession applies to the possession of a firearm by a felon or a fugitive from justice, and the fact of possession may be proved by circumstantial evidence. State v. Long, 8 Neb. App. 353, 594 N.W.2d 310 (1999).

28-1207. Possession of a defaced firearm; penalty.

(1) Any person who knowingly possesses, receives, sells, or leases, other than by delivery to law enforcement officials, any firearm from which the manufacturer's identification mark or serial number has been removed, defaced, altered, or destroyed, commits the offense of possession of a defaced firearm.

(2) Possession of a defaced firearm is a Class III felony.

Source:Laws 1977, LB 38, § 239; Laws 2009, LB63, § 16.

Annotations

This section is held not to be invalid as in conflict with Neb. Const. art. I, section 1. State v. Comeau, 233 Neb. 907, 448 N.W.2d 595 (1989).

28-1208. Defacing a firearm; penalty.

(1) Any person who intentionally removes, defaces, covers, alters, or destroys the manufacturer's identification mark or serial number or other distinguishing numbers on any firearm commits the offense of defacing a firearm.

(2) Defacing a firearm is a Class III felony.

Source:Laws 1977, LB 38, § 240; Laws 2009, LB63, § 17.

28-1209. Failure to register tranquilizer guns; penalty.

(1) Any person who fails or neglects to register any gun or other device designed, adapted or used for projecting darts or other missiles containing tranquilizers or other chemicals or compounds which will produce unconsciousness or temporary disability in live animals, with the county sheriff of the county in which the owner of the gun or device resides, commits the offense of failure to register tranquilizer guns.

(2) Failure to register tranquilizer guns is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 241.

28-1210. Failure to notify the sheriff of the sale of tranquilizer guns; penalty; record.

(1) Any person, partnership, limited liability company, or corporation selling any gun or other device as described in section 28-1209 which fails to immediately notify the sheriff of the county of the sale and giving the name and address of the purchaser thereof and the make and number of the gun or device commits the offense of failure to notify the sheriff of the sale of tranquilizer guns.

(2) The sheriff shall keep a record of such sale with the information furnished pursuant to this section.

(3) Failure to notify the sheriff of the sale of tranquilizer guns is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 242; Laws 1993, LB 121, § 179.

28-1211. Repealed. Laws 2014, LB 699, § 8.

28-1212. Presence of firearm in motor vehicle; prima facie evidence.

The presence in a motor vehicle other than a public vehicle of any firearm or instrument referred to in section 28-1203, 28-1206, 28-1207, or 28-1212.03 shall be prima facie evidence that it is in the possession of and is carried by all persons occupying such motor vehicle at the time such firearm or instrument is found, except that this section shall not be applicable if such firearm or instrument is found upon the person of one of the occupants therein.

Source:Laws 1977, LB 38, § 244; Laws 1991, LB 477, § 3.

Annotations

Although "prima facie evidence" is found in this section, the content of a statute within the criminal code is not necessarily and always proper information for a jury. State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991).

28-1212.01. Unlawful discharge of firearm; terms, defined.

For purposes of sections 28-1212.02 and 28-1212.04:

(1) Aircraft means any contrivance intended for and capable of transporting persons through the airspace;

(2) Inhabited means currently being used for dwelling purposes; and

(3) Occupied means that a person is physically present in a building, motor vehicle, or aircraft.

Source:Laws 1990, LB 1018, § 3; Laws 1995, LB 371, § 10; Laws 2010, LB771, § 11.

28-1212.02. Unlawful discharge of firearm; penalty.

Any person who unlawfully and intentionally discharges a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as defined in section 60-1801 shall be guilty of a Class ID felony.

Source:Laws 1990, LB 1018, § 2; Laws 1995, LB 371, § 11; Laws 2009, LB63, § 18.

Annotations

Prosecution for both unlawful discharge of a firearm under this section and possession of a deadly weapon by a felon under section 28-1206 does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

Prosecution for both unlawful discharge of a firearm under this section and use of a deadly weapon to commit a felony under section 28-1205 in a single proceeding does not violate the Double Jeopardy Clause. State v. McBride, 252 Neb. 866, 567 N.W.2d 136 (1997).

28-1212.03. Stolen firearm; prohibited acts; violation; penalty.

(1) Any person who possesses, receives, retains, or disposes of a stolen firearm knowing that it has been or believing that it has been stolen shall be guilty of a Class IIA felony unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner.

(2) Any person who possesses, receives, retains, or disposes of a stolen firearm when such person should have known, or had reasonable cause to believe, that such firearm has been stolen shall be guilty of a Class IIA felony unless the firearm is possessed, received, retained, or disposed of with intent to restore it to the owner.

Source:Laws 1991, LB 477, § 1; Laws 2009, LB63, § 19; Laws 2015, LB605, § 53; Laws 2020, LB582, § 1.

Annotations

The absence of an intent to restore a firearm to the owner is a material element of possession of a stolen firearm and must be instructed to the jury. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).

The use of the term "deprive" in a separate definition within the jury instructions does not instruct the jury that the absence of an intent to restore the property was a material element of the crime. State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).

28-1212.04. Discharge of firearm in certain cities and counties; prohibited acts; penalty.

Any person, within the territorial boundaries of any city of the first class or county containing a city of the metropolitan class or primary class, who unlawfully, knowingly, and intentionally or recklessly discharges a firearm, while in any motor vehicle or in the proximity of any motor vehicle that such person has just exited, at or in the general direction of any person, dwelling, building, structure, occupied motor vehicle, occupied aircraft, inhabited motor home as defined in section 71-4603, or inhabited camper unit as defined in section 60-1801, is guilty of a Class IC felony.

Source:Laws 2009, LB63, § 20; Laws 2010, LB771, § 12; Laws 2010, LB817, § 3.

Annotations

Evidence was sufficient to support the defendant's conviction under this section, which proscribes intentionally discharging a firearm in the general direction of an occupied motor vehicle while in the proximity of a motor vehicle, where evidence showed the defendant was present when shots were fired into an occupied motor vehicle and permitted a reasonable inference that the defendant was one of the persons shooting into the vehicle. State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012).

28-1213. Explosives, destructive devices, other terms; defined.

For purposes of sections 28-1213 to 28-1239, unless the context otherwise requires:

(1) Person means any individual, corporation, company, association, firm, partnership, limited liability company, society, or joint-stock company;

(2) Business enterprise means any corporation, partnership, limited liability company, company, or joint-stock company;

(3) Explosive materials means explosives, blasting agents, and detonators;

(4) Explosives means any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion, including, but not limited to, dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, ignited cord, igniters, display fireworks as defined in section 28-1241, and firecrackers or devices containing more than one hundred thirty milligrams of explosive composition, but does not include consumer fireworks as defined in such section, gasoline, kerosene, naphtha, turpentine, benzine, acetone, ethyl ether, benzol, fixed ammunition and primers for small arms, safety fuses, or matches;

(5) Blasting agent means any material or mixture intended for blasting which meets the requirements of 49 C.F.R. part 173, subpart C, Definitions, Classification and Packaging for Class I, as such subpart existed on January 1, 2010;

(6) Detonator means any device containing an initiating or primary explosive that is used for initiating detonation. Excluding ignition or delay charges, a detonator shall not contain more than ten grams of explosive material per unit. Detonator includes an electric detonator of instantaneous or delay type, a detonator for use with safety fuses, a detonating cord delay connector, and a nonelectric detonator of instantaneous or delay type which consists of detonating cord, shock tube, or any other replacement for electric leg wires;

(7)(a) Destructive devices means:

(i) Any explosive, incendiary, chemical or biological poison, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, (F) booby trap, (G) Molotov cocktail, (H) bottle bomb, (I) vessel or container intentionally caused to rupture or mechanically explode by expanding pressure from any gas, acid, dry ice, or other chemical mixture, or (J) any similar device, the primary or common purpose of which is to explode and to be used as a weapon against any person or property; or

(ii) Any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subdivision (7)(a)(i) of this section from which a destructive device may be readily assembled.

(b) The term destructive device does not include (i) any device which is neither designed nor redesigned for use as a weapon to be used against person or property, (ii) any device, although originally designed for use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line-throwing, safety, or similar device, (iii) surplus ordnance sold, loaned, or given by the Secretary of the Army pursuant to 10 U.S.C. 4684(2), 4685, or 4686, as such sections existed on March 7, 2006, (iv) any other device which the Nebraska State Patrol finds is not likely to be used as a weapon or is an antique, or (v) any other device possessed under circumstances negating an intent that the device be used as a weapon against any person or property;

(8) Federal permittee means any lawful user of explosive materials who has obtained a federal user permit under 18 U.S.C. chapter 40, as such chapter existed on January 1, 2010;

(9) Federal licensee means any importer, manufacturer, or dealer in explosive materials who has obtained a federal importers', manufacturers', or dealers' license under 18 U.S.C. chapter 40, as such chapter existed on January 1, 2010; and

(10) Smokeless propellants means solid propellants commonly called smokeless powders in the trade and used in small arms ammunition.

Source:Laws 1977, LB 38, § 245; Laws 1988, LB 893, § 1; Laws 1989, LB 215, § 1; Laws 1993, LB 121, § 180; Laws 1993, LB 163, § 1; Laws 1999, LB 131, § 1; Laws 2002, LB 82, § 9; Laws 2006, LB 1007, § 1; Laws 2010, LB880, § 1.

Annotations

Even if a pill bottle filled with the powder from fireworks and then taped and equipped with a fuse is considered one of the enumerated devices in subdivision (7)(a)(i) of this section, such pill bottle is not a destructive device if it was neither designed nor redesigned for use as a weapon to be used against person or property. In re Interest of Anthony P., 13 Neb. App. 659, 698 N.W.2d 457 (2005).

As structured, this section generally applies the exceptions to the definition of "destructive device" to all of the types of destructive device listed under subdivision (7)(a). In re Interest of Joseph S., 13 Neb. App. 636, 698 N.W.2d 212 (2005).

To the extent the Legislature categorized a dry ice bomb as an explosive, it obviously considered that term in its ordinary and plain meaning rather than a technical definition based upon the specific chemical process utilized. In re Interest of Joseph S., 13 Neb. App. 636, 698 N.W.2d 212 (2005).

28-1214. Explosives control; applicability of sections.

(1) Sections 28-1213 to 28-1239 shall apply to persons engaged in the manufacture, ownership, possession, storage, use, transportation, purchase, sale, or gift of explosive materials, except as may be otherwise indicated herein.

(2) Sections 28-1213 to 28-1239 shall not apply to explosive materials while being transported in conformity with federal law or regulations, nor, except as may be otherwise provided in such sections, to the ownership, possession, storage, use, transportation, purchase, or sale of explosive materials by the armed forces of the United States, the National Guard, other reserve components of the armed forces of the United States, and the duly constituted police and firefighting forces of the United States and of the state and its political subdivisions in the lawful discharge of their official duties.

Source:Laws 1977, LB 38, § 246.

28-1215. Unlawful possession of explosive materials, first degree; exception; penalty.

(1) Except as provided in subsection (2) of this section, any person who is ineligible to obtain a permit from the Nebraska State Patrol and who possesses or stores explosive materials commits the offense of unlawful possession of explosive materials in the first degree.

(2) Subsection (1) of this section shall not be applicable to any person transporting explosive materials in accordance with section 28-1235 or to any person who has obtained a permit from the Nebraska State Patrol to store or use such explosive materials or, in the case of a business enterprise, a permit to purchase such explosive materials.

(3) Unlawful possession of explosive materials in the first degree is a Class IV felony.

Source:Laws 1977, LB 38, § 247; Laws 1986, LB 975, § 1; Laws 1989, LB 215, § 2.

28-1216. Unlawful possession of explosive materials, second degree; penalty.

(1) Except as provided in subsection (2) of this section, any person who is eligible to obtain a permit from the Nebraska State Patrol or has a valid educational, industrial, commercial, agricultural, or other legitimate need for a permit and who possesses or stores explosive materials without such a permit commits the offense of unlawful possession of explosive materials in the second degree.

(2) The exclusions provided in subsection (2) of section 28-1215 shall be applicable to this section.

(3) Unlawful possession of explosive materials in the second degree is a Class I misdemeanor.

Source:Laws 1977, LB 38, § 248; Laws 1989, LB 215, § 3.

28-1217. Unlawful sale of explosives; penalty.

(1) Any person who knowingly and intentionally sells, transfers, issues, or gives any explosive materials to any person who does not display a valid permit issued by the Nebraska State Patrol authorizing the storage or use of such explosive materials or, in the case of a business enterprise, a permit to purchase such explosive materials commits the offense of unlawful sale of explosives.

(2) Unlawful sale of explosives is a Class IV felony.

Source:Laws 1977, LB 38, § 249; Laws 1986, LB 975, § 2; Laws 1989, LB 215, § 4.

28-1218. Use of explosives without a permit; penalty.

(1) Any person who uses any explosive materials for any purpose whatsoever, unless such person has obtained a permit from the Nebraska State Patrol to use such explosive materials or uses such explosive materials under the supervision of a permitholder, commits the offense of use of explosives without a permit.

(2) Except as provided in subsection (3) of this section, use of explosives without a permit is a Class I misdemeanor.

(3) Upon a showing that the accused was eligible under existing rules and regulations to receive a permit or had a valid educational, industrial, commercial, agricultural, or other legitimate need for a permit, use of explosives without a permit is a Class II misdemeanor.

(4) Any person under the direct and proximate supervision of a person possessing a permit to use explosive materials may also use explosive materials under such safety provisions as the Nebraska State Patrol may adopt and promulgate. Federal licensees and permittees shall obtain permits from the Nebraska State Patrol to use explosive materials.

Source:Laws 1977, LB 38, § 250; Laws 1989, LB 215, § 5.

28-1219. Obtaining a permit through false representation; penalty.

(1) Any person who knowingly withholds information or makes any false, fictitious, or misrepresented statement or furnishes or exhibits any false, fictitious, or misrepresented identification for the purpose of obtaining a permit or relief from disability under the provisions of sections 28-1213 to 28-1239 or knowingly makes any false entry in a record which such person is required to keep pursuant to such sections or the regulations promulgated pursuant to such sections, commits the offense of obtaining a permit through false representations.

(2) Obtaining a permit through false representations is a Class IV felony.

Source:Laws 1977, LB 38, § 251.

28-1220. Possession of a destructive device; penalty; permit or license for explosive materials; no defense.

(1) Any person who has in his possession a destructive device, as defined in subdivision (7) of section 28-1213, commits the offense of possession of a destructive device.

(2) A permit or license issued under any state or federal law to possess, own, use, distribute, sell, manufacture, store, or handle in any manner explosive materials shall not be a defense to the crime of possession of a destructive device as defined in this section.

(3) Possession of a destructive device is a Class IV felony.

Source:Laws 1977, LB 38, § 252.

Annotations

Possession of each destructive device constitutes a separate offense. State v. Spurgin, 261 Neb. 427, 623 N.W.2d 644 (2001).

28-1221. Threatening the use of explosives; placing a false bomb; penalty.

(1) A person who conveys any threat or maliciously conveys to any other person false information knowing the same to be false, concerning an attempt or alleged attempt being made or to be made to kill, injure, or intimidate any individual or unlawfully to damage or destroy any building, vehicle, or other real or personal property by means of any explosive material or destructive device commits the offense of threatening the use of explosives.

(2) A person who places or causes to be placed any device or object that by its design, construction, content, or character appears to be or appears to contain a bomb, destructive device, or explosive, but is in fact an inoperative facsimile or imitation of a bomb, destructive device, or explosive, and that such person knows, intends, or reasonably believes is likely to cause public alarm or inconvenience, commits the offense of placing a false bomb.

(3) Threatening the use of explosives or placing a false bomb is a Class IV felony.

Source:Laws 1977, LB 38, § 253; Laws 2002, LB 82, § 10.

28-1222. Using explosives to commit a felony; penalty.

(1) Any person who uses an explosive material or destructive device to commit any felony which may be prosecuted in this state or who possesses an explosive during the commission of any felony which may be prosecuted in this state commits the offense of using explosives to commit a felony.

(2) Using explosives to commit a felony is a Class IIA felony.

(3) In the case of a second or subsequent conviction under this section, using explosives to commit a felony is a Class II felony.

Source:Laws 1977, LB 38, § 254; Laws 2015, LB605, § 54.

28-1223. Using explosives to damage or destroy property; penalty.

(1) Any person who, by means of an explosive material or destructive device, maliciously attempts to damage or destroy or does damage or destroy any building, structure, vehicle, or other real or personal property commits the offense of using explosives to damage or destroy property.

(2) Except as provided under subsection (3) or (4) of this section, using explosives to damage or destroy property is a Class III felony.

(3) If a personal injury results, using explosives to damage or destroy property is a Class II felony.

(4) If death results, using explosives to damage or destroy property shall be punished as for conviction of murder in the first degree.

Source:Laws 1977, LB 38, § 255.

28-1224. Using explosives to kill or injure any person; penalty.

(1) Any person who uses explosive materials or destructive devices to intentionally kill, injure, or intimidate any individual commits the offense of using explosives to kill or injure any person.

(2) Except as provided in subsection (3) or (4) of this section, using explosives to kill or injure any person is a Class IIA felony.

(3) If personal injury results, using explosives to kill or injure any person is a Class II felony.

(4) If death results, using explosives to kill or injure any person shall be punished as for conviction of murder in the first degree.

Source:Laws 1977, LB 38, § 256; Laws 2015, LB605, § 55.

28-1225. Storing explosives in violation of safety regulations; penalty.

(1) Any person who stores any explosive materials or uses in legitimate blasting operations any explosive materials in a manner not in conformity with safety regulations adopted and promulgated by the Nebraska State Patrol or the Secretary of the Treasury of the United States or who stores any explosive materials at a place not designated in a permit to store such explosive materials issued to such person by the Nebraska State Patrol commits the offense of storing explosives in violation of safety regulations.

(2) Storing explosives in violation of safety regulations is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 257; Laws 1989, LB 215, § 6.

28-1226. Failure to report theft of explosives; penalty.

(1) Any person who has knowledge of the theft or loss of explosive materials from his or her stock who fails to report such theft or loss within twenty-four hours of discovery to the Nebraska State Patrol commits the offense of failure to report theft of explosives.

(2) Failure to report theft of explosives is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 258; Laws 1989, LB 215, § 7.

28-1227. Other violations; penalty.

With the exception of sections 28-1213 to 28-1226, any person who violates any other provision of sections 28-1213 to 28-1239 or rules promulgated pursuant to such sections commits a Class III misdemeanor.

Source:Laws 1977, LB 38, § 259.

28-1228. Presence of explosive material or destructive device in vehicle; prima facie evidence; exception.

The presence in a vehicle other than a public conveyance of any explosive material or destructive device shall be prima facie evidence that it is in the possession of all persons occupying such vehicle at the time such explosive material or destructive device is found, except that: (1) If such explosive material or destructive device is found upon the person of one of the occupants therein; or (2) if such explosive material or destructive device is found in a vehicle operated for hire by a driver in the due, lawful, and proper pursuit of his trade, then such presumption shall not apply to the driver. The presumption shall not apply to the occupants of a vehicle being operated in compliance with the requirements of section 28-1225, if explosive material but no destructive device is found therein.

Source:Laws 1977, LB 38, § 260.

28-1229. Explosives control; Nebraska State Patrol; permits; issuance; conditions.

(1) The Nebraska State Patrol shall have the authority to issue permits for:

(a) The storage of explosive materials;

(b) The use of explosive materials; and

(2) The Nebraska State Patrol shall not issue a permit to store or use explosive materials to any person who:

(a) Is under twenty-one years of age;

(b) Has been convicted in any court of a felony;

(d) Is a fugitive from justice;

(e) Is an unlawful user of any depressant, stimulant, or narcotic drug;

(f) Has been admitted as a patient or inmate in a public or private institution for the treatment of a mental or emotional disease or disorder within five years preceding the date of application;

(g) Has no reasonable educational, industrial, commercial, agricultural, recreational, or other legitimate need for a permit to store or use explosive materials;

(h) Has been convicted in any court of a misdemeanor crime of domestic violence. This includes any misdemeanor conviction involving the use or attempted use of physical force committed by a current or former spouse, parent, or guardian of the victim or by a person with a similar relationship with the victim;

(i) Is subject to a court order restraining him or her from harassing, stalking, or threatening an intimate partner or child of such partner; or

(j) Is an alien illegally in the United States.

(3) Upon filing of a proper application and payment of the prescribed fee, and subject to the provisions of sections 28-1213 to 28-1239 and other applicable laws, the Nebraska State Patrol shall issue to such applicant a permit to store explosive materials if:

(a) The applicant, including, in the case of a corporation, partnership, limited liability company, or association, any individual possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation, partnership, limited liability company, or association, is not a person to whom the Nebraska State Patrol is prohibited to issue a permit under subsection (2) of this section;

(b) The applicant has not willfully violated any of the provisions of sections 28-1213 to 28-1239 or of 18 U.S.C. chapter 40; and

(c) The applicant has a place of storage for explosive materials which meets such standards of public safety, based on the class, type, and quantity of explosive materials to be stored, and security against theft as prescribed in rules and regulations adopted and promulgated by the Nebraska State Patrol pursuant to sections 28-1213 to 28-1239 and by the Secretary of the Treasury of the United States pursuant to 18 U.S.C. chapter 40.

(4) A permit for the storage of explosive materials shall specify the class, type, and quantity of explosive materials which are authorized to be stored. It shall also specify the type of security required. A permit for the storage of explosive materials shall be valid for a period of two years unless a shorter period is specified in the permit.

(5) Upon filing of a proper application and payment of the prescribed fee, and subject to the provisions of sections 28-1213 to 28-1239 and other applicable laws, the Nebraska State Patrol shall issue to such applicant a permit to use explosive materials if:

(a) The applicant is an individual to whom the Nebraska State Patrol is not prohibited to issue a permit under subsection (2) of this section;

(b) The applicant has not willfully violated any of the provisions of sections 28-1213 to 28-1239 or of 18 U.S.C. chapter 40;

(c) The applicant has demonstrated and certified in writing that he or she is familiar with all published laws of this state and published local ordinances relating to the use of explosive materials applicable at the place or places he or she intends to use such explosive materials;

(d) The applicant has demonstrated that he or she has adequate knowledge, training, and experience in the use of explosive materials of the class and type for which he or she seeks a users permit and has passed a qualifying examination, as prescribed by the Nebraska State Patrol, concerning the use of such explosive materials; and

(e) The applicant has been fingerprinted and the fingerprints submitted to the Nebraska State Patrol for a criminal history record check. If no disqualifying record is located at the state level, the fingerprints shall be forwarded by the patrol to the Identification Division of the Federal Bureau of Investigation for a national criminal history record check.

(6) A permit for the use of explosive materials shall specify the class and type of explosive materials the permitholder is qualified to use. It shall be applicable to the permitholder and to any individual acting under his or her direct personal supervision. A permit may be issued for a single use of explosive materials or, when the applicant is engaged or employed in a business requiring the frequent use of explosive materials, for a period of not more than two years.

(7) Upon filing of a proper application and payment of the prescribed fees and subject to sections 28-1213 to 28-1239 and other applicable laws, the Nebraska State Patrol shall issue to a business enterprise a permit to purchase explosive materials if:

(a) The business enterprise has a place of business in this state;

(b) No individual possessing, directly or indirectly, the power to direct or cause the direction of the management and policies of the business enterprise is a person to whom the Nebraska State Patrol is prohibited to issue a permit under subsection (2) of this section;

(c) An authorized officer of the business enterprise certifies that all explosive materials will be used on the date of purchase of such materials unless such business enterprise is in possession of a valid storage permit; and

(d) The business enterprise employs at least one employee having a valid use permit issued under this section.

(8) A permit for a business enterprise to purchase explosive materials shall specify the class and type of explosive materials which are authorized to be purchased. The class and type of explosive materials covered by such permit shall be the same as those specified in the use permit or permits issued to an employee or employees of the business enterprise. The permit may be issued for a period of up to two years but shall become void if the business enterprise ceases to employ an individual having a valid use permit issued under this section for the class and type of explosive materials covered by the purchase permit of the business enterprise.

(9) If the applicant is an individual, an application for a permit issued under this section shall include the applicant's social security number.

Source:Laws 1977, LB 38, § 261; Laws 1989, LB 215, § 8; Laws 1993, LB 163, § 2; Laws 1993, LB 121, § 181; Laws 1997, LB 752, § 81; Laws 1999, LB 131, § 2.

28-1230. Explosives control; permit; denial; notice; appeal.

Whenever the Nebraska State Patrol denies an application for a permit or the renewal thereof, the Nebraska State Patrol shall, within twenty days of such denial, give notice thereof and the reasons therefor in writing to the applicant, personally or by mail, to the address given in the application. The notice of denial shall also advise the applicant of his or her right to appeal and set forth the steps necessary to undertake an appeal and the time limits pertaining thereto. Such denial may be appealed to the Nebraska State Patrol which shall follow the procedures for contested cases required by the Administrative Procedure Act.

Source:Laws 1977, LB 38, § 262; Laws 1989, LB 215, § 9.

Cross References

Administrative Procedure Act, see section 84-920.

28-1231. Explosives control; permit; revocation; grounds.

(1) The Nebraska State Patrol may revoke any permit on any ground authorized in subsection (2) of section 28-1229 for the denial of a permit or for any violation of the terms of such permit, for a violation of any provision of this article or of the rules and regulations of the Nebraska State Patrol, or for noncompliance with any order issued by the Nebraska State Patrol within the time specified in such order.

(2) Revocation of a permit for any ground authorized may be ordered only after giving written notice and an opportunity to be heard to the holder thereof. Revocation proceedings shall be in accordance with the procedure required for contested cases set forth in the Administrative Procedure Act. Such notice may be given to the holder personally or by mail and shall specify the ground or grounds on which it is proposed to revoke the permit. When a permit is revoked, the Nebraska State Patrol may direct the disposition of the explosives held by such permittee. Upon revocation of a permit by the Nebraska State Patrol, the holder thereof shall surrender his or her permit to the Nebraska State Patrol at once or be subject to penalties as provided for elsewhere in sections 28-1213 to 28-1239.

Source:Laws 1977, LB 38, § 263; Laws 1989, LB 215, § 10.

Cross References

Administrative Procedure Act, see section 84-920.

28-1232. Explosive materials; permit; application; form; fees.

An application for a storage, use, or business enterprise purchase permit for explosive materials shall be in such form and contain such information as the Nebraska State Patrol shall by rule and regulation prescribe. Each applicant for a permit shall pay a fee of fifty dollars in the case of a storage permit, ten dollars in the case of a use permit, and ten dollars in the case of a business enterprise purchase permit.

Source:Laws 1977, LB 38, § 264; Laws 1982, LB 928, § 21; Laws 1989, LB 215, § 11.

28-1233. Explosive materials; permitholder; records; notice; requirements; penalty.

(1) Every holder of any permit required under sections 28-1213 to 28-1239 shall maintain an accurate inventory of all explosives in his or her possession and maintain records of transfers to other persons of explosive materials. Such records shall include a statement of intended use by the transferee and the name, date of birth, place of birth, social security number or taxpayer identification number, and place of residence of any natural person to whom the explosives are transferred. If the explosive materials are transferred to a corporation or other business entity, such records shall include the identity and principal and local places of business and the name, date of birth, place of birth, and place of residence of the natural person acting as the agent of the corporation or other business entity in arranging the transfer. In the case of a federal licensee or permittee who is also a permitholder under the terms of sections 28-1213 to 28-1239, the maintenance of one set of records for the fulfilling of the record-keeping requirements of 18 U.S.C. chapter 40 shall be deemed compliance with the record-keeping requirements of sections 28-1213 to 28-1239.

(2) Every holder of any storage or business enterprise permit required under sections 28-1213 to 28-1239 shall maintain a log describing the time, place, amount, and type of explosive used in any blasting operations performed by him or her or at his or her direction.

(3) Every holder of any storage, purchase, or use permit required under sections 28-1213 to 28-1239 shall notify the fire protection district in which any explosive over one pound in weight is to be used or stored twenty-four hours prior to such use or storage, and the holder shall keep a written record in the log describing the time the notice was given, office in the district to which the notice was given, and name of the person in the district notified. The fire protection district may waive the twenty-four-hour notice when the public safety requires such waiver to prevent loss of life or property if such notice is given prior to use or storage. The fire protection district may accept a single notification of ongoing use within a set timeframe not to exceed sixty days. Any holder of a storage, purchase, or use permit who fails to notify the fire protection district pursuant to this subsection is guilty of a Class II misdemeanor.

Source:Laws 1977, LB 38, § 265; Laws 1993, LB 163, § 3; Laws 1999, LB 284, § 1.

28-1234. Permitholders; inspection of records and permits.

(1) Permitholders shall make available for inspection at all reasonable times their records kept pursuant to sections 28-1213 to 28-1239 and the rules and regulations adopted and promulgated pursuant to such sections. The Nebraska State Patrol may enter during business hours the premises, including places of storage, of any permitholder for the purpose of inspecting and examining (a) any records or documents required to be kept by such permitholder under sections 28-1213 to 28-1239 or the rules and regulations adopted and promulgated pursuant to such sections and (b) any explosive materials kept or stored by such permitholder at such premises.

(2) Holders of use permits and business enterprise purchase permits shall retain such permits and make them available to the Nebraska State Patrol on request. Storage permits shall be posted and kept available for inspection at all places of storage of explosive materials.

Source:Laws 1977, LB 38, § 266; Laws 1989, LB 215, § 12.

28-1235. Transportation of explosive materials; permit required.

No person shall transport any explosive materials into this state or within the boundaries of this state unless such person holds a permit as required by sections 28-1213 to 28-1239 or a permit or license issued pursuant to 18 U.S.C. chapter 40. Common carriers by air, highway, railway, or water transporting explosive materials into this state or within the boundaries of this state and contract or private carriers by motor vehicle transporting explosive materials into this state or within the boundaries of this state in the lawful, ordinary course of business and engaged in such business pursuant to certificate or permit by whatever name issued to them by any federal or state officer, agency, bureau, commission, or department shall be excepted from this section except as the Nebraska State Patrol by rule and regulation may otherwise provide. All transportation of explosive materials subject to this section shall be in conformity with such safety rules and regulations as the Nebraska State Patrol may adopt and promulgate.

Source:Laws 1977, LB 38, § 267; Laws 1989, LB 215, § 13.

28-1235.01. Resident; bring explosive material into state; when allowed.

Any resident of the State of Nebraska who holds a valid explosive permit issued by the Nebraska State Patrol and who uses explosive material in the conduct of a business or occupation may lawfully purchase explosive materials from a licensed seller located or residing in a state contiguous to the State of Nebraska and bring such explosive material into Nebraska.

Source:Laws 1979, LB 477, § 1; Laws 1989, LB 215, § 14.

28-1236. Nebraska State Patrol; rules and regulations.

The Nebraska State Patrol may adopt and promulgate rules and regulations supplemental to sections 28-1213 to 28-1239 necessary or desirable to assure the public safety as well as to provide reasonable and adequate protection of the lives, health, and safety of persons employed in the manufacture, storage, transportation, handling, and use of explosives. The Nebraska State Patrol may adopt and promulgate such rules and regulations necessary and proper for the administration of sections 28-1213 to 28-1239 and, together with all other peace officers of the state and its political subdivisions, shall be charged with the enforcement of such sections.

Source:Laws 1977, LB 38, § 268; Laws 1988, LB 893, § 2; Laws 1989, LB 215, § 15.

28-1237. Special law or local ordinance; minimum required standard.

The provisions of sections 28-1213 to 28-1239 and the rules adopted pursuant thereto shall be the minimum standard required and shall supersede any special law or local ordinance inconsistent therewith, and no local ordinance inconsistent therewith shall be adopted, but nothing herein contained shall prevent the enactment by local law or ordinance of additional requirements and restrictions.

Source:Laws 1977, LB 38, § 269.

28-1238. Violations; seizure and disposition of explosives.

Any explosive materials or destructive devices involved in any violation of sections 28-1213 to 28-1239 or any rule or regulation adopted and promulgated pursuant to such sections or in any violation of any other criminal law of this state shall be subject to seizure, and disposition may be made in accordance with the method of disposition directed for contraband in section 29-820, whenever the seized matter results in a judicial civil or criminal action by or against any person or as the Nebraska State Patrol directs in the absence of such judicial action.

Source:Laws 1977, LB 38, § 270; Laws 1989, LB 215, § 16.

28-1239. Explosives control; exceptions to sections; enumerated.

In addition to the exceptions provided in sections 28-1213 to 28-1239, such sections shall not apply to:

(1) The use of explosive materials in medicines and medicinal agents in forms prescribed by the official United States Pharmacopoeia or the National Formulary;

(2) The sale, transportation, shipment, receipt, or importation of explosive materials for delivery to any agency of the United States or to any state or political subdivision thereof;

(3) Small arms ammunition and components thereof;

(4) The storage or possession of or dealing in black powder used for recreation purposes by a sportsperson;

(5) The storage or possession of or dealing in smokeless propellants, percussion caps, primers, and other components used by a sportsperson in the reloading of small arms ammunition;

(6) Bona fide war trophies capable of exploding and innocently found explosive materials possessed under circumstances negating an intent to use the same unlawfully, but the owner thereof shall surrender such items forthwith to any nationally certified hazardous device technician or military explosive ordnance expert upon demand by a law enforcement officer or agency or fire department; and

(7) The storage in minimum amounts necessary for lawful educational purposes of explosive materials to be used in the natural science laboratories of any state-accredited school system.

Source:Laws 1977, LB 38, § 271; Laws 1993, LB 163, § 4.

28-1239.01. Fireworks display; permit required; fee; sale of display fireworks; regulation.

(1) No person shall conduct a public exhibition or display of display fireworks without first procuring a display permit from the State Fire Marshal. Such application for a display permit shall be accompanied by a fee of ten dollars to be deposited in the State Fire Marshal Cash Fund.

(2) No display fireworks shall be sold or delivered by a licensed distributor to any person who is not in possession of an approved display permit. Sales of display fireworks to persons without an approved display permit shall be subject to sections 28-1213 to 28-1239.

Source:Laws 1986, LB 969, § 4; Laws 1993, LB 251, § 1; Laws 1997, LB 752, § 82; Laws 2010, LB880, § 2; Laws 2012, LB805, § 1.

28-1240. Unlawful transportation of anhydrous ammonia; penalty; unlawful use of certain containers; penalty.

(1) Any person, partnership, limited liability company, firm, or corporation (a) who loads, unloads, transports, or causes to be transported over the public highways of this state anhydrous ammonia in a tank or container with a water gallon capacity of three thousand gallons or less which will not withstand two-hundred-fifty-pounds-per-square-inch gauge pressure or in a tank or container with a water gallon capacity of more than three thousand gallons which will not withstand two-hundred-sixty-five-pounds-per-square-inch gauge pressure and does not meet all the other requirements of the United States Department of Transportation Specifications MC 330 or MC 331, as amended and effective September 1, 1965, or (b) who operates any anhydrous ammonia railroad tank cars over the railroads of this state which fail to comply with all of the applicable requirements of the United States Department of Transportation in effect on December 25, 1969, commits the offense of unlawful transportation of anhydrous ammonia.

(2) Compliance with this section must be shown by an identification plate permanently affixed to a conspicuous place on each tank or container. After July 17, 1986, whenever any tank or container is altered subsequent to its original manufacture, the identification plate of such tank or container shall be changed to indicate proof that the tank or container is able to meet standards prescribed in subsection (1) of this section after the tank or container has been altered. Any tank or container which is so altered without making the appropriate changes on its identification plate shall be considered not in compliance with this section.

(3) Unlawful transportation of anhydrous ammonia is a Class II misdemeanor.

(4) Each day of a violation of this section shall constitute a separate offense, and any person, partnership, limited liability company, firm, or corporation operating, loading, or unloading a tank or container not in compliance with this section shall be considered as a separate violator of this section.

(5) It shall be unlawful for any person to use or cause to be used any tank or container with a water gallon capacity of under three thousand gallons which is or has been used to contain anhydrous ammonia for containing propane or liquefied natural gas. Such unlawful use of a tank or container shall be a Class III misdemeanor.

(6) Subsection (5) of this section shall not be applicable when the owner of the tank or container can show that the tank or container has been properly prepared for alternative use. Standards for such preparation shall be adopted and promulgated by the State Fire Marshal pursuant to this section.

Source:Laws 1977, LB 38, § 272; Laws 1979, LB 476, § 1; Laws 1986, LB 881, § 1; Laws 1993, LB 121, § 182.

28-1241. Fireworks; definitions.

As used in sections 28-1239.01 and 28-1241 to 28-1252, unless the context otherwise requires:

(1) 1.3G explosives, also known as display fireworks or Class B fireworks or by United Nations shipping classification number UN0335, means any items classified as 1.3G explosives by the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as such regulations existed on January 1, 2021;

(2) 1.4G explosives, also known as consumer fireworks or Class C fireworks or by United Nations shipping classification number UN0336, means any items classified as 1.4G explosives by the United States Department of Transportation in Title 49 of the Code of Federal Regulations, as such regulations existed on January 1, 2021;

(3) Distributor means any person engaged in the business of making sales of fireworks at wholesale in this state to any person engaged in the business of making sales of fireworks either as a jobber or as a retailer or both;

(4) Jobber means any person engaged in the business of making sales of fireworks at wholesale to any other person engaged in the business of making sales at retail;

(5) Retailer means any person engaged in the business of making sales of fireworks at retail to consumers or to persons other than distributors or jobbers;

(6) Sale includes barter, exchange, or gift or offer therefor and each such transaction made by any person, whether as principal, proprietor, agent, servant, or employee;

(7) Fireworks means any composition or device designed for the purpose of producing a visible or audible effect by combustion, deflagration, or detonation and which meets the definition of consumer or special fireworks set forth by the United States Department of Transportation in Title 49 of the Code of Federal Regulations;

(8)(a) Consumer fireworks means any device that (i) meets the requirements set forth in 16 C.F.R. parts 1500 and 1507, as such regulations existed on January 1, 2021, and (ii) is tested and approved by a nationally recognized testing facility or by the State Fire Marshal.

(b) 1.4G explosives shall be considered consumer fireworks.

(i) Wire sparklers; or

(ii) Fireworks that have been tested by the State Fire Marshal as a response to complaints and have been deemed to be unsafe; and

(9) Display fireworks means those materials manufactured exclusively for use in public exhibitions or displays of fireworks designed to produce visible or audible effects by combustion, deflagration, or detonation. Display fireworks includes, but is not limited to, firecrackers containing more than one hundred thirty milligrams of explosive composition, aerial shells containing more than forty grams of explosive composition, and other display pieces which exceed the limits for classification as consumer fireworks. 1.3G explosives shall be considered display fireworks. Display fireworks shall be considered an explosive as defined in section 28-1213 and shall be subject to sections 28-1213 to 28-1239, except that display fireworks may be purchased, received, and discharged by the holder of an approved display permit issued pursuant to section 28-1239.01.

Source:Laws 1977, LB 38, § 273; Laws 1986, LB 969, § 2; Laws 1988, LB 893, § 3; Laws 2006, LB 1007, § 2; Laws 2010, LB880, § 3; Laws 2021, LB152, § 1.

28-1242. Unlawful throwing of fireworks; penalty.

(1) A person commits the offense of unlawful throwing of fireworks if he or she throws any firework, or any object which explodes upon contact with another object: (a) From or into a motor vehicle; (b) onto any street, highway, or sidewalk; (c) at or near any person; (d) into any building; or (e) into or at any group of persons.

(2) Unlawful throwing of fireworks is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 274; Laws 1986, LB 969, § 3.

28-1243. Fireworks item deemed unsafe; quarantined; testing; test results; effect.

(1) If the State Fire Marshal deems any fireworks item to be unsafe pursuant to subdivision (8)(c)(ii) of section 28-1241, such fireworks item shall be quarantined from other fireworks. Any licensed distributor, jobber, or retailer may request, at the distributor's, jobber's, or retailer's expense, that such fireworks item be tested by an independent, nationally recognized testing facility to determine if such fireworks item meets the requirements set forth by the United States Consumer Product Safety Commission for 1.4G explosives. A copy of the results of all testing done pursuant to this section shall be provided to the State Fire Marshal.

(2) If such fireworks item is in compliance with such requirements and otherwise permitted under section 28-1241, such fireworks item that was determined to be unsafe pursuant to subdivision (8)(c)(ii) of section 28-1241 shall be deemed a consumer firework and be permitted for retail sale or distribution.

(3) If such fireworks item is in compliance with such requirements but is otherwise not deemed consumer fireworks, such fireworks item shall not be sold at retail or distributed to retailers for sale in this state, but a distributor, jobber, or retailer may sell such fireworks item to another distributor or retailer in a state that permits the sale of such fireworks item.

(4) If such fireworks item is not in compliance with such requirements, then the distributor, jobber, or retailer shall destroy such fireworks item under the supervision of the State Fire Marshal. If such fireworks item is not destroyed under the supervision of the State Fire Marshal, notarized documentation shall be provided to the State Fire Marshal detailing and confirming the fireworks item's destruction.

Source:Laws 2010, LB880, § 4; Laws 2021, LB152, § 2.

28-1244. Fireworks; unlawful acts.

Except as provided in section 28-1245, it shall be unlawful for any person to possess, sell, offer for sale, bring into this state, or discharge any fireworks other than consumer fireworks.

Source:Laws 1977, LB 38, § 276; Laws 2010, LB880, § 5.

28-1245. Fireworks; when prohibitions not applicable.

Section 28-1244 shall not apply to:

(1) Any display fireworks purchased from a licensed distributor; or

(2) Any display fireworks purchased by the holder of a display permit issued pursuant to section 28-1239.01; or

(3) Any fireworks brought into this state for storage by a licensed distributor and held for sale outside of this state; or

(4) Any fireworks furnished for agricultural purposes pursuant to written authorization from the State Fire Marshal to any holder of a distributor's license; or

(5) Toy cap pistols or toy caps, each of which does not contain more than twenty-five hundredths of a grain of explosive material.

Source:Laws 1977, LB 38, § 277; Laws 1986, LB 969, § 5; Laws 1993, LB 251, § 2.

28-1246. Fireworks; sale; license required; fees.

(1) It shall be unlawful for any person to sell, hold for sale, or offer for sale as a distributor, jobber, or retailer any fireworks in this state unless such person has first obtained a license as a distributor, jobber, or retailer. Application for each such license shall be made to the State Fire Marshal on forms prescribed by him or her. Each application shall be accompanied by the required fee, which shall be five hundred dollars for a distributor's license, two hundred dollars for a jobber's license, and twenty-five dollars for a retailer's license. Each application for a retailer's license shall be received by the State Fire Marshal at least ten business days prior to the sales period, as set forth in section 28-1249, in which the retailer wishes to sell consumer fireworks. A retailer's license shall be good only for the specific sales period listed on the application and within the calendar year in which issued. The retailer's license shall at all times be displayed at the place of business of the holder thereof.

(2) The funds received pursuant to this section shall be remitted to the State Treasurer for credit to the State Fire Marshal Cash Fund.

Source:Laws 1977, LB 38, § 278; Laws 1982, LB 928, § 22; Laws 1986, LB 853, § 1; Laws 1993, LB 251, § 3; Laws 1997, LB 752, § 83; Laws 2010, LB880, § 6; Laws 2012, LB805, § 2.

28-1247. Repealed. Laws 2010, LB 880, § 13.

28-1248. Fireworks; importation into state; duties of licensees; retention of packing list for inspection.

(1) It shall be unlawful for any person not licensed as a distributor or as a jobber under sections 28-1241 to 28-1252 to bring any fireworks into this state.

(2) It shall be unlawful for any retailer or jobber in this state to sell any fireworks in this state which have not been purchased from a distributor licensed under sections 28-1241 to 28-1252.

(3) Any person licensed under sections 28-1239.01 and 28-1241 to 28-1252 shall keep, available for inspection by the State Fire Marshal or his or her agents, a copy of each packing list for fireworks purchased as long as any fireworks included on such packing list are held in his or her possession. The packing list shall show the license number of the distributor or jobber from which the purchase was made.

Source:Laws 1977, LB 38, § 280; Laws 2010, LB880, § 7.

28-1249. Sale of consumer fireworks; limitations.

It shall be unlawful to sell any consumer fireworks at retail within this state, outside the limits of any incorporated city or village. Consumer fireworks may be sold at retail only between June 24 and July 5 and between December 28 and January 1 of each year.

Source:Laws 1977, LB 38, § 281; Laws 1999, LB 621, § 1; Laws 2004, LB 1091, § 2; Laws 2010, LB880, § 8.

28-1250. Fireworks; prohibited acts; violations; penalties; license suspension, cancellation, or revocation; appeal.

(1) Any person who violates any of the provisions of sections 28-1244 to 28-1249 commits a Class III misdemeanor. If such person is a licensed distributor or jobber, the State Fire Marshal may suspend, cancel, or revoke the license for up to three years. The suspension, cancellation, or revocation shall become effective upon the failure to timely appeal the decision under the Administrative Procedure Act or upon an order of the Nebraska Fire Safety Appeals Board upholding the decision pursuant to a hearing under the Administrative Procedure Act.

(2) It shall be unlawful for any person, association, partnership, limited liability company, or corporation to have in his, her, or its possession any fireworks in violation of any of the provisions of sections 28-1244 to 28-1249. If any person shall have in his, her, or its possession any fireworks in violation of such sections, a warrant may be issued for the seizure of such fireworks and when the warrant is executed by the seizure of such fireworks, such fireworks shall be safely kept by the magistrate to be used as evidence. Upon conviction of the offender, the fireworks shall be destroyed, but if the offender is discharged, the fireworks shall be returned to the person in whose possession they were found. Nothing in such sections shall apply to the transportation of fireworks by regulated carriers.

Source:Laws 1977, LB 38, § 282; Laws 1993, LB 121, § 183; Laws 2010, LB880, § 9.

Cross References

Administrative Procedure Act, see section 84-920.

28-1251. Unlawful testing or inspection of fire alarms; penalty; certification of applicants; examination; fee.

(1) It shall be unlawful for any person, association, partnership, limited liability company, or corporation to conduct fire alarm tests and fire alarm inspections without prior written certification by the State Fire Marshal as to the qualifications of such persons conducting such tests and inspections.

(2) The State Fire Marshal shall formulate reasonable guidelines to determine qualifications for fire alarm inspectors and shall administer an examination pursuant to such guidelines prior to certification of applicants.

(3) The State Fire Marshal may charge a fee of one hundred dollars to cover costs of administering such examinations.

(4) Unlawful testing or inspection of fire alarms is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 283; Laws 1982, LB 928, § 23; Laws 1993, LB 121, § 184.

28-1252. Fireworks; State Fire Marshal; rules and regulations; enforcement of sections.

The State Fire Marshal shall adopt and promulgate reasonable rules and regulations for the enforcement of sections 28-1239.01 and 28-1241 to 28-1252 and, together with all peace officers of the state and its political subdivisions, shall be charged with the enforcement of sections 28-1239.01 and 28-1243 to 28-1252.

Source:Laws 1977, LB 38, § 284; Laws 1989, LB 215, § 17; Laws 2010, LB880, § 10.

28-1253. Liquefied petroleum gas; prohibited acts; violation; penalty; enforcement.

(1) The distribution, sale, or use of refrigerants containing liquefied petroleum gas for use in mobile air conditioning systems is prohibited.

(2) For purposes of this section:

(a) Liquefied petroleum gas means material composed predominantly of any of the following hydrocarbons or mixtures of such hydrocarbons: Propane, propylene, butanes (normal butane or isobutane), and butylenes;

(b) Mobile air conditioning system means mechanical vapor compression equipment which is used to cool the driver or passenger compartment of any motor vehicle; and

(3) Any person violating this section is guilty of a Class IV misdemeanor.

(4) The State Fire Marshal may adopt and promulgate rules and regulations for enforcement of this section and, together with peace officers of the state and its political subdivisions, is charged with enforcement of this section.

Source:Laws 1999, LB 163, § 2; Laws 2021, LB37, § 1.

28-1254. Motor vehicle operation with person under age of sixteen years; prohibited acts; violation; penalty.

(1) It shall be unlawful for any person to operate or be in the actual physical control of a motor vehicle with a person under the age of sixteen years as a passenger:

(a) While the person operating or in the actual physical control of the motor vehicle is under the influence of alcoholic liquor or any drug;

(b) When the person operating or in the actual physical control of the motor vehicle has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood;

(c) When the person operating or in the actual physical control of the motor vehicle has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath; or

(d) If the person operating or in the actual physical control of the motor vehicle refuses to submit to a chemical test or tests when directed to do so by a peace officer pursuant to section 60-6,197.

(2) A violation of this section shall be a Class I misdemeanor.

(3) The crime punishable under this section shall be treated as a separate and distinct offense from any other offense arising out of acts alleged to have been committed while the person was in violation of this section.

Source:Laws 2011, LB667, § 2.

28-1255. Flying lantern-type devices; prohibited acts; penalty.

(1) Flying lantern-type devices are prohibited from sale, possession, and use in this state.

(2) For purposes of this section, flying lantern-type devices means devices that require a flame which produces heated air trapped in a balloon-type covering allowing the device to float in the air. Flying lantern-type devices shall not include hot-air balloons used for transporting persons.

(3) A violation of this section is a Class V misdemeanor.

Source:Laws 2016, LB136, § 2.

28-1301. Human skeletal remains or burial goods; prohibited acts; penalty.

(1) The definitions found in section 12-1204 shall apply to this section.

(2) Except as provided in subsection (3) of this section, a person commits the offense of removing, abandoning, or concealing human skeletal remains or burial goods if he or she:

(a) Knowingly digs up, disinters, removes, or carries away from its place of deposit or burial any such remains or goods, attempts to do the same, or aids, incites, assists, encourages, or procures the same to be done;

(b) Knowingly throws away or abandons any such remains or goods in any place other than a regular place for burial and under a proper death certificate issued under section 38-811 or 71-605; or

(c) Receives, conceals, purchases, sells, transports, trades, or disposes of any such remains or goods if the person knows or has reason to know that such remains or goods have been dug up, disinterred, or removed from their place of deposit or burial or have not been reported in a proper death certificate issued under section 38-811 or 71-605, attempts to do the same, or aids, incites, assists, encourages, or procures the same to be done.

(3) This section shall not apply to: (a) A body authorized to be surrendered for purposes of dissection as provided by law; (b) the body of any person directed to be delivered by competent authority for purposes of dissection; (c) the officers of any lawfully constituted cemetery acting under the direction of the board of trustees in removing any human skeletal remains or burial goods from one place of burial in the cemetery to another place in the same cemetery when disinterment and reinterment permits are secured and return made pursuant to section 71-605; (d) any person removing the human skeletal remains or burial goods of a relative or intimate friend from one place of burial in any lawfully constituted cemetery to another when consent for such removal has been obtained from the lawfully constituted authority thereof and permits for disinterment and reinterment secured and return made pursuant to section 71-605; (e) any professional archaeologist engaged in an otherwise lawful and scholarly excavation of a nonburial site who unintentionally encounters human skeletal remains or associated burial goods if the archaeologist complies with the notification requirements of the Unmarked Human Burial Sites and Skeletal Remains Protection Act; or (f) any archaeological excavation by the Nebraska State Historical Society or its designee in the course of execution of the duties of the society if any human skeletal remains or associated burial goods discovered during such excavation are disposed of pursuant to section 12-1208.

(4) Violation of this section shall be a Class IV felony.

Source:Laws 1977, LB 38, § 285; Laws 1989, LB 340, § 13; Laws 2003, LB 95, § 32; Laws 2007, LB463, § 1128.

Cross References

Unmarked Human Burial Sites and Skeletal Remains Protection Act, see section 12-1201.

28-1302. Concealing the death of another person; penalty.

Any person who conceals the death of another person and thereby prevents a determination of the cause or circumstances of death commits a Class I misdemeanor.

Source:Laws 1977, LB 38, § 286.

28-1303. Stagnant water; raising or producing, unlawful; penalty; abatement.

Whoever shall build, erect, continue or keep up any dam or other obstruction in any river or stream of water in this state and thereby raise an artificial pond, or produce stagnant waters, which shall be manifestly injurious to the public health and safety, shall be guilty of a Class III misdemeanor and the court shall, moreover, order every such nuisance to be abated or removed.

Source:Laws 1977, LB 38, § 287.

28-1304. Putting carcass or filthy substance into well, spring, brook, or stream; penalty.

Whoever shall put any dead animal, carcass or part thereof, or other filthy substance, into any well, or into any spring, brook or branch of running water, of which use is made for domestic purposes, shall be guilty of a Class IV misdemeanor.

Source:Laws 1977, LB 38, § 288.

28-1304.01. Dead animals; liquefied remains; prohibited acts; violation; penalty.

The liquefied remains of any dead animal shall not be injected below the surface of the ground nor be spread above the surface of the ground in any manner. Any person violating the provisions of this section shall be guilty of a Class II misdemeanor.

Source:Laws 1998, LB 1209, § 15; R.S.1943, (1998), § 54-725; Laws 1999, LB 6, § 2; Laws 1999, LB 870, § 3.

28-1305. Exposing offensive matter; penalty.

Whoever shall put the carcass of any dead animal, the offals from any slaughter house, butcher's establishment, packing house, or fish house, any spoiled meats, spoiled fish, or putrid animal substance, or the contents of any privy vault upon or into any river, bay, creek, pond, canal, road, street, alley, lot, field, meadow, public ground, market space, or common, or whoever, being the owner or owners or occupant or occupants thereof, shall knowingly permit the same to remain in any of the aforesaid situations, to the annoyance of the citizens of this state, or any of them, or shall neglect or refuse to remove or abate the nuisance occasioned thereby within twenty-four hours after knowledge of the existence of such nuisance upon any of the above-described premises owned or occupied by him, her, or them, or after notice thereof in writing from the street commissioner, supervisor, or any trustee or health officer of any city or precinct in which such nuisance shall exist, shall be guilty of a Class V misdemeanor. If the nuisance is not abated within twenty-four hours thereafter, it shall be deemed a second offense against the provisions of this section, and every like neglect of each twenty-four hours thereafter shall be considered an additional offense.

Source:Laws 1977, LB 38, § 289; Laws 1988, LB 1030, § 21.

28-1306. Unclean stock cars, railroads bringing into state; penalty.

It shall be unlawful for any railroad company operating its road in this state to bring or cause to be brought into this state from an adjoining state any empty car used for transporting hogs or sheep, or any empty combination car used for carrying grain and stock that has any filth of any kind whatever in the same; but such railroad company shall, before it allows such car or cars to pass into the state, cause the same to be thoroughly cleaned. Any person or persons or corporation violating any provision of this section shall be guilty of a Class V misdemeanor.

Source:Laws 1977, LB 38, § 290.

28-1307. Diseased meat; sale; penalty.

It shall be unlawful for any person to sell or offer for sale the flesh of a diseased animal, whether such animal shall have died of disease or shall have been butchered when in a diseased condition. Any person violating the provisions of this section shall be guilty of a Class IV felony.

Source:Laws 1977, LB 38, § 291.

28-1308. Watering stock at private tank; unlawful; penalty; exceptions.

(1) It is hereby declared unlawful for any person to water livestock at any watering trough or tanks belonging to any private owner without the consent of such owner, but this section shall not apply to livestock in transportation on railroads nor to livestock delivered into any stockyards nor to livestock in holding pens awaiting slaughter.

(2) Violation of this section is a Class V misdemeanor.

Source:Laws 1977, LB 38, § 292.

28-1309. Refusing to yield a party line; penalty.

(1) A person commits the offense of refusing to yield a party line if he willfully refuses to relinquish a telephone party line, consisting of a subscriber line telephone circuit with two or more main telephone stations connected therewith, each having a distinctive ring or telephone number, after he has been requested to do so to permit another to place a call, in an emergency in which property or human life is in jeopardy and the prompt summoning of aid is essential, unless such party line is already being used for another such emergency call, or willfully interferes with such an emergency message, or requests the use of such a party line by falsely stating that the same is needed for any such purpose, knowing the statement to be false.

(2) Refusal to yield a party line is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 293.

28-1310. Intimidation by telephone call or electronic communication; penalty.

(1) A person commits the offense of intimidation by telephone call or electronic communication if, with intent to intimidate, threaten, or harass an individual, the person telephones such individual or transmits an electronic communication directly to such individual, whether or not conversation or an electronic response ensues, and the person:

(a) Uses obscene language or suggests any obscene act;

(b) Threatens to inflict physical or mental injury to such individual or any other person or physical injury to the property of such individual or any other person; or

(2) The offense shall be deemed to have been committed either at the place where the call or electronic communication was initiated or where it was received.

(3) Intimidation by telephone call or electronic communication is a Class III misdemeanor.

(4) For purposes of this section, electronic communication means any writing, sound, visual image, or data of any nature that is received or transmitted by an electronic communication device as defined in section 28-833.

Source:Laws 1977, LB 38, § 294; Laws 2002, LB 1105, § 433; Laws 2018, LB773, § 3; Laws 2019, LB630, § 4.

Annotations

Making a threat shortly after the inception of a telephone call is usually sufficient circumstantial evidence for a jury to find that the defendant telephoned the victim with the requisite intent to intimidate, threaten, or harass. State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022).

Subdivision (1)(b) of this section, in specifying "telephones such individual," does not place a time limit on when the telephone call is made in relation to a telephone call initiated by the victim and does not require that the conversation be a new one. State v. Bryant, 311 Neb. 206, 971 N.W.2d 146 (2022).

A jury instruction founded on the presumption created by subsection (2) of this section is constitutionally impermissible because such an instruction deprives a defendant of the due process right that the State must prove beyond a reasonable doubt each element of the crime charged, and shifts the burden to the defendant to disprove the element of intent in the offense charged. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).

As interpreted, subsection (1)(b) of this section proscribes only telephone calls made with the intention of causing mental discomfort by the use of language which conjures up repugnant sexual images or which suggests the performance of repugnant sexual acts. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).

Because subsection (1)(b) of this section concerns itself with sexual speech which intrudes upon the privacy of innocent citizens, not for the purpose of communicating any thought, but for the purpose of causing mental discomfort by conjuring up repugnant sexual images, it regulates in an area in which the State has a compelling interest and therefore cannot be said to be substantially overbroad. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).

Subsection (1)(b) of this section is not impermissibly vague; it gives fair notice of exactly what is forbidden in terms which are understandable to persons of ordinary intelligence. State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).

The statement "What should I do to retaliate" is sufficient to constitute a threat for purposes of subsection (1)(c) of this section. State v. Methe, 228 Neb. 468, 422 N.W.2d 803 (1988).

28-1311. Interfering with a public service company; penalty.

(1) A person commits the offense of interfering with a public service company if he willfully and purposely interrupts or interferes with the transmission of telegraph or telephone messages or the transmission of light, heat and power in this state.

(2) Interference with public service companies is a Class II misdemeanor.

Source:Laws 1977, LB 38, § 295.

28-1312. Interfering with the police radio system; police radio set, defined; penalty; exceptions; equipment used in violation of sections; disposition.

(1) Police radio set shall mean any radio set or apparatus capable of either receiving or transmitting radio frequency signals within the wavelength or channel now or which may hereafter be allocated by the Federal Communications Commission for the police radio service.

(2) A person commits the offense of interfering with the police radio system if he has in his possession or in any motor vehicle or equips or installs in or on any motor vehicle, any police radio set which:

(a) In any way intentionally interferes with the transmission or reception of radio messages by any law enforcement agency and hinders any such agency in fulfillment of its duties; or

(b) Intercepts such radio signals to evade or assist others in evading arrest; or

(3) The provisions of subsection (2) of this section shall not apply to:

(a) Peace officers and members of a law enforcement agency which regularly maintains a police radio system authorized and licensed by the Federal Communications Commission;

(b) Any person who has permission in writing from the head of a law enforcement agency to possess and use any radio set or apparatus capable of receiving messages or signals within the wavelength or channel assigned to the agency granting the permission; or

(c) Legal newspapers as defined in section 25-523, or radio, television or cable antenna television stations licensed pursuant to law, monitoring messages of signals for news purposes only without rebroadcasting or republishing verbatim.

(4) Interfering with the police radio system is a Class I misdemeanor.

(5) It shall be the duty of any and all peace officers to seize and hold for evidence any and all equipment possessed or used in violation of this section, and upon conviction of the person possessing or using such equipment, the court shall order such equipment destroyed or forfeited to the State of Nebraska.

Source:Laws 1977, LB 38, § 296.

28-1313. Unlawful use of a white cane or guide dog; penalty.

(1) A person commits unlawfully using a white cane or guide dog if he is not blind as defined by law and carries, displays, or otherwise makes use of a white cane or guide dog.

(2) Such use of a white cane or the use of a guide dog by a person shall be officially recognized as an indication that the bearer is blind.

(3) Unlawful use of a white cane or guide dog is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 297.

28-1314. Failing to observe a blind person; penalty.

(1) A person commits the offense of failing to observe a blind person if as an operator of any vehicle or other conveyance, he fails to:

(a) Give special consideration to the bearer of a white cane or user of a guide dog; and

(b) Stop and remain when approaching such bearer until such time as the bearer has safely reached a position well outside the course normally used by the operator of the vehicle or other conveyance.

(2) Failure to observe a blind person is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 298.

28-1315. Locks and keys; terms, defined.

As used in section 28-1316, unless the context otherwise requires:

(1) Change key shall mean a key planned and cut to operate a specific lock;

(2) Try-out key shall mean a key which may or may not be one of a set of similar keys, each key made to operate a series or group of a total series of locks, the key or keys being constructed to take advantage of unplanned construction similarities in the series or group of locks;

(3) Wiggle key or manipulation key shall mean a material device which may be variably positioned or manipulated in a lock's keyway until such action develops a condition within the lock which enables the lock to be operated. Wiggle keys or manipulation keys may or may not resemble normally used keys;

(4) Master key shall mean a key planned and cut to operate all locks in a series or group of locks, each lock having its own key other than the master key for that individual lock only, and each lock constructed as a part of the series or group for operation with the master key. For the purpose of section 28-1316, submaster keys, grand master keys, great grand master keys, emergency keys, and overriding keys are to be considered as master keys;

(5) Keyed-alike locks shall mean a series or group of locks designed and constructed to be operated with the same change key;

(6) Locksmith shall mean a person dealing in the mechanical action and the correct operation of all types of locks and cylinder devices, whose trade or occupation is primarily repairing, opening or closing such locks or devices by mechanical means other than the key designed for that particular mechanism without altering, marring, or destroying the original condition or effectiveness of such mechanism; and

(7) Key master or key cutter shall mean a person other than a locksmith, whose primary and only function is the cutting and duplicating of keys.

Source:Laws 1977, LB 38, § 299.

28-1316. Unlawful use of locks and keys; penalty; exceptions.

(1) A person commits the offense of unlawful use of locks and keys if he or she:

(a) Sells, offers to sell, or gives to any person other than a law enforcement agency, dealer licensed under the Motor Vehicle Industry Regulation Act, motor vehicle manufacturer, or person regularly carrying on the profession of a locksmith any try-out key, manipulation key, wiggle key, or any other device designed to be used in place of the normal change key of any motor vehicle; or

(b) Has in his or her possession any try-out key, wiggle key, manipulation key, or any other device designed to be used in place of the normal change key of any motor vehicle unless he or she is a locksmith, locksmith manufacturer, dealer licensed under the Motor Vehicle Industry Regulation Act, motor vehicle manufacturer, or law enforcement agency; or

(c) Duplicates a master key for anyone unless written permission has been granted by the person who has legal control of the master key. All master keys shall be stamped with the words DO NOT DUPLICATE. All duplications of master keys shall also be stamped with the words DO NOT DUPLICATE.

(2) Nothing in subsection (1) of this section shall be construed to make it unlawful if:

(a) The owner of two or more vehicles possesses a change key that can be used on two or more vehicles that he or she owns; or

(b) Such owner changes the locks on such vehicle so that they are keyed alike; or

(d) Anyone stamps any other type of key with the words DO NOT DUPLICATE.

(3) Unlawful use of locks and keys is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 300; Laws 2010, LB816, § 2.

Cross References

Motor Vehicle Industry Regulation Act, see section 60-1401.

28-1317. Unlawful picketing; penalty.

(1) A person commits the offense of unlawful picketing if, either singly or by conspiring with others, he or she interferes, or attempts to interfere, with any other person in the exercise of his or her lawful right to work, or right to enter upon or pursue any lawful employment he or she may desire, in any lawful occupation, self-employment, or business carried on in this state, by:

(a) Using threatening language toward such person or any member of his or her immediate family, or in his, her, or their presence or hearing, for the purpose of inducing or influencing, or attempting to induce or influence, such person to quit his or her employment, or to refrain from seeking or freely entering into employment; or

(b) Following or intercepting such person from or to his or her work, from or to his or her home or lodging, or about the city, against the will of such person, for such purpose; or

(d) Committing an assault upon such person for such purpose; or

(e) Picketing or patrolling the place of residence of such person, or any street, alley, road, highway, or any other place, where such person may be, or in the vicinity thereof, for such purpose, against the will of such person.

(2) Unlawful picketing is a Class III misdemeanor. Each violation shall constitute a separate offense.

Source:Laws 1977, LB 38, § 301; Laws 2007, LB1, § 1.

28-1318. Mass picketing, defined; penalty; display of sign required.

(1) Mass picketing shall mean any form of picketing in which pickets constitute an obstacle to the free ingress and egress to and from the premises being picketed or any other premises, or upon the public roads, streets, or highways, either by obstructing by their persons or by the placing of vehicles or other physical obstructions.

(2) A person commits the offense of mass picketing if singly or in concert with others, he or she engages in or aids and abets any form of picketing activity that constitutes mass picketing as defined in subsection (1) of this section.

(3) Mass picketing is a Class III misdemeanor. Each violation shall constitute a separate offense.

(4) Any person who shall legally picket by any means or methods other than those forbidden in this section or in section 28-1317 shall visibly display on his or her person a sign showing the name of the protesting organization he or she represents. The composition of the sign shall be uppercase lettering of not less than two and one-half inches in height.

Source:Laws 1977, LB 38, § 302; Laws 2007, LB1, § 2.

28-1319. Interfering with picketing; penalty.

(1) A person commits the offense of interfering with picketing if, acting separately or with others, he interferes with any picketing not described as mass picketing in section 28-1318, except that this provision shall not apply to duly qualified peace officers or to court action.

(2) Interfering with picketing is a Class III misdemeanor. Each violation shall constitute a separate offense.

Source:Laws 1977, LB 38, § 303.

28-1320. Intimidating pickets; penalty.

(1) A person commits the offense of intimidating pickets if he intimidates or attempts to intimidate any striker by threat of the loss of any right or condition of employment, that directly or indirectly would affect the lawful conduct of said striker in any way.

(2) Intimidation of pickets is a Class III misdemeanor. Each violation shall constitute a separate offense.

Source:Laws 1977, LB 38, § 304.

28-1320.01. Unlawful picketing of a funeral; legislative findings.

(1) The Legislature finds that families have a legitimate and legally cognizable interest in organizing and attending funerals for deceased relatives and that the rights of families to peacefully and privately mourn the death of relatives are violated when funerals are targeted for picketing or protest activities.

(2) The Legislature also recognizes that individuals have a constitutional right to free speech and that in the context of funeral ceremonies, the competing interests of picketers and funeral participants must be balanced. Therefor, the Legislature declares that the purposes of sections 28-1320.01 to 28-1320.03 are to protect the privacy of grieving families and to preserve the peaceful character of cemeteries, mortuaries, churches, and other places of worship during a funeral while still providing picketers and protestors the opportunity to communicate their message at a time and place that minimizes the interference with the rights of funeral participants.

Source:Laws 2006, LB 287, § 1.

28-1320.02. Unlawful picketing of a funeral; terms, defined.

For purposes of sections 28-1320.01 to 28-1320.03, the following definitions apply:

(1) Funeral means the ceremonies and memorial services held in connection with the burial or cremation of the dead but does not include funeral processions on public streets or highways; and

(2) Picketing of a funeral means protest activities engaged in by a person or persons located within five hundred feet of a cemetery, mortuary, church, or other place of worship during a funeral.

Source:Laws 2006, LB 287, § 2; Laws 2011, LB284, § 1.

28-1320.03. Unlawful picketing of a funeral; penalty.

(1) A person commits the offense of unlawful picketing of a funeral if he or she engages in picketing from one hour prior to through two hours following the commencement of a funeral.

(2) Unlawful picketing of a funeral is a Class III misdemeanor.

Source:Laws 2006, LB 287, § 3.

28-1321. Maintaining a nuisance; penalty; abatement or removal.

(1) A person commits the offense of maintaining a nuisance if he erects, keeps up or continues and maintains any nuisance to the injury of any part of the citizens of this state.

(2) The erecting, continuing, using, or maintaining of any building, structure, or other place for the exercise of any trade, employment, manufacture, or other business which, by occasioning noxious exhalations, noisome or offensive smells, becomes injurious and dangerous to the health, comfort, or property of individuals or the public; the obstructing or impeding, without legal authority, of the passage of any navigable river, harbor, or collection of water; or the corrupting or rendering unwholesome or impure of any watercourse, stream, or water; or unlawfully diverting any such watercourse from its natural course or state to the injury or prejudice of others; and the obstructing or encumbering by fences, building, structures or otherwise of any of the public highways or streets or alleys of any city or village, shall be deemed nuisances.

(3) A person guilty of erecting, continuing, using, maintaining or causing any such nuisance shall be guilty of a violation of this section, and in every such case the offense shall be construed and held to have been committed in any county whose inhabitants are or have been injured or aggrieved thereby.

(4) Maintenance of nuisances is a Class III misdemeanor.

(5) The court, in case of conviction of such offense, shall order every such nuisance to be abated or removed.

Source:Laws 1977, LB 38, § 305.

Cross References

Nebraska Right to Farm Act, see sections 2-4401 to 2-4404.

28-1322. Disturbing the peace; penalty.

(1) Any person who shall intentionally disturb the peace and quiet of any person, family, or neighborhood commits the offense of disturbing the peace.

(2) Disturbing the peace is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 306.

Annotations

A school security officer or campus supervisor may be a victim of disturbing the peace. In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).

The State cannot constitutionally criminalize speech under this section solely because it inflicts emotional injury, annoys, offends, or angers another person. But speech can be criminalized under this section if it tends to or is likely to provoke violent reaction. State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010).

Under subsection (1) of this section, the definition of breach of the peace is broad enough to include the offense of disturbing the peace; it signifies the offense of disturbing the public peace or tranquility enjoyed by citizens of a community. The term "breach of the peace" is generic and includes all violations of public peace, order, or decorum, or acts tending to the disturbance thereof. Provocative language consisting of profane, indecent, or abusive remarks directed to the person of the hearer may amount to a breach of the peace, and such language constitutes "fighting" words, which are not constitutionally protected forms of speech. State v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989).

28-1323. Transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, or film; unlawful; exemption.

Unless exempt under section 28-1325, it is unlawful for any person, firm, partnership, limited liability company, corporation, or association knowingly to (1) transfer or cause to be transferred any sounds recorded on a phonograph record, disc, wire, tape, film, or other article on which sounds are recorded onto any other phonograph record, disc, wire, tape, film, or other article or (2) sell, distribute, circulate, offer for sale, distribution or circulation, possess for the purpose of sale, distribution, or circulation, or cause to be sold, distributed, or circulated, offered for sale, distribution, or circulation, or possessed for sale, distribution, or circulation any article or device on which sounds have been transferred without the consent of the person who owns the master phonograph record, master disc, master tape, master wire, master film, or other article from which the sounds are derived.

Source:Laws 1977, LB 38, § 307; Laws 1993, LB 121, § 185.

28-1324. Sell, distribute, circulate, offer for sale, or possess phonograph record, disc, wire, tape, film, or sounds transferred; unlawful; exception.

It is unlawful for any person, firm, partnership, limited liability company, corporation, or association to sell, distribute, circulate, offer for sale, distribution, or circulation, or possess for the purpose of sale, distribution, or circulation any phonograph record, disc, wire, tape, film, or other article on which sounds have been transferred unless such phonograph record, disc, wire, tape, film, or other article bears the actual name and address of the transferor of the sounds in a prominent place on its outside face or package.

Source:Laws 1977, LB 38, § 308; Laws 1993, LB 121, § 186.

28-1325. Transfer of sounds; sections; when not applicable.

Sections 28-1323 to 28-1326 do not apply to any person who transfers or causes to be transferred any sounds (1) intended for or in connection with radio or television broadcast transmission or related uses, (2) for archival purposes, (3) solely for the personal use of the person transferring or causing the transfer and without any compensation being derived by the person from the transfer, or (4) intended for use by an educational institution, school, or other person for instructional or educational uses.

Source:Laws 1977, LB 38, § 309.

28-1326. Transfer of sounds; violations; penalty.

Any person violating the provisions of section 28-1323 or 28-1324 shall be guilty of a Class II misdemeanor.

Source:Laws 1977, LB 38, § 310.

28-1327. Repealed. Laws 1979, LB 344, § 16.

28-1328. Repealed. Laws 1979, LB 344, § 16.

28-1329. Receptacle, other term, defined.

As used in sections 28-1329 to 28-1334, unless the context otherwise requires:

(1) Receptacle shall mean not only bottles, siphons, tins, kegs, one-eighth barrels, quarter barrels, half barrels, barrels, boxes, ice cream cabinets, cans and tubs, but all other receptacles used for holding any of the commodities in the sections mentioned; and

(2) Requirement for a written transfer, bill of sale, authority, or consent shall mean that it shall be signed by the person named in the certificate issued by the Secretary of State as provided in such sections, or by a transferee claiming under a written transfer signed by such person, or by an agent whose authority is in writing signed by such person or such transferee.

Source:Laws 1977, LB 38, § 313.

28-1330. Nonintoxicating beverages, milk, and milk products; brand or mark on container; filing with Secretary of State; publication; certificate; fee.

Any person engaged in manufacturing, bottling or selling soda waters, mineral or aerated waters, cider, ginger ale and other unintoxicating beverages, milk, buttermilk, cream, ice cream or butter in any kind of receptacle having the name of such person or other mark or device printed, stamped, engraved, etched, blown, impressed, riveted or otherwise produced or permanently fixed upon the same, may file in the office of the Secretary of State for record a description of the name, mark, or device so used and cause such description to be printed once each week for three successive weeks in a newspaper published in the county in which the principal place of business of such person is located, or if the principal place of business of such person is located in another state, then in the county wherein the principal office or depot within the State of Nebraska is located. It shall be the duty of the Secretary of State to issue to the person so filing for record a description of such name, mark, or device in his office, a duly attested certificate of the record of the same, for which he shall receive a fee of one dollar. Such certificate in all prosecutions under sections 28-1329 to 28-1334 shall be prima facie evidence of the adoption of such name, mark, or device, and of the right of the person named therein to adopt and use the same.

Source:Laws 1977, LB 38, § 314.

28-1331. Unauthorized use of receptacle; penalty; separate offense.

(1) A person commits unauthorized use of receptacle if he fills any receptacle bearing a name, mark, or device recorded as provided in section 28-1330 with soda water, mineral or aerated waters, cider, ginger ale and other unintoxicating beverages, milk, buttermilk, cream, ice cream or butter, or to deface, erase, obliterate, cover up or otherwise remove or conceal any such name, mark, or device on any such receptacle, or to buy, sell, give, take, dispose of in any way, traffic in or destroy any receptacle bearing any such name, mark, or device unless it is the person named in the certificate issued by the Secretary of State, as provided in section 28-1330, or has the written consent of the person named in such certificate.

(2) Unauthorized use of receptacles is a Class III misdemeanor. Each such receptacle so unlawfully dealt with, as herein set out, shall be deemed to be a separate offense.

Source:Laws 1977, LB 38, § 315.

28-1332. Unauthorized possession of receptacle; penalty.

(1) A person commits unauthorized possession of receptacle if having in possession or under control any receptacle bearing any name, mark, or device recorded as provided in section 28-1330, and holding a written transfer or bill of sale therefor from the person named in the certificate issued by the Secretary of State as provided in such section, or other authority in writing from such person, he fails or refuses to deliver such receptacle to the person named in such certificate or to the authorized agent of such person when demanded.

(2) Unauthorized possession of receptacle is a Class III misdemeanor.

Source:Laws 1977, LB 38, § 316.

28-1333. Receptacles; unauthorized use or possession; search warrant; prosecution of possessor.

Whenever any person who has filed for record any such name, mark, or device, or who has acquired from such person in writing the ownership of such name, mark, or device or the right to the exclusive use thereof, or any one representing such person, shall make oath before any county judge that he has reason to believe and does believe that any receptacle bearing such name, mark, or device is being unlawfully used or filled or had in possession by any other person, such judge shall thereupon issue a search warrant to discover and obtain such receptacle, and may also cause the person in whose possession such receptacle shall be found to be brought before him and shall then inquire into the circumstances of such possession and if it shall be found that such person is guilty of violating any provision in sections 28-1329 to 28-1334, he shall be punished as prescribed in section 28-1331 or 28-1332 and the possession of the property taken upon such warrant shall be awarded to the owner thereof. The remedy given by this section shall not be held to be exclusive, and offenders against any provision of said sections may also be prosecuted as in case of other misdemeanors.

Source:Laws 1977, LB 38, § 317.

28-1334. Sale, construed.

The requiring or taking of any deposit for any purpose upon such receptacle shall not be deemed nor held to be a sale, either optional or otherwise, in any proceeding under sections 28-1329 to 28-1334.

Source:Laws 1977, LB 38, § 318.

28-1335. Discharging any firearm or weapon from any public highway, road, or bridge; penalty; exception.

A person commits a Class III misdemeanor if such person discharges any firearm or weapon using any form of compressed gas as a propellant from any public highway, road, or bridge in this state, unless otherwise allowed by statute. Upon conviction, the mandatory minimum fine shall be one hundred dollars.

Source:Laws 1977, LB 38, § 319; Laws 2009, LB105, § 1.

28-1336. Repealed. Laws 1983, LB 1, § 1.

28-1337. Repealed. Laws 1983, LB 1, § 1.

28-1338. Repealed. Laws 1983, LB 1, § 1.

28-1339. Repealed. Laws 1983, LB 1, § 1.

28-1340. Repealed. Laws 1983, LB 1, § 1.

28-1341. Act, how cited.

Sections 28-1341 to 28-1348 shall be known and may be cited as the Computer Crimes Act.

Source:Laws 1991, LB 135, § 2.

28-1342. Legislative findings and declarations.

The Legislature finds and declares that our society is increasingly dependent on computers, that important personal, financial, medical, and historical data is stored in computers, and that valuable data stored can be lost due to criminal action.

The Legislature further finds that specific criminal statutes are necessary to cover the actions of persons who intentionally destroy data or commit fraud using computers.

Source:Laws 1991, LB 135, § 3.

28-1343. Terms, defined.

For purposes of the Computer Crimes Act:

(1) Access shall mean to instruct, communicate with, store data in, retrieve data from, or otherwise use the resources of a computer, computer system, or computer network;

(2) Computer shall mean a high-speed data processing device or system which performs logical, arithmetic, data storage and retrieval, communication, memory, or control functions by the manipulation of signals, including, but not limited to, electronic or magnetic impulses, and shall include any input, output, data storage, processing, or communication facilities directly related to or operating in conjunction with any such device or system;

(3) Computer network shall mean the interconnection of a communications system with a computer through a remote terminal or with two or more interconnected computers or computer systems;

(4) Computer program shall mean an instruction or statement or a series of instructions or statements in a form acceptable to a computer which directs the functioning of a computer system in a manner designed to provide appropriate products from the computer;

(5) Computer security system shall mean a computer program or device that:

(a) Is intended to protect the confidentiality and secrecy of data and information stored in or accessible through the computer system; and

(b) Displays a conspicuous warning to a user that the user is entering a secure system or requires a person seeking access to knowingly respond by use of an authorized code to the program or device in order to gain access;

(6) Computer software shall mean a computer program of procedures or associated documentation concerned with the operation of a computer;

(7) Computer system shall mean related computers and peripheral equipment, whether connected or unconnected;

(8) Data shall mean a representation of information, facts, knowledge, concepts, or instructions prepared in a formalized or other manner and intended for use in a computer or computer network;

(9) Destructive computer program shall mean a computer program that performs a destructive function or produces a destructive product;

(10) Destructive function shall mean a function that (a) degrades the performance of a computer, its associated peripheral equipment, or a computer program, (b) disables a computer, its associated peripheral equipment, or a computer program, or (c) alters a computer program or data;

(11) Destructive product shall mean a product that: (a) Produces unauthorized data, including data that make computer memory space unavailable; (b) results in the unauthorized alteration of data or a computer program; or (c) produces a destructive computer program, including, but not limited to, a self-replicating program;

(12) Loss shall mean the greatest of the following:

(a) The retail market value of the property or services involved;

(b) The reasonable repair or replacement cost whichever is less; or

(c) The reasonable value of the damage created by the unavailability or lack of utility of the property or services involved until repair or replacement can be effected;

(13) Property shall include, but not be limited to, electronically processed or electronically produced data and information in computer software whether in human or computer readable form; and

(14) Services shall include, but not be limited to, computer time, data processing, and storage functions.

Source:Laws 1985, LB 371, § 2; Laws 1991, LB 135, § 4.

Annotations

Under the former law, a person was guilty of a Class IIIA felony where a person knowingly solicits, coaxes, entices, or lures (1) a child 16 years of age or younger or (2) a peace officer who is believed by such person to be a child 16 years of age or younger, by means of a computer as that term is defined in this section, to engage in a sexual act. State v. Atchison, 15 Neb. App. 422, 730 N.W.2d 115 (2007).

28-1343.01. Unauthorized computer access; penalty.

(1) A person commits the offense of unauthorized computer access if the person intentionally and without authority penetrates a computer security system.

(2) A person who violates subsection (1) of this section in a manner that creates a grave risk of causing the death of a person shall be guilty of a Class IV felony.

(3) A person who violates subsection (1) of this section in a manner that creates a risk to public health and safety shall be guilty of a Class I misdemeanor.

(4) A person who violates subsection (1) of this section in a manner that compromises the security of data shall be guilty of a Class II misdemeanor.

Source:Laws 1991, LB 135, § 5.

28-1344. Unlawful acts; depriving or obtaining property or services; penalties.

(1) Any person who intentionally accesses or causes to be accessed, directly or indirectly, any computer, computer system, computer software, or computer network without authorization or who, having accessed any computer, computer system, computer software, or computer network with authorization, knowingly and intentionally exceeds the limits of such authorization shall be guilty of an offense if he or she intentionally: (a) Deprives another of property or services; or (b) obtains property or services of another.

(2) The offense constitutes a Class III felony when the value of the property or services involved is five thousand dollars or more.

(3) The offense constitutes a Class IV felony when the value of the property or services involved is one thousand five hundred dollars or more, but less than five thousand dollars.

(4) The offense constitutes a Class I misdemeanor when the value of the property or services involved is five hundred dollars or more, but less than one thousand five hundred dollars.

(5) The offense constitutes a Class II misdemeanor when the value of the property or services involved is less than five hundred dollars.

Source:Laws 1985, LB 371, § 3; Laws 1991, LB 135, § 6; Laws 2015, LB605, § 56.

28-1345. Unlawful acts; harming or disrupting operations; penalties.

(1) Any person who accesses or causes to be accessed any computer, computer system, computer software, or computer network without authorization or who, having accessed any computer, computer system, computer software, or computer network with authorization, knowingly and intentionally exceeds the limits of such authorization shall be guilty of an offense if he or she intentionally: (a) Alters, damages, deletes, or destroys any computer, computer system, computer software, computer network, computer program, data, or other property; (b) disrupts the operation of any computer, computer system, computer software, or computer network; or (c) distributes a destructive computer program with intent to damage or destroy any computer, computer system, computer network, or computer software.

(2) The offense constitutes a Class III felony when the value of the loss caused is five thousand dollars or more.

(3) The offense constitutes a Class IV felony when the value of the loss caused is one thousand five hundred dollars or more, but less than five thousand dollars.

(4) The offense constitutes a Class I misdemeanor when the value of the loss caused is five hundred dollars or more, but less than one thousand five hundred dollars.

(5) The offense constitutes a Class II misdemeanor when the value of the loss caused is less than five hundred dollars.

Source:Laws 1985, LB 371, § 4; Laws 1991, LB 135, § 7; Laws 2015, LB605, § 57.

28-1346. Unlawful acts; obtaining confidential public information; penalties.

Any person who intentionally accesses or causes to be accessed any computer, computer system, computer software, or computer network without authorization, or who, having accessed a computer, computer system, computer software, or computer network with authorization, knowingly and intentionally exceeds the limits of such authorization, and thereby obtains information filed by the public with the state or any political subdivision which is by statute required to be kept confidential shall be guilty of a Class II misdemeanor. For any second or subsequent offense under this section, such person shall be guilty of a Class I misdemeanor.

Source:Laws 1985, LB 371, § 5; Laws 1991, LB 135, § 8.

28-1347. Unlawful acts; access without authorization; exceeding authorization; penalties.

Any person who intentionally accesses any computer, computer system, computer software, computer network, computer program, or data without authorization and with knowledge that such access was not authorized or who, having accessed any computer, computer system, computer software, computer network, computer program, or data with authorization, knowingly and intentionally exceeds the limits of such authorization shall be guilty of a Class V misdemeanor. For any second or subsequent offense under this section, such person shall be guilty of a Class II misdemeanor.

Source:Laws 1985, LB 371, § 6; Laws 1991, LB 135, § 9.

28-1348. Act, how construed.

The Computer Crimes Act shall not be construed to preclude the applicability of any other provision of the Nebraska Criminal Code which may apply to any transaction described in the Computer Crimes Act.

Source:Laws 1985, LB 371, § 7; Laws 1991, LB 135, § 10.

28-1349. Legislative findings.

The Legislature finds that elemental mercury is a persistent and toxic pollutant that accumulates in the environment. The Legislature further finds that each year elemental mercury contained in liquid mercury thermometers can enter the environment and result in human exposure to elemental mercury through accidental spills, breakage, and releases. It is the intent of the Legislature to ban the sale and distribution of liquid mercury thermometers containing elemental mercury to prevent further accidental exposure.

Source:Laws 2003, LB 17, § 3.

28-1350. Liquid mercury thermometer; prohibited acts.

No liquid mercury thermometer containing elemental mercury shall be sold, given away, or otherwise distributed in this state.

Source:Laws 2003, LB 17, § 4.

28-1351. Unlawful membership recruitment into an organization or association; penalty.

(1) A person commits the offense of unlawful membership recruitment into an organization or association when he or she knowingly and intentionally coerces, intimidates, threatens, or inflicts bodily harm upon another person in order to entice that other person to join or prevent that other person from leaving any organization, group, enterprise, or association whose members, individually or collectively, engage in or have engaged in any of the following criminal acts for the benefit of, at the direction of, or on behalf of the organization, group, enterprise, or association or any of its members:

(a) Robbery under section 28-324;

(b) Arson in the first, second, or third degree under section 28-502, 28-503, or 28-504, respectively;

(d) Murder in the first degree, murder in the second degree, or manslaughter under section 28-303, 28-304, or 28-305, respectively;

(e) Violations of the Uniform Controlled Substances Act that involve possession with intent to deliver, distribution, delivery, or manufacture of a controlled substance;

(f) Unlawful use, possession, or discharge of a firearm or other deadly weapon under sections 28-1201 to 28-1212.04;

(g) Assault in the first degree or assault in the second degree under section 28-308 or 28-309, respectively;

(h) Assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the first, second, or third degree under section 28-929, 28-930, or 28-931, respectively, or assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional using a motor vehicle under section 28-931.01;

(i) Theft by unlawful taking or disposition under section 28-511;

(j) Theft by receiving stolen property under section 28-517;

(k) Theft by deception under section 28-512;

(l) Theft by extortion under section 28-513;

(m) Kidnapping under section 28-313;

(n) Any forgery offense under sections 28-602 to 28-605;

(o) Criminal impersonation under section 28-638;

(p) Tampering with a publicly exhibited contest under section 28-614;

(q) Unauthorized use of a financial transaction device or criminal possession of a financial transaction device under section 28-620 or 28-621, respectively;

(r) Pandering under section 28-802;

(s) Bribery, bribery of a witness, or bribery of a juror under section 28-917, 28-918, or 28-920, respectively;

(t) Tampering with a witness or an informant or jury tampering under section 28-919;

(u) Unauthorized application of graffiti under section 28-524;

(v) Dogfighting, cockfighting, bearbaiting, or pitting an animal against another under section 28-1005; or

(w) Promoting gambling in the first degree under section 28-1102.

(2) Unlawful membership recruitment into an organization or association is a Class IV felony.

Source:Laws 2009, LB63, § 21; Laws 2014, LB811, § 23; Laws 2018, LB990, § 4; Laws 2023, LB77, § 14.
Effective Date: September 2, 2023

Cross References

Uniform Controlled Substances Act, see section 28-401.01.

Annotations

This section is not so overbroad as to infringe First Amendment rights of association. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).

This section requires that at the time of an alleged violation, the defendant had actual knowledge that members of a group engage in or have engaged in any of the specified criminal activities for the benefit of, at the direction of, or on behalf of the organization, group, enterprise, or association or any of its members. State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).

28-1352. Act, how cited.

Sections 28-1352 to 28-1356 shall be known and may be cited as the Public Protection Act.

Source:Laws 2009, LB155, § 2.

28-1353. Act; how construed.

(1) The provisions of the Public Protection Act shall be liberally construed to effectuate its remedial purposes.

(2) Nothing in the act shall supersede any provision of federal, state, or other law imposing criminal penalties or affording civil remedies in addition to those provided for in the act.

Source:Laws 2009, LB155, § 3.

28-1354. Terms, defined.

For purposes of the Public Protection Act:

(1) Enterprise means any individual, sole proprietorship, partnership, corporation, trust, association, or any legal entity, union, or group of individuals associated in fact although not a legal entity, and shall include illicit as well as licit enterprises as well as other entities;

(2) Pattern of racketeering activity means a cumulative loss for one or more victims or gains for the enterprise of not less than one thousand five hundred dollars resulting from at least two acts of racketeering activity, one of which occurred after August 30, 2009, and the last of which occurred within ten years, excluding any period of imprisonment, after the commission of a prior act of racketeering activity;

(3) Until January 1, 2017, person means any individual or entity, as defined in section 21-2014, holding or capable of holding a legal, equitable, or beneficial interest in property. Beginning January 1, 2017, person means any individual or entity, as defined in section 21-214, holding or capable of holding a legal, equitable, or beneficial interest in property;

(4) Prosecutor includes the Attorney General of the State of Nebraska, the deputy attorney general, assistant attorneys general, a county attorney, a deputy county attorney, or any person so designated by the Attorney General, a county attorney, or a court of the state to carry out the powers conferred by the act;

(5) Racketeering activity includes the commission of, criminal attempt to commit, conspiracy to commit, aiding and abetting in the commission of, aiding in the consummation of, acting as an accessory to the commission of, or the solicitation, coercion, or intimidation of another to commit or aid in the commission of any of the following:

(a) Offenses against the person which include: Murder in the first degree under section 28-303; murder in the second degree under section 28-304; manslaughter under section 28-305; assault in the first degree under section 28-308; assault in the second degree under section 28-309; assault in the third degree under section 28-310; terroristic threats under section 28-311.01; kidnapping under section 28-313; false imprisonment in the first degree under section 28-314; false imprisonment in the second degree under section 28-315; sexual assault in the first degree under section 28-319; and robbery under section 28-324;

(b) Offenses relating to controlled substances which include: To unlawfully manufacture, distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance under subsection (1) of section 28-416; possession of marijuana weighing more than one pound under subsection (12) of section 28-416; possession of money used or intended to be used to facilitate a violation of subsection (1) of section 28-416 prohibited under subsection (17) of section 28-416; any violation of section 28-418; to unlawfully manufacture, distribute, deliver, or possess with intent to distribute or deliver an imitation controlled substance under section 28-445; possession of anhydrous ammonia with the intent to manufacture methamphetamine under section 28-451; and possession of ephedrine, pseudoephedrine, or phenylpropanolamine with the intent to manufacture methamphetamine under section 28-452;

(c) Offenses against property which include: Arson in the first degree under section 28-502; arson in the second degree under section 28-503; arson in the third degree under section 28-504; burglary under section 28-507; theft by unlawful taking or disposition under section 28-511; theft by shoplifting under section 28-511.01; theft by deception under section 28-512; theft by extortion under section 28-513; theft of services under section 28-515; theft by receiving stolen property under section 28-517; criminal mischief under section 28-519; and unlawfully depriving or obtaining property or services using a computer under section 28-1344;

(d) Offenses involving fraud which include: Burning to defraud an insurer under section 28-505; forgery in the first degree under section 28-602; forgery in the second degree under section 28-603; criminal possession of a forged instrument under section 28-604; criminal possession of written instrument forgery devices under section 28-605; criminal impersonation under section 28-638; identity theft under section 28-639; identity fraud under section 28-640; false statement or book entry under section 28-612; tampering with a publicly exhibited contest under section 28-614; issuing a false financial statement for purposes of obtaining a financial transaction device under section 28-619; unauthorized use of a financial transaction device under section 28-620; criminal possession of a financial transaction device under section 28-621; unlawful circulation of a financial transaction device in the first degree under section 28-622; unlawful circulation of a financial transaction device in the second degree under section 28-623; criminal possession of a blank financial transaction device under section 28-624; criminal sale of a blank financial transaction device under section 28-625; criminal possession of a financial transaction forgery device under section 28-626; unlawful manufacture of a financial transaction device under section 28-627; laundering of sales forms under section 28-628; unlawful acquisition of sales form processing services under section 28-629; unlawful factoring of a financial transaction device under section 28-630; and fraudulent insurance acts under section 28-631;

(e) Offenses involving governmental operations which include: Abuse of public records under section 28-911; perjury or subornation of perjury under section 28-915; bribery under section 28-917; bribery of a witness under section 28-918; tampering with a witness or informant or jury tampering under section 28-919; bribery of a juror under section 28-920; assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the first degree under section 28-929; assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the second degree under section 28-930; assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional in the third degree under section 28-931; and assault on an officer, an emergency responder, a state correctional employee, a Department of Health and Human Services employee, or a health care professional using a motor vehicle under section 28-931.01;

(f) Offenses involving gambling which include: Promoting gambling in the first degree under section 28-1102; possession of gambling records under section 28-1105; gambling debt collection under section 28-1105.01; and possession of a gambling device under section 28-1107;

(g) Offenses relating to firearms, weapons, and explosives which include: Carrying a concealed weapon under section 28-1202; transportation or possession of machine guns, short rifles, or short shotguns under section 28-1203; unlawful possession of a handgun under section 28-1204; unlawful transfer of a firearm to a juvenile under section 28-1204.01; possession of a firearm by a prohibited juvenile offender under section 28-1204.05; using a deadly weapon to commit a felony, possession of a deadly weapon during the commission of a felony, or carrying a firearm or destructive device during the commission of a dangerous misdemeanor under section 28-1205; possession of a deadly weapon by a prohibited person under section 28-1206; possession of a defaced firearm under section 28-1207; defacing a firearm under section 28-1208; unlawful discharge of a firearm under section 28-1212.02; possession, receipt, retention, or disposition of a stolen firearm under section 28-1212.03; unlawful possession of explosive materials in the first degree under section 28-1215; unlawful possession of explosive materials in the second degree under section 28-1216; unlawful sale of explosives under section 28-1217; use of explosives without a permit under section 28-1218; obtaining an explosives permit through false representations under section 28-1219; possession of a destructive device under section 28-1220; threatening the use of explosives or placing a false bomb under section 28-1221; using explosives to commit a felony under section 28-1222; using explosives to damage or destroy property under section 28-1223; and using explosives to kill or injure any person under section 28-1224;

(h) Any violation of the Securities Act of Nebraska pursuant to section 8-1117;

(i) Any violation of the Nebraska Revenue Act of 1967 pursuant to section 77-2713;

(j) Offenses relating to public health and morals which include: Prostitution under section 28-801; pandering under section 28-802; keeping a place of prostitution under section 28-804; labor trafficking, sex trafficking, labor trafficking of a minor, or sex trafficking of a minor under section 28-831; a violation of section 28-1005; and any act relating to the visual depiction of sexually explicit conduct prohibited in the Child Pornography Prevention Act; and

(k) A violation of the Computer Crimes Act;

(6) State means the State of Nebraska or any political subdivision or any department, agency, or instrumentality thereof; and

(7) Unlawful debt means a debt of at least one thousand five hundred dollars:

(a) Incurred or contracted in gambling activity which was in violation of federal law or the law of the state or which is unenforceable under state or federal law in whole or in part as to principal or interest because of the laws relating to usury; or

(b) Which was incurred in connection with the business of gambling in violation of federal law or the law of the state or the business of lending money or a thing of value at a rate usurious under state law if the usurious rate is at least twice the enforceable rate.

Source:Laws 2009, LB155, § 4; Laws 2010, LB771, § 13; Laws 2013, LB255, § 8; Laws 2014, LB749, § 277; Laws 2014, LB811, § 24; Laws 2016, LB1094, § 10; Laws 2018, LB990, § 5; Laws 2023, LB77, § 15.
Effective Date: September 2, 2023

Cross References

Child Pornography Prevention Act, see section 28-1463.01.

Computer Crimes Act, see section 28-1341.

Nebraska Revenue Act of 1967, see section 77-2701.

Securities Act of Nebraska, see section 8-1123.

28-1355. Pattern of racketeering activity or collection of an unlawful debt; prohibited acts.

(1) It shall be unlawful for any person who has received any proceeds that such person knew were derived, directly or indirectly, from a pattern of racketeering activity or through collection of an unlawful debt to use or invest, whether directly or indirectly, any part of such proceeds, or the proceeds derived from the investment or use thereof, in the acquisition of any right, interest, or equity in real property or in the establishment or operation of any enterprise. A purchase of securities on the open market for purposes of investment, and without the intention of controlling or participating in the control of the issuer or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issuer held by the purchaser, the members of his or her immediate family, and his or her or their accomplices in any pattern of racketeering activity or the collection of an unlawful debt after such purchase do not amount in the aggregate to one percent of the outstanding securities of any one class and do not confer, either in law or in fact, the power to elect one or more directors of the issuer.

(2) It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise or real property.

(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

(4) It shall be unlawful for any person to conspire or attempt to violate any of the provisions of subsection (1), (2), or (3) of this section.

Source:Laws 2009, LB155, § 5.

28-1356. Violation; penalty.

(1) A person who violates section 28-1355 shall be guilty of a Class III felony; however, such person shall be guilty of a Class IB felony if the violation is based upon racketeering activity which is punishable as a Class I, IA, or IB felony.

(2) In lieu of the fine authorized by section 28-105, any person convicted of engaging in conduct in violation of section 28-1355, through which pecuniary value was derived, or by which personal injury or property damage or other loss was caused, may be sentenced to pay a fine that does not exceed three times the gross value gained or three times the gross loss caused, whichever is greater, plus court costs and the costs of investigation and prosecution reasonably incurred. Any fine collected under this subsection shall be remitted to the State Treasurer for distribution in accordance with Article VII, section 5, of the Constitution of Nebraska.

Source:Laws 2009, LB155, § 6; Laws 2015, LB268, § 10; Referendum 2016, No. 426.

Note: The changes made to section 28-1356 by Laws 2015, LB 268, section 10, have been omitted because of the vote on the referendum at the November 2016 general election.

28-1357. Sale of novelty lighter without child safety feature; penalty.

(1) For purposes of this section:

(a) Novelty lighter means a mechanical or electrical device that is typically used for lighting cigarettes, cigars, or pipes, that has only one button or function, and that (i) is designed to resemble a cartoon character, a toy, a gun, a watch, a musical instrument, a vehicle, an animal, a food or beverage container, or a similar item, (ii) plays musical notes, or (iii) has flashing lights; and

(b) Novelty lighter does not include:

(i) A lighter manufactured prior to January 1, 1980;

(ii) A lighter incapable of being fueled or lacking a device necessary to produce combustion or a flame; or

(iii) A standard disposable or refillable lighter that is printed or decorated with a logo, label, decal, artwork, or heat shrinkable sleeve.

(2) It shall be unlawful to sell at retail, offer for retail sale, or distribute for retail sale or promotion in this state a novelty lighter manufactured on or after July 18, 2014, without a child safety feature.

(3) Any person who violates this section shall be guilty of a Class IV misdemeanor.

(4) This section does not apply to the transportation of novelty lighters through the state or the storage of novelty lighters in a warehouse or distribution center in this state that is closed to the public for purposes of retail sales.

Source:Laws 2014, LB403, § 2.

28-1401. Navigable streams; cutoff, chute, backwater, or bayou connected with; access by boat.

To further implement the provisions of Article XV, section 5, of the Constitution of Nebraska, the Legislature herewith provides that the people of the state shall have access by boat to any cutoff, chute, backwater, or bayou connected with any navigable stream located in the State of Nebraska, but that nothing in this section shall serve to allow trespass upon the lands of any person.

Source:Laws 1974, LB 565, § 1; R.R.S.1943, § 28-589.03, (1975).

28-1402. Repealed. Laws 2021, LB169, § 1.

28-1403. Repealed. Laws 2021, LB169, § 1.

28-1404. Repealed. Laws 2021, LB169, § 1.

28-1405. Repealed. Laws 2021, LB169, § 1.

28-1406. Terms, defined.

As used in sections 28-1406 to 28-1416, unless the context otherwise requires:

(1) Unlawful force shall mean force, including confinement, which is employed without the consent of the person against whom it is directed and the employment of which constitutes an offense or actionable tort or would constitute such offense or tort except for a defense such as the absence of intent, negligence, or mental capacity; duress; youth; or diplomatic status; not amounting to a privilege to use the force;

(2) Assent shall mean consent, whether or not it otherwise is legally effective, except assent to the infliction of death or serious bodily harm;

(3) Deadly force shall mean force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily harm. Purposely firing a firearm in the direction of another person or at a vehicle in which another person is believed to be constitutes deadly force. A threat to cause death or serious bodily harm, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, shall not constitute deadly force;

(4) Actor shall mean any person who uses force in such a manner as to attempt to invoke the privileges and immunities afforded him by sections 28-1406 to 28-1416, except any duly authorized law enforcement officer of the State of Nebraska or its political subdivisions;

(5) Dwelling shall mean any building or structure, though movable or temporary, or a portion thereof, which is for the time being the actor's home or place of lodging; and

(6) Public officer shall mean any elected or appointed officer or employee of the State of Nebraska or its political subdivisions, except any duly authorized law enforcement officer of the State of Nebraska or its political subdivisions.

Source:Laws 1972, LB 895, § 1; Laws 1972, LB 1278, § 2; R.R.S.1943, § 28-833, (1975).

Annotations

Justification, otherwise known as the choice of evils, is an affirmative defense. State v. Wells, 257 Neb. 332, 598 N.W.2d 30 (1999).

28-1407. Justification; choice of evils.

(1) Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:

(a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

(b) Neither sections 28-1406 to 28-1416 nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Source:Laws 1972, LB 895, § 2; R.R.S.1943, § 28-834, (1975).

Annotations

A defense under this section, otherwise known as the choice of evils justification, was not available to a defendant who left the scene of an injury accident to allegedly prevent loss to the cattle he was hauling in his semi-truck, where there was no allegation that the defendant intentionally collided with a motorist in an attempt to save the cattle in his trailer, and the defendant's act of leaving the scene was not done with force. State v. Schmaltz, 304 Neb. 74, 933 N.W.2d 435 (2019).

Generalized and nonimmediate fears are inadequate grounds upon which to justify a violation of law. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

The choice of evils defense requires that a defendant (1) acts to avoid a greater harm, (2) reasonably believes that the particular action is necessary to avoid a specific and immediate harm, and (3) reasonably believes that the selected action is the least harmful alternative to avoid the harm, either actual or reasonably believed by the defendant to be certain to occur. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

This section reflects the Nebraska Legislature's policy that certain circumstances legally excuse conduct that would otherwise be criminal. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).

The justification or "choice of evils" defense is unavailable in a prosecution for an offense, based on conduct as an expression of a defendant's moral belief or judgment, committed to prevent another's exercising a constitutional right or committed to deny another's constitutionally protected right. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).

The justification or "choice of evils" defense operates to excuse conduct that would otherwise subject a person to criminal sanctions, but its availability and applicability require that a defendant's conduct be responsive to a legally recognized harm. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).

The justification or choice of evils defense statute specifies that conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged and mandates that a legislative purpose to exclude the justification claimed not otherwise plainly appear. State v. Beal, 21 Neb. App. 939, 846 N.W.2d 282 (2014).

28-1408. Public duty; execution.

(1) Except as provided in subsection (2) of this section, conduct is justifiable when it is required or authorized by:

(a) The law defining the duties or functions of a public officer or the assistance to be rendered to such officer in the performance of his duties;

(b) The law governing the execution of legal process;

(d) The law governing the armed services or the lawful conduct of war; or

(e) Any other provision of law imposing a public duty.

(2) Sections 28-1409 to 28-1416 shall apply to:

(a) The use of force upon or toward the person of another for any of the purposes dealt with in such sections; and

(b) The use of deadly force for any purpose, unless the use of such force is otherwise expressly authorized by law or occurs in the lawful conduct of war.

(3) The justification afforded by subsection (1) of this section shall apply:

(a) When the actor believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; and

(b) When the actor believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

Source:Laws 1972, LB 895, § 3; R.R.S.1943, § 28-835, (1975).

Annotations

While the violation of department policy may be evidence that the degree or nature of force used was unlawful, section 28-1413 ultimately requires the court to make a determination that the force used was not forbidden by this section or section 28-1409. State v. Jackson, 26 Neb. App. 727, 923 N.W.2d 97 (2019).

28-1409. Use of force in self-protection.

(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

(2) The use of such force is not justifiable under this section to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful.

(3) The use of such force is not justifiable under this section to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

(a) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

(b) The actor has been unlawfully dispossessed of the property and is making a reentry or recapture justified by section 28-1411; or

(4) The use of deadly force shall not be justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat, nor is it justifiable if:

(a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

(b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

(i) The actor shall not be obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and

(ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape shall not be obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

(5) Except as required by subsections (3) and (4) of this section, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do, or abstaining from any lawful action.

(6) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Source:Laws 1972, LB 895, § 4; R.R.S.1943, § 28-836, (1975).

Annotations

1. Elements

2. Evidence

3. Jury instructions

4. Lawful force

5. Unlawful force

6. Miscellaneous

1. Elements

A defendant's use of deadly force in self-defense is justified if a reasonable ground existed under the circumstances for the defendant's belief that he or she was threatened with death or serious bodily harm, even if the defendant was actually mistaken about the extent of the danger. State v. Miller, 281 Neb. 343, 798 N.W.2d 827 (2011).

To successfully assert the claim of self-defense, a defendant must have a reasonable and good faith belief in the necessity of using force and the force used in defense must be immediately necessary and justified under the circumstances. State v. Faust, 265 Neb. 845, 660 N.W.2d 844 (2003).

A defendant asserting self-defense as justification for the use of force must have a reasonable and good faith belief in the necessity of such force. State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993).

In order for the self-defense justification to be applicable, (1) the belief that force is necessary must be reasonable and in good faith, (2) the force must be immediately necessary, and (3) the force used must be justified under the circumstances. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).

The use of deadly force shall not be justifiable unless the actor believes such force is necessary to protect himself against death or serious bodily harm, nor is it justifiable if the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter or the actor knows that he can not avoid the necessity of using such force with complete safety by retreating. State v. Menser, 222 Neb. 36, 382 N.W.2d 18 (1986).

While the violation of department policy may be evidence that the degree or nature of force used was unlawful, section 28-1413 ultimately requires the court to make a determination that the force used was not forbidden by section 28-1408 or this section. State v. Jackson, 26 Neb. App. 727, 923 N.W.2d 97 (2019).

When one is attacked within one's dwelling, the right to defend oneself and the privilege of nonretreat should apply equally, regardless of whether the attacker is a cohabitant or an unlawful entrant. State v. White, 20 Neb. App. 116, 819 N.W.2d 473 (2012).

Pursuant to subsection (4)(a) of this section, to deprive a defendant of the defense of self‑defense, the defendant's provocation must be with the intent that the defendant will then cause death or serious bodily injury to the one that the defendant provoked, and it must all occur in the same encounter. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).

2. Evidence

Under subsection (5) of this section, evidence of victims' violent or aggressive behavior which occurred 4 months after defendant shot them was not relevant to the circumstances as defendant believed them to be the night he shot them. State v. Allison, 238 Neb. 142, 469 N.W.2d 360 (1991).

3. Jury instructions

A trial court is required to give a self-defense instruction where there is any evidence in support of a legally cognizable theory of self-defense. State v. Marshall, 253 Neb. 676, 573 N.W.2d 406 (1998).

Jury instruction requiring, as an element of self-defense, that "before using deadly force the defendant either tried to get away or did not try because he reasonably did not believe he could do so in complete safety," was not erroneous under this section. State v. Williams, 239 Neb. 985, 480 N.W.2d 390 (1992).

A defendant is entitled to an instruction on self-defense if there is any evidence to support it; this is true even if the defendant does not testify. State v. Graham, 234 Neb. 275, 450 N.W.2d 673 (1990).

A defendant is not entitled to a self-defense jury instruction when he could have safely retreated. State v. Kuntzelman, 215 Neb. 115, 337 N.W.2d 414 (1983).

Defendant is entitled to have jury instructed on his theory of self-defense if there is any evidence to support it. State v. Duis, 207 Neb. 851, 301 N.W.2d 587 (1981).

4. Lawful force

The policy underlying this section supports its application in situations where a suspect has resisted a pat-down search, even where that pat-down search is later found to be unconstitutional. State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).

This section provides no defense when a defendant uses force against another's lawful force. State v. Brown, 235 Neb. 374, 455 N.W.2d 547 (1990).

Use of force was prohibited where person being arrested knew that arrest was being made by a peace officer. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).

The use of deadly force is justifiable when the actor believes that such force is necessary to protect himself or herself against death or serious bodily harm unless the actor knows that he or she can avoid the necessity of using such force with complete safety by retreating. Newton v. Huffman, 10 Neb. App. 390, 632 N.W.2d 344 (2001).

Pursuant to this section, if a defendant is justified in using force toward an individual, the defendant is justified in the force employed which mistakenly strikes the actual victim. State v. Owens, 8 Neb. App. 109, 589 N.W.2d 867 (1999).

5. Unlawful force

Record did not establish that victim used "unlawful force" against the defendant. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).

6. Miscellaneous

The excuse of self-defense is applied to the threatening behavior of "another person", not to a generalized group of actors. State v. Owens, 257 Neb. 832, 601 N.W.2d 231 (1999).

28-1410. Use of force for protection of other persons.

(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable to protect a third person when:

(a) The actor would be justified under section 28-1409 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;

(b) Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and

(2) Notwithstanding subsection (1) of this section:

(a) When the actor would be obliged under section 28-1409 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he shall not be obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person;

(b) When the person whom the actor seeks to protect would be obliged under section 28-1409 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and

(c) Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in his own.

Source:Laws 1972, LB 895, § 5; R.R.S.1943, § 28-837, (1975).

28-1411. Use of force for protection of property.

(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:

(a) To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property; Provided, that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or

(b) To effect an entry or reentry upon land or to retake tangible movable property; Provided, that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession; and provided further, that:

(i) The force is used immediately or on fresh pursuit after such dispossession; or

(ii) The actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained.

(2) For the purposes of subsection (1) of this section:

(a) A person who has parted with the custody of property to another who refuses to restore it to him is no longer in possession, unless such property is movable and was and still is located on land in his possession;

(b) A person who has been dispossessed of land does not regain possession thereof merely by setting foot thereon; and

(c) A person who has a license to use or occupy real property is deemed to be in possession thereof except against the licenser acting under claim of right.

(3) The use of force is justifiable under this section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:

(a) Such request would be useless;

(b) It would be dangerous to himself or another person to make the request; or

(c) Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made.

(4) The use of force to prevent or terminate a trespass is not justifiable under this section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm.

(5) The use of force to prevent an entry or reentry upon land or the recapture of movable property is not justifiable under this section, although the actor believes that such reentry or recapture is unlawful, if:

(a) The reentry or recapture is made by or on behalf of a person who was actually dispossessed of the property; and

(b) It is otherwise justifiable under subdivision (1)(b) of this section.

(6) The use of deadly force is not justifiable under this section unless the actor believes that:

(a) The person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or

(b) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:

(i) Has employed or threatened deadly force against or in the presence of the actor; or

(ii) The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm.

(7) The justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he can do so with safety to the property, unless the person confined has been arrested on a charge of crime.

(8) The justification afforded by this section extends to the use of a device for the purpose of protecting property only if:

(a) Such device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm;

(b) Such use of the particular device to protect such property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; and

(c) Such device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used.

(9) The use of force to pass a person whom the actor believes to be purposely or knowingly and unjustifiably obstructing the actor from going to a place to which he may lawfully go is justifiable if:

(a) The actor believes that the person against whom he uses force has no claim of right to obstruct the actor;

(b) The actor is not being obstructed from entry or movement on land which he knows to be in the possession or custody of the person obstructing him, or in the possession or custody of another person by whose authority the obstructor acts, unless the circumstances, as the actor believes them to be, are of such urgency that it would not be reasonable to postpone the entry or movement on such land until a court order is obtained; and

(c) The force used is not greater than would be justifiable if the person obstructing the actor were using force against him to prevent his passage.

Source:Laws 1972, LB 895, § 6; R.R.S.1943, § 28-838, (1975).

28-1412. Use of force in law enforcement.

(1) Subject to the provisions of this section and of section 28-1414, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.

(2) The use of force is not justifiable under this section unless:

(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and

(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.

(3) The use of deadly force is not justifiable under this section unless:

(a) The arrest is for a felony;

(b) Such person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer;

(d) The actor believes that:

(i) The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or

(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.

(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be immediately necessary to prevent the escape of a person from a jail, prison, or other institution for the detention of persons charged with or convicted of a crime.

(5) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful; Provided, that he does not believe the arrest is unlawful.

(6) A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, if:

(a) He believes the arrest is lawful; and

(b) The arrest would be lawful if the facts were as he believes them to be.

(7) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious bodily harm upon himself, committing or consummating the commission of a crime involving or threatening bodily harm, damage to or loss of property or a breach of the peace, except that:

(a) Any limitations imposed by the other provisions of sections 28-1406 to 28-1416 on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and

(b) The use of deadly force is not in any event justifiable under this subsection unless:

(i) The actor believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious bodily harm to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or

(ii) The actor believes that the use of such force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such force will be used if they do not obey.

(8) The justification afforded by subsection (7) of this section extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Source:Laws 1972, LB 895, § 7; R.R.S.1943, § 28-839, (1975).

Annotations

Police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).

Pursuant to subsection (1) of this section, a police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting officer would have deemed necessary under the circumstances. Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991).

Officer's use of force during arrest was justified and authorized. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987).

The legislative policy in Nebraska is that force is not to be used in making an arrest unless the arrester believes such force is immediately necessary to effect a lawful arrest. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).

This section, which was section 28-839 under the old criminal code, does apply to police officers, notwithstanding the fact that this section refers only to "actors" and that the statutory definition of "actor" excludes law enforcement officers. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978).

Where a police officer who pursued and fatally shot a burglary suspect whom he did not believe was involved in a crime involving the use or threatened use of deadly force and who did not present a substantial risk that he would cause death or serious bodily harm if his apprehension were delayed, the police officer used unreasonable force as a matter of law in firing at the suspect as he fled. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978).

28-1413. Use of force by person with special responsibility for care, discipline, or safety of others.

The use of force upon or toward the person of another is justifiable if:

(1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian, or other responsible person and:

(a) Such force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his or her misconduct; and

(b) Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress, or gross degradation;

(2) The actor is the guardian or other person similarly responsible for the general care and supervision of an incompetent person and:

(a) Such force is used for the purpose of safeguarding or promoting the welfare of the incompetent person, including the prevention of his or her misconduct, or, when such incompetent person is in a hospital or other institution for his or her care and custody, for the maintenance of reasonable discipline in such institution; and

(b) Such force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme or unnecessary pain, mental distress, or humiliation;

(3) The actor is a doctor or other therapist or a person assisting him or her at his or her direction and:

(a) Such force is used for the purpose of administering a recognized form of treatment which the actor believes to be adapted to promoting the physical or mental health of the patient; and

(b) Such treatment is administered with the consent of the patient or, if the patient is a minor or an incompetent person, with the consent of his or her parent or guardian or other person legally competent to consent in his or her behalf or the treatment is administered in an emergency when the actor believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent;

(4) The actor is a warden or other authorized official of a correctional institution and:

(a) He or she believes that the force used is necessary for the purpose of enforcing the lawful rules or procedures of the institution, unless his or her belief in the lawfulness of the rule or procedure sought to be enforced is erroneous and his or her error is the result of ignorance or mistake as to the provisions of sections 28-1406 to 28-1416, any other provision of the criminal law, or the law governing the administration of the institution;

(b) The nature or degree of force used is not forbidden by section 28-1408 or 28-1409; and

(5) The actor is a person responsible for the safety of a vessel or an aircraft or a person acting at his or her direction and:

(a) He or she believes that the force used is necessary to prevent interference with the operation of the vessel or aircraft or obstruction of the execution of a lawful order unless such belief in the lawfulness of the order is erroneous and such error is the result of ignorance or mistake as to the law defining such authority; and

(b) If deadly force is used, its use is otherwise justifiable under sections 28-1406 to 28-1416; and

(6) The actor is a person who is authorized or required by law to maintain order or decorum in a vehicle, train, or other carrier or in a place where others are assembled, and:

(a) He or she believes that the force used is necessary for such purpose; and

(b) Such force used is not designed to cause or known to create a substantial risk of causing death, bodily harm, or extreme mental distress.

Source:Laws 1972, LB 895, § 8; R.R.S.1943, § 28-840, (1975); Laws 1988, LB 316, § 2.

Annotations

Whether an act that could constitute third degree assault is justifiable under this section is a question of fact. State v. Beins, 235 Neb. 648, 456 N.W.2d 759 (1990).

Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).

Subdivision (1) of this section codifies the common-law defense against criminal liability for a parent's use of force in, among other circumstances, punishing his or her child's misbehavior. At common law, a parent, or one standing in the relation of parent, was not liable either civilly or criminally for moderately and reasonably correcting a child, but it was otherwise if the correction was immoderate and unreasonable. State v. Kilgore, 30 Neb. App. 273, 967 N.W.2d 743 (2021).

The question of whether a parent's use of physical force to discipline his or her child was protected under subdivision (1) of this section presents a question of fact for the fact finder. State v. Kilgore, 30 Neb. App. 273, 967 N.W.2d 743 (2021).

While the violation of department policy may be evidence that the degree or nature of force used was unlawful, this section ultimately requires the court to make a determination that the force used was not forbidden by section 28-1408 or section 28-1409. State v. Jackson, 26 Neb. App. 727, 923 N.W.2d 97 (2019).

This section does not create or confer an affirmative right to use physical or corporal punishment, but, rather, this section only provides a defense against criminal liability. State v. Nguth, 13 Neb. App. 783, 701 N.W.2d 852 (2005).

28-1414. Mistake of law; reckless or negligent use of force.

(1) The justification afforded by sections 28-1409 to 28-1412 is unavailable when:

(a) The actor's belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and

(b) His error is the result of ignorance or mistake as to the provisions of sections 28-1406 to 28-1416, any other provision of the criminal law, or the law governing the legality of an arrest or search.

(2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under sections 28-1408 to 28-1413 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

(3) When the actor is justified under sections 28-1408 to 28-1413 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

Source:Laws 1972, LB 895, § 9; R.R.S.1943, § 28-841, (1975).

28-1415. Justification in property crimes.

Conduct involving the appropriation, seizure or destruction of, damage to, intrusion on or interference with property is justifiable under circumstances which would establish a defense of privilege in a civil action based thereon, unless:

(1) Sections 28-1406 to 28-1416 or the law defining the offense deals with the specific situation involved; or

(2) A legislative purpose to exclude the justification claimed otherwise plainly appears.

Source:Laws 1972, LB 895, § 10; R.R.S.1943, § 28-842, (1975).

28-1416. Justification an affirmative defense; available in certain civil actions.

(1) In any prosecution based on conduct which is justifiable under sections 28-1406 to 28-1416, justification is an affirmative defense.

(2) The justification defenses provided for under sections 28-1406 to 28-1416 shall be available in any civil action for assault and battery or intentional wrongful death and, where applicable, shall be a bar to recovery.

Source:Laws 1972, LB 895, § 11; R.R.S.1943, § 28-843, (1975); Laws 2012, LB804, § 1.

28-1417. Transferred to section 13-1801.

28-1418. Tobacco; electronic nicotine delivery systems; alternative nicotine products; use by person under age of twenty-one years; penalty.

Whoever, being a person under the age of twenty-one years, shall smoke cigarettes or cigars, use electronic nicotine delivery systems or alternative nicotine products, or use tobacco in any form whatever, in this state, shall be guilty of a Class V misdemeanor. Any person charged with a violation of this section may be free from prosecution if he or she furnishes evidence for the conviction of the person or persons selling or giving him or her the cigarettes, cigars, electronic nicotine delivery systems, alternative nicotine products, or tobacco.

Source:Laws 1911, c. 181, §§ 1, 2, 3, p. 561; R.S.1913, § 8846; C.S.1922, § 9847; C.S.1929, § 28-1021; R.S.1943, § 28-1020; Laws 1977, LB 40, § 103; R.R.S.1943, § 28-1020, (1975); Laws 2014, LB863, § 16; Laws 2019, LB149, § 1; Laws 2019, LB397, § 1; Laws 2020, LB1064, § 1.

28-1418.01. Terms, defined.

For purposes of sections 28-1418 to 28-1429.03:

(1) Alternative nicotine product means any noncombustible product containing nicotine that is intended for human consumption, whether chewed, absorbed, dissolved, or ingested by any other means. Alternative nicotine product does not include any electronic nicotine delivery system, cigarette, cigar, or other tobacco product, or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act;

(2) Cigarette means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains (a) any roll of tobacco wrapped in paper or in any substance not containing tobacco, (b) tobacco, in any form, that is functional in the product which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette, or (c) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subdivision (2)(a) of this section;

(3)(a) Electronic nicotine delivery system means any product or device containing nicotine, tobacco, or tobacco derivatives that employs a heating element, power source, electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size, to simulate smoking by delivering the nicotine, tobacco, or tobacco derivatives in vapor, fog, mist, gas, or aerosol form to a person inhaling from the product or device.

(b) Electronic nicotine delivery system includes, but is not limited to, the following:

(i) Any substance containing nicotine, tobacco, or tobacco derivatives, whether sold separately or sold in combination with a product or device that is intended to deliver to a person nicotine, tobacco, or tobacco derivatives in vapor, fog, mist, gas, or aerosol form;

(ii) Any product or device marketed, manufactured, distributed, or sold as an electronic cigarette, electronic cigar, electronic cigarillo, electronic pipe, electronic hookah, or similar products, names, descriptors, or devices; and

(iii) Any component, part, or accessory of such a product or device that is used during operation of the product or device when sold in combination with any substance containing nicotine, tobacco, or tobacco derivatives.

(i) An alternative nicotine product, cigarette, cigar, or other tobacco product, or any product regulated as a drug or device by the United States Food and Drug Administration under Chapter V of the Federal Food, Drug, and Cosmetic Act; or

(ii) Any component, part, or accessory of such a product or device that is used during operation of the product or device when not sold in combination with any substance containing nicotine, tobacco, or tobacco derivatives;

(4) Self-service display means a retail display that contains a tobacco product, a tobacco-derived product, an electronic nicotine delivery system, or an alternative nicotine product and is located in an area openly accessible to a retailer's customers and from which such customers can readily access the product without the assistance of a salesperson. Self-service display does not include a display case that holds tobacco products, tobacco-derived products, electronic nicotine delivery systems, or alternative nicotine products behind locked doors; and

(5) Tobacco specialty store means a retail store that (a) derives at least seventy-five percent of its revenue from tobacco products, tobacco-derived products, electronic nicotine delivery systems, or alternative nicotine products and (b) does not permit persons under the age of twenty-one years to enter the premises unless accompanied by a parent or legal guardian, except that until January 1, 2022, a tobacco specialty store may allow an employee who is nineteen or twenty years of age to work in the store.

Source:Laws 2014, LB863, § 17; Laws 2019, LB149, § 2; Laws 2019, LB397, § 2; Laws 2020, LB1064, § 2.

28-1419. Tobacco; electronic nicotine delivery systems; alternative nicotine products; certain sales; penalty; compliance determination; assistance authorized; conditions.

(1) Whoever shall sell, give, or furnish, in any way, any tobacco in any form whatever, or any cigars, cigarettes, cigarette paper, electronic nicotine delivery systems, or alternative nicotine products, to any person under twenty-one years of age, is guilty of a Class III misdemeanor for each offense.

(2)(a) In order to further the public policy of deterring licensees or other persons from violating subsection (1) of this section, a person who is at least fifteen years of age but under twenty-one years of age may assist a peace officer in determining compliance with such subsection if:

(i) The parent or legal guardian of the person has given written consent for the person to participate in such compliance check if such person is under nineteen years of age;

(ii) The person is an employee, a volunteer, or an intern with a state or local law enforcement agency;

(iii) The person is acting within the scope of his or her assigned duties as part of a law enforcement investigation;

(iv) The person does not use or consume a tobacco product as part of such duties; and

(v) The person is not actively assigned to a diversion program, is not a party to a pending criminal proceeding or a proceeding pending under the Nebraska Juvenile Code, and is not on probation.

(b) Any person under the age of twenty-one years acting in accordance with and under the authority of this subsection shall not be in violation of section 28-1427.

Source:Laws 1885, c. 105, §§ 1, 2, p. 394; Laws 1903, c. 138, § 1, p. 643; R.S.1913, § 8847; C.S.1922, § 9848; C.S.1929, § 28-1022; R.S.1943, § 28-1021; Laws 1977, LB 40, § 104; R.R.S.1943, § 28-1021, (1975); Laws 2014, LB863, § 18; Laws 2019, LB149, § 3; Laws 2019, LB397, § 3; Laws 2020, LB1064, § 3.

Cross References

Nebraska Juvenile Code, see section 43-2,129.

28-1420. License requisite for sale; violation; penalty.

It shall be unlawful for any person, partnership, limited liability company, or corporation to sell, keep for sale, or give away in course of trade, any cigars, tobacco, electronic nicotine delivery systems, cigarettes, or cigarette material to anyone without first obtaining a license as provided in sections 28-1421 and 28-1422. It shall also be unlawful for any wholesaler to sell or deliver any cigars, tobacco, electronic nicotine delivery systems, cigarettes, or cigarette material to any person, partnership, limited liability company, or corporation who, at the time of such sale or delivery, is not the recipient of a valid tobacco license for the current year to retail the same as provided in such sections. It shall also be unlawful for any person, partnership, limited liability company, or corporation to purchase or receive, for purposes of resale, any cigars, tobacco, electronic nicotine delivery systems, cigarettes, or cigarette material if such person, partnership, limited liability company, or corporation is not the recipient of a valid tobacco license to retail such tobacco products at the time the same are purchased or received. Whoever shall be found guilty of violating this section shall be guilty of a Class III misdemeanor for each offense.

Source:Laws 1919, c. 180, § 1, p. 401; C.S.1922, § 9849; C.S.1929, § 28-1023; Laws 1941, c. 50, § 1, p. 242; C.S.Supp.,1941, § 28-1023; R.S.1943, § 28-1022; Laws 1977, LB 40, § 105; R.R.S.1943, § 28-1022, (1975); Laws 1993, LB 121, § 187; Laws 2019, LB149, § 4; Laws 2019, LB397, § 4.

28-1421. License; where obtained; prohibited sales.

Licenses for the sale of cigars, tobacco, electronic nicotine delivery systems, cigarettes, and cigarette material to persons twenty-one years of age or over shall be issued to individuals, partnerships, limited liability companies, and corporations by the clerk or finance director of any city or village and by the county clerk of any county upon application duly made as provided in section 28-1422. The sale of cigarettes or cigarette materials that contain perfumes or drugs in any form is prohibited and is not licensed by the provisions of this section. Only cigarettes and cigarette material containing pure white paper and pure tobacco shall be licensed.

Source:Laws 1919, c. 180, § 2, p. 401; C.S.1922, § 9850; C.S.1929, § 28-1024; R.S.1943, § 28-1023; Laws 1961, c. 128, § 1, p. 379; R.R.S.1943, § 28-1023, (1975); Laws 1993, LB 121, § 188; Laws 2019, LB149, § 5; Laws 2019, LB397, § 5; Laws 2020, LB1064, § 4.

28-1422. License for sale of tobacco; application; contents.

Every person, partnership, limited liability company, or corporation desiring a license under sections 28-1420 to 28-1429 shall file with the clerk or finance department of the city, town, or village where his, her, their, or its place of business is located, if within the limits of a city, town, or village or with the clerk of the county where such place of business is located if outside the limits of any city, town, or village a written application stating the name of the person, partnership, limited liability company, or corporation for whom such license is desired and the exact location of the place of business and shall deposit with such application the amount of the license fee provided in section 28-1423. If the applicant is an individual, the application shall include the applicant's social security number.

Source:Laws 1919, c. 180, § 3, p. 401; C.S.1922, § 9851; C.S.1929, § 28-1025; R.S.1943, § 28-1024; Laws 1961, c. 128, § 2, p. 379; R.R.S.1943, § 28-1024, (1975); Laws 1993, LB 121, § 189; Laws 1997, LB 752, § 85.

28-1423. License; term; fees; false swearing; penalty.

The term for which such license shall run shall be from the date of filing such application and paying such license fee to and including December 31 of the calendar year in which application for such license is made, and the license fee for any person, partnership, limited liability company, or corporation selling at retail shall be twenty-five dollars in cities of the metropolitan class, fifteen dollars in cities of the primary and first classes, and ten dollars in cities of all other classes and in towns and villages and in locations outside of the limits of cities, towns, and villages. Any person, partnership, limited liability company, or corporation selling annually in the aggregate more than one hundred fifty thousand cigars, packages of cigarettes, electronic nicotine delivery systems, and packages of tobacco in any form, at wholesale, shall pay a license fee of one hundred dollars, and if such combined annual sales amount to less than one hundred fifty thousand cigars, packages of cigarettes, electronic nicotine delivery systems, and packages of tobacco, the annual license fee shall be fifteen dollars. No wholesaler's license shall be issued in any year on a less basis than one hundred dollars per annum unless the applicant for the same shall file with such application a statement duly sworn to by himself or herself, or if applicant is a partnership, by a member of the firm, or if a limited liability company, by a member or manager of the company, or if a corporation, by an officer or manager thereof, that in the past such wholesaler's combined sales of cigars, packages of cigarettes, electronic nicotine delivery systems, and packages of tobacco in every form have not exceeded in the aggregate one hundred fifty thousand annually, and that such sales will not exceed such aggregate amount for the current year for which the license is to issue. Any person swearing falsely in such affidavit shall be guilty of perjury and upon conviction thereof shall be punished as provided by section 28-915 and such wholesaler's license shall be revoked until the full license fee is paid. If application for license is made after July 1 of any calendar year, the fee shall be one-half of the fee provided in this section.

Source:Laws 1919, c. 180, § 4, p. 402; C.S.1922, § 9852; Laws 1923, c. 136, § 1, p. 335; Laws 1927, c. 198, § 1, p. 565; C.S.1929, § 28-1026; R.S.1943, § 28-1025; Laws 1978, LB 748, § 20; R.R.S.1943, § 28-1025, (1975); Laws 1993, LB 121, § 190; Laws 2019, LB149, § 6; Laws 2019, LB397, § 6.

28-1424. License; rights of licensee.

The license provided for in sections 28-1421 and 28-1422 shall, when issued, authorize the sale of cigars, tobacco, electronic nicotine delivery systems, cigarettes, and cigarette material by the licensee and employees, to persons twenty-one years of age or over, at the place of business described in such license for the term therein authorized, unless the license is forfeited as provided in section 28-1425.

Source:Laws 1919, c. 180, § 5, p. 402; C.S.1922, § 9853; C.S.1929, § 28-1027; R.S.1943, § 28-1026; Laws 1957, c. 100, § 2, p. 359; R.R.S.1943, § 28-1026, (1975); Laws 2019, LB149, § 7; Laws 2019, LB397, § 7; Laws 2020, LB1064, § 5.

28-1425. Licensees; sale of tobacco, electronic nicotine delivery systems, or alternative nicotine products to persons under the age of twenty-one years; penalty.

Any licensee who shall sell, give, or furnish in any way to any person under the age of twenty-one years, or who shall willingly allow to be taken from his or her place of business by any person under the age of twenty-one years, any cigars, tobacco, cigarettes, cigarette material, electronic nicotine delivery systems, or alternative nicotine products is guilty of a Class III misdemeanor. Any officer, director, or manager having charge or control, either separately or jointly with others, of the business of any corporation which violates sections 28-1419, 28-1420 to 28-1429, and 28-1429.03, if he or she has knowledge of such violation, shall be subject to the penalties provided in this section. In addition to the penalties provided in this section, such licensee shall be subject to the additional penalty of a revocation and forfeiture of his, her, their, or its license, at the discretion of the court before whom the complaint for violation of such sections may be heard. If such license is revoked and forfeited, all rights under such license shall at once cease and terminate.

Source:Laws 1919, c. 180, § 6, p. 402; C.S.1922, § 9854; C.S.1929, § 28-1028; R.S.1943, § 28-1027; Laws 1957, c. 100, § 3, p. 360; Laws 1977, LB 40, § 106; R.R.S.1943, § 28-1027, (1975); Laws 2014, LB863, § 19; Laws 2019, LB149, § 8; Laws 2019, LB397, § 8; Laws 2020, LB1064, § 6.

28-1426. Licenses for sale of tobacco; fees inure to school fund.

All money collected as license fees under the provisions of sections 28-1420 to 28-1429, shall be paid over by the clerk or finance director receiving it to the treasurer of the school fund for the particular city, town, village or county, as the case may be.

Source:Laws 1919, c. 180, § 7, p. 403; C.S.1922, § 9855; C.S.1929, § 28-1029; R.S.1943, § 28-1028; Laws 1961, c. 128, § 3, p. 380; R.R.S.1943, § 28-1028, (1975).

28-1427. Person misrepresenting age to obtain tobacco, electronic nicotine delivery systems, or alternative nicotine products; penalty.

Except as provided in subsection (2) of section 28-1419, any person under the age of twenty-one years who obtains cigars, tobacco, cigarettes, cigarette material, electronic nicotine delivery systems, or alternative nicotine products from a licensee by representing that he or she is of the age of twenty-one years or over is guilty of a Class V misdemeanor.

Source:Laws 1919, c. 180, § 8, p. 403; C.S.1922, § 9856; C.S.1929, § 28-1030; R.S.1943, § 28-1029; Laws 1947, c. 98, § 1, p. 281; Laws 1977, LB 40, § 107; R.R.S.1943, § 28-1029, (1975); Laws 2014, LB863, § 20; Laws 2019, LB149, § 9; Laws 2019, LB397, § 9; Laws 2020, LB1064, § 7.

28-1428. Transfer of tobacco license.

In case of the sale of a business where the owner has a license hereunder, the licensing authority may authorize such license to be transferred to the purchaser. In case of a change of location by any licensee hereunder, the licensing authority may transfer such license to the new location.

Source:Laws 1919, c. 180, § 9, p. 403; C.S.1922, § 9857; C.S.1929, § 28-1031; R.S.1943, § 28-1030.

28-1429. Revocation of tobacco license; reissue.

In the event that the license of a licensee hereunder shall be revoked and forfeited as provided in section 28-1425, no new license shall be issued to such licensee until the expiration of one year from the date of such revocation and forfeiture.

Source:Laws 1919, c. 180, § 10, p. 403; C.S.1922, § 9858; C.S.1929, § 28-1032; R.S.1943, § 28-1031.

28-1429.01. Vending machines; legislative findings.

The Legislature finds that the incumbent health risks associated with using tobacco products have been scientifically proven. The Legislature further finds that the growing number of young people who start using tobacco products is staggering, and even more abhorrent are the ages at which such use begins. The Legislature has established an age restriction on the use of tobacco products. To ensure that the use of tobacco products among young people is discouraged to the maximum extent possible, it is the intent of the Legislature to ban the use of vending machines and similar devices to dispense tobacco products in facilities, buildings, or areas which are open to the general public within Nebraska.

Source:Laws 1992, LB 130, § 1; Laws 2019, LB149, § 10.

28-1429.02. Vending machines; restrictions on use; violation; penalty; local ordinances; authorized.

(1) Except as provided in subsection (2) of this section, it shall be unlawful to dispense cigarettes, other tobacco products, electronic nicotine delivery systems, or alternative nicotine products from a vending machine or similar device. Any person violating this section is guilty of a Class III misdemeanor. In addition, upon conviction for a second offense, the court shall order a six-month suspension of the offender's license to sell tobacco and electronic nicotine delivery systems, if any, and, upon conviction for a third or subsequent offense, the court shall order the permanent revocation of the offender's license to sell tobacco and electronic nicotine delivery systems, if any.

(2) Cigarettes, other tobacco products, electronic nicotine delivery systems, or alternative nicotine products may be dispensed from a vending machine or similar device when such machine or device is located in an area, office, business, plant, or factory which is not open to the general public or on the licensed premises of any establishment having a license issued under the Nebraska Liquor Control Act for the sale of alcoholic liquor for consumption on the premises when such machine or device is located in the same room in which the alcoholic liquor is dispensed.

(3) Nothing in this section shall be construed to restrict or prohibit a governing body of a city or village from establishing and enforcing ordinances at least as stringent as or more stringent than the provisions of this section.

Source:Laws 1992, LB 130, § 2; Laws 2014, LB863, § 21; Laws 2019, LB149, § 11; Laws 2019, LB397, § 10.

Cross References

Nebraska Liquor Control Act, see section 53-101.

28-1429.03. Self-service display; restrictions on use; violation; penalty.

(1) Except as provided in subsection (2) of this section and section 28-1429.02, it shall be unlawful to sell or distribute cigarettes, cigars, electronic nicotine delivery systems, alternative nicotine products, or tobacco in any form whatever through a self-service display. Any person violating this section is guilty of a Class III misdemeanor. In addition, upon conviction for a second or subsequent offense within a twelve-month period, the court shall order a six-month suspension of the license issued under section 28-1421.

(2) Cigarettes, cigars, electronic nicotine delivery systems, alternative nicotine products, or tobacco in any form whatever may be sold or distributed in a self-service display that is located in a tobacco specialty store or cigar shop as defined in section 53-103.08.

Source:Laws 2014, LB863, § 22; Laws 2015, LB118, § 1; Laws 2019, LB149, § 12; Laws 2019, LB397, § 11.

28-1430. Repealed. Laws 1997, LB 622, § 136.

28-1431. Repealed. Laws 1997, LB 622, § 136.

28-1432. Repealed. Laws 1997, LB 622, § 136.

28-1433. Repealed. Laws 1997, LB 622, § 136.

28-1434. Repealed. Laws 1993, LB 251, § 10.

28-1435. Repealed. Laws 1993, LB 251, § 10.

28-1436. Repealed. Laws 1993, LB 251, § 10.

28-1437. Repealed. Laws 2015, LB 37, § 93.

28-1438. Repealed. Laws 2015, LB 37, § 93.

28-1438.01. Transferred to section 28-414.06.

28-1439. Transferred to section 28-414.07.

28-1439.01. Uniform Controlled Substances Act; conviction; uncorroborated testimony; how treated.

No conviction for an offense punishable under any provision of the Uniform Controlled Substances Act shall be based solely upon the uncorroborated testimony of a cooperating individual.

Source:Laws 1978, LB 276, § 2; R.S.1943, § 28-439, (1979); Laws 1990, LB 571, § 7; Laws 1992, LB 1019, § 34.

Cross References

Uniform Controlled Substances Act, see section 28-401.01.

Annotations

Conviction for possession of a controlled substance with intent to deliver was not based solely on the uncorroborated testimony of a cooperating individual, even though some testimony was elicited from two cooperating individuals, where the State provided evidence of text messages that indicated that the defendant was selling methamphetamine, as well as witness testimony from five other noncooperating individuals who generally corroborated the cooperating individuals' testimony. State v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018).

The evidence supporting each count charged must independently satisfy the corroboration requirements of this section. State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).

Corroboration is sufficient for the purposes of this section if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue. State v. Goodro, 251 Neb. 311, 556 N.W.2d 630 (1996).

Corroboration is sufficient if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue. State v. Jimenez, 248 Neb. 255, 533 N.W.2d 913 (1995).

This section requires only that a conviction be based on something more than a cooperating individual's testimony. It is sufficient if the cooperating individual's testimony is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue. State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991).

Corroboration may be supplied by observation that the meeting between the subject and the cooperating individual actually took place and by searches of the cooperating individual both before and within a reasonable time after the drug purchase took place. State v. Knoefler, 227 Neb. 410, 418 N.W.2d 217 (1988).

This section requires only that a conviction be based on something more than a cooperating individual's testimony. It is sufficient for conviction if the cooperating individual is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue. State v. Cain, 223 Neb. 796, 393 N.W.2d 727 (1986).

Corroboration is sufficient, for purposes of this statute, if the witness is corroborated as to material facts and circumstances which tend to support the testimony as to the principal fact in issue. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).

The requirement of corroboration in this section does not operate to exclude testimony which is not corroborated by other evidence; rather, it only requires that the conviction be based on something more than only such testimony. State v. Beckner, 211 Neb. 442, 318 N.W.2d 889 (1982).

Searches of the cooperating individual performed by citizens, trained by law enforcement officials and working as agents of law enforcement, along with other evidence, were valid to establish corroboration of the cooperating individual's testimony as required by this section. State v. Kuta, 12 Neb. App. 847, 686 N.W.2d 374 (2004).

28-1439.02. Drug forfeitures; county treasurer; duties; County Drug Law Enforcement and Education Fund.

(1) The proceeds from any sale ordered pursuant to section 28-431, less legal costs, charges, and claims allowed, and any money forfeited pursuant to section 28-431 shall be paid to the county treasurer of the county in which the seizure was made. The county treasurer shall dispose of all such proceeds from property forfeited pursuant to subdivision (1)(g) of section 28-431 and fifty percent of the money forfeited pursuant to subdivision (1)(h) of section 28-431 in the manner provided for disposition of fines, penalties, and license money under the Constitution of Nebraska. The county treasurer shall disburse the remaining fifty percent of the money forfeited pursuant to subdivision (1)(h) of section 28-431 to his or her respective County Drug Law Enforcement and Education Fund. Each county shall create a County Drug Law Enforcement and Education Fund.

(2) Money remitted to any county pursuant to section 77-4310.01 shall be credited by the county treasurer of such county to the County Drug Law Enforcement and Education Fund.

Source:Laws 1985, LB 247, § 2; Laws 1991, LB 773, § 2; Laws 2016, LB1009, § 6.

28-1439.03. County Drug Law Enforcement and Education Fund Board; membership; terms; powers and duties; rules and regulations.

A County Drug Law Enforcement and Education Fund Board shall be created by each county of this state to administer its respective fund pursuant to section 28-1439.02. The board may authorize use of the fund for drug enforcement and drug education purposes, in its own or any other county, by village, city, county, or state law enforcement agencies.

The board shall consist of the county attorney and three representatives of law enforcement agencies who shall be appointed by the county attorney. One representative shall be from the county sheriff's office, one representative shall be from a city or village police department within the county, and one representative shall be from the Nebraska State Patrol. Terms shall be for two years, except that the initial term of the police department representative shall be for one year. The county attorney shall serve as chairperson.

If during any fiscal year the fund contains money forfeited pursuant to subdivision (1)(h) of section 28-431, the board shall meet at least once during such year and make an accounting of the expenditures of the fund. At the end of any fiscal year in which the fund has contained money, the board shall make a report summarizing the use of the fund during such year to the Auditor of Public Accounts, except that such report shall contain no information which would jeopardize an ongoing investigation. Such report shall indicate the amount of money placed in the fund, the amount of money disbursed, the number of cases opened and closed in which the fund was utilized, and the drug education activities for which money in the fund was utilized. The board may adopt and promulgate all rules and regulations necessary for the expenditures and accountability of such fund.

Source:Laws 1985, LB 247, § 3; Laws 1991, LB 773, § 3; Laws 2016, LB1009, § 7.

28-1439.04. Terms, defined.

For purposes of sections 28-1439.02 to 28-1439.05:

(1) Drug education purposes shall mean drug education activities conducted by the Nebraska State Patrol or other law enforcement agencies in cooperation with elementary and secondary schools in Nebraska; and

(2) Drug enforcement purposes shall include, but not be limited to, the following when used or expended by law enforcement agencies or their agents in discharging their responsibilities concerning traffic in controlled substances and in suppressing the abuse of controlled substances:

(a) Salaries for informants and any expenses of all agents and informants;

(b) Flash money for drug purchases; and

Source:Laws 1985, LB 247, § 4; Laws 1991, LB 773, § 4.

28-1439.05. County Drug Law Enforcement and Education Fund Boards; legislative intent.

The Legislature hereby finds and declares that it is the intent of section 28-1439.03 to foster cooperation among the County Drug Law Enforcement and Education Fund Boards in the state by encouraging boards which have no use for the funds to disburse the funds to boards in other counties.

Source:Laws 1985, LB 247, § 5; Laws 1991, LB 773, § 5.

28-1440. Repealed. Laws 1996, LB 972, § 4.

28-1441. Repealed. Laws 1996, LB 972, § 4.

28-1442. Repealed. Laws 1996, LB 972, § 4.

28-1443. Repealed. Laws 1996, LB 972, § 4.

28-1444. Repealed. Laws 1996, LB 972, § 4.

28-1445. Repealed. Laws 1996, LB 972, § 4.

28-1446. Repealed. Laws 1996, LB 972, § 4.

28-1447. Repealed. Laws 1996, LB 972, § 4.

28-1448. Repealed. Laws 1996, LB 972, § 4.

28-1449. Repealed. Laws 1996, LB 972, § 4.

28-1450. Repealed. Laws 1978, LB 748, § 61.

28-1451. Repealed. Laws 1978, LB 748, § 61.

28-1452. Repealed. Laws 1978, LB 748, § 61.

28-1453. Repealed. Laws 1978, LB 748, § 61.

28-1454. Repealed. Laws 1978, LB 748, § 61.

28-1455. Repealed. Laws 1978, LB 748, § 61.

28-1456. Repealed. Laws 1978, LB 748, § 61.

28-1457. Repealed. Laws 1978, LB 748, § 61.

28-1458. Repealed. Laws 1978, LB 748, § 61.

28-1459. Repealed. Laws 1978, LB 748, § 61.

28-1460. Repealed. Laws 1978, LB 748, § 61.

28-1461. Repealed. Laws 1978, LB 748, § 61.

28-1462. Repealed. Laws 1978, LB 748, § 61.

28-1463. Transferred to section 28-1463.03.

28-1463.01. Act, how cited.

Sections 28-1463.01 to 28-1463.06 shall be known and may be cited as the Child Pornography Prevention Act.

Source:Laws 1985, LB 668, § 1; Laws 2016, LB1106, § 9.

28-1463.02. Terms, defined.

As used in the Child Pornography Prevention Act, unless the context otherwise requires:

(1) Child, in the case of a participant, means any person under the age of eighteen years and, in the case of a portrayed observer, means any person under the age of sixteen years;

(2) Erotic fondling means touching a person's clothed or unclothed genitals or pubic area, breasts if the person is a female, or developing breast area if the person is a female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more persons involved. Erotic fondling shall not be construed to include physical contact, even if affectionate, which is not for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved;

(3) Erotic nudity means the display of the human male or female genitals or pubic area, the human female breasts, or the developing breast area of the human female child, for the purpose of real or simulated overt sexual gratification or sexual stimulation of one or more of the persons involved;

(4) Sadomasochistic abuse means flagellation or torture by or upon a nude person or a person clad in undergarments, a mask, or bizarre costume, or the condition of being fettered, bound, or otherwise physically restrained when performed to predominantly appeal to the morbid interest;

(5) Sexually explicit conduct means: (a) Real or simulated intercourse, whether genital-genital, oral-genital, anal-genital, or oral-anal between persons of the same or opposite sex or between a human and an animal or with an artificial genital; (b) real or simulated masturbation; (c) real or simulated sadomasochistic abuse; (d) erotic fondling; (e) erotic nudity; or (f) real or simulated defecation or urination for the purpose of sexual gratification or sexual stimulation of one or more of the persons involved; and

(6) Visual depiction means live performance or photographic representation and includes any undeveloped film or videotape or data stored on a computer disk or by other electronic means which is capable of conversion into a visual image and also includes any photograph, film, video, picture, digital image, or computer-displayed image, video, or picture, whether made or produced by electronic, mechanical, computer, digital, or other means.

Source:Laws 1985, LB 668, § 2; Laws 1986, LB 788, § 1; Laws 2009, LB97, § 17.

Annotations

A defendant can be found guilty of creating or possessing child pornography beyond a reasonable doubt even when the actual depiction at issue is unavailable at trial. State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

In order to show "erotic nudity," as defined in subsection (3) of this section, the State must prove, first, that the depiction displays a human's genitals or a human's pubic area or female breast area, and second, that the depiction was created for the purpose of real or simulated overt sexual gratification or sexual stimulation. State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

To determine whether photographs were taken for the purpose of real or simulated overt sexual gratification or sexual stimulation, an appellate court considers the following nonexclusive factors: (1) whether the focal point of the visual depiction is on the child's genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

Probable cause to search for evidence of crimes involving visual depiction of sexually explicit conduct involving minors may be established by a detailed verbal description of the conduct depicted in the images. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).

While copies of images obtained during a law enforcement investigation may be used to establish probable cause to search for evidence of crimes involving visual depiction of sexually explicit conduct involving minors, they are not absolutely required. State v. Nuss, 279 Neb. 648, 781 N.W.2d 60 (2010).

Age of child may be proved by stipulation of defendant. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).

28-1463.03. Visual depiction of sexually explicit conduct; prohibited acts.

(1) It shall be unlawful for a person to knowingly make, publish, direct, create, provide, or in any manner generate any visual depiction of sexually explicit conduct which has a child other than the defendant as one of its participants or portrayed observers.

(2) It shall be unlawful for a person knowingly to purchase, rent, sell, deliver, distribute, display for sale, advertise, trade, or provide to any person any visual depiction of sexually explicit conduct which has a child other than the defendant as one of its participants or portrayed observers.

(3) It shall be unlawful for a person to knowingly employ, force, authorize, induce, or otherwise cause a child to engage in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

(4) It shall be unlawful for a parent, stepparent, legal guardian, or any person with custody and control of a child, knowing the content thereof, to consent to such child engaging in any visual depiction of sexually explicit conduct which has a child as one of its participants or portrayed observers.

Source:Laws 1978, LB 829, § 1; R.S.1943, (1979), § 28-1463; Laws 1985, LB 668, § 3; Laws 2009, LB97, § 18; Laws 2019, LB630, § 5.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

A person who generates differing and multiple prohibited visual depictions or causes a child to engage in the creation of such visual depictions commits multiple offenses of subsection (1) or (3) of this section, even though each such differing visual depiction involves the same subject captured in a narrow timeframe. State v. Mather, 264 Neb. 182, 646 N.W.2d 605 (2002).

The sexual nature of a photograph is not determined solely from the subjects of the photograph, but from the motives of the persons generating the photograph. State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993).

Under previous statute, the act of appearing in an obscene film depicting children was prohibited. State v. Jensen, 226 Neb. 40, 409 N.W.2d 319 (1987).

Subsection (1) of this section is neither overbroad nor vague under federal Constitution, but there is an open question of constitutionality under the Constitution of Nebraska. One may "publish" by showing a videotape; the phrase "portrayed observer" is not unconstitutionally overbroad; the phrase "sexually explicit conduct" is not unconstitutionally vague; and sexual excitement is not an element or substantial motivational factor of some of the conduct proscribed under subsection (1) of this section. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).

28-1463.04. Violation; penalty.

(1) Any person who is under nineteen years of age at the time he or she violates section 28-1463.03 shall be guilty of a Class III felony for each offense.

(2) Any person who is nineteen years of age or older at the time he or she violates section 28-1463.03 shall be guilty of a Class ID felony for each offense.

(3) Any person who violates section 28-1463.03 and has previously been convicted of a violation of section 28-1463.03 or section 28-308, 28-309, 28-310, 28-311, 28-313, 28-314, 28-315, 28-319, 28-319.01, 28-320.01, 28-813, 28-833, or 28-1463.05 or subsection (1) or (2) of section 28-320 shall be guilty of a Class IC felony for each offense.

Source:Laws 1978, LB 829, § 2; R.S.1943, (1979), § 28-1464; Laws 1985, LB 668, § 5; Laws 2009, LB97, § 19.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

First time violation of section 28-1463.03 constitutes a Class III felony. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).

28-1463.05. Visual depiction of sexually explicit acts related to possession; violation; penalty.

(1) It shall be unlawful for a person to knowingly possess with intent to rent, sell, deliver, distribute, trade, or provide to any person any visual depiction of sexually explicit conduct which has a child other than the defendant as one of its participants or portrayed observers.

(2)(a) Any person who is under nineteen years of age at the time he or she violates this section shall be guilty of a Class IIIA felony for each offense.

(b) Any person who is nineteen years of age or older at the time he or she violates this section shall be guilty of a Class IIA felony for each offense.

(c) Any person who violates this section and has previously been convicted of a violation of this section or section 28-308, 28-309, 28-310, 28-311, 28-313, 28-314, 28-315, 28-319, 28-319.01, 28-320.01, 28-813, 28-833, or 28-1463.03 or subsection (1) or (2) of section 28-320 shall be guilty of a Class IC felony for each offense.

Source:Laws 1985, LB 668, § 4; Laws 1986, LB 788, § 2; Laws 2004, LB 943, § 7; Laws 2009, LB97, § 20; Laws 2015, LB605, § 58; Laws 2019, LB630, § 6.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

Prosecutor is free to prosecute conduct arguably within this provision under another provision with harsher penalties, so long as decision is not based on race, religion, or other arbitrary classification. State v. Burke, 225 Neb. 625, 408 N.W.2d 239 (1987).

28-1463.06. Property subject to forfeiture; hearing.

In addition to the penalties provided in the Child Pornography Prevention Act, a sentencing court may order that any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833 or any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices be forfeited as a part of the sentence imposed if it finds by clear and convincing evidence adduced at a separate hearing in the same prosecution, conducted pursuant to section 28-1601, that any or all such property was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act.

Source:Laws 2016, LB1106, § 10.

28-1464. Transferred to section 28-1463.04.

28-1465. Aircraft; operation while under influence of liquor or drug; prohibited.

It shall be unlawful for any person to operate or be in the actual physical control of any aircraft while under the influence of alcoholic liquor or of any drug or when that person has five-hundredths of one percent or more by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood or breath.

Source:Laws 1978, LB 903, § 1; Laws 2001, LB 773, § 1.

28-1466. Aircraft; operation while under influence of liquor or drug; violation; penalty.

Any person who shall operate or be in the actual physical control of any aircraft while under the influence of alcoholic liquor or of any drug or while having five-hundredths of one percent by weight of alcohol in his or her body fluid as shown by chemical analysis of his or her blood or breath shall be deemed guilty of a crime and, upon conviction thereof, shall be punished as provided in sections 28-1467 to 28-1469.

Source:Laws 1978, LB 903, § 2; Laws 2001, LB 773, § 2.

28-1467. Aircraft; operation while under influence of liquor or drug; first offense; penalty.

If a conviction under section 28-1466 is for a first offense, the person shall be guilty of a Class III misdemeanor and the court shall, as part of the judgment of conviction, order such person not to operate any aircraft for any purpose for a period of six months from the date ordered by the court. The order of the court shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked, whichever is later. If the court suspends the proceedings and places such person on probation as provided by law, the court as one of the conditions of probation shall order such person not to operate any aircraft for any purpose for a period of thirty days from the date of the order.

Source:Laws 1978, LB 903, § 3; Laws 1997, LB 772, § 1.

28-1468. Aircraft; operation while under influence of liquor or drug; second offense; penalty.

If a conviction under section 28-1466 is for a second offense, the person shall be guilty of a Class III misdemeanor and shall be imprisoned in the county jail for not less than five days and the court shall, as part of the judgment of conviction, order such person not to operate any aircraft for any purpose for a period of one year from the date ordered by the court. The order of the court shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked, whichever is later. If the aircraft which such person was operating or was actually physically controlling, while under the influence of alcoholic liquor or any drug, is registered in the name of such person, the aircraft shall be impounded by the court for a period of not less than two months nor greater than one year at the expense and risk of the owner thereof; except that any aircraft so impounded shall be released to the holder of a bona fide lien thereon, executed prior to such impounding, when possession of such aircraft is requested in writing by such lienholder for the purpose of foreclosing and satisfying the lien thereon.

Source:Laws 1978, LB 903, § 4; Laws 1997, LB 772, § 2.

28-1469. Aircraft; operation while under influence of liquor or drug; third or subsequent offense; penalty.

If a conviction under section 28-1466 is for a third offense or subsequent offense thereafter, the person shall be guilty of a Class IV felony, and the court shall, as part of the judgment of conviction, order such person not to operate any aircraft for any purpose for a period of one year from the date ordered by the court. The order of the court shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked, whichever is later.

Source:Laws 1978, LB 903, § 5; Laws 1997, LB 772, § 3.

28-1470. Aircraft; implied consent of operator to submit to chemical test.

Any person who operates or has in his or her actual physical control an aircraft within this state shall be deemed to have given his or her consent to submit to a chemical test of his or her blood or breath, for the purpose of determining the amount of alcoholic content in his or her body fluid.

Source:Laws 1978, LB 903, § 6; Laws 2001, LB 773, § 3.

28-1471. Aircraft; operation while under influence of liquor or drug; chemical test; law enforcement officer; powers.

Any law enforcement officer who has been duly authorized to make arrests for violations of traffic laws of this state or of ordinances of any city or village may require any person arrested for any offense arising out of acts alleged to have been committed while the person was operating or was in actual physical control of an aircraft while under the influence of alcoholic liquor to submit to a chemical test of his or her blood or breath for the purpose of determining the alcoholic content of his or her body fluid, when the officer has reasonable grounds to believe that such person was operating or was in the actual physical control of an aircraft within this state while under the influence of alcoholic liquor.

Source:Laws 1978, LB 903, § 7; Laws 2001, LB 773, § 4.

28-1472. Aircraft; operation while under influence of liquor or drug; breath test; refusal; penalty.

Any law enforcement officer who has been duly authorized to make arrests for violation of traffic laws of this state or ordinances of any city or village may require any person who operates or has in his actual physical control an aircraft within the airspace of this state to submit to a preliminary test of his breath for alcohol content if the officer has reasonable grounds to believe that such person has alcohol in his body, or has committed a violation of flying regulations, or has been involved in an aircraft accident. Any person who refuses to submit to such preliminary breath test or whose preliminary breath test results indicate an alcohol content of five-hundredths of one percent or more shall be placed under arrest. Any person who refuses to submit to such preliminary breath test shall be guilty of a Class V misdemeanor.

Source:Laws 1978, LB 903, § 8.

28-1473. Aircraft; operation while under influence of liquor or drug; chemical test; refusal; penalty.

Any person arrested pursuant to sections 28-1465 to 28-1474 may, upon the direction of a law enforcement officer, be required to submit to a chemical test of his or her blood or breath for a determination of the alcohol content. Any person who refuses to submit to a chemical blood or breath test required pursuant to sections 28-1465 to 28-1474 shall be guilty of a crime and, upon conviction thereof, shall be punished in the same manner as he or she would be if convicted for a violation of section 28-1465.

Source:Laws 1978, LB 903, § 9; Laws 2001, LB 773, § 5.

28-1474. Aircraft; operation while under influence of liquor or drug; breath or chemical test; refusal; advised of consequences.

Any person who is required to submit to a preliminary breath test, or to a chemical blood or breath test pursuant to sections 28-1465 to 28-1474 shall be advised of the consequences of refusing to submit to such test.

Source:Laws 1978, LB 903, § 10; Laws 2001, LB 773, § 6.

28-1475. Revisor of Statutes; crimes categorized; duties.

The Revisor of Statutes shall place in the Appendix to the Reissue Revised Statutes of Nebraska a list of all crimes which have been categorized pursuant to sections 28-105 and 28-106. An updated list shall be included in the annual supplement to the statutes.

Source:Laws 1978, LB 748, § 58; Laws 1995, LB 589, § 5.

28-1475.01. State or local law enforcement agency; authorized to receive forfeited property.

Notwithstanding any other provision of the laws of the State of Nebraska, any state or local law enforcement agency which participated directly with federal law enforcement agencies in any of the acts which led to the seizure or forfeiture of property being held by federal law enforcement agencies shall be authorized to receive such property directly from the federal government.

Source:Laws 1985, LB 247, § 6.

28-1476. Advertisement; untrue, deceptive, or misleading; unlawful.

After July 19, 1980, it shall be unlawful for any person, firm, corporation, or association, with intent to sell or in any way dispose of merchandise, securities, service, or anything offered by such person, firm, corporation, or association, directly or indirectly, to the public for sale or distribution, or with intent to increase the consumption thereof, or to induce the public in any manner to enter into any obligation relating thereto, or to acquire title thereto, or an interest therein, to make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in this state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet or letter, or in any other way, an advertisement of any sort regarding merchandise, securities, service, or anything so offered to the public, containing any assertion, representation, or statement of fact which is known to be untrue, deceptive, or misleading.

Source:Laws 1980, LB 185, § 1.

28-1477. Deceptive or misleading advertising; unlawful acts; enumerated.

For the purpose of section 28-1476 any person, firm, corporation, or association shall be deemed guilty of deceptive or misleading advertising that makes, publishes, disseminates, circulates, or places before the public, or causes, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public in this state, in a newspaper or other publication, or in the form of a book, notice, handbill, poster, bill, circular, pamphlet, or letter, or in any other way, an advertisement of any merchandise for sale at retail at less than original actual cost or less than original replacement cost, whichever is lower, if the merchant does not have a sufficient quantity of merchandise to meet the reasonable expected demand, or the advertisement either (1) fails to state in such advertisement the quantity of merchandise available for sale, or (2) fails to state that the advertiser is discontinuing the item.

Source:Laws 1980, LB 185, § 2.

28-1478. Deceptive or misleading advertising; violation; penalty.

Any person, firm, corporation or association violating the provisions of section 28-1476 shall be deemed guilty of a Class III misdemeanor.

Source:Laws 1980, LB 185, § 3.

28-1479. Repealed. Laws 2016, LB1105, § 34.

28-1480. Terms, defined.

As used in sections 28-1480 to 28-1482, unless the context otherwise requires:

(1) Civil disorder shall mean any public disturbance involving acts of violence which causes an immediate danger of or results in damage or injury to persons or property;

(2) Explosive or incendiary device shall mean (a) dynamite and all other forms of high explosives, (b) any explosive bomb, grenade, missile, or similar device, and (c) any incendiary bomb or grenade, firebomb, or similar device, including any device which (i) consists of or includes a breakable container including a flammable liquid or compound and a wick composed of any material which, when ignited, is capable of igniting such flammable liquid or compound and (ii) can be carried or thrown by one individual acting alone; and

(3) Firearm shall mean any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

Source:Laws 1986, LB 772, § 1.

28-1481. Acts prohibited.

It shall be unlawful within the boundaries of this state:

(1) For any person to teach or demonstrate to any other person the use, application, or making of any firearm or explosive or incendiary device capable of causing injury or death to persons when such person knows or has reason to know or intends that such information or ability will be unlawfully employed for use in or in furtherance of a civil disorder; or

(2) For any person to assemble with one or more persons for the purpose of training with, practicing with, or being instructed in the use of any firearm or explosive or incendiary device capable of causing injury or death to persons when such person intends to unlawfully employ such training, practice, or instruction for use in or in furtherance of a civil disorder.

Source:Laws 1909, c. 90, § 68, p. 385; R.S.1913, § 3966; C.S.1922, § 3364; C.S.1929, § 55-182; R.S.1943, § 55-188; Laws 1969, c. 459, § 74, p. 1605; R.S.1943, (1984), § 55-176; Laws 1986, LB 772, § 2.

28-1482. Violation; penalty.

Any person violating section 28-1481 shall be guilty of a Class IV felony.

Source:Laws 1909, c. 90, § 69, p. 386; R.S.1913, § 3967; C.S.1922, § 3365; C.S.1929, § 55-183; R.S.1943, § 55-189; Laws 1969, c. 459, § 75, p. 1605; Laws 1977, LB 39, § 54; R.S.1943, (1984), § 55-177; Laws 1986, LB 772, § 3.

28-1483. Donated food; resale prohibited; violation; penalty.

(1) It shall be unlawful for any person or charitable or nonprofit organization receiving food pursuant to section 25-21,189 to sell or offer to sell such food.

(2) Violation of the provisions of subsection (1) of this section shall be a Class V misdemeanor.

Source:Laws 1981, LB 38, § 3; R.S.1943, (1981), § 81-217.31; Laws 1987, LB 201, § 2.

28-1501. Transferred to section 50-434.

28-1601. Property used in commission of certain crimes; forfeiture; proceeding; prosecuting authority; duties; pretrial hearing; intervention; evidentiary hearing; court orders; failure to appear; storage fee.

(1) In addition to existing penalties for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107, a court may order forfeiture of any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 if:

(a) The owner or possessor of the property has been convicted of a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107;

(b) The information charging such violation specifically requests the forfeiture of property upon conviction and is prepared pursuant to section 28-1602; and

(c) The property is found by clear and convincing evidence to have been derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(2) Following the filing of an information charging a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 that specifically seeks forfeiture of any property listed in subsection (1) of this section, the defendant may request a pretrial hearing to determine the existence of probable cause to believe that the property specifically sought to be forfeited was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The request for a hearing pursuant to this section must be filed with the district court in which the criminal proceeding is pending within thirty days after the filing of the information.

(3) At any time after the filing of the information in district court and prior to final disposition of the criminal case, any person or entity, other than the defendant, with a claimed legal interest in the property may petition to intervene in the district court with jurisdiction over the criminal case for the specific and limited purpose of demonstrating his, her, or its legal interest in the property and his, her, or its lack of actual knowledge that such property was derived from, used, or intended to be used in violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. In the petition to intervene, the intervening person or entity shall, at a minimum, state facts demonstrating his, her, or its legal interest in the property and his, her, or its lack of actual knowledge regarding the use or intended use of the property. Within thirty days after filing a motion to intervene, the district court shall conduct an evidentiary hearing on the matter. At the conclusion of such hearing, the court may order that any or all of the property be returned to the intervening claimant after it is no longer needed as evidence in the criminal case upon a showing by the claimant by a preponderance of the evidence (a) that he, she, or it has a legally recognized interest in the property and (b) either (i) that such property was acquired by the claimant in good faith and he, she, or it did not have actual knowledge that such property was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 or (ii) that the property seized was not derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The court, on its own motion or upon application of the intervening claimant, may permit such person to proceed in forma pauperis under sections 25-2301 to 25-2310. The court, on its own motion or upon application of the intervening claimant, may appoint counsel to represent such person if such person is indigent. If he or she asserts indigency, the court shall make a reasonable inquiry to determine such person's financial condition and may require him or her to execute an affidavit of indigency for filing with the clerk of the court.

(4) After conviction but prior to sentencing for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 in cases in which the prosecuting authority has specifically requested forfeiture of property, the district court shall conduct an evidentiary hearing at which the prosecuting authority must prove by clear and convincing evidence what specific amount or portion of the property specifically enumerated in the criminal information was derived from, used, or intended for use in furtherance of a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. At the conclusion of such hearing, the court shall make specific findings of fact indicating what amount or portion of the property sought to be forfeited by the state was derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107. The court shall order any amount or portion of the property not proven by the state to be derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 or the fair market value of the legally recognized interest in such property be returned to its rightful and legal owner or interest holder.

(5)(a) The court shall order that any amount or portion of property proven by the state by clear and convincing evidence to be derived from, used, or intended to be used to facilitate a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 be forfeited to the state and disposition of such property be conducted in accordance with this subsection and section 28-1439.02 at such time as the property is no longer required as evidence in any criminal proceeding.

(b) As part of any disposition of property, the court may order that: (i) Any money, securities, or negotiable instruments be distributed as provided in Article VII, section 5, of the Constitution of Nebraska; (ii) any conveyances be sold or put to official use by the seizing agency for a period of not more than one year and when such property is no longer necessary for official use or at the end of two years, whichever comes first, such property shall be sold. Proceeds from the sale of any conveyance shall be distributed as provided in Article VII, section 5, of the Constitution of Nebraska; (iii) any electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 be destroyed by a law enforcement agency; and (iv) the disposition of firearms shall be effectuated pursuant to section 29-820.

(c) As used in this subsection, official use means use directly in connection with enforcement of the Child Pornography Prevention Act, the Uniform Controlled Substances Act, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(6) Any money, securities, negotiable instruments, firearms, conveyances, or electronic communication devices as defined in section 28-833, any equipment, components, peripherals, software, hardware, or accessories related to electronic communication devices, or any gambling devices as defined in section 28-1101 may be forfeited pursuant to a plea agreement between the state and the defendant subject to notice to or approval of the court.

(7) Subdivision (1)(a) of this section does not apply if the owner or possessor of the property dies or is removed from the United States before charges are filed or a conviction obtained.

(8) Subdivision (1)(b) of this section does not apply if the owner or possessor of the property dies or is removed from the United States before charges are filed so long as the statute of limitations for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 has not expired.

(9) Subdivision (1)(a) of this section does not apply if the owner or possessor of the property is unknown or incapable of being determined for some legitimate reason or fails to appear in court as ordered after prosecution for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 is commenced and is not apprehended within twelve months after the failure to appear order was issued by the court.

(10) If the owner or possessor of the property fails to appear in court as ordered after prosecution for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 is commenced but appears or is apprehended within twelve months after the failure to appear order was issued by the court, the court may order the owner or possessor of the property, as a part of any sentence imposed for either the failure to appear or the conviction of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107, to pay a storage fee of one hundred dollars per month for each month the property was held following the issuance of the failure to appear order.

Source:Laws 2016, LB1106, § 11.

Cross References

Child Pornography Prevention Act, see section 28-1463.01.

Uniform Controlled Substances Act, see section 28-401.01.

28-1602. Property used in commission of certain crimes; forfeiture; prosecuting authority; duties; pleading; contents.

(1) The prosecuting authority must specifically plead its intent to seek forfeiture of any property upon a conviction for a violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107 in the same criminal information charging the underlying violation of the Child Pornography Prevention Act, subsection (1) of section 28-416, or section 28-813.01, 28-1102, 28-1103, 28-1104, 28-1105, 28-1105.01, or 28-1107.

(2) In pleading its intent to seek forfeiture, the information shall specifically (a) state the date the property was seized, (b) state the place the property was seized from, (c) describe the property sought to be forfeited, and (d) if known, state the name of the owner of the property, the name of the person or persons in possession of the property or in physical proximity to the property when it was seized, and the name of any other person or entity that may have a claim or interest in the property.

Source:Laws 2016, LB1106, § 12.

Cross References

Child Pornography Prevention Act, see section 28-1463.01.

28-1603. Law enforcement agency or prosecuting authority; seized property; prohibited acts.

No law enforcement agency or prosecuting authority of this state or its political subdivisions shall transfer or refer any money or property to a federal law enforcement authority or other federal agency by any means unless:

(1) The money or property seized exceeds twenty-five thousand dollars in currency or value;

(2) The money or property is physically seized by a federal agent who is employed by the federal government; or

(3) The person from whom the money or property was seized is the subject of a federal prosecution or the facts and circumstances surrounding the money or property seized are the subject of a federal prosecution.

Source:Laws 2016, LB1106, § 13.

28-1701. Witness or victim of sexual assault; eligible alcohol or drug offense; immunity from arrest or prosecution; conditions.

(1) A person shall not be arrested or prosecuted for an eligible alcohol or drug offense if such person witnessed or was the victim of a sexual assault and such person:

(a) Either:

(i) In good faith, reported such sexual assault to law enforcement; or

(ii) Requested emergency medical assistance for the victim of the sexual assault; and

(b) Evidence supporting the arrest or prosecution of the eligible alcohol or drug offense was obtained or discovered as a result of such person reporting such sexual assault to law enforcement or requesting emergency medical assistance.

(2) A person shall not be arrested or prosecuted for an eligible alcohol or drug offense if:

(a) Evidence supporting the arrest or prosecution of the person for the offense was obtained or discovered as a result of the investigation or prosecution of a sexual assault; and

(b) Such person cooperates with law enforcement in the investigation or prosecution of the sexual assault.

(3) For purposes of this section:

(a) Eligible alcohol or drug offense means:

(i) A violation of subsection (3) or (13) of section 28-416 or of section 28-441;

(ii) A violation of section 53-180.02 committed by a person older than eighteen years of age and under the age of twenty-one years, as described in subdivision (4)(a) of section 53-180.05;

(iii) A violation of a city or village ordinance similar to subdivision (3)(a)(i) or (ii) of this section; or

(iv) Attempt, conspiracy, solicitation, being an accessory to, aiding and abetting, aiding the consummation of, or compounding a felony with any of the offenses in subdivision (3)(a)(i), (ii), or (iii) of this section as the underlying offense; and

(b) Sexual assault means:

(i) A violation of section 28-316.01, 28-319, 28-319.01, 28-320, 28-320.01, 28-320.02, 28-322.01, 28-322.02, 28-322.03, 28-322.04, 28-322.05, 28-703, or 28-1463.03, sex trafficking or sex trafficking of a minor under section 28-831, or subdivision (1)(c) or (g) of section 28-386 or subdivision (1)(d), (e), or (f) of section 28-707; or

(ii) Attempt, conspiracy, solicitation, being an accessory to, aiding and abetting, aiding the consummation of, or compounding a felony with any of the offenses listed in subdivision (3)(b)(i) of this section as the underlying offense.

Source:Laws 2022, LB519, § 3.

Class I felony	Death
Class IA felony	Life imprisonment
Class IB felony	Maximum—life imprisonment
	Minimum—twenty years imprisonment
Class IC felony	Maximum—fifty years imprisonment
	Mandatory minimum—five years imprisonment
Class ID felony	Maximum—fifty years imprisonment
	Mandatory minimum—three years imprisonment
Class II felony	Maximum—fifty years imprisonment
	Minimum—one year imprisonment
Class IIA felony	Maximum—twenty years imprisonment
	Minimum—none
Class III felony	Maximum—four years imprisonment and two years
	post-release supervision or
	twenty-five thousand dollars fine, or both
	Minimum—none for imprisonment and nine months
	post-release supervision if imprisonment is imposed
Class IIIA felony	Maximum—three years imprisonment
	and eighteen months post-release supervision or
	ten thousand dollars fine, or both
	Minimum—none for imprisonment and nine months
	post-release supervision if imprisonment is imposed
Class IV felony	Maximum—two years imprisonment and twelve
	months post-release supervision or
	ten thousand dollars fine, or both
	Minimum—none for imprisonment and none for
	post-release supervision

Class I misdemeanor........	Maximum — not more than one year
	imprisonment, or one thousand dollars
	fine, or both
	Minimum — none
Class II misdemeanor.......	Maximum — six months imprisonment, or
	one thousand dollars fine, or both
	Minimum — none
Class III misdemeanor......	Maximum — three months imprisonment,
	or five hundred dollars fine, or both
	Minimum — none
Class IIIA misdemeanor.....	Maximum — seven days imprisonment, five
	hundred dollars fine, or both
	Minimum — none
Class IV misdemeanor.......	Maximum — no imprisonment, five
	hundred dollars fine
	Minimum — none
Class V misdemeanor........	Maximum — no imprisonment, one
	hundred dollars fine
	Minimum — none
Class W misdemeanor.......	Driving under the influence or implied
	consent
	First conviction
	Maximum — sixty days imprisonment and
	five hundred dollars fine
	Mandatory minimum — seven days
	imprisonment and five hundred dollars
	fine
	Second conviction
	Maximum — six months imprisonment and
	five hundred dollars fine
	Mandatory minimum — thirty days
	imprisonment and five hundred dollars
	fine
	Third conviction
	Maximum — one year imprisonment and
	one thousand dollars fine
	Mandatory minimum — ninety days
	imprisonment
	and one thousand dollars fine