Annotations

• 1. Enhancement

• 2. Offense

• 3. Sufficiency of the evidence

• 4. Miscellaneous

• 1. Enhancement

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

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

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

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

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

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

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

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

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

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

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

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

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

• 2. Offense

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

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

• 3. Sufficiency of the evidence

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

• 4. Miscellaneous

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