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State v. Wagner

Supreme Court of Nebraska

December 2, 2016

State of Nebraska, appellee,
v.
Todd A. Wagner, appellant. State of Nebraska, appellee,
v.
Brandon B. Rohde, appellant.

         1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of a statute are questions of law, regarding which an appellate court is obligated to reach conclusions independent of those reached by the court below.

         2. Statutes: Legislature: Intent. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         3. __:__: __. Components of a series or collection of statutes pertaining to a certain subject matter should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

         4. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity requires a court to resolve ambiguities in a penal code in the defendant's favor, the touchstone of the rule of lenity is statutory ambiguity, and where the legislative language is clear, a court may not manufacture ambiguity in order to defeat that intent.

         5. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         6. Constitutional Law: Statutes. It is the duty of a court to give a statute an interpretation that meets constitutional requirements if it can reasonably be done.

         7. Double Jeopardy: Intent. The primary purpose of the Double Jeopardy Clause is to protect against multiple trials.

         [295 Neb. 133] 8. Sentences: Double Jeopardy. As to the protection against multiple punishments for the same offense, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the Legislature intended.

         9. Drunk Driving: Words and Phrases. Under Neb. Rev. Stat. § 60-6, 197.03(8) (Cum. Supp. 2014), "current violation" encompasses violations of both Neb. Rev. Stat. § 60-6, 196 (Reissue 2010) and Neb. Rev. Stat. § 60-6, 197 (Cum. Supp. 2016).

         10. Constitutional Law: Criminal Law: Statutes. A penal statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

         11. Appeal and Error. An appellate court will not address arguments that are too generalized or vague to be understood.

         12. Indictments and Informations. The function of an information is twofold. With reasonable certainty, an information must inform the accused of the crime charged so that the accused may prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense.

         13. __ . The information may use the language of the statute or its equivalent.

         Appeals from the District Court for Lancaster County: Stephanie F. Stacy and Steven D. Burns, Judges. Affirmed.

          Mark E. Rappl for appellant in No. S-15-788.

          Joe Nigro, Lancaster County Public Defender, and Nathan Sohriakoff for appellant in No. S-16-065.

          Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Kelch, and Funke, JJ., and Inbody, Judge.

          Wright, J.

         NATURE OF CASE

         These two appeals involve identical charges, similar facts, and identical assignments of error and arguments. Therefore, although they were briefed and argued separately, it is [295 Neb. 134] appropriate to address the two appeals in a single opinion. The defendants appeal the denial of their pleas in bar and motions to quash in relation to the application of Neb. Rev. Stat. § 60-6, 197.03(8) (Cum. Supp. 2014) in sentencing them for the crime of refusal to submit to a chemical test as required by Neb. Rev. Stat. § 60-6, 197 (Cum. Supp. 2016). Both defendants have three prior convictions for driving under the influence (DUI).[1] The defendants argue that the application of § 60-6, 197.03(8) is inappropriate because the "current violation" referred to therein must mean a current DUI violation, and not a refusal violation. For the reasons set forth, we affirm.

         BACKGROUND

         In case No. S-16-065, Brandon B. Rohde pled no contest to the refusal of a chemical test, with three prior convictions, under §§ 60-6, 197 and 60-6, 197.03(8), in relation to acts committed on April 13, 2015. In case No. S-15-788, Todd A. Wagner pled no contest to refusal of a chemical test, with three prior convictions, under §§ 60-6, 197 and 60-6, 197.03(8), in relation to acts committed on December 2, 2013. In both cases, the pleas were accepted and the defendants were found guilty of refusal of a chemical test, as prohibited by § 60-6, 197.

         Section 60-6, 197(3) states that it is a crime to refuse to submit to a chemical test, while § 60-6, 196 states that it is a crime to operate or be in control of a motor vehicle while under the influence of drugs or alcohol. But neither § 60-6, 196 nor § 60-6, 197 sets forth any punishment for those crimes.

         Section 60-6, 197.03 has 10 subsections, which are introduced by stating, "Any person convicted of a violation of section 60-6, 196 or 60-6, 197 shall be punished as follows." Subsection (8) of § 60-6, 197.03 states that it applies to "such person" who has had three prior convictions and, "as part of the current violation, " had a breath or blood alcohol concentration of .15 or above "or refused to submit to a test as required [295 Neb. 135] under section 60-6, 197." Subsection (8) provides for harsher penalties than subsection (7), which applies, "[e]xcept as provided in subdivision (8) of this section, " to "such person" who has had three prior convictions and has an alcohol concentration of .08 or above.

         The defendants filed pleas in bar alleging that application of § 60-6, 197.03(8) would subject them to multiple punishments for the same offense by using the same act of refusing to submit to a chemical test as an element of the underlying crime of refusal, in violation of § 60-6, 197, and as an element of "enhancement" under § 60-6, 197.03(8). The defendants also filed motions to quash repeating this double jeopardy argument and further asserting that (1) the meaning of "current violation" in § 60-6, 197.03(8) is a DUI under § 60-6, 196, and not refusal under § 60-6, 197; (2) § 60-6, 197.03(8) is unconstitutionally vague and overbroad by failing to define "current violation"; (3) the enhanced charge under § 60-6, 197.03(8) violates due process, because the prior convictions upon which the enhancement is based were for DUI's and not refusals; and (4) the application of § 60-6, 197.03(8) is cruel and unusual punishment.

         The courts denied the motions. As to the defendants' arguments concerning double jeopardy and the meaning of § 60-6, 197.03(8), the courts concluded that "current violation" in § 60-6, 197.03(8) was unambiguous and encompasses violations of either § 60-6, 196 or § 60-6, 197, as described in the introductory sentence of § 60-6, 197.03. The courts found that the Legislature had determined to treat refusal and aggravated DUI (breath or blood alcohol concentration of .15 or above) similarly for purposes of determining penalties when a defendant has prior convictions. That determination was not enhancement, but, rather, as one court explained, "a choice the Legislature has made as to the category of the crime itself." The crime of refusal was "enhanced" only by the three prior convictions, and, as the other court reasoned, "referencing the underlying offense in this context does not equate to a second [295 Neb. 136] prosecution for the same offense, nor does it result in multiple punishments for the same offense."

         Upon evidence of three prior convictions, the courts sentenced the defendants in accordance with § 60-6, 197.03(8). The defendants appeal.

         ASSIGNMENTS OF ERROR

         The defendants both assign that the district court erred by overruling their (1) pleas in bar and (2) motions to quash.

         STANDARD OF REVIEW

         The constitutionality and construction of a statute are questions of law, regarding which we are obligated to reach conclusions independent of those reached by the court below.[2]

         ANALYSIS

         § 60-6, 197.03: "as part of the current violation"

         The defendants' principal argument is that § 60-6, 197.03(8) was meant to apply only to persons who violated the DUI statute, § 60-6, 196, and not to persons who violated the refusal statute, § 60-6, 197. In construing a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.[3] Components of a series or collection of statutes pertaining to a certain subject matter should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.[4] We find no ambiguity or inconsistency in reading § 60-6, 197.03(8) as encompassing underlying refusal violations. And we find it sensible to prevent prior offenders from avoiding, through the act of refusing a [295 Neb. 137] chemical test, the greater penalty for having a breath or blood alcohol concentration of .15 or above, regardless of whether the underlying violation is refusal or DUI.

         Section 60-6, 197.03 sets forth the punishments for "[a]ny person convicted of a violation of section 60-6, 196 or 60-6, 197 . . . ." The version of § 60-6, 197.03 in effect at the time of the defendants' crimes provided that any person convicted of a violation of § 60-6, 196 or § 60-6, 197 shall be punished as follows:

(1) Except as provided in subdivision (2) of this section, if such person has not had a prior conviction, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator's license of such person be revoked for a period of six months ....
.....
(2) If such person has not had a prior conviction and, as part of the current violation, had a concentration of fifteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or fifteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of one year ....
.....
(7) Except as provided in subdivision (8) of this section, if such person has had three prior convictions, such person shall be guilty of a Class IIIA felony, and the court shall, as part of the judgment of conviction, order that the operator's license ...

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