60-6,196 Driving under influence of alcoholic liquor or drug; penalties. - Nebraska Statutes

60-6,196. Driving under influence of alcoholic liquor or drug; penalties.(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:(a) While under the influence of alcoholic liquor or of any drug;(b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or(c) When such person 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.(2) Any person who operates or is in the actual physical control of any motor vehicle while in a condition described in subsection (1) of this section shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08. SourceLaws 1919, c. 190, tit. VII, art. IV, § 32, p. 830; C.S.1922, § 8396; Laws 1925, c. 159, § 13, p. 418; Laws 1927, c. 153, § 1, p. 411; Laws 1929, c. 144, § 1, p. 505; C.S.1929, § 39-1106; Laws 1931, c. 103, § 1, p. 275; Laws 1935, c. 134, § 2, p. 484; Laws 1937, c. 140, § 1, p. 504; C.S.Supp.,1941, § 39-1106; R.S.1943, § 39-727; Laws 1947, c. 148, § 1, p. 408; Laws 1949, c. 116, § 1, p. 310; Laws 1951, c. 118, § 1, p. 528; Laws 1953, c. 135, § 1, p. 422; Laws 1953, c. 214, § 1, p. 755; Laws 1961, c. 186, § 1, p. 574; Laws 1971, LB 948, § 1; Laws 1972, LB 1095, § 1; Laws 1973, LB 290, § 1; R.S.Supp.,1973, § 39-727; Laws 1978, LB 748, § 52; Laws 1980, LB 651, § 1; Laws 1982, LB 568, § 5; Laws 1986, LB 153, § 3; Laws 1987, LB 404, § 1; Laws 1988, LB 377, § 1; Laws 1990, LB 799, § 1; Laws 1992, LB 291, § 4; R.S.Supp.,1992, § 39-669.07; Laws 1993, LB 370, § 292; Laws 1993, LB 564, § 7; Laws 1998, LB 309, § 13; Laws 1999, LB 585, § 5; Laws 2000, LB 1004, § 1; Laws 2001, LB 38, § 47; Laws 2001, LB 166, § 4; Laws 2001, LB 773, § 15; Laws 2003, LB 209, § 11; Laws 2004, LB 208, § 10. Cross ReferencesApplicability of statute to private property, see section 60-6,108.Conviction of felony involving use of motor vehicle, transmittal of abstract, see section 60-497.02.Ineligibility for pretrial diversion, see section 29-3604.Motor vehicle homicide penalty, see section 28-306.Operator's license, assessment of points and revocation, see sections 60-497.01, 60-498, and 60-4,182 et seq.Violation of ordinance, prosecuting attorney, consult victim, see section 29-120. Annotations1. Constitutionality2. Motor vehicle homicide3. Manslaughter4. Offense5. Testing/sufficiency of evidence6. Miscellaneous1. ConstitutionalityDriving under the influence of alcoholic liquor or drugs is criminalized under this section, and the fact that a defendant has previously been convicted of such offense is irrelevant to the guilt or innocence of the defendant and is relevant only to the defendant's sentence. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).This section is a criminal driving under the influence of alcohol statute and is not part of the statutory scheme for an administrative license revocation. Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).Successive, separate prosecutions under this section for driving while intoxicated and operating a motor vehicle with a suspended license do not violate the Double Jeopardy Clause of the U.S. Constitution. State v. Grimm, 240 Neb. 863, 484 N.W.2d 830 (1992).This section does not violate equal protection. Proscribing a particular concentration of breath alcohol is not wholly irrelevant to achieving the purpose of prohibiting people from driving while under the influence of drugs or alcohol. The relationship between the classification and its goal is rational. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).Statute is valid exercise of police power, and court in which such conviction is had, is vested with jurisdiction to enforce statutory provisions. Smith v. State, 124 Neb. 587, 247 N.W. 421 (1933).2. Motor vehicle homicideWhen the predicate offense for motor vehicle homicide is drunk driving in violation of this section, drunk driving is a lesser-included offense in motor vehicle homicide. State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).Driving an automobile while under the influence of alcoholic liquor was an unlawful act upon which conviction of motor vehicle homicide could be based. Rimpley v. State, 169 Neb. 171, 98 N.W.2d 868 (1959).3. ManslaughterDeath arising from violation of this section may constitute manslaughter. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948).Operating motor vehicle while under the influence of intoxicating liquor is an unlawful act under manslaughter statute. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).Conviction of manslaughter was sustained where driver was intoxicated. Benton v. State, 124 Neb. 485, 247 N.W. 21 (1933).Defendant may be tried and punished under general statute relating to manslaughter, though acts charged may be punishable under this section. Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927).4. OffenseA half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver's condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).A violation of this section is one offense, which may be proven in different ways. A person's breath alcohol concentration may be probative of impairment under subsection (1), as well as proof of a violation of this section based solely on breath alcohol concentration pursuant to subsection (3). State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).An alcohol violation in this section may be proved in either one of two ways: (1) that a person operated or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor; or (2) that a person while driving a motor vehicle or who was in physical control of a motor vehicle had ten-hundredths of one percent or more by weight of alcohol in his/her body fluid as shown by chemical analysis of his/her blood, breath, or urine. State v. Babcock, 227 Neb. 649, 419 N.W.2d 527 (1988).The substantive offense is driving while under the influence of alcohol or with more than .10 percent of alcohol in one's body fluid. The number of times a person has previously been convicted of such a charge is not itself a crime but, rather, is a factor which the trial court is to consider in imposing sentence. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).This section defines one offense which can be proved by any of three ways: (1) By proof that the defendant was in physical control of a motor vehicle while under the influence of alcoholic liquor; (2) by proof that the defendant was in physical control of a motor vehicle while under the influence of any drug; or (3) by proof that the defendant was in physical control of a motor vehicle while having ten-hundreths of one percent or more by weight of alcohol in his or her body fluid. State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982).A violation of this section is either a misdemeanor or a felony and is not a traffic infraction within the meaning of section 39-602(106), R.R.S. 1943 (currently section 60-672). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).This section defines but one offense which may result from three conditions. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).This section is pari materia with section 39-727.03 (transferred to section 60-6,197) and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).Operation of motor vehicle while under the influence of intoxicating liquor is a criminal offense. State v. Berg, 177 Neb. 419, 129 N.W.2d 117 (1964).It is unlawful to operate or be in the actual physical control of any motor vehicle while under the influence of intoxicating liquor. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).Operation of motor vehicle while under the influence of intoxicating liquor is a punishable offense. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).Only one crime is defined. Uldrich v. State, 162 Neb. 746, 77 N.W.2d 305 (1956).Statute defines but one crime, that of operating a motor vehicle while under the influence of alcoholic liquor or drug. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948).5. Testing/sufficiency of evidenceIf a test for the presence of alcohol or drugs is utilized, it is one piece of evidence that the defendant's ability to operate a motor vehicle is impaired; it is not conclusive under subsection (1)(a) of this section. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).Pursuant to subsection (1)(a) of this section, impairment can be shown by observations of witnesses, particularly police officers who are trained to make these observations. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).Pursuant to subsection (1)(a) of this section, it is a crime to operate a motor vehicle under the influence of alcoholic liquor or drugs, or both, to a degree that the alcoholic liquor or drugs, or both, appreciably impair the driver's ability to operate the motor vehicle. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).Pursuant to subsection (1)(a) of this section, the phrase "under the influence of alcoholic liquor or of any drug" means the ingestion of alcohol or drugs in an amount sufficient to impair to any appreciable degree the driver's ability to operate a motor vehicle in a prudent and cautious manner. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).Pursuant to subsection (1)(a) of this section, the State is required to prove that the defendant was in actual physical control of a motor vehicle and that the defendant's ability to operate a motor vehicle was impaired by reason of the influence of alcoholic liquor or of drugs. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).A violation of this section is one offense, but it can be proved in more than one way, i.e., excessive blood alcohol content shown through a chemical test or by evidence of physical impairment plus other well-known indicia of intoxication. State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).Where the evidence established that the defendant was found behind the wheel of a vehicle which was parked on an Interstate off ramp with the engine running and the headlights on, there was sufficient evidence for the trier of fact to establish that the defendant was operating a motor vehicle. State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996).A half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver's condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).It is not necessary for a conviction for driving under the influence of alcoholic liquor that a sample of blood, breath, or urine show a certain concentration of alcohol in a defendant's blood, breath, or urine, as those are alternate offenses under this section. Either a law enforcement officer's observations of the defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving while under the influence of alcoholic beverages. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).A test made in compliance with section 39-669.11 (transferred to section 60-6,201) is sufficient to make a prima facie case on the issue of blood alcohol concentration. Matters of driving and testing are properly viewed as going to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of this section. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).Circumstantial evidence may be used to establish physical control of a motor vehicle within the meaning of this section. State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987).A breath test result which is subject to a margin of error must be adjusted so as to give the defendant the benefit of that margin. However, when there is a conflict in the evidence as to what that margin of error actually is, we will affirm the decision of the trier of fact so long as there is sufficient evidence in the record, if believed, to sustain its finding of guilt. State v. Hvistendahl, 225 Neb. 315, 405 N.W.2d 273 (1987).An alcohol-related violation of this provision may be proved by establishing that one was in actual physical control of a motor vehicle while under the influence of alcohol or that one was in actual physical control of a motor vehicle while having ten-hundreths of 1 percent by weight of alcohol in his or her body fluid. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).Evidence was sufficient to find defendant guilty of driving while under the influence in violation of this section, where he was found asleep at the wheel of an automobile parked in the roadway and appeared intoxicated when awakened. Circumstantial evidence may serve to establish the operation or actual physical control of a motor vehicle, under the provisions of this section. State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986).Operation or physical control of an auto may be established by circumstantial evidence. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).Instructions given correctly set forth the elements of driving under influence and driving with ten-hundreths of one percent of alcohol in the body fluid. State v. Tripple, 190 Neb. 713, 211 N.W.2d 920 (1973).Presumption arising from body fluid test applies only to prosecutions under this section. Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955).Conviction sustained of drunken driving based in part on evidence of blood test. Schacht v. State, 154 Neb. 858, 50 N.W.2d 78 (1951).Evidence which went before a jury of a defendant's failure to pass a chemical breath test for which he was not properly advised of the consequences was prejudicial and constituted plain error so as to require a reversal of the conviction and a remand for a new trial. State v. Hingst, 4 Neb. App. 768, 550 N.W.2d 686 (1996).6. MiscellaneousThe offense of driving under the influence in violation of this section is a lesser-included offense of driving under the influence causing serious bodily injury in violation of section 60-6,198. State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).A sentence of probation is excessively lenient when record shows a history of alcohol-related motor vehicle offenses spanning more than 30 years, an extreme alcohol addiction, and a lack of respect for court orders. State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).The Omaha Municipal Code conflicts with this section. State v. Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003)."Operate," as used in this section, refers to the actual physical handling of the controls of the vehicle while under the influence of intoxicating liquor; therefore, it is unlawful for any person to actually physically handle the controls of any motor vehicle while under the influence of alcohol or while having the prohibited amount of alcohol in one's breath. State v. Baker, 236 Neb. 261, 461 N.W.2d 251 (1990).As used in this section, the phrase "under the influence of alcoholic liquor" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989).The phrase "under the influence of alcohol" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987).The phrase "under the influence of alcoholic liquor," as used in this provision, means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).A defendant charged with driving under the influence, pursuant to this section, has only a statutory right to a jury trial, pursuant to section 24-536 (transferred to section 25-2705), for which proper demand is required. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).A complaint for violation of this section need not allege that a defendant operated a motor vehicle on a public highway. State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986).A jury need only be unanimous in its conclusion that the defendant violated the law by committing the act and need not be unanimous as to which of several consistent theories it believes resulted in the violation. State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986).Conviction upon charge of refusal to submit to a chemical test under section 39-669.08 (transferred to section 60-6,197) did not operate to bar defendant's trial upon charge under this section. State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).A defendant charged under this section is entitled to a jury trial as provided under section 24-536, R.R.S. 1943 (transferred to section 25-2705). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).It was harmless error, if any, for court to accept defendant's written, all inclusive "Petition to Enter Plea of Guilty" without orally informing him he was waiving a trial by jury. State v. Cooper, 196 Neb. 728, 246 N.W.2d 65 (1976).This section defines but one offense. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).Under facts in this case, sentence to three years imprisonment was not excessive. State v. Klinkacek, 190 Neb. 293, 207 N.W.2d 524 (1973).Word operate as used in this section relates to actual physical handling of controls of a motor vehicle. State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969).Testimony to support conviction may come from a nonexpert witness. State v. Lewis, 177 Neb. 173, 128 N.W.2d 610 (1964).Instruction given by trial court defining the term under the influence of alcoholic liquor was not erroneous. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).As used in this section, the word operate relates to the actual physical handling of the controls of an automobile. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).Instruction defining the meaning of statutory terms was not erroneous. Shanahan v. State, 162 Neb. 676, 77 N.W.2d 234 (1956).Jury trial for violation of this section could be waived. Peterson v. State, 157 Neb. 618, 61 N.W.2d 263 (1953).Complaint was not defective because words intoxicating liquor were used instead of words alcoholic liquor. Franz v. State, 156 Neb. 587, 57 N.W.2d 139 (1953).Driver's license revoked for one year upon plea of guilty, and plea not set aside upon claim of defendant that she was not advised of her constitutional rights. Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829 (1957).For a prior conviction based on a plea of guilty to be used for enhancement purposes in an action under this section, the record must show that the defendant entered the guilty plea to the charge. State v. Schulte, 12 Neb. App. 924, 687 N.W.2d 411 (2004).For purposes of this section, substitution of "revocation" with "suspension" has no prejudicial effect. State v. Mulinix, 12 Neb. App. 836, 687 N.W.2d 1 (2004).Alcohol-related violations of this section may be proved either by establishing that one was in actual physical control of a motor vehicle while under the influence or by establishing that one was in actual physical control of a motor vehicle while having more than the prohibited amount of alcohol in his or her body. State v. Robinson, 10 Neb. App. 848, 639 N.W.2d 432 (2002).