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

60-6,197.02. Driving underinfluence of alcoholic liquor or drugs; implied consent to submit to chemicaltest; terms, defined; prior convictions; use;sentencing provisions; when applicable.(1)A violation of section 60-6,196 or 60-6,197 shall be punished as providedin section 60-6,197.03. For purposes of sentencing under section 60-6,197.03:(a) Prior conviction means a conviction for a violation committedwithin the twelve-year period prior to the offense for which the sentenceis being imposed as follows:(i) For a violation of section 60-6,196:(A) Any conviction for a violation of section 60-6,196;(B) Any conviction for a violation of a city or village ordinanceenacted in conformance with section 60-6,196;(C) Any conviction under a law of another state if, at thetime of the conviction under the law of such other state, the offense forwhich the person was convicted would have been a violation of section 60-6,196;or(D) Any conviction for a violation of section 60-6,198; or(ii) For a violation of section 60-6,197:(A) Any conviction for a violation of section 60-6,197;(B) Any conviction for a violation of a city or village ordinanceenacted in conformance with section 60-6,197; or(C) Any conviction under a law of another state if, at thetime of the conviction under the law of such other state, the offense forwhich the person was convicted would have been a violation of section 60-6,197;(b) Prior conviction includes any conviction under section 60-6,196, 60-6,197, or 60-6,198, or any city or village ordinance enactedin conformance with any of such sections, as such sections or city or villageordinances existed at the time of such conviction regardless of subsequentamendments to any of such sections or city or village ordinances; and(c) Twelve-year period means the period computed from thedate of the prior offense to the date of the offense which resulted in theconviction for which the sentence is being imposed.(2) In any case charging a violation of section 60-6,196 or 60-6,197, the prosecutor or investigating agency shall use due diligence toobtain the person's driving record from the Department of Motor Vehicles andthe person's driving record from other states where he or she is known tohave resided within the last twelve years. The prosecutor shall certify tothe court, prior to sentencing, that such action has been taken. The prosecutorshall present as evidence for purposes of sentence enhancement a court-certifiedcopy or an authenticated copy of a prior conviction in another state. Thecourt-certified or authenticated copy shall be prima facie evidence of suchprior conviction.(3) For each conviction for a violation of section 60-6,196or 60-6,197, the court shall, as part of the judgment of conviction, makea finding on the record as to the number of the convicted person's prior convictions.The convicted person shall be given the opportunity to review the record ofhis or her prior convictions, bring mitigating facts to the attention of thecourt prior to sentencing, and make objections on the record regarding thevalidity of such prior convictions.(4) A personarrested for a violation of section 60-6,196 or 60-6,197 before May 14, 2009,but sentenced pursuant to section 60-6,197.03 for such violation on or afterMay 14, 2009, shall be sentenced according to the provisions of section 60-6,197.03in effect on the date of arrest. SourceLaws 2004, LB 208, § 12; Laws 2005, LB 594, § 2; Laws 2009, LB497, § 6.Annotations1. Enhancement2. Offense3. Sufficiency of the evidence4. Miscellaneous1. EnhancementThis 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).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. OffenseIn 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 evidenceSubsection (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. MiscellaneousThe 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).