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State v. Hansen2/4/2000
State v. Hansen, S-99-347, 258 Neb. 752
State v. Hansen, 258 Neb. 752
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitutional is a question of law; accordingly, the Nebraska Supreme Court is obligated to reach a conclusion independent of the decision reached by the trial court.
2. Constitutional Law: Statutes: Drunk Driving : Prior Convictions: Sentences. Neb. Rev. Stat. § 60-6,196 (Reissue 1998), which allows a trial court to consider prior driving under the influence convictions of a defendant within the 12 years prior to the offense for which a defendant currently stands trial, 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.
3. ___: ___: ___: ___: ___. Neb. Rev. Stat. § 60-6,196 (Reissue 1998) 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 the statute.
Appeal from the District Court for Sarpy County: George A. Thompson, Judge. Affirmed.
BACKGROUND
Prior to passage of 1998 Neb. Laws, L.B. 309, trial courts in Nebraska could look back only 8 years, for purposes of sentence enhancement, to determine if a person convicted of driving under the influence (DUI) in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 1993) had previous DUI convictions. However, L.B. 309 amended § 60-6,196(2) such that courts may now look back 12 years to prior DUI convictions for enhancement purposes. That amendment went into effect on April 19, 1998.
Nearly 4 months later, on August 12, 1998, Robert S. Hansen was arrested for DUI. An information was filed in the district court for Sarpy County in which Hansen was charged with fourth-offense DUI, a Class IV felony. On January 27, 1999, Hansen pled guilty to the charge of DUI.
After the district court accepted Hansen's guilty plea on January 27, 1999, an enhancement hearing was held during which the State offered three exhibits into evidence. Exhibit 1 was a certified copy of Hansen's conviction for DUI dated May 7, 1998. Exhibit 2 was a certified copy of a DUI conviction of Hansen, dated July 20, 1988, and exhibit 3 was a certified copy of a DUI conviction of Hansen, dated December 9, 1988. Hansen objected to exhibits 2 and 3, claiming that because the convictions were from 1988, more than 8 years had passed, and consideration of those convictions would be unconstitutional. Hansen argued that for the court to apply the 12-year look-back provision in newly enacted § 60-6,196 (Reissue 1998) would be an unconstitutional ex post facto application of the statute, since Hansen's previous convictions were already in existence when the statute was amended and would not have been considered under § 60-6,196 as it existed prior to amendment in 1998. Exhibits 2 and 3 were received over Hansen's objection, and he was convicted of fourth-offense DUI.
On March 12, 1999, a sentencing hearing was held, and Hansen was sentenced to 18 months of intensive supervised probation. Hansen timely appealed.
ASSIGNMENT OF ERROR
Hansen's sole assignment of error is that the district court erred in finding Hansen guilty of fourth-offense DUI because Hansen's prior convictions were time barred from being used for enhancement purposes.
STANDARD OF REVIEW
Whether a statute is constitutional is a ques
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