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State v. Loyd1/24/2003
The State takes exception under Neb. Rev. Stat. § 29-2319(3) (Reissue 1995) to the district court's order affirming the county court's granting of a motion to quash. The county court determined that the penalty provisions of the Omaha Mun. Code, ch. 36, art. III, § 36-115 (1998), were inconsistent with the penalty provisions of Neb. Rev. Stat. § 60-6,196 (Cum. Supp. 2000). We agree that the provisions are inconsistent and overrule the State's exception.
BACKGROUND
The appellee, Michael W. Loyd, was charged in county court with second-offense driving under the influence (DUI) under § 36-115 of the Omaha Municipal Code. Loyd moved to quash the complaint because § 36-115 was inconsistent with § 60-6,196. A person convicted under § 36-115 of the code and placed on probation must serve 48 hours in county jail. A person convicted under § 60-6,196, however, must pay a $500 fine and either be confined for 5 days or perform at least 240 hours of community service. The county court determined that the ordinance was not in conformity with the statute and granted the motion to quash. The district court affirmed.
ASSIGNMENT OF ERROR
The State assigns, rephrased, that the district court erred by affirming the county court's granting of the motion to quash.
STANDARD OF REVIEW
[1,2] The meaning of a statute is a question of law. Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002). When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Eyl v. Ciba-Geigy Corp., 264 Neb. 582, 650 N.W.2d 744 (2002).
ANALYSIS
The State contends that the city had the authority to enact an ordinance requiring a period of confinement different than the punishment enacted in § 60-6,196. The State argues that § 36-115 of the code is in conformance with § 60-6,196 because although the Legislature intended that the element of the crimes be the same, it did not require that the punishments be the same.
Under § 60-6,196, second-offense DUI is a Class W misdemeanor, which carries a maximum penalty of 90 days' imprisonment and a $500 fine and a mandatory minimum of 30 days' imprisonment and a $500 fine. Section 60-6,196(2)(b) further provides:
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order such person not to drive any motor vehicle in the State of Nebraska for any purpose for a period of one year from the date of the order unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for five days or the imposition of not less than two hundred forty hours of community service.
Neb. Rev. Stat. § 60-6,197(8) (Cum. Supp. 2000) provides:
Any city or village may enact ordinances in conformance with this section. Upon conviction of any person of a violation of such city or village ordinance, the provisions of this section with respect to the operator's license of such person shall be applicable the same as though it were a violation of this section.
In addition, Neb. Rev. Stat. § 14-102.01 (Reissue 1997) authorizes cities to enact ordinances for a variety of purposes that are not inconsistent with the general laws.
Under § 36-115 of the Omaha Municipal Code, a
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