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State v. Hynek3/1/2002
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. Judgments: Pleadings: Appeal and Error. Regarding questions of law presented by a motion to quash, an appellate court is obligated to reach a conclusion independent of the determinations reached by the trial court.
3. Constitutional Law: Statutes: Proof. The burden to clearly demonstrate that a statute is unconstitutional rests upon the party making the claim of unconstitutionality.
4. Constitutional Law: Statutes: Presumptions. A statute is presumed to be constitutional, and all reasonable doubts will be resolved in favor of its constitutionality.
5. Constitutional Law: Criminal Law: Statutes. A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done.
6. Constitutional Law: Criminal Law: Statutes: Presumptions. In affording a presumption of constitutionality to legislative enactments, the Nebraska Supreme Court, while construing penal statutes strictly, nonetheless gives them a sensible construction in the context of the object sought to be accomplished, the evils and mischiefs sought to be remedied, and the purpose sought to be served.
7. Constitutional Law: Statutes. A challenge to a statute, asserting that no valid application of the statute exists because it is unconstitutional on its face, is a facial challenge. In order to bring a constitutional challenge to the facial validity of a statute, the proper procedure is to file a motion to quash.
8. ____: ____. A motion to quash is not appropriate when attacking the constitutionality of a statute as applied.
9. Constitutional Law: Criminal Law. The protection provided by the excessive fines clause of Neb. Const. art. I, § 9, is coextensive with that provided by the Eighth Amendment to the U.S. Constitution.
10. ____: ____. The provision in Neb. Rev. Stat. § 60-6,196(8) (Supp. 1999) requiring the convicted person to pay the expense for the treatment which is a portion of the sentencing order is not intended to be a punishment and therefore provides for neither a fine nor a penalty and does not on its face violate the constitutional prohibitions against excessive fines under Neb. Const. art. I, § 9, or disproportionate penalties under Neb. Const. art. I, § 15.
Appeal from the District Court for Dodge County, F.A. Gossett III, Judge, on appeal thereto from the County Court for Dodge County, Daniel J. Beckwith, Judge. Judgment of District Court affirmed.
NATURE OF CASE
Carol Hynek was convicted in the Dodge County Court of driving under the influence of alcoholic liquor (DUI). Judgment was entered. Hynek appealed to the district court for Dodge County which noted plain error in the sentencing and remanded the case to the county court. On remand, the county court on October 31, 2000, resentenced Hynek to probation for a period of 6 months and directed her to follow the recommendations contained in a previously administered alcohol assessment and to pay associated costs. Hynek again appealed to the district court which affirmed the conviction and sentence of the county court. Hynek appeals the decision of the district court and challenges the constitutionality of Neb. Rev. Stat. § 60-6,196(8) (Supp. 1999) claiming that § 60-6,196(8) provides for excessive fines and disproportionate penalties. We reject Hynek's facial challenge and affirm the decision of the district court.
STATEMENT OF FACTS
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