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State v. Donner11/16/2004
On May 24, 1990, Donner's operator's license was revoked for a period of 15 years as part of Donner's sentence on a third-offense driving under the influence conviction. On March 18, 1999, Donner was granted a reprieve by the Nebraska Board of Pardons and her operator's license was reinstated, on the condition that she would operate only motor vehicles equipped with an approved ignition interlock device. See Neb. Rev. Stat. § 83-1,127.02 (Cum. Supp. 2002).
On September 18, 2003, a second amended information was filed alleging that on or about October 9, 2002, Donner had operated a motor vehicle not equipped with an ignition interlock device. On September 23, 2003, Donner entered a guilty plea to the charge.
On January 7, 2004, the district court entered an order sentencing Donner to intensive supervised probation for a period of 60 months. In addition, the court ordered that Donner's operator's license be revoked for a period of 15 years. This appeal followed.
III. ASSIGNMENT OF ERROR
Donner's assignments of error on appeal can all be consolidated and rephrased to allege that the district court erred in revoking her operator's license for 15 years.
IV. ANALYSIS
Donner argues on appeal that because Neb. Rev. Stat. § 29-2263 (Supp. 2003) provides that terms of probation cannot exceed 5 years, the district court erred in revoking her operator's license for 15 years while sentencing her to probation. She essentially argues that there is a conflict between § 83-1,127.02, which provides for a 15-year operator's license revocation, and § 29-2263, which governs the maximum length for terms of probation. We disagree with Donner's interpretation of these statutes.
Section 83-1,127.02 provides, in pertinent part, as follows:
(3) Any person restricted to operating a motor vehicle equipped with such an ignition interlock device who operates upon the highways of this state a motor vehicle without such an ignition interlock device . . . is guilty of a Class IV felony. The court shall, as a part of the judgment of conviction, order such person not to drive any motor vehicle for any purpose for a period of fifteen years from the date or-dered by the court. The court shall also order that the operator's license of such person be revoked for a like period.
We find that this provision mandates that the sentenc-ing court must impose a 15-year operator's license revocation because the Legislature chose to use the term "shall" and, therefore, allowed for no discretion by the sentencing court in imposing the revocation. This determination is consistent with the rules for statutory interpretation pronounced by the appellate courts of this state in the past.
[2,3] In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense. State v. Rodriguez, 11 Neb. App. 819, 660 N.W.2d 901 (2003). A fundamental principle of statutory construction requires that penal statutes be strictly construed. Id.
[4,5] These principles require us to consider the import of the term "shall" in § 83-1,127.02 and to determine whether the term is mandatory or directory. Although there is no universal test by which directory provisions of a statute may be distinguished from mandatory provisions, as a general rule, the word "shall" is considered mandatory and inconsistent with the idea of discretion. Randall v. Department of Motor Vehicles, 10 Neb. App. 469, 632 N.W.2d 799 (2001). See, also, State v. Rodriguez, supra. However, while the word "shall" may render a particular statutory provision mandatory in
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