State v. Wagner

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/02/2016 09:10 AM CST
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. WAGNER
Cite as 295 Neb. 132
State of Nebraska, appellee, v.
Todd A. Wagner, appellant.
State of Nebraska, appellee, v.
Brandon B. Rohde, appellant.
___ N.W.2d ___
Filed December 2, 2016. Nos. S-15-788, S-16-065.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of a statute are questions of law,
regarding which an appellate court is obligated to reach conclusions
independent of those reached by the court below.
2. Statutes: Legislature: Intent. In construing 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.
3. ____: ____: ____. Components of a series or collection of statutes per-
taining to a certain subject matter should be conjunctively considered
and construed to determine the intent of the Legislature, so that different
provisions are consistent, harmonious, and sensible.
4. Criminal Law: Statutes: Legislature: Intent. Although the rule of len-
ity requires a court to resolve ambiguities in a penal code in the defend­
ant’s favor, the touchstone of the rule of lenity is statutory ambiguity,
and where the legislative language is clear, a court may not manufacture
ambiguity in order to defeat that intent.
5. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
6. Constitutional Law: Statutes. It is the duty of a court to give a statute
an interpretation that meets constitutional requirements if it can reason-
ably be done.
7. Double Jeopardy: Intent. The primary purpose of the Double Jeopardy
Clause is to protect against multiple trials.
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8. Sentences: Double Jeopardy. As to the protection against multiple
punishments for the same offense, the Double Jeopardy Clause does no
more than prevent the sentencing court from prescribing greater punish-
ment than the Legislature intended.
9. Drunk Driving: Words and Phrases. Under Neb. Rev. Stat.
§ 60-6,197.03(8) (Cum. Supp. 2014), “current violation” encompasses
violations of both Neb. Rev. Stat. § 60-6,196 (Reissue 2010) and Neb.
Rev. Stat. § 60-6,197 (Cum. Supp. 2016).
10. Constitutional Law: Criminal Law: Statutes. A penal statute must
define the criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in a manner that
does not encourage arbitrary and discriminatory enforcement.
11. Appeal and Error. An appellate court will not address arguments that
are too generalized or vague to be understood.
12. Indictments and Informations. The function of an information is two-
fold. With reasonable certainty, an information must inform the accused
of the crime charged so that the accused may prepare a defense to the
prosecution and, if convicted, be able to plead the judgment of convic-
tion on such charge as a bar to a later prosecution for the same offense.
13. ____. The information may use the language of the statute or its
equivalent.
Appeals from the District Court for Lancaster County:
Stephanie F. Stacy and Steven D. Burns, Judges. Affirmed.
Mark E. Rappl for appellant in No. S-15-788.
Joe Nigro, Lancaster County Public Defender, and Nathan
Sohriakoff for appellant in No. S-16-065.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, K elch,
and Funke, JJ., and Inbody, Judge.
Wright, J.
NATURE OF CASE
These two appeals involve identical charges, similar facts,
and identical assignments of error and arguments. Therefore,
although they were briefed and argued separately, it is
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appropriate to address the two appeals in a single opinion.
The defendants appeal the denial of their pleas in bar and
motions to quash in relation to the application of Neb. Rev.
Stat. § 60-6,197.03(8) (Cum. Supp. 2014) in sentencing them
for the crime of refusal to submit to a chemical test as
required by Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2016).
Both defendants have three prior convictions for driving under
the influence (DUI).1 The defendants argue that the applica-
tion of § 60-6,197.03(8) is inappropriate because the “current
violation” referred to therein must mean a current DUI vio-
lation, and not a refusal violation. For the reasons set forth,
we affirm.
BACKGROUND
In case No. S-16-065, Brandon B. Rohde pled no contest
to the refusal of a chemical test, with three prior convictions,
under §§ 60-6,197 and 60-6,197.03(8), in relation to acts
committed on April 13, 2015. In case No. S-15-788, Todd A.
Wagner pled no contest to refusal of a chemical test, with three
prior convictions, under §§ 60-6,197 and 60-6,197.03(8), in
relation to acts committed on December 2, 2013. In both cases,
the pleas were accepted and the defendants were found guilty
of refusal of a chemical test, as prohibited by § 60-6,197.
Section 60-6,197(3) states that it is a crime to refuse to sub-
mit to a chemical test, while § 60-6,196 states that it is a crime
to operate or be in control of a motor vehicle while under
the influence of drugs or alcohol. But neither § 60-6,196 nor
§ 60-6,197 sets forth any punishment for those crimes.
Section 60-6,197.03 has 10 subsections, which are intro-
duced by stating, “Any person convicted of a violation of
section 60-6,196 or 60-6,197 shall be punished as follows.”
Subsection (8) of § 60-6,197.03 states that it applies to “such
person” who has had three prior convictions and, “as part of
the current violation,” had a breath or blood alcohol concentra-
tion of .15 or above “or refused to submit to a test as required
1
See Neb. Rev. Stat. § 60-6,196 (Reissue 2010).
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under section 60-6,197.” Subsection (8) provides for harsher
penalties than subsection (7), which applies, “[e]xcept as pro-
vided in subdivision (8) of this section,” to “such person” who
has had three prior convictions and has an alcohol concentra-
tion of .08 or above.
The defendants filed pleas in bar alleging that application
of § 60-6,197.03(8) would subject them to multiple punish-
ments for the same offense by using the same act of refusing
to submit to a chemical test as an element of the underlying
crime of refusal, in violation of § 60-6,197, and as an element
of “enhancement” under § 60-6,197.03(8). The defendants also
filed motions to quash repeating this double jeopardy argu-
ment and further asserting that (1) the meaning of “current
violation” in § 60-6,197.03(8) is a DUI under § 60-6,196, and
not refusal under § 60-6,197; (2) § 60-6,197.03(8) is uncon-
stitutionally vague and overbroad by failing to define “current
violation”; (3) the enhanced charge under § 60-6,197.03(8)
violates due process, because the prior convictions upon which
the enhancement is based were for DUI’s and not refus-
als; and (4) the application of § 60-6,197.03(8) is cruel and
unusual punishment.
The courts denied the motions. As to the defendants’
arguments concerning double jeopardy and the meaning of
§ 60-6,197.03(8), the courts concluded that “current viola-
tion” in § 60-6,197.03(8) was unambiguous and encompasses
violations of either § 60-6,196 or § 60-6,197, as described in
the introductory sentence of § 60-6,197.03. The courts found
that the Legislature had determined to treat refusal and aggra-
vated DUI (breath or blood alcohol concentration of .15 or
above) similarly for purposes of determining penalties when
a defendant has prior convictions. That determination was not
enhancement, but, rather, as one court explained, “a choice the
Legislature has made as to the category of the crime itself.”
The crime of refusal was “enhanced” only by the three prior
convictions, and, as the other court reasoned, “referencing the
underlying offense in this context does not equate to a second
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STATE v. WAGNER
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prosecution for the same offense, nor does it result in multiple
punishments for the same offense.”
Upon evidence of three prior convictions, the courts sen-
tenced the defendants in accordance with § 60-6,197.03(8).
The defendants appeal.
ASSIGNMENTS OF ERROR
The defendants both assign that the district court erred by
overruling their (1) pleas in bar and (2) motions to quash.
STANDARD OF REVIEW
[1] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.2
ANALYSIS
§ 60-6,197.03: “as part of the
current violation”
[2,3] The defendants’ principal argument is that
§ 60-6,197.03(8) was meant to apply only to persons who
violated the DUI statute, § 60-6,196, and not to persons who
violated the refusal statute, § 60-6,197. In construing a stat-
ute, 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.3 Components of a series or collection of
statutes pertaining to a certain subject matter should be con-
junctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible.4 We find no ambiguity or incon-
sistency in reading § 60-6,197.03(8) as encompassing under-
lying refusal violations. And we find it sensible to prevent
prior offenders from avoiding, through the act of refusing a
2
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
3
State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
4
See State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
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chemical test, the greater penalty for having a breath or blood
alcohol concentration of .15 or above, regardless of whether
the underlying violation is refusal or DUI.
Section 60-6,197.03 sets forth the punishments for “[a]ny
person convicted of a violation of section 60-6,196 or 60-6,197
. . . .” The version of § 60-6,197.03 in effect at the time of
the defendants’ crimes provided that any person convicted
of a violation of § 60-6,196 or § 60-6,197 shall be punished
as follows:
(1) Except as provided in subdivision (2) of this sec-
tion, if such person has not had a prior conviction, such
person shall be guilty of a Class W misdemeanor, and the
court shall, as part of the judgment of conviction, order
that the operator’s license of such person be revoked for a
period of six months . . . .
....
(2) If such person has not had a prior conviction and,
as part of the current violation, had a concentration of
fifteen-hundredths of one gram or more by weight of
alcohol per one hundred milliliters of his or her blood
or fifteen-hundredths of one gram or more by weight of
alcohol per two hundred ten liters of his or her breath,
such person shall be guilty of a Class W misdemeanor,
and the court shall, as part of the judgment of conviction,
revoke the operator’s license of such person for a period
of one year . . . .
....
(7) Except as provided in subdivision (8) of this sec-
tion, if such person has had three prior convictions, such
person shall be guilty of a Class IIIA felony, and the court
shall, as part of the judgment of conviction, order that the
operator’s license of such person be revoked for a period
of fifteen years . . . .
....
(8) If such person has had three prior convictions and,
as part of the current violation, had a concentration of
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STATE v. WAGNER
Cite as 295 Neb. 132
fifteen-hundredths of one gram or more by weight of
alcohol . . . or refused to submit to a test as required
under section 60-6,197, such person shall be guilty of a
Class III felony, and the court shall, as part of the judg-
ment of conviction, revoke the operator’s license of such
person for a period of fifteen years . . . .
(Emphasis supplied.)
The defendants assert that the reference to “current viola-
tion” in § 60-6,197.03(8) is, at the very least, ambiguous. They
argue that we must construe “current violation” as limited to a
current DUI violation and as excluding a current refusal vio-
lation. They argue that this reading of the statute is required
in light of the rule of lenity, the context of subsection (8)
with the other language of the statute, and because constru-
ing subsection (8) as encompassing underlying refusal viola-
tions would impose double punishment. We find no merit to
these arguments.
[4] Although the rule of lenity requires a court to resolve
ambiguities in a penal code in the defendant’s favor, the
touchstone of the rule of lenity is statutory ambiguity, and
where the legislative language is clear, we may not manufac-
ture ambiguity in order to defeat that intent.5 The language of
§ 60-6,197.03 is straightforward. Section 60-6,197.03 states
that it is setting forth in its subsections the punishments for
“[a]ny person convicted of a violation of section 60-6,196
or 60-6,197 . . . .” (Emphasis supplied.) Each subsection
then refers back to “such person.” We find that “such per-
son” plainly refers to “[a]ny person convicted of a viola-
tion of section 60-6,196 or 60-6,197 . . . .” (Emphasis sup-
plied.) And when certain subsections, such as subsection
(8), refer to specified acts “as part of the current violation”
of “such person,” it is equally plain that “current violation”
refers back to “a violation of section 60-6,196 or 60-6,197.”
(Emphasis supplied.)
5
State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
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[5] “[C]urrent violation” thus plainly encompasses a viola-
tion of either § 60-6,196 or § 60-6,197. As the State points
out, the defendants ask us to read a “DUI” violation into
§ 60-6,197.03(8), thereby excluding refusal violations. It is not
within the province of a court to read a meaning into a statute
that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambigu-
ous out of a statute.6 As we will explain below, we reject the
defendants’ arguments that this reading of § 60-6,197.03(8)
is in any way contrary to the language of the statute read as
a whole, or to the Double Jeopardy Clauses of the U.S. and
Nebraska Constitutions.
The defendants argue that by referring to the acts of hav-
ing a breath or blood alcohol concentration of .15 or above or
refusing to submit to testing as being “‘part of’” the “‘current
violation,’” those acts must be something “above and beyond”
the underlying violation charged.7 They point out that evidence
of refusing a chemical test in the context of a refusal violation
is not an act “above and beyond” the violation.8 The defendants
reason that the act of refusing a chemical test must therefore
refer only to evidence submitted as circumstantial evidence of
a DUI violation.9
This argument misconstrues the meaning of the phrase “as
part of.” To be “part of” is not the same as to be “above and
beyond.” It means, in fact, the opposite. A “part of” something
is a “piece” or “segment” of it.10 Considering the phrase “as
part of” in the context of § 60-6,197.03(8), the Legislature
plainly utilized that phrase because of its broadness. The
phrase “as part of” does not call into question our reading of
the words “current violation.”
6
State v. Raatz, supra note 4.
7
Brief for appellant in case No. S-15-788 at 19 and for appellant in case
No. S-16-065 at 18.
8
Id.
9
See § 60-6,197(6).
10
See Merriam-Webster’s Collegiate Dictionary 844 (10th ed. 2001).
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The defendants relatedly argue that we must read “current
violation” as limited to a DUI violation, because such reading
is the only reading that would be consistent with the use, in
the same sentence, of the element of having a breath or blood
alcohol concentration of .15 or above. Having an alcohol con-
centration of .15 or above, the defendants argue, is evidence
of a DUI violation and an aggravator. It is not an essential ele-
ment of a DUI violation and would not, as a practical matter,
be evidence of a refusal violation. The defendants assert that
the act of refusing a chemical test must concomitantly refer to
the act of refusal only as an aggravator and as circumstantial
evidence in a trial charging a DUI violation. They assert that
it would be inconsistent for the Legislature to intend that the
phrase “refused to submit to a [chemical] test” in § 60-6,197.03
also encompasses that act as an essential element of a refusal
violation. We disagree. While the same words used in the same
sentence are presumed to have the same meaning,11 we find no
reason to presume that these different words used in the same
sentence must be restricted to a parallel status in relation to dif-
ferent underlying violations.
The defendants next argue that the Legislature expressed,
through § 60-6,197.03(2), that it did not wish to treat people
who have a breath or blood alcohol concentration of .15 or
above the same as people who refuse chemical testing. In this
regard, the defendants point out that, under subsection (2), a
person who has no prior convictions is subject to a greater
punishment only if, “as part of the current violation,” that
person had an alcohol concentration of .15 or above. There
is no specific reference in § 60-6,197.03(1) or (2) to the act
of refusal. A person without prior convictions who is con-
victed of refusal under § 60-6,197 (or who refused a chemi-
cal test as part of violating § 60-6,196) is punished under
§ 60-6,197.03(1) the same as a person who did not refuse a
chemical test.
11
See State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).
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The defendants’ assumptions about legislative intent is con-
trary both to the plain language of the subsections directly
at issue and to the legislative history of § 60-6,197.03. The
language, “or refused to submit to a test as required under sec-
tion 60-6,197,” was added by 2007 Neb. Laws, L.B. 578, to
each of the provisions applicable to persons with prior convic-
tions. These provisions had previously provided only for the
punishment of a person who, as part of the current violation,
had a breath or blood alcohol concentration of .15 or above.
At the floor debate, Senator Kruse explained the reason for
the amendment:
During the summer we discovered that there is a bit of a
loophole in there and so, as I say, make corrections. The
bill stated that if a person is a repeat offender and has a
high BAC [breath or blood alcohol concentration] that
there’s additional sanctions. Some persons have learned,
through advice of their attorneys, to refuse the test and
then, by current law, that would then be at .08. So this
corrects that, makes a refusal of the test the same as the
offense which is what we do in other parts of the statute,
and really it’s no more than that.12
The Legislature thus intended to prevent legally savvy
offenders from avoiding, through refusal of a chemical test,
the greater penalty for a breath or blood alcohol concentra-
tion of .15 or above. The Legislature presumably did not also
add this “or refused” language to § 60-6,197.03(2), because
persons without prior convictions would not have had the
opportunity to be advised by an attorney of this legal loop-
hole. For persons with prior convictions, however, there is no
logical reason for this loophole to be closed only for persons
who happen to be charged with a DUI violation rather than a
refusal violation.
12
Floor Debate, L.B. 578, General Affairs Committee, 100th Leg., 1st Sess.
33 (May 9, 2007).
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[6] The defendants lastly argue that if we fail to read
§ 60-6,197.03(8) as limited to DUI violations, persons con-
victed of refusal violations would be subjected to multiple
punishments for the same offense, in violation of the Double
Jeopardy Clauses of the federal and Nebraska Constitutions.
It is the duty of a court to give a statute an interpretation
that meets constitutional requirements if it can reasonably be
done.13 However, the defendants misunderstand the principles
prohibiting double jeopardy.
[7,8] The Double Jeopardy Clauses of both the federal
Constitution and the Nebraska Constitution protect against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the
same offense.14 The primary purpose of the Double Jeopardy
Clause is to protect against multiple trials.15 Thus, as to the
protection against multiple punishments for the same offense,
“the Double Jeopardy Clause does no more than prevent the
sentencing court from prescribing greater punishment than the
legislature intended.”16
The question of what punishments are constitutionally per-
missible is no different from the question of what punishment
the legislative branch intended to be imposed.17
We have already answered the question of what the
Legislature intended, as reflected by the plain language of
§ 60-6,197.03(8), and which is consistent with the statutory
language as a whole and with sound policy. Nevertheless,
the defendants argue that § 60-6,197.03(8), when applied to
refusal violations, “‘double dip[s]’” the act of refusal as a
material element of the underlying refusal offense and as a
13
State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
14
State v. Ramirez, supra note 5.
15
Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).
16
Id., 459 U.S. at 366.
17
Missouri v. Hunter, supra note 15.
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sentencing aggravator.18 They assert that such “double dip-
ping” is an inherent vice, contrary to principles prohibiting
double jeopardy.
The cases cited by the defendants do not stand for this
proposition. Rather, most of the cases cited by the defendants
hold that the Legislature did not intend for the offender to
be punished under both a specific statute providing for an
increased punishment due to a specific aggravator and under a
generally applicable enhancement statute based upon the same
aggravator.19 These courts reason that there is a presumption
that the Legislature did not intend such double enhancement
for the same act.
An enhancement is a fact that increases the punishment
range to a certain range above what is ordinarily prescribed for
the crime that was charged.20 Double enhancement of a crimi-
nal sentence occurs when a factor already used to enhance or
aggravate an offense or penalty is reused to subject a defendant
to a further enhanced or aggravated offense or penalty.21
The cases from other jurisdictions cited by the defend­
ants are not controlling and are inapposite to the case at
bar. The act of refusing a chemical test is not an aggravator
for an underlying punishment that is then punished further
under a separate statute. There is no punishment set forth in
§ 60-6,197 at all. Furthermore, unlike in those cases cited by
the defendants, there is no ambiguity about whether a gener-
ally applicable statute applies to a specific crime. The statutes
18
Brief for appellant in case No. S-15-788 at 30 and for appellant in case
No. S-16-065 at 32.
19
See, e.g., People v. Guevara, 216 Ill. 2d 533, 837 N.E.2d 901, 297 Ill.
Dec. 450 (2005); People v. Ferguson, 132 Ill. 2d 86, 547 N.E.2d 429, 138
Ill. Dec. 262 (1989); Vennard v. State, 803 N.E.2d 678 (Ind. App. 2004).
Compare State v. Jennings, 106 Wash. App. 532, 24 P.3d 430 (2001).
20
See, e.g., Navarro v. State, 469 S.W.3d 687 (Tex. App. 2015); People v.
Muhammad, 157 Cal. App. 4th 484, 68 Cal. Rptr. 3d 695 (2007).
21
See, e.g., People v. Melvin, 2015 IL App (2d) 131005, 37 N.E.3d 310, 394
Ill. Dec. 831 (2015).
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here at issue fall under the narrowly tailored Nebraska Rules
of the Road.22
We rely instead on a case in our jurisdiction. In State v.
Ramirez,23 we rejected the defendant’s double jeopardy argu-
ment that the same prior conviction could not be used as
both the element of being a felon in possession of a weapon
and as a predicate offense for purposes of habitual criminal
enhancement. At the time Ramirez was decided, Neb. Rev.
Stat. § 28-1206 (Reissue 2008) stated that being a felon in
possession of a firearm was a Class III felony, but it did not
provide for specific sentencing dependent upon the number
of prior convictions. We explained that the element of being
a felon merely establishes “status” for the crime of violat-
ing § 28-1206.24 We said that “[p]rohibiting a convicted felon
from possessing a firearm neither punishes the felon for the
underlying felony, nor enhances the sentence for another con-
viction—it is a new and separate crime of which the prior
conviction is merely an element.”25
Accordingly, we concluded that the use of the same felony
conviction as an element of that underlying offense and as
an element of enhancement under the habitual criminal stat-
ute “simply does not involve double penalty enhancement.”26
We said, “There is a significant distinction between dou-
ble enhancement, which involves the ‘stacking’ of multiple
enhancement provisions . . . and the use of a conviction to
establish status and then enhance a sentence.”27 Being a felon
in possession of a firearm was a Class III felony, with no indi-
cation it should be treated differently from any other Class III
22
See Neb. Rev. Stat. §§ 60-601 to 60-6,383 (Reissue 2010 & Cum. Supp.
2016).
23
State v. Ramirez, supra note 5.
24
Id. at 883, 745 N.W.2d at 222.
25
Id. at 884, 745 N.W.2d at 223.
26
Id. at 883, 745 N.W.2d at 222.
27
Id.
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felony for purposes of sentence enhancement. Only the habit-
ual criminal statute was a sentence enhancement.28
We squarely rejected in Ramirez the defendants’ premise in
this case that using the same act as an element of the underly-
ing crime and as an element of enhancement inherently impli-
cates double jeopardy. And it is even clearer here that double
jeopardy is not implicated by the “double dipping” of refusal
as an element of §§ 60-6,197 and 60-6,197.03(8), because
§ 60-6,197 sets forth no punishment. Without the provisions
of § 60-6,197.03, there would be no sentencing statute for
the violation of refusing a chemical test. The presumptive
sentence for a person who refuses to submit to a chemical test
and who has three prior convictions is set forth by subsec-
tion (8).
In other words, subsection (8) is the only sentencing provi-
sion that applies under these facts. There is no separate under-
lying crime for which the defendant is punished, and then an
“enhancement” of that sentence. There are differing classes of
punishment under § 60-6,197.03, depending on the surround-
ing facts of the underlying violations.
The court in Navarro v. State29 noted that various subsec-
tions were effectively separate offenses and not enhancement
provisions in a similar statutory scheme, setting forth one class
of misdemeanor for driving while intoxicated and another
class of misdemeanor for driving while intoxicated with a
blood alcohol level of .15 or above. The subsections, the court
explained, described specific types of forbidden conduct that
affected the degree of the offense, and there was no enlarge-
ment of the sentence beyond that for which the crime was
ordinarily prescribed.30
In such circumstances, where only one sentencing provi-
sion is applicable to a given set of facts, there is not multiple
punishment as contemplated by the Double Jeopardy Clause.
28
Id.
29
Navarro v. State, supra note 20.
30
Id.
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We are perplexed by the defendants’ insistence that the
presumptive sentencing for their crimes is a Class IIIA felony
as set forth in § 60-6,197.03(7) and that such sentencing has
been “enhanced” to a Class III felony by § 60-6,197.03(8).
This appears to be little more than a circular argument of
their own making. By reading “current violation” as limited
to DUI violations, the defendants conclude that subsection
(7) provides the presumptive sentencing for their crimes, and
thus, they argue that we must read § 60-6,197.03(8) as limited
to DUI violations. But subsection (7) clearly states: “Except
as provided in subdivision (8) of this section, if such person
has had three prior convictions, such person shall be guilty of
a Class IIIA felony . . . .” (Emphasis supplied.) And we have
rejected the defendants’ reading of “current violation.”
[9] In conclusion, we find no reason to depart from our read-
ing of § 60-6,197.03(8): “current violation” encompasses viola-
tions of both §§ 60-6,196 and 60-6,197. Section 60-6,197.03
may be a complex statute, but it not ambiguous. It plainly sets
forth that it encompasses violations of either § 60-6,196 or
§ 60-6,197.
Unconstitutionally Vague
[10] Having found § 60-6,197.03(8) to be unambiguous,
we find no merit to the defendants’ alternative argument that
§ 60-6,197.03(8) is unconstitutionally vague. Due process of
law requires that criminal statutes be clear and definite.31 A
penal statute must define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.32 We do not seek mathemati-
cal certainty, but, rather, flexibility and reasonable breadth.33
As applied to the defendants’ violations of §§ 60-6,197 and
60-6,197.03(8), ordinary people could understand that they
31
State v. Pierson, 239 Neb. 350, 476 N.W.2d 544 (1991).
32
See In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).
33
Id.
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would be punished under § 60-6,197.03(8) if, as part of a
violation of § 60-6,197, they refused a chemical test and had
three prior convictions.
Cruel Unusual Punishment
and
Due Process
and
We next consider the defendants’ due process and cruel
and unusual punishment arguments in relation to their prior
convictions. Operative January 1, 2012, before the defendants
committed the acts leading to the current refusal convictions,
the Legislature amended the statutory scheme so that “prior
conviction” included either prior refusal or DUI convictions,
i.e., to allow for cross-enhancement.34 Before 2012, for a vio-
lation of § 60-6,196, “prior conviction” was defined as any
conviction for a violation of § 60-6,196, and for a violation of
§ 60-6,197, “prior conviction” meant any prior conviction for
violating § 60-6,197.35 There was no cross-enhancement.
Since 2012, § 60-6,197.02 has stated:
(1) A violation of section 60-6,196 or 60-6,197 shall
be punished as provided in sections 60-6,196.01 and
60-6,197.03. For purposes of sentencing under sections
60-6,196.01 and 60-6,197.03:
(a) Prior conviction means a conviction for a viola-
tion committed within the fifteen-year period prior to
the offense for which the sentence is being imposed
as follows:
(i) For a violation of section 60-6,196 [and section
60-6,197 the prior convictions described are identical]:
....
(4) A person arrested for a violation of section 60-6,196
or 60-6,197 before January 1, 2012, but sentenced pursu-
ant to section 60-6,197.03 for such violation on or after
January 1, 2012, shall be sentenced according to the
34
See 2011 Neb. Laws, L.B. 667.
35
See § 60-6,197.02(1)(a)(i)(A) and (1)(a)(ii)(A) (Reissue 2010). See, also,
State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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provisions of section 60-6,197.03 in effect on the date
of arrest.
The defendants were arrested and sentenced after January
1, 2012. They argue it is disproportionate to elevate a misde-
meanor to a felony based upon prior DUI convictions when
there was no such “‘cross-enhancement’” before 2012, at
the time their prior DUI’s were committed.36 They assert this
retroactive cross-enhancement violates the prohibition against
cruel and unusual punishment and relatedly assert that their
due process rights were violated by punishing them as repeat
offenders when they had never before committed the crime
of refusal.
The defendants concede that in State v. Hansen,37 we said
statutes expanding the “look-back” period for prior convic-
tions do not violate ex post facto principles, because the
habitual criminal statutes do not punish the defendant for
previous offenses; instead, they punish the defendant’s per­
sistence in crime. Nevertheless, the defendants argue that
redefining what constitutes a prior conviction is more signifi-
cant than expanding the temporal scope of the prior convic-
tions that can be used for purposes of enhancement. They also
state that they are not making an argument based on ex post
facto principles.
For their due process argument, the defendants cite only to
Weaver v. Graham,38 which refers to protection of preexist-
ing entitlements, something not at issue here. The defendants
do not specify whether they rely on principles of procedural
or substantive due process or explain how “due process”
connects to their conclusion that it is unconstitutional to
use their prior DUI convictions to satisfy the elements of
§ 60-6,197.03(8).
36
Brief for appellant in case No. S-15-788 at 27 and for appellant in case
No. S-16-065 at 28.
37
State v. Hansen, 258 Neb. 752, 755, 605 N.W.2d 461, 464 (2000).
38
Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
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[11] We find that the due process issue raised by the
defend­ants has been insufficiently argued for this court to
address it. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court.39 This court will
not address arguments that are too generalized or vague to
be understood.40
And we find no merit to the defendants’ cruel and unusual
punishment argument. The U.S. Supreme Court has upheld
habitual criminal statutes against similar challenges, explain-
ing that the harsher sentence is justified by the fact that those
persons who commit repeated criminal acts have shown they
are incapable of conforming to the norms of society as estab-
lished by criminal law.41 This justification does not depend
on the previous crimes used for enhancement as being in
violation of the same statutes for which the defendants are
presently being convicted. We conclude that it was not cruel
and unusual to subject the defendants to a harsher penalty
for their current refusal convictions based on their previous
DUI convictions.
Insufficient A llegations
Finally, the defendants assert that the charging informa-
tions were defective because they failed to mirror the lan-
guage of § 60-6,197.03(8) that “as part of the current viola-
tion,” the defendants refused to submit to a test as required
by § 60-6,197. The defendants concede that the informa-
tions alleged that under § 60-6,197.03(8), the defendants had
refused to submit to a chemical test and had three prior con-
victions. For reasons that are not entirely clear, the defendants
nonetheless argue that by excluding the “as part of the current
39
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
40
Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).
41
See State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015), citing Ewing
v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003).
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violation” phrasing from the informations, the State failed to
sufficiently allege Class III felonies under § 60-6,197.03(8)
and that instead, they were charged only with Class IIIA felo-
nies under § 60-6,197.03(7).
[12] The function of an information is twofold.42 With rea-
sonable certainty, an information must inform the accused of
the crime charged so that the accused may prepare a defense
to the prosecution and, if convicted, be able to plead the judg-
ment of conviction on such charge as a bar to a later pros-
ecution for the same offense.43 When an information alleges
all the facts or elements necessary to constitute the offense
described in the statute and intended to be punished, it is
sufficient.44
[13] The information may use the language of the statute or
its equivalent.45 Here, it was sufficient for the State to make
reference to §§ 60-6,197 and 60-6,197.03(8), to refusal, and
to the three prior convictions. We find no merit to the defend­
ants’ assertion that the informations were defective.
CONCLUSION
For the foregoing reasons, we affirm the judgments of the
district court.
A ffirmed.
Stacy, J., not participating.
42
State v. Brunzo, 262 Neb. 598, 634 N.W.2d 767 (2001).
43
Id.
44
Chadek v. State, 138 Neb. 626, 294 N.W. 384 (1940).
45
See Barton v. State, 111 Neb. 673, 197 N.W. 423 (1924).