State v. Roucka

• Citation: 253 Neb. 885,573 N.W.2d 417
• Decision Date: 30 January 1998
• Docket Number: No. S-96-1191,S-96-1191
• Parties: STATE of Nebraska, Appellee, v. Larry L. ROUCKA, Appellant.
• Court: Supreme Court of Nebraska

Page 417

573 N.W.2d 417

253 Neb. 885

STATE of Nebraska, Appellee, v. Larry L. ROUCKA, Appellant.

No. S-96-1191.

Supreme Court of Nebraska.

Jan. 30, 1998.

Syllabus by the Court

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. Statutes: Appeal and Error. Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below.

3. 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.

4. Statutes: Demurrer. A motion to quash or a demurrer is the proper procedural method for challenging the facial validity of a statute.

5. Pleas: Waiver. All defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue.

6. Constitutional Law: Statutes: Pleas: Waiver. Once a defendant has entered a plea, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and then files a motion to quash.

7. Constitutional Law: Appeal and Error. Generally, the Nebraska Supreme Court will not consider a constitutional challenge in the absence of a specification of the constitutional provision which is claimed to be violated.

8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute 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.

9. Constitutional Law: Statutes: Standing. The traditional rule of standing applies to a challenge to a statute on the grounds of vagueness.

10. Constitutional Law: Statutes: Standing. To have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and cannot maintain that the statute is vague when applied to the conduct of others.

11. Constitutional Law: Statutes: Standing. Conduct which is clearly proscribed by a statute will not support a vagueness challenge (1) because the statute is not vague as to the party challenging the statute and (2) because the court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court.

William G. Line, Fremont, for appellant.

Don Stenberg, Attorney General, and Jay C. Hinsley, Lincoln, for appellee.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

WRIGHT, Justice.

Larry L. Roucka was charged in the county court for Dodge County with driving while under the influence (DUI), second offense, in violation of Neb.Rev.Stat. § 60-6,196 (Reissue 1993), and refusal to submit to a chemical test, in violation of Neb.Rev.Stat. § 60-6,197(4) (Reissue 1993). Roucka filed a motion to quash, challenging the constitutionality of § 60-6,196(8), which motion was overruled. The county court found Roucka guilty of the DUI, second offense, and refusal to submit to a chemical test charges. Roucka appealed to the district court for Dodge County, which affirmed the convictions and sentences of the county court. He then timely appealed the decision of the district court.

I. SCOPE OF REVIEW

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. State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996).

Statutory interpretation is a matter of law, in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. State v. Hingst, 251 Neb. 535, 557 N.W.2d 681 (1997).

II. FACTS

On February 17, 1996, at approximately 10:18 p.m., two Fremont police officers received a dispatch informing them that a possible intoxicated driver had just left Sapp Brothers driving a red and white Ford pickup with "43 county license plates." When the officers first saw the pickup, it was straddling two lanes of traffic at a stoplight at the corner of Military and Broad Streets. As the light turned green, the pickup proceeded south through the intersection, and the police officers observed it cross over the centerline several times. The police officers then stopped the pickup.

One of the officers approached the pickup and noticed that the driver, later identified as Roucka, appeared to be intoxicated. Roucka was asked to perform three field sobriety tests, which he performed poorly, and the officer then placed him under arrest for DUI.

Roucka was taken to the police department, where officers read Roucka the postarrest advisory form and asked that he perform a chemical breath test. Roucka refused to take a breath test and refused to sign the advisory form which had been read to him. He told the officers that he would not give a breath test, but would give a blood test. He was advised that after he gave a breath test, he could take a blood test at his own expense. Roucka continued to refuse to take the breath test, and he was subsequently cited for second-offense DUI and refusal to submit.

Prior to trial, Roucka moved to quash the information on the basis that § 60-6,196(8) was facially unconstitutional. After the motion to quash was overruled, Roucka entered a plea of not guilty to both the second-offense DUI and refusal to submit charges. A bench trial was conducted, and Roucka was found guilty of both charges. Roucka was sentenced to 90 days in jail, a 1-year license revocation, and a $500 fine on the second-offense DUI charge, as well as 60 days in jail, a 6-month license revocation, and a $200 fine on the refusal to submit charge. The sentences were to be served concurrently.

III. ASSIGNMENTS OF ERROR

Roucka assigns as error that the courts below erred in not finding § 60-6,196(8) unconstitutional and in finding him guilty of refusal to submit in spite of the defective advisory form.

IV. ANALYSIS

1. CONSTITUTIONALITY OF § 60-6,196(8)

Roucka argues that § 60-6,196(8) should be struck down by this court because it is unconstitutionally vague on its face. Section 60-6,196(8) provides:

Any person who has been convicted of driving while intoxicated for the first time or any person convicted of driving while intoxicated who has never been assessed for alcohol abuse shall, during a presentence evaluation, submit to and participate in an alcohol assessment. The alcohol assessment shall be paid for by the person convicted of driving while intoxicated. At the time of sentencing, the judge, having reviewed the assessment results, may then order the convicted person to follow through on the alcohol assessment results at the convicted person's expense in lieu of or in addition to any penalties deemed necessary.

Roucka argues that the phrase "assessed for alcohol abuse" is not defined in the criminal code and has no generally accepted meaning and that such term is meaningless and gives the court no direction as to the expenses that may be incurred as a result of the "alcohol assessment." Essentially, Roucka asserts that the motion to quash he filed prior to trial should have been sustained. Roucka claims that since subsection (8) is not severable from the remainder of § 60-6,196, the "entire DUI statute is in violation of the state and federal constitutions because of its outlandish penalty provisions." See brief for appellant at 5.

As a preliminary matter, it is necessary to set forth the procedural and standing requirements to challenge the constitutionality of a statute. 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. State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996).

(a) Procedure

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. Id. See, also, United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (holding that facial challenge to legislative act is most difficult challenge to mount successfully, because challenger must establish that no set of circumstances exists under which act would be valid). A motion to quash or a demurrer is the proper procedural method for challenging the facial validity of a statute. State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996); State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996); State v. Kelley, supra. All defects not raised in a motion to quash are taken as waived by a defendant pleading the general issue. State v. Conklin, supra; State v. Bocian, 226 Neb. 613, 413 N.W.2d 893 (1987); State v. Etchison, 190 Neb. 629, 211 N.W.2d 405 (1973). Once a defendant has entered a plea, the defendant waives all facial constitutional challenges to a statute unless that defendant asks leave of the court to withdraw the plea and then files a motion to quash. See, State v. Conklin, supra; State v. Bocian, supra; State v. Etchison, supra.

Roucka filed a motion to quash on March 19, 1996. This motion was overruled by the county court on May 7. Subsequently, Roucka entered a plea of not guilty. We conclude that Roucka has not waived his right to facially challenge § 60-6,196(8) as unconstitutionally vague. Accordingly, we have jurisdiction to consider his facial challenge.

(b) Standing

Roucka does not specify which constitutional provision § 60-6,196(8) violates. Generally, this court will not consider a constitutional challenge in the absence of a specification of the...