State v. Wagner
| Decision Date | 02 December 2016 |
| Docket Number | Nos. S-15-788,S-16-065.,s. S-15-788 |
| Citation | 888 N.W.2d 357,295 Neb. 132 |
| Parties | STATE of Nebraska, appellee, v. Todd A. WAGNER, appellant. State of Nebraska, appellee, v. Brandon B. Rohde, appellant. |
| Court | Nebraska Supreme Court |
Mark E. Rappl, Lincoln, 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.
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 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 application of § 60-6,197.03(8) is inappropriate because the "current violation" referred to therein must mean a current DUI violation, and not a refusal violation. For the reasons set forth, we affirm.
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 submit 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 introduced 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 concentration of .15 or above "or refused to submit to a test as required under section 60–6,197." Subsection (8) provides for harsher penalties than subsection (7), which applies, "[e]xcept as provided in subdivision (8) of this section," to "such person" who has had three prior convictions and has an alcohol concentration of .08 or above.
The defendants filed pleas in bar alleging that application of § 60-6,197.03(8) would subject them to multiple punishments 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 argument 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 unconstitutionally 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 refusals; 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 violation" 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 aggravated 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 prosecution for the same offense, nor does it result in multiple punishments for the same offense."
Upon evidence of three prior convictions, the courts sentenced the defendants in accordance with § 60-6,197.03(8). The defendants appeal.
The defendants both assign that the district court erred by overruling their (1) pleas in bar and (2) motions to quash.
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 "
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 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 pertaining 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 We find no ambiguity or inconsistency in reading § 60-6,197.03(8) as encompassing underlying refusal violations. And we find it sensible to prevent prior offenders from avoiding, through the act of refusing a 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:
(Emphasis supplied.)
The defendants assert that the reference to "current violation" 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 violation. 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 construing subsection (8) as encompassing underlying refusal violations would impose double punishment. We find no merit to these arguments.
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 manufacture 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 60–6,196or 60–6,197...." (Emphasis supplied.) Each subsection then refers back to "such person." We find that "such person" plainly refers to "[a]ny person convicted of a violation of section 60–6,196or 60–6,197...." (Emphasis supplied.) 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 60–6,196or 60–6,197." (Emphasis supplied.)
"[C]urrent violation" thus plainly encompasses a violation of either §...
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