State v. Grutell
943 N.W.2d 258
Neb.2020Background
- Defendant Louis R. Grutell was charged with DUI (fourth offense) alleging a breath alcohol concentration > .15; the information did not allege the offense occurred on a highway or on private property open to public access.
- A deputy observed Grutell alone in his running vehicle stuck in a ditch beside a gravel road; Grutell staggered, smelled of alcohol, and later had a breath alcohol concentration of .176.
- At trial Grutell testified he became intoxicated only after his vehicle became stuck and argued he lacked actual physical control of a movable vehicle while intoxicated.
- Grutell did not assert at trial that the ditch was private property not open to public access under Neb. Rev. Stat. § 60-6,108(1); he raised that statute for the first time on appeal as plain error.
- The jury convicted; the Court of Appeals affirmed; the Nebraska Supreme Court granted further review and affirmed the conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Grutell) | Held |
|---|---|---|---|
| Whether § 60-6,108(1) (exception for private property not open to public access) is a material element of DUI that the State must plead and disprove. | The exception is a separate statutory limitation/defense and need not be pleaded as an element unless raised. | § 60-6,108(1) is an essential element and the State must disprove it in every DUI prosecution. | The exception is a geographic exception/affirmative defense, not a material element; the State need not negate it unless defendant raises it. |
| Whether the trial court’s early remark (that the State need not prove DUI occurred on a highway) precluded Grutell from later invoking § 60-6,108(1). | The court’s remark correctly stated the law and did not bar raising the defense. | The remark discouraged or foreclosed raising § 60-6,108(1) at trial. | The remark was legally correct and did not preclude Grutell from raising the defense. |
| Whether the trial court’s failure to address § 60-6,108(1) was plain error. | No plain error because Grutell never put the exception at issue or produced evidence to raise it. | Failure to address the statute was plain error that shifted burden to defendant on an element of the offense. | No plain error; defendant must initially raise the affirmative defense to require the State to disprove it. |
| Whether applicability of § 60-6,108(1) to a roadside ditch should be resolved as a matter of law. | Applicability is ordinarily a fact question for the factfinder; not required here because defense was not raised. | Court should decide as a matter of law whether a ditch qualifies as private property not open to public access. | Generally a fact question; not decided here because defendant did not invoke § 60-6,108(1) at trial. |
Key Cases Cited
- State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986) (information sufficient if it alleges crime in statute; being on a highway is not an element when not in the enacting statute)
- State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013) (discusses burdens regarding affirmative defenses in Nebraska)
- State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 (1997) (defendant has initial burden to produce evidence to raise affirmative defense)
- State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014) (treatment of § 60-6,108(1) issues and jury instructions in prior DUI cases)
- State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019) (elements of DUI are drawn from the enacting statute)
- State v. Thelen, 940 N.W.2d 259 (Neb. 2020) (recent statutory-interpretation discussion of ditch/right-of-way issues; court declined to extend that holding here)