State v. Thompson
294 Neb. 197
| Neb. | 2016Background
- Robert C. Thompson was arrested after a November 30, 2014 motor-vehicle accident and pled guilty to DUI, third offense, with BAC ≥ .15, a Class IIIA felony.
- At sentencing the parties agreed probation was appropriate but disputed whether a jail term could be imposed as a condition of probation.
- LB 605 amended Neb. Rev. Stat. § 29-2262 effective August 30, 2015, removing language that previously allowed up to 180 days in jail as a condition of probation for felonies; Thompson was sentenced after that date.
- The general probation statute (§ 29-2262) no longer expressly authorizes felony periodic confinement, but the specific DUI statute (§ 60-6,197.03(6)) still expressly requires, for third-offense aggravated DUI, that the court include 60 days’ confinement in jail as a condition of probation.
- The district court imposed 24 months’ probation with a condition of 60 days’ jail; Thompson appealed, arguing the amended § 29-2262 forbids jail as a condition of probation for felonies.
Issues
| Issue | Thompson's Argument | State's Argument | Held |
|---|---|---|---|
| Whether a jail term may be imposed as a condition of probation for a felony DUI after LB 605 amended § 29-2262 | LB 605 removed felony confinement authority from § 29-2262, so courts may no longer impose jail as a condition of probation for any felony, including felony DUI | § 60-6,197.03(6) is a more specific statute that expressly requires 60 days’ confinement as a condition of probation for third-offense DUI, so it controls over the general probation statute | The court affirmed: § 60-6,197.03(6) remains controlling and requires 60 days’ jail as a condition of probation for this offense; there was no clear legislative intent to repeal it by implication. |
Key Cases Cited
- Dean v. State, 288 Neb. 530 (2014) (statutory interpretation principles)
- State v. McIntyre, 290 Neb. 1021 (2015) (give effect to legislative intent when reading penal statutes)
- State v. Hernandez, 283 Neb. 423 (2012) (specific statute controls over general statute when in conflict)
- State v. Mendoza-Bautista, 291 Neb. 876 (2015) (application of LB 605 timing and retroactivity)
- State v. Null, 247 Neb. 192 (1995) (legislative inaction when amending a statute indicates intent to retain other statutory provisions)
- State v. Retzlaff, 223 Neb. 811 (1986) (repeal by implication only where repugnancy is plain and unavoidable)