State v. Wagner, 295 Neb. 132

Background

Two consolidated Nebraska appeals (State v. Wagner; State v. Rohde) challenge applying Neb. Rev. Stat. § 60-6,197.03(8) to convictions for refusing a chemical test under § 60-6,197 where defendants had three prior DUI convictions.
Both defendants pled no contest to refusal-of-test charges and were sentenced under § 60-6,197.03(8), which prescribes harsher penalties for a person with three prior convictions who, "as part of the current violation," either had BAC ≥ .15 or "refused to submit to a test as required under section 60-6,197."
Defendants moved to quash and filed pleas in bar arguing: (1) "current violation" must mean a current DUI (§ 60-6,196) not a refusal (§ 60-6,197); (2) the statute is unconstitutionally vague/overbroad; (3) using prior DUI convictions to elevate a refusal to felony status violates due process and constitutes cruel and unusual punishment; (4) double jeopardy/multiple punishment and (5) charging informations were defective for omitting the phrase "as part of the current violation."
Trial courts denied the motions, concluding that § 60-6,197.03 unambiguously applies to convictions under either § 60-6,196 or § 60-6,197 and that using prior DUI convictions to sentence a current refusal under subsection (8) does not violate double jeopardy or other constitutional provisions.
The Nebraska Supreme Court affirmed: "current violation" encompasses both DUI and refusal offenses; the statute is not vague; double jeopardy is not implicated because § 60-6,197 sets no penalty and subsection (8) provides the applicable sentencing range; informations were sufficient.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Construction of "current violation" in § 60-6,197.03(8)	State: statute punishes any person convicted of § 60-6,196 or § 60-6,197; "current violation" refers back to either statute	"Current violation" limited to DUI (§ 60-6,196); refusal (§ 60-6,197) should not trigger subsection (8)	Court: unambiguous text shows "current violation" includes violations of both § 60-6,196 and § 60-6,197; statute construed accordingly
Rule of lenity / statutory ambiguity	—	Any ambiguity must be resolved for defendant; phrase "as part of the current violation" creates ambiguity	Court: no ambiguity; rule of lenity inapplicable when language is clear
Double jeopardy / multiple punishment	—	Applying subsection (8) to refusal double-counts refusal as element and aggravator, yielding multiple punishments	Court: no double jeopardy — § 60-6,197 contains no penalty; subsection (8) is the applicable sentencing provision, not a second punishment; Ramirez precedent supports use of same fact/status in element and enhancement contexts
Vagueness, due process, cruel and unusual punishment, and charging sufficiency	—	Statute vague; retroactive cross‑enhancement (allowing prior DUIs to enhance refusals) violates due process/exposes to disproportionate punishment; informations defective for omitting "as part of the current violation"	Court: statute constitutionally definite as applied; cross‑enhancement and habitual sentencing do not violate due process or Eighth Amendment; informations were sufficient to notify defendants of charges

Key Cases Cited

State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (Neb. 2008) (use of same prior conviction as element and for habitual enhancement does not necessarily constitute impermissible double enhancement)
State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (Neb. 2016) (principles of statutory construction and considering statutes in context)
State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (Neb. 2011) (rule of lenity and statutory interpretation principles)
State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (Neb. 2015) (interpretive canons about consistent meaning of words in statutes)
State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (Neb. 2000) (habitual/offender sentencing and ex post facto considerations)
Navarro v. State, 469 S.W.3d 687 (Tex. App. 2015) (statutory subsections may constitute separate offense gradations rather than mere enhancements)