Summary
The Nebraska Supreme Court held that Neb. Rev. Stat. § 60-4,108(1) does not require the State to prove that a defendant operated a motor vehicle on a public highway when the defendant was driving during a qualifying license revocation. The court affirmed Benjamin Frederick’s conviction based on his driving in a publicly accessible Wal-Mart parking lot, but vacated the sentence and remanded for resentencing because the required one-year license revocation had not been imposed.
Topics
Practice areas
Questions Presented
- Whether Neb. Rev. Stat. § 60-4,108(1) requires proof that a defendant operated a motor vehicle on a public highway.
- Whether the evidence was sufficient to support Frederick's conviction for driving during revocation based on his operation of a vehicle in a Wal-Mart parking lot.
- Whether the sentence was lawful when the county court failed to impose the one-year operator's-license revocation required by § 60-4,108(1)(a).
Holdings
- Neb. Rev. Stat. § 60-4,108(1) does not require proof that the defendant operated a motor vehicle on a public highway. The court will not read the phrase "on the public highways" into the statute because the Legislature included that limitation in other statutes but omitted it from § 60-4,108(1).
- Operation of a motor vehicle in the Wal-Mart parking lot, which was private property open to public access, was sufficient to support a conviction under § 60-4,108(1).
- The county court committed plain error by failing to revoke Frederick's operator's license for one year as required by § 60-4,108(1)(a). The sentence was vacated and the cause remanded for resentencing.
Key quotations
“If the Legislature had wished to limit § 60-4,108 to driving “on the public highways,” it knew how to do so.” (251)
“Because § 60-4,108 is plainly written without the limitation of “public highways” found in other statutes, we do not read that limitation into the statute.” (254)
Factual background
A law enforcement officer observed Frederick driving a vehicle without license plates through the aisles of a Wal-Mart parking lot in Kearney, Nebraska. The officer confirmed that Frederick's driver's license was revoked, and Frederick admitted that he did not have a license. Department of Motor Vehicles records showed that the revocation resulted from prior DUI-related proceedings. The Wal-Mart parking lot was privately owned but open to public access.
Procedural history
Following a bench trial, the Buffalo County Court found Frederick guilty of driving during revocation and sentenced him to 30 days in jail and 9 months of probation. The district court affirmed. On further appeal, Frederick argued that § 60-4,108 required proof that he operated the vehicle on a public highway. The Nebraska Supreme Court rejected that statutory interpretation, affirmed the conviction, and vacated the sentence because the county court failed to impose the one-year license revocation required by statute.
Remand instructions
The conviction is affirmed, but the sentence is vacated. The lower court must resentence Frederick and impose the sentence required by Neb. Rev. Stat. § 60-4,108(1)(a), including the required one-year operator's-license revocation.