Felony Penalties. felonies. Neb. Rev. Stat

Transcription

1 FI FIA Death Life Imprisonment Felony Penalties Felonies Neb. Rev. Stat FIB FIC FID 20 years - Life Imprisonment Mandatory minimum 5 50 years imprisonment Mandatory minimum 3 50 years imprisonment FII Attempt of FI - FID FIIA Attempt of FII 1 50 years imprisonment 0-20 years imprisonment FIII 0-4 years imprisonment and/or up to $25,000 fine. If imprisoned, 9 months - 2 years post-release supervision will be ordered. FIIIA 0-3 years imprisonment and/or up to $10,000 fine. If imprisoned, 9-18 months post-release supervision will be ordered. FIV 0-2 years imprisonment and/or up to $10,000 fine. If imprisoned, 9-12 months post-release supervision will be ordered. Habitual Criminal Sentencing Enhancement Neb. Rev. Stat Current Charge Prior Convictions Possible Penalties Any applicable felony 2 prior convictions resulting in 1 year or more of incarceration 1st Deg Murder, 1st Deg Aslt, Kidnapping, 1st Deg Sex Aslt, 1st Deg Sex Aslt of Child, 1st Deg Aslt on Officer, 1st Degree Arson or Use of Explosives to Commit a Felony Felony MV Homicide 2 applicable priors - one of which is for one of the felonies enumerated to the left OR 2 prior MV Homicide convictions 2 applicable priors one MV Homicide & one of other enumerated felonies Mandatory minimum years imprisonment Mandatory minimum years imprisonment Mandatory minimum years imprisonment UPDATED AS OF: JULY 1, 2017 Page 1

2 Misdemeanor and Infraction Penalties MI Attempt of FIV MII MIII MIIIA MIV MV Misdemeanors Neb. Rev. Stat year imprisonment and/or up to $1,000 fine 0 6 months imprisonment and/or up to $1,000 fine 0 3 months imprisonment and/or up to $500 fine 0 7 days imprisonment and/or up to $500 fine Up to a $500 fine Up to a $100 fine First Second (within 2 years) 1 Infractions Neb. Rev. Stat Up to $100 fine $100 - $300 fine Third or Subsequent (all within 2 years) $200 - $500 fine Possession of Marijuana or K2 (1 ounce of less) Neb. Rev. Stat (13) First Infraction A $300 fine and possible class 2 Second 3 MIV 0 5 days imprisonment 4 and a $400 fine Third or Subsequent MIIIA 1 7 days imprisonment and a $500 fine 1 NEB.REV.STAT lays out the 2 year statute of limitations for prior infraction convictions to be used for enhancement. 2 NEB.REV.STAT (13)(a) indicates that the defendant may be assigned to attend a course as prescribed in section if the judge determines that attending such course is in the best interest of the individual defendant. 3 Unlike regular infractions, there is NO apparent statute of limitations for priors when enhancing a Possession of Marijuana (One Ounce or Less) charge. 4 NEB.REV.STAT (13) states for a second offense, a defendant MAY be imprisoned up to five days, while for a third offense, it states that a defendant SHALL be imprisoned no more than seven days. UPDATED AS OF: JULY 1, 2017 Page 2

3 Traffic Penalties and/or up to $1,000 fine. DUI (.08) or Refusal of Chemical Test Offense Level Imprisonment Fine License Revocation DUI.08 1 W 7 60 days, a $500 fine, and 6 month revocation. - 1 prior 2 W 30 days 6 months, a $500 fine, and 18 month revocation. - 2 priors 3 W 90 days 1 year, a $1,000 fine, and 15 year revocation. - 3 priors 4 FIIIA 180 days 3 years, and/or up to $10,000 fine, and 15 year revocation. If imprisoned, 9 18 months post-release supervision will be ordered. - 4 priors 5 FIIA 2 20 years, and 15 year revocation. Refusal of Chem Test 6 W 7 60 days, a $500 fine, and 6 month revocation. - 1 prior W 90 days 1 year, a $1,000 fine, and 18 month 15 year revocation. - 2 priors FIIIA 180 days 3 years, and/or up to $10,000 fine, and 15 year revocation. If imprisoned, 9 18 months post-release supervision will be ordered. - 3 priors FIIA 1 20 years, and 15 year revocation. - 4 priors FII 2 50 years, and 15 year revocation. DUI.08 (passenger MI 0 1 year, under age 16) 7 DUI Causing Serious FIIIA 0 3 years, and/or up to $10,000 fine, and 60 day to 15 year Bodily Injury 8 revocation. If imprisoned, 9 18 months post-release supervision will be ordered. Aggravated DUI (.15 or DUI with Refusal) 9 DUI W 7 60 days, a $500 fine, and 1 year revocation. - 1 prior 11 MI 90 days 1 year, a $1,000 fine, and 18 month 15 year revocation. - 2 priors 12 FIIIA 180 days 3 years, a $1,000 fine, and 15 year revocation. If imprisoned, 9 18 months post-release supervision will be ordered. - 3 priors 13 FIIA 1 20 years, and 15 year revocation. - 4 priors 14 FII 2 50 years, and 15 year revocation. DUI with Refusal - 1 prior 15 MI 90 days 1 year, a $1,000 fine, and 18 month 15 year revocation. - 2 priors FIIIA 180 days 3 years, and/or up to $10,000 fine, and 15 year revocation. If imprisoned, 9 18 months post-release supervision will be ordered. - 3 priors FIIA 1 20 years, and 15 year revocation. - 4 priors FII 2 50 years, and 15 year revocation. Interlock Device-Related Offenses Tamper/Circumvent Device 16 MI 0 1 year, and/or up to $1,000 fine. - w/ FIV 0 2 years, and/or up to $10,000 fine. If imprisoned, 9 12 months post-release supervision will be ordered. No Install of Device 18 MI 0 1 year, and/or up to $1,000 fine - w/ FIV 0 2 years, and/or up to $10,000 fine If imprisoned, 9 12 months post-release supervision will be ordered. Other Violations of Interlock Court Order 20 MIII 0 3 months, and/or up to $500 fine UPDATED AS OF: JULY 1, 2017 Page 3

4 Traffic Penalties Driving During Revocation, Suspension or Impoundment Drive Under Suspension Before Reinstatement (Eligible) 21 MIII 0 3 months, and/or up to a $500 fine, and the court MAY order a 1 year revocation. Drive When License MIII 0 3 months, and/or up to a $500 fine. Revoked for Points 22 Drive When Revocation MII 0 6 months, and/or up to a $1,000 fine, and 1 year revocation. or Impoundment 23-2nd/3rd Offense 24 MII 0 6 months, and/or up to a $1,000 fine, and 2 year revocation. - 4th or Subs. Offense 25 MI 0 1 year, and/or up to a $1,000 fine, and 2 year revocation. Drive During Felony FIV 0 2 years, and/or up to a $10,000 fine, and 15 year revocation. Revocation 26 If imprisoned, 9 12 months post-release supervision will be ordered. - 2nd or Subs. Offense 27 FIIA 0 20 years, and additional 15 year revocation. Careless/Reckless/Willful Reckless Careless Driving 28 Inf up to $100 fine Reckless Driving 29 MIII 0 3 months, and/or up to $500 fine. - 2nd Offense 30 MII 0 6 months, and/or up to a $1,000 fine, and 60 days 2 years revocation. Vehicle impounded 2 months 1 year. - 3rd or Subs. Offense 31 MI 0 1 year, and/or up to a $1,000 fine, and 1 year revocation. Willful Reckless 32 MIII 0 3 months, and/or up to a $500 fine, and 30 days 1 year revocation. - 2nd Offense 33 MII 0 6 months, and/or up to a $1,000 fine, and 60 days 2 years revocation. Vehicle impounded 2 months 1 year. - 3rd or Subs. Offense 34 MI 0 1 year, and/or up to a $1,000 fine, and 1 year revocation. Leaving the Scene of an Accident Leave Scene of Accident 35 MII 0 6 months, and/or up to a $1,000 fine, and the court MAY order revocation of up to 1 year. - 2nd or Subs. Offense 36 MI 0 1 year, and/or up to a $1,000 fine, and the court MAY order revocation of up to 1 year. Leave Scene of an Injury Accident 37 FIIIA 0 3 years, and/or up to $10,000 fine, and 1 15 year revocation. If imprisoned, 9 18 months post-release supervision will be ordered. Leave Scene of Injury Accident (Serious Bodily Injury or Death) 38 FIII 0 4 years, and/or up to a $25,000 fine, and 1 15 year revocation. If imprisoned, 9 months 2 years post-release supervision will be ordered. Miscellaneous Alcohol-Related Offenses Zero Tolerance Violation Inf up to $100 fine, and 30 day impoundment. (.02) 39 Open Container 40 Inf up to $100 fine. UPDATED AS OF: JULY 1, 2017 Page 4

5 Traffic Penalties Flee to Avoid Arrest Flee to Avoid Arrest 41 MI 0 1 year, and/or up to a $1,000 fine, and the court MAY order revocation up to 1 year. - 2nd or Subs. Offense 42 FIV 0 2 years, and/or up to a $10,000 fine, and 2 year revocation. If imprisoned, 9 12 months post-release supervision will be ordered. Flee to Avoid Arrest Causing Death or Injury 43 FIV 0 2 years, and/or up to a $10,000 fine, and 2 year revocation. If imprisoned, 9 12 months post-release supervision will be ordered. Flee to Avoid Arrest w/willful Reckless Operation 44 FIV 0 2 years, and/or up to a $10,000 fine, and 2 year revocation. If imprisoned, 9 12 months post-release supervision will be ordered. Common Minor Traffic Offenses No Operator s Permit 45 MIII months, and/or up to a $500 fine. No Proof of Insurance 47 MII 0 6 months, and/or up to a $1,000 fine, Suspended until in compliance with and No Valid Registration 48 MIII 0 3 months, and/or up to a $500 fine. Open Title 49 MIII 0 3 months, and/or up to a $500 fine. Violation of Provisional Operator s Permit 50 Inf up to a $100 fine, and court MAY order 10 day 1 year revocation. Texting While Driving 51 Inf $200 fine Person shall be assessed - 2nd Offense 52 $300 fine points on license pursuant - 3rd or Subs. Offense 53 $500 fine to UPDATED AS OF: JULY 1, 2017 Page 5

6 Traffic Penalties Rules of the Road Backing w/o Safety 60-6,169 Inf Child Restraint Violation 60-6,267 Inf ($25 mandatory fine) Defective Brakes 60-6,244 M3 + proof of remedy Driving Left of Center 60-6,131 Inf Driving on Median 60-6,141 Inf Driving on Shoulder 60-6,142 Inf Fail to Obey Order of Officer Directing Traffic 60-6,110 Inf Fail to Sign Turn/Lane Change 60-6,161 Inf Flee to Avoid Arrest (M) M1 + may revoke/impound license up to 1 year Following Too Closely 60-6,140 Inf FYROW (Unmarked Intersection) 60-6,146 Inf FYROW (Left Turn) 60-6,147 Inf FYROW (Stop/Yield Sign) 60-6,148 Inf FYROW (Private Road/Driveway) 60-6,149 Inf FYROW (Stopped/Standing/Parked) 60-6,150 Inf FYROW (Emergency Vehicles) 60-6,151 Inf Handicap Parking Violation Inf Headlights/Taillights Violation 60-6,219 M3 + proof of remedy Illegal U-Turn 60-6,160 Inf Impeding Traffic/Too Slow 60-6,193 Inf Improper Turn 60-6,159 Inf Motorcycle Helmet Violation 60-6,279 Inf ($50 mandatory fine) Move Over Violation for Emergency Vehicles 60-6,378 1st offense - Inf 2nd offense - M3A Objects Interfering w/view of Operator 60-6,256 Inf Passing Zone 60-6,137 Inf Passing on Left 60-6,136 Inf Railroad Crossing Violation 60-6,170 Inf Refusal to Sign Traffic Citation M - up to $500 +/or 90 days Seat Belt Violation 60-6,270 Inf ($25 mandatory fine, no court costs) Speed Contest/Exhibition of Acceleration 60-6,195 M2 Speeding 60-6,186 Inf MPH Over Posted Limit $ MPH Over $ MPH Over $ MPH Over $ MPH Over $ MPH Over $300 Speeding in Construction Zone 60-6,188 Fines Doubled Too Fast for Conditions 60-6,185 Inf Traffic Control Device Violation 60-6,119 Inf Traffic Signal Violation 60-6,123 Inf Use of Handheld Wireless Device 60-6, Inf (1st Offense - $200) Window Tint Violation 60-6,257 Inf UPDATED AS OF: JULY 1, 2017 Page 6

7 Traffic Penalties 1 NEB.REV.STAT. 60-6,197.03(1) 2 NEB.REV.STAT. 60-6,197.03(3) 3 NEB.REV.STAT. 60-6,197.03(4) 4 NEB.REV.STAT. 60-6,197.03(7) 5 NEB.REV.STAT. 60-6,197.03(9) 6 The penalty for Refusal of a Chemical Test is the same as the penalties for DUI NEB.REV.STAT NEB.REV.STAT. 60-6,198(1) 9 NEB.REV.STAT. 60-6,197.03(5) indicates that a DUI can be aggravated by two circumstances - an elevated BAC rate (.15 or greater) OR by a Refusal to Submit to a BAC Test. 10 NEB.REV.STAT. 60-6,197.03(2) 11 NEB.REV.STAT. 60-6,197.03(5) 12 NEB.REV.STAT. 60-6,197.03(6) 13 NEB.REV.STAT. 60-6,197.03(8) 14 NEB.REV.STAT. 60-6,197.03(10) 15 The penalties for DUI with Refusal where there are prior convictions are the same as those for DUI.15 with priors. NEB.REV. STAT. 60-6,197(3). 16 NEB.REV.STAT. 60-6,211.11(1)(a) 17 NEB.REV.STAT. 60-6,211.11(2) 18 NEB.REV.STAT. 60-6,211.11(1)(b) 19 NEB.REV.STAT. 60-6,211.11(2) 20 NEB.REV.STAT. 60-6,211.11(3) 21 NEB.REV.STAT. 60-4,108 (2) 22 NEB.REV.STAT. 60-4, NEB.REV.STAT. 60-4,108 (1)(a) 24 NEB.REV.STAT. 60-4,108 (1)(b) 25 NEB.REV.STAT. 60-4,108 (1)(c) 26 NEB.REV.STAT. 60-6, (1) 27 NEB.REV.STAT. 60-6, (2) 28 NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6,213 & NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6,214 & NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6, NEB.REV.STAT (4) 36 Prior must have occurred within 12 year period. NEB.REV.STAT (4) 37 NEB.REV.STAT NEB.REV.STAT NEB.REV.STAT. 60-6, NEB.REV.STAT. 60-6, NEB.REV.STAT (2) 42 NEB.REV.STAT (3)(a)(i) 43 NEB.REV.STAT (3)(a)(ii) 44 NEB.REV.STAT (3)(a)(iii) 45 NEB.REV.STAT NEB.REV.STAT. 60, NEB.REV.STAT. 60-3, NEB.REV.STAT and NEB.REV.STAT NEB.REV.STAT NEB.REV.STAT. 60-4, NEB.REV.STAT. 60-6,179.01(5)(a) 52 NEB.REV.STAT. 60-6,179.01(5)(b) 53 NEB.REV.STAT. 60-6,179.01(5)(c) UPDATED AS OF: JULY 1, 2017 Page 7

8 Probationary Sentences for DUI Offenses Probationary Sentences for DUI (.08) DUI.08 or Refusal 1 W a $500 fine, and 60 day revocation. - 1 prior 2 W 10 days jail or NLT 240 hours a $500 fine, and 18 month revocation. of community service, - 2 priors 3 W 30 days jail, a $1,000 fine, and 2 15 year revocation. - 3 priors 4 FIIIA 90 days jail, a $2,000 fine, a 15 year revocation and 90 days continuous alcohol monitoring device & abstentation from alcohol. - 4 priors 5 FIIA 180 days jail, a $2,000 fine, a 15 year revocation and 180 days continuous alcohol monitoring device & abstentation from alcohol. Probationary Sentences for Aggravated DUI (.15 or DUI with Refusal) DUI.15 6 W 2 days jail or NLT 120 hours of a $500 fine, and 1 year revocation. community service, - 1 prior 7 MI 30 days jail, a $1,000 fine, and 18 month 15 year revocation. - 2 priors 8 FIIIA 60 days jail, a $1,000 fine, 5 15 year revocation and 60 days continuous alcohol monitoring device & abstentation from alcohol. - 3 priors 9 FIIA 120 days jail, a $2,000 fine, 15 year revocation and 120 days continuous alcohol monitoring device & abstentation from alcohol. - 4 or more priors 10 FII 180 days jail, a $2,000 fine, 15 year revocation and 180 days continuous alcohol monitoring device & abstentation from alcohol. 1 Neb. Rev. Stat. 60-6,197.03(1) 2 Neb. Rev. Stat. 60-6,197.03(3) 3 Neb. Rev. Stat. 60-6,197.03(4) 4 Neb. Rev. Stat. 60-6,197.03(7) 5 Neb. Rev. Stat. 60-6,197.03(9) 6 Neb. Rev. Stat. 60-6,197.03(2) 7 Neb. Rev. Stat. 60-6,197.03(5) 8 Neb. Rev. Stat. 60-6,197.03(6) 9 Neb. Rev. Stat. 60-6,197.03(8) 10 Neb. Rev. Stat. 60-6,197.03(10) UPDATED AS OF: JULY 1, 2017 Page 8

9 Common City Ordinance Violations (Lincoln, NE) Title Ordinance Possible Penalties 1 Penalty Ordinance Assault $200 $500 and/or up to 6 months Consume Alcohol on Public Property $0 $ nd Offense $0 $500 and/or up to 6 months Consumption Inside Vehicles $0 $ Destruction of Property $250 $500 and/or up to 6 months Discharging Weapons (Non-firearm) $250 $500 and/or up to 6 months Disturbing the Peace $150 $500 and/or up to 3 months Failure to Appear $0 $500 and/or up to 6 months Failure to Comply $0 $500 and/or up to 6 months Failure to Disperse $200 $500 and/or up to 6 months False Statement $150 $500 and/or up to 6 months Inmate of Disorderly House - 2nd Offense 3-3rd or Subs. Offense $250 $500 $350 $500 $400 $500 and/or up to 6 months and/or up to 6 months and 3 days 6 months Interfering w/officer Making Arrest $250 $500 and/or up to 6 months Maintaining Disorderly House - 2nd Offense $250 $500 $350 $500 and/or up to 6 months and/or up to 6 months rd or Subs. Offense $400 $500 and 3 days 6 months Minor Attempt to Purchase (a) $0 $500 and/or up to 3 months Minor Misrepresenting Age (b) $0 $500 and/or up to 3 months MIP (if <18 years old, additional possible $0 $500 and/or up to 3 months penalties apply) 5 Open Container in Vehicle $0 $ (c) Panhandling $0 $500 and/or up to 6 months Poss of MJ 7 (if <18 years old, additional penalties apply) 8-2nd Offense 9-3rd or Subs. Offense $300 and possible class $400 and up to 5 days $50 and 1 7 days Poss of Drug Para $0 $ nd Offense 11 $100 $ (b)(2) - 3rd or Subs. Offense $200 $ (b)(3) Prostitution $0 $ Public Indecency/Indecent Exposure $200 $500 and/or up to 6 months Public Nudity $0 $500 and/or up to 6 months Resisting Arrest $250 $500 and/or up to 6 months Spitting (On Another, On Sidewalk) Theft 13 (Larceny, Receiving Stolen Goods, Shoplift, Theft of Services) Toxic Compounds (Unlawful Use, Possession, Sale) $0 $500 and/or up to 6 months $0 $500 and/or up to 6 months $0 $500 and/or up to 3 months Trespass $0 $500 and/or up to 6 months Unlawful Sale to Pawnbroker $0 $500 and/or up to 6 months Urinating/Defecating in Public $100 $500 and/or up to 6 months UPDATED AS OF: JULY 1, 2017 Page 9

10 Common City Ordinance Violations (Lincoln, NE) 1 Unless otherwise indicated, city ordinance violations are classified as misdemeanors with possible penalties of a $0 - $500 fine and/or up to 6 months incarceration ( ). 2 Consuming Alcohol in Vehicle on Public Street or Parking Area is an infraction. 3 To be used for enhancement, prior convictions for Inmate of a Disorderly House must have occurred in the ten years prior to the date of the current conviction. 4 To be used for enhancement, prior convictions for Maintaining a Disorderly House must have occurred in the ten years prior to the date of the current conviction. 5 For defendant s 18 years of age and below, there are additional possible penalties. In addition to the regular penalties: 1st offense judge may impound defendant s license (or prevent defendant from obtaining one) for 30 days AND require defendant to attend alcohol education class. 2nd offense judge may impound defendant s license (or prevent defendant from obtaining one) for 90 days, hours of community service AND require defendant to attend alcohol education class. 3rd offense judge may impound defendant s license (or prevent defendant from obtaining one) for 12 months, no less than 60 hours of community service, require defendant to attend alcohol education class AND undergo alcohol assessment. 6 Open Alcohol Container in Motor Vehicle is an infraction. 7 First offense is an infraction, while subsequent offenses are city misdemeanors. 8 For defendant s 18 years of age and below, there are additional possible penalties that mirror MIP penalties. 1st offense judge may impound defendant s license (or prevent defendant from obtaining one) for 30 days AND require defendant to attend drug education class. 2nd offense judge may impound defendant s license (or prevent defendant from obtaining one) for 90 days, hours of community service AND require defendant to attend drug education class. 3rd offense judge may impound defendant s license (or prevent defendant from obtaining one) for 12 months, no less than 60 hours of community service, require defendant to attend drug education class AND undergo drug assessment. 9 Essentially identical to the state statute, there is no express limitation on the age of prior convictions for enhancement purposes. That said, the city ordinance MJ provision only came into existence on December 4, Possession of Drug Paraphernalia is an infraction, regardless of whether it is charged as a first, second or third or subsequent offense. 11 To be used for enhancement, prior convictions for Possession of Drug Paraphernalia must have occurred within a two year period of the current offense. 12 Interestingly, this is a misdemeanor offense, though the maximum penalty is a $100 fine. 13 With the exception of Shoplifting, the respective theft ordinances limit the value of stolen items to less than $300. Shoplifting has no such limitation contained within the ordinance. UPDATED AS OF: JULY 1, 2017 Page 10

11 Failure to Appear Hearing Where FTA Occurs Initial Arraignment Other Court Hearing Offense Add FTA Charge? Applicable Statute Level of Offense for FTA Charge Any felony Any misdemeanor, city misdemeanor or infraction. Any felony MI, MII or city misdemeanor Yes, but generally don t use informal method of interlineation. Neb. Rev. Stat FIV Yes Neb. Rev. Stat MIII Yes, but generally don t use informal method of interlineation. Neb. Rev. Stat FIV Yes Neb. Rev. Stat MII MIII or below No N/A N/A Statutory Language Neb. Rev. Stat (MIII)... did fail to appear or otherwise comply with the command of a citation... Neb. Rev. Stat (FIV or MII depending on underlying offense)... did, being released from custody under bail or recognizance or conditioned release, willfully fail to appear before the court granting such release when legally required to surrender himself or within three days thereafter. UPDATED AS OF: JULY 1, 2017 Page 11

12 Thank You I d like to acknowledge the invaluable assistance of innumerable research assistants and several friends and colleagues in compiling these sheets. Rob Caples of the Lincoln City Attorney s Office helped with the Lincoln City Ordinance Violations, Chris Turner, Dan Zieg and Nick Freeman of the Lancaster County Attorneys Office helped with the ever-changing and (in my view at least) complicated traffic penalties. The correct penalties are theirs any errors are mine. Thank you all. - Professor Steven J. Schmidt Additional copies of these penalty sheets can be ordered online through the Nebraska State Bar Association Store.