28-302.
Homicide; terms, defined.
As used in sections 28-302 to 28-306, unless the context otherwise requires:
(1) Homicide shall mean the killing of a person by another;
(2) Person, when referring to the victim of a homicide, shall mean a human being who had been born and was alive at the time of the homicidal act; and
(3) Premeditation shall mean a design formed to do something before it is done.
Source:Laws 1977, LB 38, § 17.
Annotations
- Pursuant to subsection (3) of this section, evidence of premeditation is sufficient to uphold conviction for first degree murder when it demonstrates that the defendant told others that he wanted to "go finish (the victim) off", that the defendant broke off a knife attack on the victim to evade detection by a passing car, and that the defendant resumed the knife attack once the car had passed and the defendant heard the victim making noises which indicated that the victim was still alive. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
28-303.
Murder in the first degree; penalty.
A person commits murder in the first degree if he or she kills another person (1) purposely and with deliberate and premeditated malice, or (2) in the perpetration of or attempt to perpetrate any sexual assault in the first degree, arson, robbery, kidnapping, hijacking of any public or private means of transportation, or burglary, or (3) by administering poison or causing the same to be done; or if by willful and corrupt perjury or subornation of the same he or she purposely procures the conviction and execution of any innocent person. The determination of whether murder in the first degree shall be punished as a Class I or Class IA felony shall be made pursuant to sections 29-2519 to 29-2524.
Source:Laws 1977, LB 38, § 18; Laws 2002, Third Spec. Sess., LB 1, § 3; Laws 2015, LB268, § 9; Referendum 2016, No. 426.
Note: The changes made to section 28-303 by Laws 2015, LB 268, section 9, have been omitted because of the vote on the referendum at the November 2016 general election.
Annotations
1. Felony murder
2. Jury
3. Lesser-included offense
4. Malice
5. Requisite mental state
6. Miscellaneous
1. Felony murder
- The crime of first degree murder constitutes one offense even though there may be alternate theories by which criminal liability for first degree murder may be charged and prosecuted in Nebraska. State v. White, 254 Neb. 566, 577 N.W.2d 741 (1998).
- One may commit first degree murder either by committing premeditated murder or by killing another person while in the commission of certain felonies. A defendant need not be charged and convicted of an underlying felony in order to be convicted of first degree murder pursuant to subsection (2) of this section. State v. White, 239 Neb. 554, 477 N.W.2d 24 (1991).
- A specific intent to kill is not required for felony murder, but only the intent to do a felonious act which causes a victim's death. State v. Dixon, 237 Neb. 630, 467 N.W.2d 397 (1991).
- The felony murder statute does not violate the Eighth Amendment to the U.S. Constitution. State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986).
- A victim's fatal heart attack, proximately caused by a defendant's felonious conduct toward that victim, establishes the causal connection between felonious conduct and homicide necessary to permit a conviction for felony murder. State v. Dixon, 222 Neb. 787, 387 N.W.2d 682 (1986).
- Proof of intent to kill is not an element of crime of felony murder. Statement in State v. Kauffman, 183 Neb. 817, 164 N.W.2d 469 (1969), that "purpose to kill is conclusively presumed from the criminal intention required for robbery" is disapproved. State v. Bradley, 210 Neb. 882, 317 N.W.2d 99 (1982).
2. Jury
- A jury needs to be unanimous only in its finding that the defendant committed first degree murder and not as to the theory which brought it to that verdict. State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997).
- In a first degree murder case, the jury need only be unanimous as to its verdict that defendant committed first degree murder, and not as to the theory which brought them to that verdict. State v. Buckman, 237 Neb. 936, 468 N.W.2d 589 (1991).
3. Lesser-included offense
- Second degree murder and manslaughter are not lesser-included offenses of the felonies set out in this section, so no instruction to the jury on them is ordinarily required. State v. Hubbard, 211 Neb. 531, 319 N.W.2d 116 (1982).
4. Malice
- Evidence that a defendant deliberately sought out the murder victim with the purpose of killing him was a sufficient basis for a reasonable trier of fact to find beyond a reasonable doubt that the defendant killed the victim purposely and with deliberate and premeditated malice. State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014).
- Deliberate means not suddenly, not rashly, and requires that the defendant considered the probable consequences of his or her act before doing the act. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
- No particular length of time for premeditation is required, provided that the intent to kill is formed before the act is committed and not simultaneously with the act that caused the death. The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous, and the design or purpose to kill may be formed upon premeditation and deliberation at any moment before the homicide is committed. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
- The term "premeditated" means to have formed a design to commit an act before it is done. One kills with premeditated malice if, before the act causing the death occurs, one has formed the intent or determined to kill the victim without legal justification. State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
- Evidence of premeditated malice is sufficient to uphold conviction for first degree murder when it demonstrates that the defendant told others that he wanted to "go finish (the victim) off", that the defendant stopped a knife attack on the victim to evade detection by a passing car, and that the defendant resumed the knife attack once the car had passed and the defendant heard the victim making noises indicating that the victim was still alive. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
- In order to be guilty of first degree murder, one must have killed purposely and with deliberate and premeditated malice. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).
5. Requisite mental state
- A question of premeditation is for the jury to decide. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
- Nothing in this section or in the Nebraska Supreme Court's interpretation of this section requires that a defendant must rationally consider the probable consequences of his or her actions or rationally determine to kill the victim without legal justification. State v. Harms, 263 Neb. 814, 643 N.W.2d 359 (2002).
- In order to prove the requisite mental state, the state is required to show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause and which is defined as any willful or corrupt intention of the mind. State v. Krimmel, 216 Neb. 825, 346 N.W.2d 396 (1984).
- To prove the requisite mental state for first degree murder, the state must show a condition of the mind which was manifested by intentionally doing a wrongful act without just cause or excuse and which is defined as any willful or corrupt intention of the mind. State v. Lamb, 213 Neb. 498, 330 N.W.2d 462 (1983).
6. Miscellaneous
- Under subdivision (1) of this section, the three elements which the State must prove beyond a reasonable doubt to obtain a conviction for first degree murder are as follows: The defendant (1) killed another person, (2) did so purposely, and (3) did so with deliberate and premeditated malice. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018).
- The absence of a sudden quarrel is not an element of the crime of murder in the first degree. State v. Morgan, 286 Neb. 556, 837 N.W.2d 543 (2013).
- An alleged aider or abettor can be held criminally liable as a principal if it is shown that the aider and abettor knew that the perpetrator of the act possessed the required intent or that the aider and abettor himself or herself possessed such intent. In the context of felony murder, the required intent is the intent to commit the underlying felony rather than the intent to kill. State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
- A defendant who aids and abets a first degree murder by having a conversation with another individual regarding who is going to kill the particular victim, supplying the other individual with the murder weapon, unlawfully breaking and entering the victim's residence for the purpose of killing the victim, and hitting someone in the victim's residence with a piece of wood can be prosecuted and punished as if he or she was the principal offender. State v. Larsen, 255 Neb. 532, 586 N.W.2d 641 (1998).
- The statutory elements of attempted first degree murder are a substantial step in a course of conduct intended to culminate in the commission of a purposeful, malicious, premeditated killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).
28-304.
Murder in the second degree; penalty.
(1) A person commits murder in the second degree if he causes the death of a person intentionally, but without premeditation.
(2) Murder in the second degree is a Class IB felony.
Source:Laws 1977, LB 38, § 19.
Annotations
1. Elements
2. Lesser-included offense
3. Malice
4. Plea bargains
5. Requisite mental state
6. Sentencing
7. Miscellaneous
1. Elements
- Evidence was held to be sufficient to support a conviction for murder in the second degree when an unprovoked defendant shot the victim in the back of the head as the victim was leaving the confrontation. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
- Malice is not a necessary element of second degree murder; however, a finding of malice is not necessarily prejudicial to the defendant because it places a greater burden on the State regarding intent. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
- A person commits second degree murder if he causes the death of a person intentionally, but without premeditation. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
- Malice is not a necessary element of second degree murder under this section. The interpretation of this section that malice is not a necessary element of second degree murder may be applied retroactively. State v. Redmond, 262 Neb. 411, 631 N.W.2d 501 (2001).
- The statutory elements of attempted second degree murder are a substantial step in a course of conduct intended to culminate in the commission of an intentional killing of another person. State v. Al-Zubaidy, 253 Neb. 357, 570 N.W.2d 713 (1997).
- Without the element of malice or mens rea, this section would be of doubtful validity and perhaps unconstitutional. Malice is a necessary element of second degree murder. Applying rules of proper statutory construction, this section, though silent as to the longstanding material element of malice, must be read to include malice as an element of second degree murder in order to preserve a defendant's right to his or her presumption of innocence. State v. Ryan, 249 Neb. 218, 543 N.W.2d 128 (1996).
- Malice is an essential element of murder in the second degree. State v. Dean, 246 Neb. 869, 523 N.W.2d 861 (1994).
- An information which alleges that defendant committed second degree murder but does not allege that the act was committed with "malice" fails to allege an essential element of the crime. State v. Manzer, 246 Neb. 536, 519 N.W.2d 558 (1994).
- Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).
- In order to support a conviction of second degree murder, the defendant must intend to kill; the prosecution must prove, beyond a reasonable doubt, that the defendant caused the victim's death intentionally. State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992).
- In order to convict a person of second degree murder, the State is required to prove all three elements—death, intent to kill, and causation—beyond a reasonable doubt; none of the elements are presumed upon proof of the others, nor is any element presumed in the absence of proof by defendant of the converse of that element. Evidence of provocation by one other than the person whom defendant killed or attempted to kill cannot serve to mitigate an intentional killing from second degree murder to manslaughter. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).
- The essential elements of second degree murder are that the murder must be done purposely and maliciously. State v. Dean, 237 Neb. 65, 464 N.W.2d 782 (1991).
2. Lesser-included offense
- Second degree murder is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
3. Malice
- Malice is an element of second degree murder. State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994).
- Malice, in the context of this provision, has been said to denote that condition of mind which is manifested by the intentional doing of a wrongful act without just cause or excuse and to be any willful or corrupt intention of the mind. State v. Moniz, 224 Neb. 198, 397 N.W.2d 37 (1986).
4. Plea bargains
- Although no authority was cited that a plea bargain must be supported by a concession on the part of the State, altering of charge from first degree murder to second degree murder was a substantial concession because it removed the possibility of the death sentence. State v. Suffredini, 224 Neb. 220, 397 N.W.2d 51 (1986).
5. Requisite mental state
- The state of mind required for second degree murder may be inferred from the evidence of the criminal act. State v. Williams, 226 Neb. 647, 413 N.W.2d 907 (1987).
- The state of mind required for second degree murder may be inferred from the circumstantial evidence of the criminal act. State v. Rowe, 214 Neb. 685, 335 N.W.2d 309 (1983).
6. Sentencing
- A sentence of life imprisonment on a second degree murder conviction and 10 years' imprisonment for a conviction of use of a weapon to commit a felony, with the sentences to run consecutively, were not excessive. State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
- The trial court did not abuse its discretion in sentencing the defendant to two consecutive life sentences on two counts of second degree murder, which sentences were within the statutory limits, when the record showed that despite being 17 years old at the time of the murders, the defendant admitted to shooting one victim in the head while he was struggling with her codefendant over a shotgun and was callous about her role 5 days after the murders. State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
- Pursuant to subsection (2) of this section, a sentence of imprisonment for a term of 60 years to life for second degree murder is not excessive in the absence of an abuse of judicial discretion. State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
- Under the provisions of section 28-105 and subsection (2) of this statute, a court is not authorized to sentence one convicted of second degree murder to an indeterminate sentence, but must sentence such a person to imprisonment either for life or for a definite term of not less than 10 years. State v. Ward, 226 Neb. 809, 415 N.W.2d 151 (1987).
- A fifteen-year sentence was not excessive, in view of the seriousness of the crime, even though the defendant was a fifty-eight-year-old man with no previous criminal record, who was apparently provoked by the excessive demands of the victim, and who expressed remorse about committing the crime. State v. Kelly, 207 Neb. 295, 298 N.W.2d 370 (1980).
- Where state Supreme Court interpreted 16- to 20-year sentence for second degree murder as definite 20-year term with a statutory 10-year minimum, defendant not prejudiced. Rouse v. Foster, 672 F.2d 649 (8th Cir. 1982).
7. Miscellaneous
- Multiple convictions for second degree murder and child abuse resulting in death do not violate the Double Jeopardy Clauses of the state or federal Constitution. State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
28-305.
Manslaughter; penalty.
(1) A person commits manslaughter if he or she kills another without malice upon a sudden quarrel or causes the death of another unintentionally while in the commission of an unlawful act.
(2) Manslaughter is a Class IIA felony.
Source:Laws 1977, LB 38, § 20; Laws 2015, LB605, § 10.
Annotations
1. Involuntary manslaughter
2. Lesser-included offense
3. Malice
4. Motor vehicle homicide
5. Requisite mental state
6. Unlawful acts
7. Voluntary manslaughter
8. Miscellaneous
1. Involuntary manslaughter
- Subsection (1) of this section establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
- Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).
2. Lesser-included offense
- First degree assault and attempted voluntary manslaughter are two distinct offenses. First degree assault requires serious bodily injury to occur, and attempted voluntary manslaughter does not require any injury to occur. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).
- Manslaughter is not a lesser-included offense of the charge of felony murder. State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
- Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).
3. Malice
- One who has killed without malice upon a sudden quarrel is guilty not of first degree murder but of manslaughter. It is not the assault or provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce the crime below murder. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer. The question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).
4. Motor vehicle homicide
- The State has prosecutorial discretion to charge a person for either manslaughter or motor vehicle homicide as the result of an unintentional death arising from an unlawful act during the operation of a motor vehicle where the defendant's conduct constitutes both offenses; but if the State chooses to pursue charges for manslaughter, it must show mens rea. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
- Traffic infractions are public welfare offenses which do not require a showing of mens rea and, therefore, are insufficient by themselves to support a conviction for "unlawful act" manslaughter or "involuntary" manslaughter. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
- Motor vehicle homicide is not a lesser-included offense of manslaughter under current statutes. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).
- One who is convicted of manslaughter under this section for a killing involving the use of a motor vehicle must be sentenced in accordance with this section rather than section 28-306, the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).
- Manslaughter can be committed when someone causes the death of another unintentionally while operating a motor vehicle in violation of the law. The penalty for manslaughter resulting from the operation of a motor vehicle is specified in section 39-669.20. State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986).
5. Requisite mental state
- Because this section is a codification of the common-law crime of involuntary manslaughter, the State must show all elements of that common-law crime to convict under that section, unless the Legislature expressly dispensed with any such element. Because the Legislature did not specifically exclude mens rea from the language of the offense, the State must show mens rea to sustain a conviction. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
- To convict a defendant of "unlawful act" manslaughter or "involuntary" manslaughter, the State must show that the defendant acted with more than ordinary negligence in committing the predicate unlawful act. State v. Carman, 292 Neb. 207, 872 N.W.2d 559 (2015).
- There is no requirement of an intention to kill in committing manslaughter. State v. Blackson, 245 Neb. 833, 515 N.W.2d 773 (1994).
- State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989), holding that manslaughter is an intentional killing of another, is overruled. State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
- One who has killed without malice upon a sudden quarrel is guilty not of first degree murder but of manslaughter. It is not the assault or provocation alone that reduces the grade of the crime, but, rather, the sudden happening or occurrence of the provocation so as to render the mind incapable of reflection and obscure the reason so that the elements of malice and deliberation necessary to constitute murder are absent. If one had enough time between the provocation and the killing to reflect on one's intended course of action, then the mere presence of passion does not reduce the crime below murder. Whether a killing constitutes manslaughter or murder in the first degree depends upon the state of mind of the killer. The question is whether, under all the facts and circumstances, a reasonable time had elapsed from the time of the provocation to the instant of the killing for the passion to subside and for reason to resume control of the mind. State v. Lyle, 245 Neb. 354, 513 N.W.2d 293 (1994).
- The test for determining whether there existed adequate provocation so as to mitigate an intentional killing from murder to manslaughter is an objective one; qualities peculiar to defendant which render him particularly excitable, including intoxication, are not considered. State v. Cave, 240 Neb. 783, 484 N.W.2d 458 (1992).
6. Unlawful acts
- Whether physical act committed by person responsible for care and supervision of minor is justifiable act or unlawful assault is fact question. State v. Miner, 216 Neb. 309, 343 N.W.2d 899 (1984).
7. Voluntary manslaughter
- An intentional killing committed without malice upon a "sudden quarrel," as that term is defined by our jurisprudence, constitutes the offense of manslaughter. State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).
- Under subsection (1) of this section, the phrase "sudden quarrel" is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Morrow, 237 Neb. 653, 467 N.W.2d 63 (1991).
- "Accident" is not a defense to the crime of voluntary manslaughter under subsection (1) of this section, but does relate to intent to kill, which is an element of the crime of manslaughter committed "upon a sudden quarrel." State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
- As used in subsection (1) of this section, the phrase "sudden quarrel" does not necessarily mean an exchange of angry words or an altercation contemporaneous with the unlawful killing and does not require a physical struggle or other combative corporal contact between the defendant and the victim; a sudden quarrel is a legally recognized and sufficient provocation which causes a reasonable person to lose normal self-control. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
- Subsection (1) of this section establishes and distinguishes the two categories of manslaughter: an unlawful killing, without malice, "upon a sudden quarrel," which may be characterized as voluntary manslaughter, and an unlawful but unintentional killing, without malice, as the result of the defendant's commission of an unlawful act, which may be characterized as involuntary manslaughter. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
- To sustain a conviction for voluntary manslaughter under subsection (1) of this section, that is, a conviction for killing another, without malice, "upon a sudden quarrel," the State, by evidence beyond a reasonable doubt, must prove that the defendant intended to kill, and did kill, another. State v. Pettit, 233 Neb. 436, 445 N.W.2d 890 (1989).
- When it is claimed that a killing was upon a sudden quarrel, there are three elements of the crime of manslaughter: the killing of another, upon a sudden quarrel, and without malice. State v. Batiste, 231 Neb. 481, 437 N.W.2d 125 (1989).
- The pointing of a gun at another is a reckless act within the contemplation of section 28-310, and as such is an unlawful act, sufficient, should the gun discharge, to support a manslaughter conviction under subsection (1) of this section. State v. Bachkora, 229 Neb. 421, 427 N.W.2d 71 (1988).
- Manslaughter is a killing done upon a sudden quarrel, a legally recognized and sufficient provocation, which causes a reasonable person to lose normal self-control. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).
- Involuntary manslaughter is not a lesser-included offense of voluntary manslaughter. Involuntary manslaughter is killing without intent and without provocation, while committing an unlawful act. Voluntary manslaughter is killing with intent and with provocation (upon a sudden quarrel), regardless of whether the killing occurs in the course of an unlawful act. State v. Joseph, 1 Neb. App. 525, 499 N.W.2d 858 (1993).
8. Miscellaneous
- Admission of evidence of blood test results in a criminal prosecution for manslaughter under this section is not authorized under section 60-6,210. State v. Brouillette, 265 Neb. 214, 655 N.W.2d 876 (2003).
- An intentional killing can be manslaughter, if it results from a sudden quarrel. Thus, attempted sudden quarrel manslaughter can be considered a crime. State v. Smith, 19 Neb. App. 708, 811 N.W.2d 720 (2012).
- The analysis of provocation which mitigates an intentional killing logically applies to assault cases as well, given that the core difference between the two crimes is generally whether the victim lives or dies. State v. Butler, 10 Neb. App. 537, 634 N.W.2d 46 (2001).
- Attempted manslaughter held not to exist under this section, given that a defendant cannot intentionally perform an act toward the commission of an unintentional crime. State v. George, 3 Neb. App. 354, 527 N.W.2d 638 (1995).
28-306.
Motor vehicle homicide; penalty.
(1) A person who causes the death of another unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide.
(2) Except as provided in subsection (3) of this section, motor vehicle homicide is a Class I misdemeanor.
(3)(a) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,213 or 60-6,214, motor vehicle homicide is a Class IIIA felony.
(b) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class IIA felony. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least one year and not more than fifteen years and shall order that the operator's license of such person be revoked for the same period.
(c) If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide is a Class II felony if the defendant has a prior conviction for a violation of section 60-6,196 or 60-6,197.06, under a city or village ordinance enacted in conformance with section 60-6,196, or under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the defendant was convicted would have been a violation of section 60-6,196. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of fifteen years and shall order that the operator's license of such person be revoked for the same period.
(d) An order of the court described in subdivision (b) or (c) of this subsection shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
(4) The crime punishable under this section shall be treated as a separate and distinct offense from any other offense arising out of acts alleged to have been committed while the person was in violation of this section.
Source:Laws 1977, LB 38, § 21; Laws 1979, LB 1, § 1; Laws 1992, LB 291, § 2; Laws 1993, LB 370, § 9; Laws 1993, LB 575, § 3; Laws 1997, LB 364, § 3; Laws 2001, LB 38, § 1; Laws 2004, LB 208, § 1; Laws 2006, LB 925, § 1; Laws 2011, LB667, § 3; Laws 2015, LB605, § 11.
Cross References
-
Operator's license, assessment of points and revocation, see sections 60-496 to 60-497.01, 60-498 to 60-498.04, 60-499, and 60-4,182 et seq.
Annotations
- Just as in the context of habitual criminal and driving under the influence sentence enhancements, evidence of a prior conviction must be introduced in order to enhance a sentence for motor vehicle homicide. State v. Valdez, 305 Neb. 441, 940 N.W.2d 840 (2020).
- Misdemeanor motor vehicle homicide is a public welfare offense which does not require proof of mens rea. State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).
- Motor vehicle homicide is not a lesser-included offense of manslaughter under current statutes. State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001).
- One who is convicted of manslaughter under section 28-305 for a killing involving the use of a motor vehicle must be sentenced in accordance with that section rather than this section, the motor vehicle homicide statute. State v. Burnett, 254 Neb. 771, 579 N.W.2d 513 (1998).
- In order to convict a defendant of felony motor vehicle homicide under this section, the State must prove the defendant's driving in violation of section 39-669.07 proximately caused the death of another. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989) (pursuant to Laws 1993, LB 370, section 293, language from section 39-669.07 was placed in section 60-6,196).
- In order to convict a defendant under this section, the State must prove that the accused's intoxication was the proximate cause of the accident and resulting death. State v. Ring, 233 Neb. 720, 447 N.W.2d 908 (1989) (pursuant to Laws 1993, LB 370, section 293, language from section 39-669.07 was placed in section 60-6,196).
- Motor vehicle homicide is a lesser-included offense of manslaughter. State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986).
- A conviction for motor vehicle homicide by reckless/willful reckless driving does not give the sentencing court any authority to order a driver's license revocation. State v. Andersen, 16 Neb. App. 651, 748 N.W.2d 124 (2008).