Possession of a gambling device; penalty; exemption.
(1) A person commits the offense of possession of a gambling device if he or she manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing that it shall be used in the advancement of unlawful gambling activity.
(2) This section shall not apply to any coin-operated mechanical gaming device, computer gaming device, electronic gaming device, or video gaming device which has the capability of awarding free games, which is intended to be played and is in fact played for amusement only, and which may allow the player the right to replay such gaming device at no additional cost, which right to replay shall not be considered money or property, except that such mechanical game (a) can be discharged of accumulated free replays only by reactivating the game for one additional play for each accumulated free replay and (b) makes no permanent record directly or indirectly of free replays so awarded. Notwithstanding any other provisions of this section, any mechanical game or device classified by the federal government as an illegal gambling device and requiring a federal Gambling Device Tax Stamp as required by the Internal Revenue Service in its administration of 26 U.S.C. 4461 and 4462, amended July 1, 1965, by Public Law 89-44, are hereby declared to be illegal and excluded from the exemption granted in this section.
(3) Possession of a gambling device is a Class II misdemeanor.
Source:Laws 1977, LB 38, § 223; Laws 1978, LB 900, § 2; Laws 1979, LB 152, § 7; Laws 1987, LB 523, § 4.
Subsection (1) of this section is severable from the remaining invalid portion of the statute. Evidence that devices were seen in bars being played by patrons shows knowledge that defendant tavern owners knew the machines, with no purpose except as "gambling devices," were used in gambling activity and was sufficient to prove defendants violated subsection (1) of this section. Subsection (2) of this section is unconstitutional for being in contravention of the express provisions of Neb. Const. art. III, section 24, which defines "games of chance" and "prize." State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 473 N.W.2d 428 (1991).
Coin-operated electronic and video machines equipped with reset switches and meters permanently recording replays awarded are gambling devices within the meaning of this section. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).
A gambling device is one which is used or usable to bet something of value on the outcome of a future event, which outcome is determined by an element of chance, unless the device falls within one of the exceptions contained in section 28-1101(4). State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).
Free replay credits are a credit or promise involving extension of a service or entertainment and are thus something of value. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).
Statutes prohibiting possession or use of gambling devices and providing their forfeiture are a valid exercise of the State's power. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).
The definition of "gambling device" contained in section 28-1101(5), when taken in the context of this section, is not unconstitutionally overbroad. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).