AGO 97049.

• Court: Nebraska

Nebraska Attorney General Opinions 1997. AGO 97049. DATE: September 17, 1997SUBJECT: Probationary Sentences for Fourth Offense DWI REQUESTED BY: Paul B. Schaub, Cheyenne County AttorneyWRITTEN BY: Don Stenberg, Attorney General Laurie Smith Camp, Deputy Attorney General You have asked whether a person convicted of driving while intoxicated, fourth or subsequent offense, may be sentenced to a term of probation. We conclude that offenders convicted of fourth offense DWI may not be sentenced to probation and must serve the mandatory minimum term of imprisonment. In 1986, the Nebraska Legislature enacted LB 153, amending Neb. Rev. Stat. § 29-2260(2) as follows: Whenever a court considers sentence for an offender of either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required, the court may withhold sentence of imprisonment.... LB 153 concerned DWI offenses. The bill amended Neb. Rev. Stat. § 28-106 to establish a mandatory minimum term of imprisonment for those convicted of first offense DWI. So, it is clear that the language which LB 153 added to § 29-2260 (that courts may not withhold a sentence of imprisonment when a mandatory minimum term is required) was intended by the Legislature to apply to convictions of Class W misdemeanors under § 28-106. Similar language was enacted by the Legislature in 1990, providing that a court may not withhold a sentence of imprisonment when a mandatory minimum term is required and sentence the offender to "intensive supervision probation." Neb. Rev. Stat. § 29-2262.03 (1995). The Legislature enacted mandatory minimum terms for second, third and fourth offense DWI in 1992 through LB 291, again amending § 28-106. It is recognized that Neb. Rev. Stat. § 28-105(4) (1995) provides: "A person convicted of a felony for which a mandatory minimum sentence is prescribed shall not be eligible for probation." Section 28-106 does not contain an identical provision relating to sentences for misdemeanors. However, the language in § 28-105 was added by the Legislature in 1995 through LB 371 which created mandatory minimum terms for certain felonies. We cannot conclude that by enacting LB 371 the Legislature in any way intended to negate the language of § 29-2260(2). It is also recognized that Neb. Rev. Stat. § 60-6,196 (1993) contains language to the...