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.

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Annotations

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).