60-6,197.06. Operating motor vehicle during revocation period; penalties.

(1) Unless otherwise provided by law pursuant to an ignition interlock permit, any person operating a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to section 28-306, section 60-698, subdivision (4), (5), (6), (7), (8), (9), or (10) of section 60-6,197.03, or section 60-6,198, or pursuant to subdivision (2)(c) or (2)(d) of section 60-6,196 or subdivision (4)(c) or (4)(d) of section 60-6,197 as such subdivisions existed prior to July 16, 2004, shall be guilty of a Class IV felony, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

(2) If such person has had a conviction under this section or under subsection (6) of section 60-6,196 or subsection (7) of section 60-6,197, as such subsections existed prior to July 16, 2004, and operates a motor vehicle on the highways or streets of this state while his or her operator's license has been revoked pursuant to such conviction, such person shall be guilty of a Class IIA felony, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for an additional period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.

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Annotations

1. Constitutionality

2. Offense

3. Testing/sufficiency of the evidence

4. Enhancement

5. Miscellaneous

1. Constitutionality

A subsequent prosecution of driving while the operator's license was revoked, after defendant had already been convicted of willful reckless driving and operating a motor vehicle while intoxicated, did not violate the double jeopardy clause, because the State did not prove the entire conduct for which defendant had already been convicted. Willful reckless driving and operating a motor vehicle while intoxicated are not lesser-included offenses of operating a motor vehicle while the operator's license was revoked, and a subsequent conviction of driving while the operator's license is revoked would not violate the Blockburger test. State v. Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991).

2. Offense

An ignition-interlock permitholder who drives a vehicle not equipped with an ignition interlock device may not be charged under this section and must be charged under section 60-6,211.05(5). State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).

Starting a vehicle is an act within the meaning of "operating" a motor vehicle under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).

Subsection (3) of former section 60-524 does not terminate a court-ordered suspension required as part of a criminal conviction under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).

In a prosecution under this section (formerly subsection (6) of section 60-6,196) for driving when one's operator's license has been revoked pursuant to subdivision (2)(c) of this section, proof of the prior conviction under subdivision (2)(c) is an essential element of the offense, and thus, the State has the burden to prove the prior conviction. A prior third-offense drunk driving conviction may be used as an element of a violation under this section (formerly subsection (6) of section 60-6,196) even though the prior conviction is not subject to a collateral attack. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).

3. Testing/sufficiency of the evidence

A certified copy from the Department of Motor Vehicles which shows that a defendant's operator's license was revoked is insufficient to show that the defendant either had counsel or waived counsel at the time he was convicted of the prior offense and is therefore insufficient to support a conviction under this section (formerly subsection (6) of section 60-6,196). State v. Watkins, 4 Neb. App. 356, 543 N.W.2d 470 (1996).

4. Enhancement

A felony conviction for driving under a suspended license in violation of this section may not be used either to trigger application of the habitual criminal statute or as a prior offense for purposes of penalty enhancement pursuant thereto. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).

Pursuant to this section (formerly subsection (6) of section 60-6,196), the enhancement rules applicable to offenses committed under subsection (3) of section 60-6,197.03 (formerly section 60-6,196(2)(c)) are not applicable to license revocation offenses committed under this section. State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996).

5. Miscellaneous

This section does not constrain the trial court’s discretion to order when the mandatory 15-year license revocation shall begin. State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013).

A 15-year revocation must be part of any sentence for a conviction under this section, including a sentence of probation. State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008).

The revocation of an operator's license pursuant to section 60-6,196(2)(c) as it existed prior to July 16, 2004, includes a revocation made under a city or village ordinance enacted in conformance with section 60-6,196(2)(c). State v. Flores, 17 Neb. App. 532, 767 N.W.2d 512 (2009).