60-6,197.08. Driving under influence of alcoholic liquor or drugs; presentence evaluation.

Any person who has been convicted of driving while intoxicated shall, during a presentence evaluation, submit to and participate in an alcohol assessment by a licensed alcohol and drug counselor. The alcohol assessment shall be paid for by the person convicted of driving while intoxicated. At the time of sentencing, the judge, having reviewed the assessment results, may then order the convicted person to follow through on the alcohol assessment results at the convicted person's expense in addition to any penalties deemed necessary.

Source

Annotations

1. Constitutionality

2. Miscellaneous

1. Constitutionality

The provision in this section (formerly subsection (8) of section 60-6,196) requiring the convicted person to pay the expense for the treatment which is a portion of the sentencing order is not intended to be a punishment and therefore provides for neither a fine nor a penalty and does not on its face violate the constitutional prohibitions against excessive fines under Neb. Const. art. I, section 9, or disproportionate penalties under Neb. Const. art. I, section 15. State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).

This section (formerly subsection (8) of section 60-6,196), which authorizes sentencing courts to impose alternative penalties for individuals convicted of certain driving under the influence offenses, when such individuals have undergone an alcohol assessment, does not violate the distribution of powers clause, Neb. Const. art. II, section 1. This section (formerly subsection (8) of section 60-6,196) is held to be harmonious with other sentencing provisions relating to driving under the influence offenses. State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999).

2. Miscellaneous

The purpose of this section (formerly subsection (8) of section 60-6,196) is to provide (1) an alcohol assessment to individuals who have not previously been assessed for alcohol abuse and (2) a tool for courts to review alcohol assessment results prior to sentencing in order to aid in an effective sentencing decision. In those cases where the county court orders an alcohol assessment pursuant to subsection (8) of this section, the court shall follow the mandated statutory procedure and order the convicted offender to participate in the alcohol assessment prior to sentencing. State v. Hansen, 259 Neb. 764, 612 N.W.2d 477 (2000).