State v. Dragoo

concerning Chrystal’s travel expenses. We find that the court
did not abuse its discretion in not considering Chrystal’s travel
expenses in setting child support.
For the reasons set forth herein, we find that the court did
not abuse its discretion in setting child support.
VI. CONCLUSION
We conclude that the trial court did not abuse its discretion
in refusing to award custody of Lauren, Summer, and Joseph
to Justin; in allowing Chrystal to relocate with the children
to Ohio; in determining visitation and allocating visitation
expenses; or in setting child support.
A ffirmed.
StAte of NebrASkA, Appellee , v.
douglAS e. drAgoo, AppellANt.
758 N.W.2d 60
Filed November 25, 2008. 	No. A-08-113.
1. Statutes. Matters of statutory construction present questions of law.
2. Judgments: Appeal and Error. On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the
court below.
3. Constitutional Law: Double Jeopardy. The Double Jeopardy Clause of the Fifth
Amendment to the U.S. Constitution protects against three distinct abuses: (1) a
second prosecution for the same offense after acquittal, (2) a second prosecu-
tion for the same offense after conviction, and (3) multiple punishments for the
same offense.
4. ____: ____. The protection provided by Nebraska’s double jeopardy clause is
coextensive with that provided by the U.S. Constitution.
5. Double Jeopardy. While the Double Jeopardy Clause may protect a defendant
against cumulative punishments for convictions on the same offense, the clause
does not prohibit the State from prosecuting a defendant for multiple offenses in
a single prosecution.
6. Criminal Law: Convictions: Statutes: Legislature: Intent. Whether multiple
convictions in a single trial lead to multiple punishments depends on whether
the Legislature, when designating the criminal statutory scheme, intended that
cumulative sentences be applied for conviction on such offenses.
7. Double Jeopardy: Legislature: Intent. When the Legislature has demonstrated
an intent to permit cumulative punishments, the Double Jeopardy Clause is
not violated as long as the court imposes the cumulative punishments in a
single proceeding.
STATe v. DrAgOO 	267
Cite as 17 Neb. App. 267
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

8. Double Jeopardy: Statutes: Proof. Under Blockburger v. United States, 284
U.S. 299, 52 S. Ct. 180, 76 L. ed. 306 (1932), where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or one is whether each provision
requires proof of a fact which the other does not.
9. Double Jeopardy. The Blockburger test from Blockburger v. United States, 284
U.S. 299, 52 S. Ct. 180, 76 L. ed. 306 (1932), applies equally to multiple punish-
ment and multiple prosecution cases.
10. ____. The Blockburger, or “same elements,” test from Blockburger v. United
States, 284 U.S. 299, 52 S. Ct. 180, 76 L. ed. 306 (1932), asks whether each
offense contains an element not contained in the other. If not, they are the
same offense and double jeopardy bars additional punishment and successive
prosecution.
11. Criminal Law: Drunk Driving: Blood, Breath, and Urine Tests. Allegations
of a defendant’s prior driving under the influence offenses and a blood alcohol
concentration of .15 of 1 gram or more by weight of alcohol per 100 milliliters
of his or her blood are sentencing enhancement provisions under Neb. rev. Stat.
§ 60-6,197.03 (Cum. Supp. 2006), and not elements of a driving under the influ-
ence offense.
12. Criminal Law: Drunk Driving: Proximate Cause. The material elements of
the crime of driving under the influence causing serious bodily injury are (1) the
defendant must have been operating a motor vehicle; (2) the defendant must have
been operating the vehicle in violation of Neb. rev. Stat. § 60-6,196 (reissue
2004) (driving under the influence); and (3) the defendant’s act of driving
under the influence, in violation of § 60-6,196, must proximately cause serious
bodily injury.
13. Constitutional Law: Double Jeopardy: Sentences. Consecutive sentences for
driving under the influence and driving under the influence causing serious bodily
injury are cumulative sentences for the same offense and constitute separate and
multiple punishments for the same offense, a denial of the protection against
double jeopardy, afforded by both the state and federal Constitutions.
14. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress evi-
dence, apart from determinations of reasonable suspicion to conduct investigatory
stops and probable cause to perform warrantless searches, is to be upheld on
appeal unless its findings of fact are clearly erroneous. In making this determina-
tion, an appellate court does not reweigh the evidence or resolve conflicts in the
evidence, but, rather, recognizes the trial court as the finder of fact and takes into
consideration that it observed the witnesses.
15. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
16. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the amount of violence involved in the commission of the crime.
268 	17 NebrASkA AppeLLATe repOrTS

17. ____. In considering a sentence to be imposed, the sentencing court is not limited
in its discretion to any mathematically applied set of factors.
18. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all facts and circumstances surrounding the crime and the defend-
ant’s life.
Appeal from the District Court for Antelope County: pAtrick
g. rogerS, Judge. Affirmed in part, and in part reversed and
remanded with directions to dismiss.
patrick p. Carney and Jonathan r. brandt, of Carney Law,
p.C., for appellant.
Jon bruning, Attorney general, and erin e. Leuenberger
for appellee.
irwiN, SieverS, and cArlSoN, Judges.
cArlSoN, Judge.
INTrODUCTION
pursuant to this court’s authority under Neb. Ct. r. App. p.
§ 2-111(b)(1), this case was ordered submitted without oral
argument. Douglas e. Dragoo appeals from his convictions and
sentences in the district court for Antelope County for count I,
driving under the influence of alcoholic liquor (DUI), fourth
offense (with a blood alcohol concentration of .15 of 1 gram
or more), and count II, DUI causing serious bodily injury.
based on the reasons that follow, we reverse the judgment of
conviction and sentence for count I and remand the matter to
the district court to dismiss count I. We affirm the judgment of
conviction and sentence for count II.
bACkgrOUND
On December 15, 2006, at approximately 10:20 p.m., Dragoo
was involved in a motor vehicle accident with another vehicle.
Just before the accident, Dragoo was driving his pickup truck
on 529 Avenue, a county road in Antelope County that runs
north and south. Dragoo was traveling north and was approach-
ing the intersection of 529 Avenue and U.S. Highway 275,
which runs east and west. There are stop signs at the intersec-
tion for traffic going north and south on 529 Avenue. Amanda
STATe v. DrAgOO 	269
Cite as 17 Neb. App. 267

Thies and kaylin plugge were traveling east on Highway 275
in Thies’ car. As they approached the intersection, they noticed
Dragoo’s truck coming from the south. Thies, who was driving,
testified that she could tell that the truck was not going to stop
at the stop sign before entering the intersection. Thies testified
that the truck pulled out into the intersection in front of her car
and that the two vehicles collided.
Deputy Michael Wright of the Antelope County sheriff’s
office was dispatched to the scene. When Wright arrived, he
walked over to the truck involved in the accident, which he
recognized as belonging to Dragoo. Wright made contact with
Dragoo, who was sitting in the driver’s seat. Dragoo’s girl-
friend was sitting next to him. Wright testified that Dragoo
had a large cut on the left side of his head, but stated he
did not want medical attention and just wanted to go home.
Wright also testified that he saw six unopened cans of beer
on the passenger floor of the truck. Wright testified that
Dragoo exited the vehicle and that while speaking to Dragoo,
Wright could smell the odor of alcoholic beverages coming
from Dragoo’s person. Wright also testified that Dragoo was
unsteady on his feet, could not stand still, and “staggered
around a little bit.” Wright testified that Dragoo’s speech was
slow and slurred.
Dragoo eventually agreed to get medical treatment, and he
was transported by ambulance to a hospital. Wright spoke to
Dragoo again at the hospital. Dragoo admitted that he was the
driver of the truck, that he had been at a bar before the acci-
dent and was on his way home, and that he had been drinking
that evening. Wright asked Dragoo how much he had to drink,
to which Dragoo responded, “[e]nough.” Wright then placed
Dragoo under arrest and read him the postarrest chemical test
advisement form, which Dragoo signed. Dragoo submitted to
having his blood drawn, and a blood alcohol test was subse-
quently performed. The result of the test showed that Dragoo’s
blood alcohol concentration on the night of the accident was
.222 of 1 gram of alcohol per 100 milliliters of blood.
Thies and plugge were also taken to the hospital by ambu-
lance. Thies suffered a broken collarbone as a result of the
collision. She wore a brace for 6 weeks after the accident
270 	17 NebrASkA AppeLLATe repOrTS

and was unable to use her left arm at all for 2 weeks. plugge
suffered tendonitis in her left knee and a bump on her head.
She had a bruise on her left leg from her knee down to the
bottom of her shin. She was on crutches for 3 weeks for the
knee injury.
The day after the accident, Wright met with Dragoo in an
interview room at the sheriff’s office. After being advised
of his Miranda rights, Dragoo agreed to speak with Wright.
Dragoo remembered leaving the bar, driving out of town, and
coming up to the stop sign. Wright testified that Dragoo ini-
tially stated that he did not see Thies’ vehicle before the colli-
sion, but later stated that he remembered driving up to the stop
sign but did not remember anything after that. When asked how
much he had to drink prior to the accident, Dragoo told Wright
that he had three or four mixed drinks. When Wright asked
Dragoo if he thought he was intoxicated the night of the acci-
dent, Dragoo responded that he was not intoxicated “beyond
his capabilities.”
On March 26, 2007, an information was filed in the district
court for Antelope County charging Dragoo with DUI, fourth
offense, a Class IIIA felony. An arraignment was held, and
Dragoo entered a plea of not guilty. On May 11, an amended
information was filed charging Dragoo with count I, DUI,
fourth offense (with a blood alcohol concentration of .15 or
more), a Class III felony, and count II, DUI causing serious
bodily injury, a Class IIIA felony.
On October 15, 2007, Dragoo filed a motion to suppress
any and all evidence, including statements made by Dragoo,
alleging 	that 	Dragoo 	had 	been 	arrested 	without 	probable
cause and/or reasonable suspicion. A hearing was held on the
motion, and following the hearing, the trial court overruled the
motion to suppress, finding that Wright had probable cause to
arrest Dragoo.
The matter proceeded to a jury trial, held on October 15
and 16, 2007. At the conclusion of the trial, the jury found
Dragoo guilty of count I, DUI, and found that his blood alco-
hol concentration equaled or exceeded .15 of 1 gram per 100
milliliters of blood. The jury also found Dragoo guilty of count
II, DUI causing serious bodily injury. The trial court entered
STATe v. DrAgOO 	271
Cite as 17 Neb. App. 267

judgment on the verdicts. prior to sentencing, an enhance-
ment hearing was held and the court found that Dragoo had
three prior convictions for purposes of enhancement for DUI.
Accordingly, the court found the current DUI conviction pur-
suant to count I to be a fourth offense. The fourth offense and
the finding that Dragoo’s blood alcohol concentration equaled
or exceeded .15 of 1 gram made count I a Class III felony
for sentencing purposes. See Neb. rev. Stat. § 60-6,197.03(8)
(Cum. Supp. 2006). The trial court sentenced Dragoo to 24
to 36 months’ imprisonment for count I and 12 to 18 months’
imprisonment for count II. The court ordered the sentences
to be served consecutively. The court also revoked Dragoo’s
driver’s license for a period of 15 years.
ASSIgNMeNTS OF errOr
Dragoo assigns that the trial court erred in (1) sentencing
him to multiple punishments for the same offense in viola-
tion of the Double Jeopardy Clause, (2) failing to rearraign
him on the crimes charged in the amended information, (3)
overruling his motion to suppress, and (4) imposing exces-
sive sentences.
ANALYSIS
Violation of Double Jeopardy Clause.
[1,2] Dragoo first assigns that the trial court erred by sen-
tencing him to multiple punishments for the same offense,
in violation of the Double Jeopardy Clause. This assignment
of error presents matters of statutory construction; as such, it
presents questions of law. See State v. McBride, 252 Neb. 866,
567 N.W.2d 136 (1997). On a question of law, an appellate
court is obligated to reach a conclusion independent of the
determination reached by the court below. State v. Molina, 271
Neb. 488, 713 N.W.2d 412 (2006); State v. Furrey, 270 Neb.
965, 708 N.W.2d 654 (2006).
[3-5] The Double Jeopardy Clause of the Fifth Amendment
to the U.S. Constitution protects against three distinct abuses:
(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after convic-
tion, and (3) multiple punishments for the same offense. State
v. Molina, supra; State v. Winkler, 266 Neb. 155, 663 N.W.2d
272 	17 NebrASkA AppeLLATe repOrTS

102 (2003). The protection provided by Nebraska’s double
jeopardy clause is coextensive with that provided by the U.S.
Constitution. State v. Molina, supra; State v. Marshall, 269
Neb. 56, 690 N.W.2d 593 (2005). While the Double Jeopardy
Clause may protect a defendant against cumulative punish-
ments for convictions on the same offense, the clause does not
prohibit the State from prosecuting a defendant for multiple
offenses in a single prosecution. State v. Mata, 273 Neb. 474,
730 N.W.2d 396 (2007); State v. Humbert, 272 Neb. 428, 722
N.W.2d 71 (2006).
[6,7] Whether multiple convictions in a single trial lead
to multiple punishments depends on whether the Legislature,
when designating the criminal statutory scheme, intended
that cumulative sentences be applied for conviction on such
offenses. State v. Mata, supra; State v. Iromuanya, 272 Neb.
178, 719 N.W.2d 263 (2006). When the Legislature has dem-
onstrated an intent to permit cumulative punishments, the
Double Jeopardy Clause is not violated as long as the court
imposes the cumulative punishments in a single proceeding.
State v. Mata, supra; State v. Spotts, 257 Neb. 44, 595 N.W.2d
259 (1999).
[8,9] In Blockburger v. United States, 284 U.S. 299, 52 S.
Ct. 180, 76 L. ed. 306 (1932), the U.S. Supreme Court defined
the test to be used in determining whether two statutes penal-
ize the same offense. The Court held that where the same act
or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or one is whether each provision requires proof of
a fact which the other does not. State v. Molina, supra; State v.
Winkler, supra. In United States v. Dixon, 509 U.S. 688, 113 S.
Ct. 2849, 125 L. ed. 2d 556 (1993), the Court stressed that the
Blockburger test applies equally to multiple punishment and
multiple prosecution cases.
[10] The Blockburger, or “same elements,” test asks whether
each offense contains an element not contained in the other.
State v. Winkler, supra; State v. Stubblefield, 249 Neb. 436,
543 N.W.2d 743 (1996). If not, they are the same offense and
double jeopardy bars additional punishment and successive
prosecution. Id.
STATe v. DrAgOO 	273
Cite as 17 Neb. App. 267

[11] Applying the Blockburger test to this case, we compare
the elements of DUI and DUI causing serious bodily injury.
DUI as defined by Neb. rev. Stat. § 60-6,196 (reissue 2004)
requires proof that the defendant was operating or in the actual
physical control of a motor vehicle (1) while under the influ-
ence of alcoholic liquor or (2) when having a concentration of
.08 of 1 gram or more by weight of alcohol per 100 milliliters
of his or her blood. The charge against Dragoo also alleged that
this is Dragoo’s fourth DUI offense and that he had a blood
alcohol concentration of .15 of 1 gram or more by weight of
alcohol per 100 milliliters of his blood. These are both penalty
enhancement provisions found in § 60-6,197.03 for persons
convicted of a violation of § 60-6,196. As this court has previ-
ously recognized:
The plain language of [§ 60-6,196] criminalizes the act
of DUI. The fact that the defendant has previously been
convicted of DUI is irrelevant to guilt or innocence and is
relevant only to the sentence to be meted out. Indeed, the
sole difference between a first, second, or third conviction
for DUI is the penalty authorized. . . .
. . . [W]e conclude that the offense the Legislature
intended to proscribe is DUI. That the defendant has prior
DUI convictions merely enhances the sentence.
State v. Werner, 8 Neb. App. 684, 691, 600 N.W.2d 500, 506
(1999). by extension, the amount of a defendant’s blood alco-
hol concentration is not an element of the crime of DUI, but
merely enhances the sentence. Accordingly, the allegations that
this is Dragoo’s fourth DUI offense and that he had a blood
alcohol concentration of .15 of 1 gram or more by weight of
alcohol per 100 milliliters of his blood are sentencing enhance-
ment provisions under § 60-6,197.03, and not elements of
the offense.
[12] The material elements of the crime of DUI causing
serious bodily injury are (1) the defendant must have been
operating a motor vehicle; (2) the defendant must have been
operating the vehicle in violation of § 60-6,196 (DUI); and
(3) the defendant’s act of DUI, in violation of § 60-6,196,
must proximately cause serious bodily injury. State v. Bartlett,
3 Neb. App. 218, 525 N.W.2d 237 (1994). Causing serious
274 	17 NebrASkA AppeLLATe repOrTS

bodily injury is an element of DUI causing serious bodily
injury, but is not an element of DUI. Therefore, DUI causing
serious bodily injury contains an element that DUI does not
contain; however, the reverse is not true. DUI does not require
proof of an element that DUI causing serious bodily injury
does not. Thus, each of the charged offenses does not require
proof of an element that the other does not, as the Blockburger
test requires.
[13] The predicate offense for DUI causing serious bodily
injury is DUI in violation of § 60-6,196, making DUI a
lesser-included offense of DUI causing serious bodily injury.
Consequently, the commission of DUI causing serious bodily
injury necessarily includes the offense of DUI. The constitu-
tional protection against double jeopardy, therefore, applies
to Dragoo’s convictions on counts I and II. The trial court
imposed consecutive sentences for DUI and DUI causing seri-
ous bodily injury. Such sentences are cumulative sentences
for the same offense and constitute separate and multiple
punishments for the same offense, a denial of the protec-
tion against double jeopardy, afforded by both the state and
federal Constitutions. We must, therefore, reverse the district
court’s judgment for Dragoo’s conviction and sentence for
DUI (count I) and remand this matter to the district court for
dismissal of count I in the amended information.
Arraignment.
Dragoo next assigns that the trial court erred in failing to
rearraign him on the crimes charged in the amended informa-
tion. Neb. rev. Stat. § 29-1816 (reissue 1995) provides in part:
“If the accused appears in person and by counsel and goes to
trial before a jury regularly impaneled and sworn, he or she
shall be deemed to have waived arraignment and a plea of not
guilty shall be deemed to have been made.” See, also, State v.
Hernandez, 268 Neb. 934, 689 N.W.2d 579 (2004).
Dragoo appeared in person, was represented by counsel, and
proceeded to trial before a jury on the amended information.
Further, during preliminary instructions at trial, the trial court
informed the jury of the two counts against Dragoo and stated
that Dragoo had pled not guilty to counts I and II. Dragoo did
STATe v. DrAgOO 	275
Cite as 17 Neb. App. 267

not object to the court’s statement. Accordingly, Dragoo has
waived any argument that he should have been arraigned on the
amended information.
Motion to Suppress.
[14] Dragoo next assigns that the trial court erred in over-
ruling his motion to suppress. Dragoo argues that the motion
to suppress should have been granted because Wright did not
have probable cause to arrest Dragoo and obtain a sample
of his blood. A trial court’s ruling on a motion to suppress
evidence, apart from determinations of reasonable suspicion
to conduct investigatory stops and probable cause to perform
warrantless searches, is to be upheld on appeal unless its find-
ings of fact are clearly erroneous. State v. Faber, 264 Neb.
198, 647 N.W.2d 67 (2002); State v. Ildefonso, 262 Neb. 672,
634 N.W.2d 252 (2001). In making this determination, an
appellate court does not reweigh the evidence or resolve con-
flicts in the evidence, but, rather, recognizes the trial court as
the finder of fact and takes into consideration that it observed
the witnesses. Id.
The trial court’s finding that Wright had probable cause to
arrest Dragoo is supported by evidence adduced at the suppres-
sion hearing. At the hearing, Wright testified that on December
15, 2006, he was dispatched to a motor vehicle accident on
Highway 275 in Antelope County. Wright testified that when
he arrived at the scene, he walked over to the pickup involved
in the accident, which he recognized as belonging to Dragoo.
Wright testified that when he looked into the pickup, Dragoo
was sitting in the driver’s seat of the pickup and his girlfriend
was sitting next to him. Wright testified that Dragoo had a
large cut on the left side of his head and was bleeding pro-
fusely. Wright detected an odor of alcohol in the vehicle. He
also observed unopened cans of beer on the pickup’s floor on
the passenger side.
Wright testified that Dragoo and his girlfriend exited the
vehicle and that Dragoo initially indicated he did not want
any medical treatment. Wright testified that while talking with
Dragoo when he was outside the pickup, Wright noticed a
strong odor of alcohol coming from Dragoo’s person. Wright
276 	17 NebrASkA AppeLLATe repOrTS

also noticed that Dragoo’s speech was slow and slurred and
that Dragoo was somewhat unsteady on his feet while Wright
was talking to him. Wright testified that Dragoo eventu-
ally agreed to go to the hospital and was transported there
by ambulance.
Wright testified that he spoke with Dragoo at the hospital.
Wright testified that Dragoo told him that just before the acci-
dent, he and his girlfriend were driving home after leaving a
bar. Wright testified that Dragoo admitted to being the driver
of the pickup and admitted to drinking alcohol. When Wright
asked Dragoo how much alcohol he drank, Dragoo responded,
“[e]nough.” Wright testified that there was a strong odor of
alcohol coming from Dragoo when Wright spoke to him at
the hospital. Wright testified that he tried twice to administer
a preliminary breath test to Dragoo, but Dragoo was unable
to give a sufficient breath sample both times. At that point,
Wright placed Dragoo under arrest and read him the postarrest
chemical test advisement form.
Wright testified that he also spoke with Thies and plugge at
the hospital, both of whom told Wright that Dragoo pulled out
in front of them without stopping at the intersection.
based on the evidence presented at the suppression hearing,
Wright had probable cause to arrest Dragoo and the trial court
did not err in overruling Dragoo’s motion to suppress.
Excessive Sentences.
Finally, Dragoo assigns that the trial court erred in impos-
ing excessive sentences. Dragoo argues that the sentences are
excessive because the trial court ordered that they run consecu-
tively, thereby constituting multiple punishments for the same
crime, in violation of the Double Jeopardy Clause. This argu-
ment was addressed above, and we do not address it further
here. We will, however, address whether the sentence imposed
for DUI causing serious bodily injury is excessive.
[15] Sentences within statutory limits will be disturbed by
an appellate court only if the sentences complained of were
an abuse of judicial discretion. State v. Hernandez, 273 Neb.
456, 730 N.W.2d 96 (2007); State v. Walker, 272 Neb. 725,
724 N.W.2d 552 (2006). DUI causing serious bodily injury is
STATe v. DrAgOO 	277
Cite as 17 Neb. App. 267

a Class IIIA felony having no minimum penalty and a maxi-
mum punishment of 5 years’ imprisonment, a $10,000 fine, or
both. Neb. rev. Stat. § 60-6,198 (Cum. Supp. 2006); Neb. rev.
Stat. § 28-105 (Cum. Supp. 2006). The trial court sentenced
Dragoo to 12 to 18 months’ imprisonment on the DUI causing
serious bodily injury conviction. The sentence imposed by the
trial court is within the statutory limits. Accordingly, we need
only determine whether the sentence imposed was an abuse
of discretion.
[16-18] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the
offense, and (8) the amount of violence involved in the com-
mission of the crime. State v. Fester, 274 Neb. 786, 743 N.W.2d
380 (2008); State v. Archie, 273 Neb. 612, 733 N.W.2d 513
(2007). We have further held that, in considering a sentence to
be imposed, the sentencing court is not limited in its discretion
to any mathematically applied set of factors. State v. Fester,
supra. Obviously, depending on the circumstances of a par-
ticular case, not all factors are placed on a scale and weighed
in equal proportion. Id. The appropriateness of a sentence is
necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude
and all facts and circumstances surrounding the crime and the
defendant’s life. Id.; State v. Reid, 274 Neb. 780, 743 N.W.2d
370 (2008).
Dragoo has a criminal history that dates back to 1960. He
has been convicted of willful reckless driving, driving during
suspension of his license (twice), assault and battery, no valid
operator’s license (three times), no valid registration, viola-
tion of motor carrier’s safety regulations (twice), and criminal
mischief. In addition to the current offense, Dragoo has been
charged with DUI five times, resulting in three convictions.
After committing the current offense, Dragoo was charged with
assault in the third degree. The charge was amended to disturb-
ing the peace, and he was convicted of that charge. The trial
court found that, based on Dragoo’s prior criminal history and
278 	17 NebrASkA AppeLLATe repOrTS

on the nature and circumstances of the current offense, incar-
ceration was necessary and that a sentence lesser than incarcer-
ation would depreciate the seriousness of the crime or promote
disrespect for the law. We conclude that the sentence imposed
by the trial court is not an abuse of judicial discretion.
CONCLUSION
We conclude that Dragoo’s consecutive sentences for DUI
and DUI causing serious bodily injury constitute multiple pun-
ishments for the same offense, a denial of the protection against
double jeopardy. We therefore reverse the district court’s judg-
ment for Dragoo’s conviction and sentence for count I, DUI,
and remand this matter to the district court with directions to
dismiss count I of the amended information. because there is
not error in Dragoo’s conviction and sentence for count II, DUI
causing serious bodily injury, the judgment of the district court
regarding count II is affirmed.
A ffirmed iN pArt, ANd iN pArt reverSed ANd
remANded with directioNS to diSmiSS.
STATe v. DrAgOO 	279
Cite as 17 Neb. App. 267