State v. Mitchell

88 	285 NEBRASKA REPORTS
Neb. Ct. R. §§ 3-310(P) and 3-323(B) of the disciplinary rules
within 60 days after an order imposing costs and expenses, if
any, is entered by this court.
Judgment of suspension.
state of nebraska, appellee, v.
travis t. mitchell, appellant.
825 N.W.2d 429
Filed January 25, 2013. 	No. S-11-407.
1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s deter-
mination concerning the constitutional validity of a prior plea-based conviction,
used for enhancement of a penalty for a subsequent conviction, will be upheld on
appeal unless the sentencing court’s determination is clearly erroneous.
Petition for further review from the Court of Appeals,
inbody, Chief Judge, and moore and pirtle, Judges, on appeal
thereto from the District Court for Lancaster County, steven
d. burns, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Dennis R. Keefe, Lancaster County Public Defender, and
Robert G. Hays for appellant.
Jon Bruning, Attorney General, and George R. Love for
appellee.
heavican, c.J., Wright, connolly, stephan, mccormack,
miller-lerman, and cassel, JJ.
Wright, J.
NATURE OF CASE
Travis T. Mitchell was charged with driving under the influ-
ence (DUI), fourth offense; no valid registration; and no proof
of insurance. A jury found him guilty of DUI but acquitted him
of the other two charges. The Lancaster County District Court
determined that a conviction for driving while ability impaired
(DWAI) in Colorado could be used to enhance Mitchell’s
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

STATE v. MITCHELL 	89
Cite as 285 Neb. 88
current DUI offense. He was sentenced to 3 to 5 years’ impris-
onment, and his license was revoked for 15 years.
Mitchell appealed to the Nebraska Court of Appeals, alleg-
ing his DWAI conviction could not be used to enhance the
penalty in this case. The Court of Appeals affirmed the judg-
ment of the district court in State v. Mitchell, 19 Neb. App.
801, 820 N.W.2d 75 (2012). We granted Mitchell’s petition for
further review.
SCOPE OF REVIEW
[1] A sentencing court’s determination concerning the con-
stitutional validity of a prior plea-based conviction, used for
enhancement of a penalty for a subsequent conviction, will be
upheld on appeal unless the sentencing court’s determination
is clearly erroneous. State v. Garcia, 281 Neb. 1, 792 N.W.2d
882 (2011).
FACTS
On May 2, 2010, Mitchell was involved in a traffic acci-
dent near 70th and Dudley Streets in Lincoln, Nebraska. Sgt.
Grant Richards of the Lincoln Police Department testified
that he was traveling north on 70th Street and observed a
vehicle on the west side of the street that was suspended on
the guide wire that supported a utility pole. Richards observed
Mitchell jump out of the driver’s door of the vehicle. While
talking with Mitchell, Richards smelled the odor of alcohol on
Mitchell’s breath. Richards suspected that Mitchell was under
the influence of alcohol. Richards turned Mitchell over to the
investigating police officer who had arrived at the scene a few
minutes after Richards.
The police officer administered a horizontal gaze nystagmus
test and a preliminary breath test. Mitchell was arrested and
transported to the detoxification center, where his blood alco-
hol content was determined to be .103 grams of alcohol per
210 liters of breath.
On August 4, 2010, an information was filed in Lancaster
County District Court charging Mitchell with DUI, fourth
offense, a Class IIIA felony, in violation of Neb. Rev. Stat.
§§ 60-6,196 (Reissue 2010) and 60-6,197.03(7) (Supp. 2009).

90 	285 NEBRASKA REPORTS
He was also charged with having no valid registration or proof
of insurance. Mitchell was convicted of DUI but was acquitted
of the other charges.
An enhancement hearing was held on April 18, 2011. At the
hearing, the State offered three exhibits as evidence of prior
convictions. One of the exhibits involved a Colorado convic-
tion. Mitchell objected to this exhibit, and the district court
continued the hearing. On April 27, the court issued an order
finding that Mitchell had three prior convictions for enhance-
ment purposes under Neb. Rev. Stat. § 60-6,197.02(1)(a)(i)(C)
(Reissue 2010). The court found that the State had met its
burden to establish a prima facie case that “conviction under
Colorado’s 	DWAI 	law 	could 	also 	be 	a 	conviction 	under
Nebraska’s DUI law.”
In addition to its DWAI statute, Colorado also has a DUI
statute. See Colo. Rev. Stat. Ann. § 42-4-1301(1)(f) and (g)
(West 2012). In Colorado, the distinction between DWAI
and DUI is that DWAI requires that “a person has consumed
alcohol . . . that affects the person to the slightest degree so
that the person is less able than the person ordinarily would
have been . . . to exercise clear judgment, sufficient physi-
cal control, or due care in the safe operation of a vehicle.”
§ 42-4-1301(1)(g). DUI requires that “the person is substan-
tially incapable . . . to exercise clear judgment, sufficient
physical control, or due care in the safe operation of a vehi-
cle.” § 42-4-1301(1)(f).
Under Colorado’s statutory scheme, blood alcohol content
raises various permissible inferences. A blood alcohol content
between .05 and .08 raises a permissible inference of DWAI.
§ 42-4-1301(6)(a)(II). A blood alcohol content of .08 or above
raises a permissible inference of DUI. § 42-4-1301(6)(a)(III).
Under Nebraska’s statutory scheme, the requirements for DUI
can be met in two different ways. Driving with a blood alco-
hol content of .08 or above results in a DUI regardless of
the driver’s level of impairment. § 60-6,196(1)(b) and (c). A
defendant also commits DUI in Nebraska by driving “[w]hile
under the influence of alcoholic liquor . . . ,” § 60-6,196(1)(a),
which requires impairment to an appreciable degree. See State
v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989).

STATE v. MITCHELL 	91
Cite as 285 Neb. 88
In the case at bar, the district court considered the offense of
DWAI in Colorado to determine if it could establish a DUI in
Nebraska. The court reasoned that because there was an upper
blood alcohol limit of .08 for the offense of DWAI, a conviction
for DWAI based on blood alcohol content would not be a DUI
conviction in Nebraska. However, because DWAI may also be
proved by evidence that the person was affected by alcohol to
the slightest degree and there is no upper limit on the degree
to which a person may be affected, the court concluded that a
defendant could be more than slightly affected by alcohol and
still be convicted of DWAI in Colorado. It reasoned that if the
defendant was affected to an appreciable degree, the defendant
could be convicted of DUI in Nebraska.
The district court determined that the exhibit regarding
Mitchell’s conviction in Colorado indicated he was more than
slightly affected by alcohol. (His vehicle drifted and jerked on
the road, his eyes were bloodshot, his speech was slurred, and
he was unable to satisfactorily perform field sobriety tests.)
The court concluded the record could be viewed as establishing
that Mitchell was affected to an appreciable degree. Therefore,
the State had established a prima facie case that the conviction
under Colorado’s DWAI law could also be a conviction under
Nebraska’s DUI law.
On appeal, Mitchell claimed that the district court erred in
finding that his prior Colorado conviction for DWAI could be
used to enhance the penalty for DUI. The Court of Appeals
agreed with the district court’s analysis that a conviction for
DWAI based on blood alcohol content would not satisfy the
requirements of a Nebraska DUI. We point out that the record
did not contain Mitchell’s blood alcohol content related to
the DWAI conviction because he had successfully suppressed
that evidence.
The Court of Appeals next considered whether a showing
that a defendant was affected to more than the “‘slightest
degree’” could qualify as a DUI in Nebraska. State v. Mitchell,
19 Neb. App. 801, 806, 820 N.W.2d 75, 80 (2012). It found
that a defendant could be more than “slightly affected” by
alcohol and be convicted of DWAI in Colorado and that if
the impairment rose to an “appreciable degree,” the defendant

92 	285 NEBRASKA REPORTS
could be convicted under Nebraska’s DUI law. Id. “The facts
indicate [Mitchell] could have been affected to more than the
slightest degree or to the level of appreciable impairment.”
Id. It concluded that the State presented a prima facie case by
showing the prior DWAI conviction in Colorado could have
been a violation of § 60-6,196 had the incident occurred in
Nebraska. The burden then shifted to Mitchell to establish that
the facts supporting the Colorado DWAI would not support a
conviction under Nebraska’s DUI statute.
Mitchell had two prior DUI convictions in Nebraska that
were undisputed for purposes of enhancement. The Court
of Appeals found that Mitchell’s conviction for DWAI in
Colorado qualified as a prior conviction under Nebraska stat-
utes and that, therefore, Mitchell had three prior convictions
for enhancement purposes. It affirmed the judgment of the
district court.
ASSIGNMENT OF ERROR
Mitchell assigns, restated, that the Court of Appeals erred in
concluding that his Colorado DWAI conviction could be used
to enhance the penalty for DUI.
ANALYSIS
At the time of Mitchell’s enhancement hearing, a conviction
under a law of another state for a violation committed within a
12-year period prior to the offense for which the sentence was
being imposed could be used to enhance the penalty for DUI
if, at the time of the conviction under the law of such other
state, the offense for which the person was convicted would
have been a violation of § 60-6,196. See § 60-6,197.02(1).
The issue presented is whether Mitchell’s conviction for DWAI
in Colorado can be used to enhance his conviction to fourth-
offense DUI in Nebraska. A sentencing court’s determination
concerning the constitutional validity of a prior plea-based
conviction, used for enhancement of a penalty for a subsequent
conviction, will be upheld on appeal unless the sentencing
court’s determination is clearly erroneous. State v. Garcia, 281
Neb. 1, 792 N.W.2d 882 (2011).

STATE v. MITCHELL 	93
Cite as 285 Neb. 88
In his argument against enhancement, Mitchell relies upon
Garcia, in which an officer stopped Leopoldo J. Garcia after
observing him driving erratically in a car dealership parking
lot after business hours and then colliding with a light pole.
Garcia was convicted of DUI following a bench trial on stipu-
lated facts.
An enhancement hearing was held to determine whether
Garcia’s sentence would reflect the DUI as his third offense.
Garcia objected to the admission of two prior California DUI
convictions. He claimed that the State had not shown the
prior convictions would have been violations of § 60-6,196.
California DUI laws applied anywhere in the state, while in
Nebraska, they applied only to highways and private property
open to public access. The trial court admitted the California
convictions. Garcia was convicted of DUI (third offense), and
he appealed.
On appeal, Garcia argued that the State was required to
establish that his convictions in California occurred on pub-
lic property. The record of the California convictions did not
reflect that particular fact.
The State claimed that by presenting certified copies of the
prior convictions and establishing that those convictions were
counseled, it made a prima facie case for enhancement and
that the burden then shifted to Garcia to show why the prior
offenses would not qualify as a prior offense under Nebraska
law. We stated that under § 60-6,197.02, “[i]t is understood
that the prior conviction must be for the offense of DUI. But
we do not read § 60-6,197.02 as placing upon the State the
initial burden of showing a substantial similarity of every
element of the respective DUI laws . . . .” Garcia, 281 Neb.
at 9, 792 N.W.2d at 889. We held that the prosecution had
presented prima facie evidence of Garcia’s prior conviction
by presenting a certified copy of his California DUI convic-
tions, which the State demonstrated were counseled. The bur-
den then shifted to Garcia to produce evidence rebutting the
statutory presumption that those documents did not reflect that
an “‘offense for which the person was convicted would have
been a violation of [§] 60-6,196.’” Garcia, 281 Neb. at 13,
792 N.W.2d at 892.

94 	285 NEBRASKA REPORTS
We expressly pointed out in Garcia that in order to use the
out-of-state conviction for enhancement, the prior conviction
must be for the offense of DUI. We did not read § 60-6,197.02
“as placing upon the State the initial burden of showing a
substantial similarity of every element of the respective DUI
laws.” Garcia, 281 Neb. at 9, 792 N.W.2d at 889. When the
prosecution presented evidence of Garcia’s prior counseled
convictions, the burden then shifted to Garcia.
Mitchell argues that the State has never satisfied its bur-
den to provide prima facie evidence of a prior conviction in
Colorado because “[i]t is understood that the prior conviction
must be for the offense of DUI.” See id. We agree.
Both the district court and the Court of Appeals recognized
that Nebraska’s “any appreciable degree” requirement for DUI
was higher than Colorado’s “slightest degree” requirement for
DWAI. See State v. Mitchell, 19 Neb. App. 801, 820 N.W.2d 75
(2012). However, because an individual impaired to an appre-
ciable degree was also impaired to the slightest degree, both
courts concluded that it was possible for a person to receive a
DUI in Nebraska for acts that constituted a DWAI in Colorado.
In their analysis, both courts looked at the facts incident to
Mitchell’s arrest and conviction in Colorado.
This analysis is incorrect. Mitchell pled guilty to the charge
of DWAI. The theoretical possibility that a defendant’s con-
viction for DWAI could have satisfied the Nebraska elements
for DUI is not enough. The prior out-of-state conviction must
be for the offense of DUI. State v. Garcia, 281 Neb. 1, 792
N.W.2d 882 (2011).
Mitchell’s conviction of DWAI was a determination that
his conduct met the minimum requirement for violation of the
DWAI statute. His conviction meant that he was impaired to
the slightest degree. The conviction made no other determina-
tion of Mitchell’s impairment. To enhance Mitchell’s penalty
for DUI because the facts of his arrest and conviction in
Colorado could support the higher requirement for a Nebraska
DUI is to enhance Mitchell’s penalty based on a crime for
which he was never convicted. Hence, it is the conviction for
DWAI, not the record of a defendant’s conduct at the time
of the arrest, that is relevant to our analysis. Arguably, if

STATE v. MITCHELL 	95
Cite as 285 Neb. 88
the threshold requirement for a DWAI was impairment to an
appreciable degree, then a DWAI could be a DUI in Nebraska.
However, it would still not conform to the requirement that the
out-of-state conviction must be for DUI.
Colorado’s statutes make a distinction between DWAI and
DUI. The minimum threshold for proving a DWAI based
on impairment in Colorado is impairment to the slightest
degree. § 42-4-1301(1)(g). Impairment to the slightest degree
cannot result in a conviction for DUI in Nebraska, which
requires a showing of impairment to an appreciable degree.
See, § 60-6,196; State v. Batts, 233 Neb. 776, 448 N.W.2d
136 (1989). Because the threshold for proving a DWAI in
Colorado based on the level of impairment (slightest degree)
is lower than the threshold for proving DUI based on the level
of impairment (appreciable degree) in Nebraska, we cannot
conclude that a conviction for DWAI based on impairment in
Colorado would have been a conviction for DUI in Nebraska.
Mitchell’s conviction for DWAI does not meet the requirement
set forth in Garcia, supra, that the out-of-state conviction be
for DUI.
Mitchell pled guilty to DWAI in Colorado. While the evi-
dence surrounding his arrest might show that Mitchell was
more than slightly impaired, an enhancement is not proper
simply because Mitchell’s behavior could have resulted in
a DUI conviction in Nebraska. For enhancement, the court
examines the authenticated or certified copy of the prior
conviction and whether the conviction was counseled. See
Garcia, supra.
In the case at bar, the State did not present a prima facie case
for enhancement because Mitchell was convicted of DWAI in
Colorado and “the prior conviction must be for the offense of
DUI.” See Garcia, 281 Neb. at 9, 792 N.W.2d at 889. Neither
the fact that Colorado’s DWAI statute has no upper threshold
regarding the level of impairment nor the facts surrounding the
arrest are relevant to the enhancement.
CONCLUSION
Mitchell was convicted of DWAI in Colorado. This convic-
tion could not be used to enhance the penalty for a conviction

96 	285 NEBRASKA REPORTS
of DUI in Nebraska. The Court of Appeals erred in concluding
that a Colorado DWAI conviction could be used to enhance
the penalty for a Nebraska DUI. Accordingly, the decision of
the Court of Appeals is reversed, and the cause is remanded
to the Court of Appeals with directions to remand the cause to
the district court with directions to vacate Mitchell’s sentence
for fourth-offense DUI and to resentence him in accordance
with this opinion.
reversed and remanded With directions.
richard l. molczyk, Jr., appellant, v.
kerrie k. molczyk, appellee.
825 N.W.2d 435
Filed January 25, 2013. 	No. S-11-1095.
1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
dispute presents a question of law.
2. Statutes. Statutory interpretation presents a question of law.
3. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
4. Divorce: Appeal and Error. In actions for dissolution of marriage, an appellate
court reviews the case de novo on the record to determine whether there has been
an abuse of discretion by the trial judge.
5. Courts: Jurisdiction. Under the doctrine of jurisdictional priority, when different
state courts have concurrent original jurisdiction over the same subject matter,
basic principles of judicial administration require that the first court to acquire
jurisdiction should retain it to the exclusion of another court. That is, a second
court lacks jurisdiction over the same matter involving the same parties.
6. Dismissal and Nonsuit: Jurisdiction. An order of dismissal or dismissal by
operation of law divests a court of jurisdiction to take any further action in
the matter.
7. Courts: Jurisdiction. In civil cases, a court of general jurisdiction has inherent
power to vacate or modify its own judgment at any time during the term in which
the court issued it.
8. Courts: Dismissal and Nonsuit: Jurisdiction: Pleadings: Motions to Vacate.
A court treats a motion to reinstate a case after an order of dismissal as a motion
to vacate the order, and a court normally has jurisdiction over a motion to vacate
an order of dismissal and reinstate a case.
9. Actions: Jurisdiction: Parties: Notice. A motion to reinstate a dismissed action,
of which the opposing party has notice, has jurisdictional priority over a later
complaint filed in a different court involving the same subject matter and the
same parties.