State v. Dragoo

State of NebraSka , appellee , v.
D ouglaS e. D ragoo, appellaNt.
765 N.W.2d 666
Filed May 29, 2009. 	No. S-08-113.
1. Lesser-Included Offenses. Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of law.
2. Statutes: Appeal and Error. Statutory interpretation presents a question of
law. When reviewing questions of law, an appellate court has an obligation to
reach an independent conclusion irrespective of the determination made by the
court below.
3. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect against three distinct abuses: (1) a second prose-
cution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.
4. Constitutional 	Law: 	Double 	Jeopardy. 	The 	protection 	provided 	by
Nebraska’s double jeopardy clause is coextensive with that provided by the
U.S. Constitution.
5. Double Jeopardy: Statutes: Sentences: 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 only one is whether
each provision requires proof of a fact which the other does not. If not, they are
the same offense and double jeopardy bars additional punishment and successive
prosecution. If so, they are not the same offense and double jeopardy is not a bar
to additional punishment or successive prosecution.
6. Lesser-Included Offenses: Sentences. Blockburger v. United States, 284 U.S.
299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), requires a comparative analysis of statu-
tory elements, not penalties. The felony classification of the offenses in question
has no bearing on the issue of whether one is a lesser-included offense of the
other, or whether the Legislature has specifically authorized cumulative punish-
ment for the two offenses.
7. Lesser-Included Offenses: Convictions. When a defendant is convicted of both
a greater and a lesser-included offense, the conviction and sentence on the lesser
charge must be vacated.
Petition for further review from the Court of Appeals, I rwIN,
SIeverS, and CarlSoN, Judges, on appeal thereto from the
not obtain a settlement or common release which extinguished
Klein’s liability.
The judgment of the district court is affirmed.
affIrmeD.
858 	277 NEbrASKA rEPorTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

District Court for Antelope County, patrICk g. rogerS, Judge.
Judgment of Court of Appeals affirmed.
Patrick P. Carney and Jonathan r. brandt, of Carney Law,
P.C., for appellant.
Jon bruning, Attorney General, Erin E. Leuenberger, and
James D. Smith for appellee.
H eavICaN, 	C.J., 	wrIgHt, 	C oNNolly, 	gerrarD, 	StepHaN,
mCC ormaCk , and mIller-lermaN, JJ.
StepHaN, J.
Douglas E. Dragoo was convicted of one count of driv-
ing under the influence (DUI); the conviction was enhanced
because Dragoo’s blood alcohol content was .15 of 1 gram
per 100 milliliters of his blood and he had three prior DUI
convictions.1 Dragoo was also convicted of one count of DUI
causing serious bodily injury.2 both charges arose from the
same motor vehicle accident in which two persons sustained
serious injuries. on appeal, Dragoo contended that the separate
consecutive sentences he received for each conviction consti-
tuted double punishment for the same offense, in violation of
the Double Jeopardy Clause.3 Applying the test articulated in
Blockburger v. United States,4 the Nebraska Court of Appeals
agreed and dismissed the conviction and sentence for DUI,
leaving the conviction and sentence for DUI causing serious
bodily injury intact.5 We granted the State’s petition for further
review to consider its argument that under Missouri v. Hunter,6
the Blockburger test is inapplicable where the Legislature has
1 See Neb. rev. Stat. §§ 60-6,196 (reissue 2004) and 60-6,197.03(8) (Cum.
Supp. 2006).
2 See Neb. rev. Stat. § 60-6,198 (Cum. Supp. 2006).
3 State v. Dragoo, 17 Neb. App. 267, 758 N.W.2d 60 (2008).
4 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306
(1932).
5 State v. Dragoo, supra note 3.
6 Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535
(1983).
STATE v. DrAGoo 	859
Cite as 277 Neb. 858

expressed a clear intent to impose multiple punishments for the
same conduct. We conclude that there is no such expression of
legislative intent with respect to the offenses for which Dragoo
was convicted, and we therefore affirm the judgment of the
Court of Appeals.
bACKGroUND
The facts and procedural history of this case are set forth
fully in the published opinion of the Court of Appeals, and
we summarize them here only to the extent necessary for our
analysis. on December 15, 2006, a vehicle operated by Dragoo
collided with another vehicle at a rural intersection in Antelope
County, Nebraska. The driver of the other vehicle and her
passenger sustained serious injuries in the accident. When a
deputy sheriff questioned him at the hospital after the accident,
Dragoo admitted that he had been drinking. Testing disclosed
that Dragoo had a blood alcohol concentration of .222 of 1
gram of alcohol per 100 milliliters of blood on the night of
the accident.
Dragoo was originally charged in the district court for
Antelope County with fourth-offense DUI, a Class IIIA fel-
ony. He was subsequently charged in an amended information
with two separate counts: fourth-offense DUI (with a blood
alcohol concentration of .15 or more), a Class III felony,
and DUI causing serious bodily injury, a Class IIIA felony.
Dragoo entered pleas of not guilty and was tried by a jury.
The jury found him guilty of DUI with a blood alcohol con-
centration which equaled or exceeded .15 of 1 gram per 100
milliliters of blood, and DUI causing serious bodily injury.
The court conducted an enhancement hearing and determined
that Dragoo had three valid prior DUI convictions and was
therefore guilty of fourth-offense DUI, a Class III felony
according to § 60-6,197.03. The court sentenced Dragoo to
24 to 36 months’ incarceration for that offense, with credit for
time served. The court also imposed a consecutive sentence
of 12 to 18 months’ incarceration for the conviction for DUI
causing serious bodily injury. In addition, the court ordered
Dragoo to pay costs and revoked his driver’s license for a
period of 15 years.
860 	277 NEbrASKA rEPorTS

In addressing Dragoo’s double jeopardy claim under the
Blockburger test, the Court of Appeals compared the elements
of DUI as defined by § 60-6,196 with the elements of DUI
causing serious bodily injury as defined by § 60-6,198. The
court first noted the facts that this was Dragoo’s fourth DUI
conviction and his blood alcohol concentration was .15 of 1
gram or more by weight of alcohol per 100 milliliters of blood
were “sentencing enhancement provisions under § 60-6,197.03,
and not elements of the offense [of DUI].”7 Comparing only the
statutory elements of the two offenses, the Court of Appeals
reasoned 	that 	because 	DUI 	causing 	serious 	bodily 	injury
included all of the elements of DUI plus the additional element
of a resulting bodily injury, DUI was a lesser-included offense
of DUI causing serious bodily injury. The court concluded that
Dragoo’s consecutive sentences on the two counts were thus
“cumulative sentences for the same offense and constitute sepa-
rate and multiple punishments for the same offense, a denial
of the protection against double jeopardy, afforded by both the
state and federal Constitutions.”8 The court therefore reversed
the DUI conviction and remanded the cause with directions
to dismiss.
The Court of Appeals found no merit in Dragoo’s other
assignments of error, and he has not petitioned for further
review. The State filed a petition for further review, which
was granted.
ASSIGNMENTS oF Error
The State assigns, restated, that the Court of Appeals erred
by (1) ordering the dismissal of Dragoo’s conviction and
greater sentence for the higher class felony of fourth-offense
DUI, aggravated, on the ground that the sentence was a cumu-
lative sentence in violation of the Double Jeopardy Clause and
(2) concluding that the Double Jeopardy Clause was violated
by sentencing Dragoo for the Class III felony of fourth-offense
DUI, aggravated, and for the Class IIIA felony of DUI causing
serious bodily injury.
7 State v. Dragoo, supra note 3, 17 Neb. App. at 274, 758 N.W.2d at 67.
8 Id. at 275, 758 N.W.2d at 67.
STATE v. DrAGoo 	861
Cite as 277 Neb. 858

STANDArD oF rEVIEW
[1] Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question
of law.9
[2] Statutory interpretation presents a question of law.10
When reviewing questions of law, an appellate court has an
obligation to reach an independent conclusion irrespective of
the determination made by the court below.11
ANALYSIS
[3,4] The Double Jeopardy Clauses of both the federal and
the Nebraska Constitutions protect against three distinct abuses:
(1) a second prosecution for the same offense after acquittal, (2)
a second prosecution for the same offense after conviction, and
(3) multiple punishments for the same offense.12 The protection
provided by Nebraska’s double jeopardy clause is coextensive
with that provided by the U.S. Constitution.13
[5] Under the Blockburger14 or “same elements” test applied
by the Court of Appeals, “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 only one, is whether each provision requires proof of a fact
which the other does not.”15 If not, they are the same offense
and double jeopardy bars additional punishment and successive
prosecution.16 If so, they are not the same offense and double
9 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
10 See, State v. Moore, ante p. 111, 759 N.W.2d 698 (2009); State v. Nelson,
276 Neb. 997, 759 N.W.2d 260 (2009).
11 See id.
12 State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008); State v. Mata,
266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other grounds, State
v. Rogers, ante p. 37, 760 N.W.2d 35 (2009).
13 State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007); State v. Miner,
273 Neb. 837, 733 N.W.2d 891 (2007).
14 Blockburger v. United States, supra note 4.
15 Id., 284 U.S. at 304. See, State v. Winkler, 266 Neb. 155, 663 N.W.2d 102
(2003).
16 See State v. Winkler, supra note 15.
862 	277 NEbrASKA rEPorTS

jeopardy is not a bar to additional punishment or succes-
sive prosecution.17
In Nebraska, DUI and DUI causing serious bodily injury
are separately codified offenses. DUI as defined by § 60-6,196
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 milli-
liters of his or her blood. DUI causing serious bodily injury
as defined by § 60-6,198 requires proof that (1) the defendant
was operating a motor vehicle, (2) the defendant was operating
a motor vehicle in violation of § 60-6,196, and (3) the defend-
ant’s act of DUI proximately caused serious bodily injury to
another person. based on these statutory definitions, it is clear
that the offense of DUI causing serious bodily injury includes
an element not included in the offense of DUI, namely, the
causation of serious bodily injury. but the offense of DUI does
not include any element which is not included in the offense
of DUI causing serious bodily injury. The Court of Appeals
correctly applied the Blockburger test and concluded that DUI
is a lesser-included offense of DUI causing serious bodily
injury and that thus, Dragoo’s convictions violated the Double
Jeopardy Clause’s prohibition against multiple punishments for
the same offense.
The State does not quarrel with the Court of Appeals’
Blockburger analysis. It argues, however, that Blockburger is
inapplicable here under the reasoning of Missouri v. Hunter.18
In that case, the U.S. Supreme Court held that Blockburger is a
rule of statutory construction, not a constitutional rule, and that
it does not preclude the imposition of cumulative punishments
in a single trial where such imposition is specifically autho-
rized by the legislative body. The defendant in that case was
convicted under two Missouri statutes, one defining the offense
of robbery and the other defining the offense of armed crimi-
nal action. The latter statute included the following provision:
“‘The punishment imposed pursuant to this subsection shall be
17 Id.
18 Missouri v. Hunter, supra note 6.
STATE v. DrAGoo 	863
Cite as 277 Neb. 858

in addition to any punishment provided by law for the crime
committed by, with, or through the use, assistance, or aid of a
dangerous or deadly weapon.’”19 Noting that by including this
provision, the Missouri Legislature had “made its intent crystal
clear,” the Court concluded:
Where, as here, a legislature specifically authorizes
cumulative punishment under two statutes, regardless of
whether those two statutes proscribe the “same” conduct
under Blockburger, a court’s task of statutory construc-
tion is at an end and the prosecutor may seek and the trial
court or jury may impose cumulative punishment under
such statutes in a single trial.20
We recently applied this reasoning in State v. Mata.21 In that
postconviction case, the defendant contended that his counsel
was ineffective for failing to argue that he was subjected to
double jeopardy because he was sentenced for both making
terroristic threats and for using a firearm to make such threats.
Finding no merit in this argument, we stated the established
principle that 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 pun-
ishments in a single proceeding.22 We found the requisite legis-
lative intent to impose cumulative punishment in the language
of the statute establishing the crime of using a deadly weapon
to commit a felony, which provided that the offense “‘shall be
treated as [a] separate and distinct offense . . . from the felony
being committed, and sentences imposed under this section
shall be consecutive to any other sentence imposed.’”23
[6,7] We find no comparable expression of legislative intent
in § 60-6,196, defining the offense of DUI; in § 60-6,198,
19 Id., 459 U.S. at 362 (quoting Missouri’s armed criminal action statute then
in effect).
20 Id., 459 U.S. at 368-69.
21 State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007).
22 Id.
23 State v. Mata, supra note 21, 273 Neb. at 481, 730 N.W.2d at 401, quoting
Neb. rev. Stat. § 28-1205(3) (reissue 1995). See, also, State v. McBride,
252 Neb. 866, 567 N.W.2d 136 (1997).
864 	277 NEbrASKA rEPorTS

defining the offense of DUI causing serious bodily injury; or
in § 60-6,197.03, articulating the penalties for violation of
§ 60-6,196. The State argues that the requisite legislative intent
exists because the Legislature designated fourth-offense DUI
as a Class III felony carrying a greater penalty than DUI caus-
ing serious bodily injury, a Class IIIA felony. This argument
fails for two reasons. First, as the Court of Appeals correctly
reasoned, Dragoo was convicted of DUI; his prior offenses and
higher blood alcohol concentration were sentencing enhance-
ment provisions, not elements of the offense.24 Second, this
court has rejected the notion that felony classifications have
any bearing on determination of lesser-included offenses. In
State v. Gresham,25 we wrote that “[u]nder the statutory ele-
ments test adopted by this court, the relative penalties are not
a factor in identifying lesser-included offenses” and concluded
that “the fact that two offenses are of the same class and carry
the same range of penalties does not affect the determination
of whether one is a lesser-included offense of the other.” The
same reasoning applies here. Blockburger requires a compara-
tive analysis of statutory elements, not penalties. The felony
classification of the offenses in question has no bearing on the
issue of whether one is a lesser-included offense of the other,
or whether the Legislature has specifically authorized cumula-
tive punishment for the two offenses.26 DUI causing serious
bodily injury is the “greater” offense here, notwithstanding its
lower classification and penalty, because it includes all of the
elements of DUI plus an additional element. When a defendant
is convicted of both a greater and a lesser-included offense, the
conviction and sentence on the lesser charge must be vacated.27
because the Legislature has not clearly authorized cumulative
24 See, State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000), overruled on
other grounds, State v. Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006),
as recognized in State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008);
§ 60-6,197.03(8).
25 State v. Gresham, 276 Neb. 187, 194, 752 N.W.2d 571, 577 (2008).
26 See, Missouri v. Hunter, supra note 6; State v. Gresham, supra note 25.
27 State v. Nissen, 252 Neb. 51, 560 N.W.2d 157 (1997); State v. Sardeson,
231 Neb. 586, 437 N.W.2d 473 (1989).
STATE v. DrAGoo 	865
Cite as 277 Neb. 858

punishment for the two offenses, the lesser DUI offense must
be dismissed.
Finally, we address the State’s argument that the decision of
the Court of Appeals which we affirm today somehow permits
Dragoo to “escape” the enhanced penalties the Legislature pre-
scribed for fourth-offense DUI with an elevated blood alcohol
concentration.28 Had Dragoo been charged only with DUI, as
he was originally, upon conviction, he would have been sub-
ject to the enhanced penalties resulting from his prior DUI
convictions and his elevated blood alcohol concentration. The
double jeopardy issue which has resulted in his receiving a
lesser sentence in this case was the direct consequence of the
prosecutor’s tactical decision to add the charge of DUI causing
serious bodily injury in the amended information. Dragoo has
not “escaped” the enhanced penalty he should have received;
he was relieved of it by the State’s charging decision, which
we cannot undo.
CoNCLUSIoN
For the reasons discussed, we affirm the judgment of the
Nebraska Court of Appeals.
affIrmeD.
28 brief for appellee in support of petition for further review at 9.
louIS obaD, appellaNt, v.
State of NebraSka , appellee .
766 N.W.2d 89
Filed May 29, 2009. 	No. S-08-703.
1. Motions to Vacate: Appeal and Error. An appellate court reviews a ruling on a
motion to vacate for abuse of discretion.
2. Appeal and Error. To be considered by an appellate court, an error must be both
specifically assigned and specifically argued in the brief of the party asserting
the error.
3. Search and Seizure: Property. Neb. rev. Stat. § 28-431(4) (reissue 2008) sets
forth two avenues by which a purported owner or claimant may prevent forfeiture
and recover his or her property. First, under § 28-431(4), the forfeiture statute
allows the owner of record of such property, at any time after seizure and prior to
866 	277 NEbrASKA rEPorTS