State v. Hansen

the application changed between September 12, 2003, the date
of the medical history and examination, and November 14, the
date of the policy delivery. Specifically, the questions relating
to having been treated for coughing up blood, cancer, chronic
lung disorder, and tumor, mass, or lump required a change in
answer from “No” to “yes” during this time period. Deborah’s
failure to notify the company of the changes precluded the for-
mation of the insurance contract.
We conclude that the district court did not err in finding that
the life insurance policy never went into effect and in granting
summary judgment in favor of the company.
CoNCLuSIoN
Because a condition precedent to the formation of the con-
tract of life insurance was not fulfilled, the life insurance policy
never went into effect. We affirm the district court’s grant of
summary judgment in favor of the company.
aFFirmeD.
sTaTe oF nebrasKa , appellanT, v .
emily m. hansen , appellee .
749 N.W.2d 499
Filed May 13, 2008. 	No. A-07-1014.
1. Judgments: Appeal and Error. With respect to questions of law, an appellate
court has an obligation to reach an independent conclusion, irrespective of the
decision of the court below.
2. Statutes. When the words of a statute are plain, direct, and unambiguous, no
interpretation is necessary or will be indulged to ascertain meaning.
3. Sentences: Prior Convictions. Neb. Rev. Stat. § 60-6,197.03 (Supp. 2005) pro-
vides enhanced penalties by enhancing the conviction presently before the court
for which sentencing is occurring in the event there are prior convictions.
4. Sentences: Prior Convictions: Drunk Driving: Blood, Breath, and Urine Tests.
Neb. Rev. Stat. § 60-6,197.02 (Supp. 2005) is structured by first articulating the
two different crimes for which there can be enhancement because of a prior con-
viction. The first category of crime is for a violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2004), driving under the influence, and the second category of crime is
for a violation of Neb. Rev. Stat. § 60-6,197 (Reissue 2004), refusal to submit to a
chemical test.
STATe v. hANSeN 	671
Cite as 16 Neb. App. 671
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:17 AM CST

5. ____: ____: ____: ____. When a judge is sentencing for a violation of the driving
under the influence statute, the present offense can be enhanced by prior driving
under the influence convictions, and when a judge is sentencing for a violation of
the refusal to submit to a chemical test statute, the offense then before the court
can be enhanced, but only by prior refusal convictions.
6. ____: ____: ____: ____. under the plain language of Neb. Rev. Stat. § 60-6,197.02
(Supp. 2005), when sentencing for a driving under the influence conviction, a previ-
ous refusal to submit to chemical testing conviction is not in the list of convictions
that are prior convictions for the purpose of enhancement, and when sentencing for
a refusal conviction, a previous driving under the influence conviction is not in the
list of prior convictions which can be used to enhance the refusal conviction.
Appeal from the District Court for Buffalo County, J ohn p.
icenogle, Judge, on appeal thereto from the County Court for
Buffalo County, geralD r. J orgensen , J r ., Judge. Judgment of
District Court affirmed.
Shawn R. eatherton, Buffalo County Attorney, and Michele J.
Romero for appellant.
No appearance for appellee.
sievers , carlson, and moore, Judges.
sievers, Judge.
emily M. hansen pled no contest to driving while under
the influence (DuI) with a blood alcohol content of .15 or
greater, and the State sought to enhance such conviction to a
second offense. enhancement was denied by the county court
for Buffalo County on the basis that hansen’s earlier convic-
tion for refusal to submit to alcohol testing cannot be used to
enhance the instant conviction to a second offense under Neb.
Rev. Stat. § 60-6,197.03 (Supp. 2005), because such convic-
tion is not a “prior conviction” as defined under Neb. Rev. Stat.
§ 60-6,197.02 (Supp. 2005). The county court’s decision was
affirmed by the district court for Buffalo County. The State
sought leave to docket error proceedings, which we granted
on September 24, 2007. hansen has now moved for summary
affirmance, which we hereby deny because the case is a matter
of first impression and therefore not appropriate for summary
disposition. however, we have determined that the case can be
672 	16 NeBRASKA APPeLLATe RePoRTS

resolved without oral argument. See Neb. Ct. R. of Prac. 11
(rev. 2006).
PRoCeDuRAL AND FACTuAL BACKGRouND
After denying enhancement, the trial court sentenced hansen
to a $500 fine and 60 days’ incarceration on the DuI conviction.
A conviction for driving with a revoked license was handled at
the same time, for which conviction hansen was sentenced
to an additional 30 days’ incarceration, such sentences to be
served consecutively. on the DuI conviction, her license was
revoked for 1 year. hansen appealed this sentence to the district
court for Buffalo County, asserting that the sentence was exces-
sive. The State filed a timely cross-appeal under Neb. Rev. Stat.
§ 29-2317 (Cum. Supp. 2006), contesting the county court’s
failure to enhance the DuI conviction to a second offense. The
district court rejected hansen’s argument that the county court’s
sentence was excessive and that she should have received pro-
bation. The district court also found that a prior conviction
under Neb. Rev. Stat. § 60-6,197 (Reissue 2004), the refusal
statute, cannot be used to enhance a conviction under Neb. Rev.
Stat. § 60-6,196 (Reissue 2004), the DuI statute, under the
enhanced penalty provisions of § 60-6,197.03. Pursuant to the
provisions of Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2006),
the State filed an application for leave to docket error proceed-
ings before this court to determine the question of whether
a DuI conviction can be enhanced by a prior conviction for
refusal of a chemical test.
ASSIGNMeNT oF eRRoR
The State asserts that the trial court, and in turn the dis-
trict court, erred in failing to enhance hansen’s conviction for
DuI, “over .15,” under § 60-6,196 to a second offense based
on a prior conviction for refusal to submit to a chemical test
under § 60-6,197.
STANDARD oF ReVIeW
[1] With respect to questions of law, an appellate court has
an obligation to reach an independent conclusion, irrespective
of the decision of the court below. See State v. Sanders, 269
Neb. 895, 697 N.W.2d 657 (2005).
STATe v. hANSeN 	673
Cite as 16 Neb. App. 671

ANALySIS
The issue presented by the State’s appeal in this case is
whether a prior conviction for a violation of § 60-6,197, the
refusal statute, can be used to enhance the conviction for viola-
tion of § 60-6,196, the DuI statute, to a second offense when
an offender is sentenced under § 60-6,197.03. The last cited
statute contains the penalty provisions for sentencing for either
refusal to submit to a chemical test or DuI. There is no dispute
that hansen had a prior conviction for refusal under § 60-6,197
and that such was within the statute’s 12-year “qualifying”
timeframe. That said, whether enhancement is permissible is
determined by the definition of “prior conviction” found in
§ 60-6,197.02, entitled “Driving under influence of alcoholic
liquor or drugs; implied consent to submit to chemical test;
terms, defined; prior convictions; use,” and we quote the perti-
nent portions of the statute:
(1) A violation of section 60-6,196 or 60-6,197 shall be
punished as provided in section 60-6,197.03. For purposes
of sentencing under section 60-6,197.03:
(a) Prior conviction means a conviction for a viola-
tion committed within the twelve-year period prior to
the offense for which the sentence is being imposed
as follows:
(i) For a violation of section 60-6,196:
(A) Any conviction for a violation of section 60-6,196;
(B) Any conviction for a violation of a city or village
ordinance enacted in conformance with section 60-6,196;
(C) Any conviction under a law of another state 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 section 60-6,196; or
(D) 	Any 	conviction 	for 	a 	violation 	of 	section
60-6,198; or
(ii) For a violation of section 60-6,197[:]
(A) Any conviction for a violation of section 60-6,197;
(B) Any conviction for a violation of a city or village ordi-
nance enacted in conformance with section 60-6,197; or
(C) Any conviction under a law of another state if, at
the time of the conviction under the law of such other
674 	16 NeBRASKA APPeLLATe RePoRTS

state, the offense for which the person was convicted
would have been a violation of section 60-6,197.
The district court’s order affirming the county court’s denial
of 	enhancement 	reasoned 	as 	follows 	with 	reference 	to
§ 60-6,197.02:
The purpose of [§ 60-6,197.02] is to define a prior con-
viction when a person is convicted under section 60-6,196
or 60-6,197 of the Nebraska statutes. A plain reading of
the statute indicates the legislature’s intent to define prior
conviction separately when a person is convicted for a
violation of section 60-6,196 and when they are convicted
of a violation [of] section 60-6,197. The decision to define
prior convictions differently for the two offenses is readily
apparent in that the definitions . . . are set forth in separate
subparagraphs notably (i) and (ii). Although the statutory
language is not as clear as it could have been and no leg-
islative history has been provided to this court by either
party, this court believes that the interpretation of the stat-
ute by the county court was in fact proper and the appeal
of the State is without merit.
This causes us to turn to the county court’s decision not to
enhance the instant conviction for DuI, “more than .15,” because
the earlier conviction for refusal under § 60-6,197 was not a
qualifying “prior conviction.” The county court, in its comments
from the bench in refusing to enhance, reasoned that it did not
see any “cross over” in § 60-6,197.02 in that “[r]efusal isn’t
listed under DuI and DuI isn’t listed under [r]efusal.” hansen’s
memorandum brief argues first that the elements of the crimes
of DuI and refusal to submit to chemical testing are different,
and of course we agree. hansen then submits, and we quote:
It is simply strained logic to assert that a motorist hav-
ing been convicted of previously refusing a chemical test
is presumed to have been under the influence and there-
fore that previous conviction can be used to enhance a
subsequent [DuI] conviction. These are two crimes that
although related to driving, are completely different and
just happen to have the same penalty. To commit one
offense in 2006 and a completely different offense in 2007
and enhance [its] penalty defies reason.
STATe v. hANSeN 	675
Cite as 16 Neb. App. 671

[2-4] The State’s position is simply that we need only give
the statutory language of § 60-6,197.02 its plain and ordinary
meaning, and when the words of a statute are plain, direct, and
unambiguous, no interpretation is necessary or will be indulged
to ascertain meaning. See State v. Flye, 245 Neb. 495, 513
N.W.2d 526 (1994). Section 60-6,197.03 provides enhanced
penalties by enhancing the conviction presently before the
court for which sentencing is occurring in the event there are
“prior convictions.” Section 60-6,197.02 is structured by first
articulating the two different crimes for which there can be
enhancement because of a “prior conviction.” The first category
of crime before the court for sentencing is found at “(i) For a
violation of § 60-6,196,” the DuI statute, and the second cate-
gory of crime is found at “(ii) For a violation of § 60-6,197,”
the refusal statute. hansen’s “violation” for which she was
being sentenced was in category (i), DuI, and in the statute
after (i), there is a list of four convictions which can be a “prior
conviction,” beginning with “(A) Any conviction for a violation
of section 60-6,196”; all four categories for prior conviction
involve DuI—whether under Nebraska statute, a city or village
ordinance, or the law of another state. And none of the four cate-
gories which can be a “prior conviction” involve in any way a
previous conviction under § 60-6,197, the refusal statute.
After category “D,” the statute’s language is “or (ii) For a
violation of section 60-6,197,” the refusal statute, which the
State uses to argue that a previous conviction for refusal can
also be used as a prior conviction when the court is passing sen-
tence under “(i) For a violation of section 60-6,196,” the DuI
statute. however, the “or” is in reference to the other crime for
which there can be enhancing prior convictions—“a violation
of section 60-6,197,” the refusal statute. And again the same
scheme is repeated in that three kinds of prior convictions—
(A), (B), and (C)—are listed, but here the prior convictions are
not for DuI-type crimes, but, rather, for refusal crimes under
Nebraska statute, city or village ordinance, or another state’s
refusal statute that is equivalent to Nebraska’s.
[5,6] In short, when a judge is sentencing for a violation of
our DuI statute, the present offense can be enhanced by prior
DuI convictions, and when a judge is sentencing for refusal, the
676 	16 NeBRASKA APPeLLATe RePoRTS

offense then before the court can be enhanced, but only by prior
refusal convictions. But, as said by the county court, there is
no “cross over” under the plain language of the statute because
when sentencing for a DuI conviction, a previous refusal con-
viction is not in the list of convictions that are “prior convic-
tions,” and when sentencing for a refusal conviction, a previous
DuI conviction is not in the list of “prior convictions” which
can be used to enhance the refusal conviction. The State, citing
State v. Flye, supra, argues that the rule of law applicable here is
that we need only give the statutory language of § 60-6,197.02
its plain and ordinary meaning, and when the words of a statute
are plain, direct, and unambiguous, no interpretation is neces-
sary or will be indulged to ascertain meaning. We agree with the
State’s view of the applicable law concerning statutory interpre-
tation. however, our plain reading of the statute is different than
the State’s. We cannot read the statute any differently than did
the county court and the district court, given that hansen was
before the court for a DuI conviction, and the alleged “prior
conviction” was a refusal conviction—but such is not within
the statutorily listed “prior convictions” for a DuI conviction.
Because the statute is clear, we do not resort to legislative
history. Whether this is the result the Legislature intended is
unknown, but the statute “says what it says.” Accordingly, we
affirm the decision of the lower courts.
aFFirmeD.
STATe v. hANSeN 	677
Cite as 16 Neb. App. 671