State v. Grizzle

We find this assignment of error to be without merit.
CONCLUSION
Accordingly, we conclude that the district court did not
clearly err when it determined that the Department had juris-
diction to administratively revoke Wilson’s driver’s license, and
we therefore affirm.
A ffirmed.
StAte of NebrASkA, Appellee , v.
NicholAS r. G rizzle , AppellANt.
774 N.W.2d 634
Filed September 29, 2009. 	No. A-09-327.
1. Pleadings. Issues regarding the grant or denial of a plea in bar are 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. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
Nebraska Constitutions protect against three distinct abuses: (1) a second pros-
ecution 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. Where the same act or trans-
action 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.
6. 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 the defendant for such multiple
offenses in a single prosecution.
7. Claims: Time. A claim is not ripe for adjudication when it rests upon contingent
future events that may not occur as anticipated, or indeed may not occur at all.
8. Courts: Judgments. In the absence of an actual case or controversy requiring
judicial resolution, it is not the function of the courts to render a judgment that is
merely advisory.
Appeal from the District Court for Cass County: rANdAll l.
rehmeier, Judge. Affirmed.
48 	18 NebrASkA AppeLLATe repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:13 AM CST

Julie e. bear, of reinsch, Slattery & bear, p.C., L.L.O., for
appellant.
Jon bruning, Attorney General, and James D. Smith for
appellee.
SieverS, cArlSoN, and cASSel, Judges.
cASSel, Judge.
INTrODUCTION
Nicholas r. Grizzle pled guilty to refusal to submit to a
chemical test and then filed a plea in bar alleging a double
jeopardy violation because the same information charged him
both with refusal to submit and with driving while under the
influence of alcohol (DUI), third offense, which the State
alleged should be enhanced for punishment as a Class IIIA fel-
ony based on his refusal to submit. The district court overruled
Grizzle’s plea in bar, and Grizzle appeals. We affirm, because
the offenses are not the same for double jeopardy purposes and
double jeopardy does not prohibit the State from prosecuting
multiple offenses in a single prosecution. because Grizzle has
not been convicted of DUI, his argument pertaining to multiple
punishments is unripe.
bACkGrOUND
based upon a May 2008 arrest, the State charged Grizzle
with three offenses: (1) DUI, third offense, enhanced for pun-
ishment by refusal to submit; (2) refusal to submit to a chemi-
cal test; and (3) procuring alcohol for a minor.
On January 12, 2009, Grizzle pled guilty to refusal to sub-
mit to a chemical test, and the court accepted the plea. On
January 27, Grizzle filed a plea in bar, alleging that the State
was subjecting him to multiple punishments for the identical
offense as well as a second prosecution for the same offense
after conviction, by using evidence of his refusal to submit to
both enhance the penalty for the DUI and prove that he refused
a chemical test.
On March 6, 2009, the court sentenced Grizzle on the
refusal to submit conviction. The court then heard arguments
STATe v. GrIzzLe 	49
Cite as 18 Neb. App. 48

on Grizzle’s plea in bar. On March 20, the court overruled the
plea in bar.
Grizzle timely appeals.
ASSIGNMeNT OF errOr
Grizzle alleges that the district court erred in denying his
plea in bar by finding that the Double Jeopardy Clause does
not bar the State from prosecuting him for a DUI that was
“aggravated” to a felony based upon the allegation that he
refused to submit to a chemical test, after Grizzle had been
found guilty of the separate charge of refusal to submit to a
chemical test.
STANDArD OF reVIeW
[1,2] Issues regarding the grant or denial of a plea in bar are
questions of law. State v. Jackson, 274 Neb. 724, 742 N.W.2d
751 (2007). On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the determination
reached by the court below. Id.
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.
State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009). The
protection provided by Nebraska’s double jeopardy clause is
coextensive with that provided by the U.S. Constitution. State
v. Dragoo, supra. Grizzle argues that he has been subjected to
both multiple prosecutions and multiple punishments for the
same offense.
Multiple Prosecutions.
[5] First, we consider Grizzle’s argument that he is being
subjected to multiple prosecutions for the same offense. In
doing so, we first focus on whether DUI is the same offense
as refusal to submit. Under Neb. rev. Stat. § 29-1817 (reissue
2008), an accused may “offer a plea in bar to the indictment
that he has before had judgment of acquittal, or been convicted,
50 	18 NebrASkA AppeLLATe repOrTS

or been pardoned for the same offense.” Under Blockburger v.
United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. ed. 306
(1932), “where the same act or transaction constitutes a viola-
tion 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 jeop-
ardy bars additional punishment and successive prosecution.
State v. Dragoo, supra.
In State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981),
the defendant was charged with refusal to submit to a chemi-
cal test and third-offense DUI based upon the same incident.
Following his conviction on the refusal charge, the defendant
filed a plea in bar, alleging that the conviction on the refusal
charge barred the prosecution for DUI. The district court over-
ruled the plea in bar and subsequently convicted the defendant
of third-offense DUI. The defendant appealed, arguing that the
Double Jeopardy Clause barred his subsequent DUI convic-
tion. The Nebraska Supreme Court affirmed the defendant’s
convictions, concluding that the convictions did not constitute
the same offense because they required different elements
of proof.
Since Stabler, the DUI and refusal to submit statutes
have undergone changes and have been relocated to dif-
ferent chapters, but the statutes remain separately codified
offenses. In State v. Dragoo, supra, in determining whether
fourth-offense DUI was the same offense for double jeopardy
purposes as DUI causing serious bodily injury, the Nebraska
Supreme Court compared the elements of DUI, as defined by
Neb. rev. Stat. § 60-6,196 (reissue 2004), in its Blockburger
analysis. We will do the same.
The DUI statute, § 60-6,196, requires proof that the defend-
ant was operating or in the actual physical control of a motor
vehicle (1) while under the influence of alcoholic liquor, (2)
when having a concentration of .08 of 1 gram or more by
weight of alcohol per 100 milliliters of his or her blood, or
(3) when having a concentration of .08 of 1 gram or more by
weight of alcohol per 210 liters of his or her breath. The refusal
statute, Neb. rev. Stat. § 60-6,197 (reissue 2004), requires
STATe v. GrIzzLe 	51
Cite as 18 Neb. App. 48

proof that the defendant (1) was arrested for any offense aris-
ing out of acts alleged to have been committed while operat-
ing or in the actual physical control of a motor vehicle while
under the influence of alcoholic liquor, (2) was directed by a
peace officer to submit to a chemical test for a determination
of the concentration of alcohol and was advised that refusal
to submit is a separate crime, and (3) refused to submit to the
chemical test. because each crime contains an element that the
other does not, they are not the same offense for double jeop-
ardy purposes.
even if the offenses were the same offense, we conclude that
the State would not be barred from prosecuting the DUI charge
based upon Grizzle’s guilty plea to refusal to submit. The U.S.
Supreme Court and the Nebraska Supreme Court have rejected
claims where a defendant pleads guilty to one or more charges
and then challenges continued prosecution of other charges on
double jeopardy grounds. See, Ohio v. Johnson, 467 U.S. 493,
104 S. Ct. 2536, 81 L. ed. 2d 425 (1984); State v. Humbert,
272 Neb. 428, 722 N.W.2d 71 (2006).
In Ohio v. Johnson, supra, the defendant was indicted on
charges of murder, involuntary manslaughter, aggravated rob-
bery, and grand theft. The defendant pled guilty to involuntary
manslaughter and grand theft, the trial court accepted the
guilty pleas over the State’s objection, and the court sen-
tenced the defendant to a term of imprisonment. The defend-
ant then moved to dismiss the remaining charges on the
ground that further prosecution of those charges was barred
by the Double Jeopardy Clause. The U.S. Supreme Court dis-
agreed, reasoning:
The 	acceptance 	of 	a 	guilty 	plea 	to 	lesser 	included
offenses while charges on the greater offenses remain
pending, moreover, has none of the implications of an
“implied acquittal” which results from a verdict convict-
ing a defendant on lesser included offenses rendered by a
jury charged to consider both greater and lesser included
offenses. [Citations omitted.] There simply has been none
of the governmental overreaching that double jeopardy
is supposed to prevent. On the other hand, ending pros-
ecution now would deny the State its right to one full
52 	18 NebrASkA AppeLLATe repOrTS

and fair opportunity to convict those who have violated
its laws.
Ohio v. Johnson, 467 U.S. at 501-02.
[6] The Court further stated, “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 [the defendant] for such
multiple offenses in a single prosecution.” Ohio v. Johnson,
467 U.S. at 500. even though the trial court had accepted the
defendant’s pleas to the less serious charges, the Supreme
Court stated that the defendant “should not be entitled to use
the Double Jeopardy Clause as a sword to prevent the State
from completing its prosecution on the remaining charges.”
Ohio v. Johnson, 467 U.S. at 502.
In State v. Humbert, supra, the defendant was charged with
four felonies—first degree false imprisonment, second degree
assault (domestic violence), terroristic threats, and use of a
weapon to commit a felony—and two misdemeanors—second
degree false imprisonment and third degree assault (domestic
violence). He pled no contest to the misdemeanors and then filed
a plea in bar alleging that second degree false imprisonment is
a lesser-included offense of first degree false imprisonment,
third degree assault (domestic violence) is a lesser-included
offense of second degree assault (domestic violence), and pros-
ecution of the charges of first degree false imprisonment and
second degree assault (domestic violence) was therefore barred
by the Double Jeopardy Clauses of the federal and Nebraska
Constitutions. The Nebraska Supreme Court observed:
The State is not seeking a subsequent prosecution of
[the defendant] for a greater offense after he had previ-
ously been tried for the lesser-included offense. There has
been no trial on any of the charges. [The defendant] has
pleaded no contest to the above-described misdemeanors,
but he has not been sentenced and he has not been sub-
jected to a trial on the felony charges.
State v. Humbert, 272 Neb. 428, 433, 722 N.W.2d 71, 75-
76 (2006).
The court analogized the situation with that in Ohio v.
Johnson, 467 U.S. 493, 104 S. Ct. 2536, 81 L. ed. 2d 425
STATe v. GrIzzLe 	53
Cite as 18 Neb. App. 48

(1984), and stated, “The State has not yet had an opportunity
to prosecute [the defendant] on all of the charges.” State v.
Humbert, 272 Neb. at 433, 722 N.W.2d at 76.
Grizzle points out that this court found a double jeopardy
violation in State v. Dragoo, 17 Neb. App. 267, 758 N.W.2d
60 (2008), affirmed 277 Neb. 858, 765 N.W.2d 666 (2009)—
which conclusion was subsequently affirmed by the Nebraska
Supreme Court—even though prosecution of the two offenses
“occurred in the same proceeding.” brief for appellant at 13
(emphasis omitted). In that case, however, the defendant pled
not guilty to both charges and was tried by a jury on both
charges. On the other hand, in the instant case, Grizzle pled
guilty to and has been convicted of one charge, but he has
not been tried on the more serious charge of DUI. Just as in
Johnson and Humbert, we conclude that the State’s continued
prosecution of the “untried charges” is not barred.
Multiple Punishments.
Grizzle also argues that he has been subjected to multiple
punishments for the same offense. We decline to consider this
claim, because Grizzle has not yet been convicted of the DUI
charge. The Court in Ohio v. Johnson, supra, noted that in the
event of a guilty verdict on the more serious charges of which
the defendant had not yet been tried, the trial court would then
have to consider the issue of cumulative punishments, but that
that stage had not been reached.
[7] A claim is not ripe for adjudication when it rests upon
contingent future events that may not occur as anticipated, or
indeed may not occur at all. State v. Hansen, 259 Neb. 764,
612 N.W.2d 477 (2000). In the context of a motion to quash,
we stated:
[U]ntil a defendant’s guilt or innocence of the underly-
ing DUI has been determined, the admissibility of prior
DUI convictions for enhancement purposes is not yet ripe
for determination by the court. Consequently, a motion
to quash which raises the issue of the admissibility of a
defendant’s prior DUI convictions, for enhancement pur-
poses, should not be filed until after a determination of
the defendant’s guilt on the underlying offense.
54 	18 NebrASkA AppeLLATe repOrTS

State v. Head, 14 Neb. App. 684, 689, 712 N.W.2d 822,
826 (2006).
[8] The issue about which Grizzle argues comes from the
penalty provisions for sentencing for either DUI or refusal
to submit to a chemical test, which are contained in Neb.
rev. Stat. § 60-6,197.03 (Supp. 2007). See Neb. rev. Stat.
§ 60-6,197.02 (Cum. Supp. 2008). Under § 60-6,197.03(6), as
applicable here, a person is guilty of a Class IIIA felony if the
person had had two prior convictions and, as part of the current
violation, refused to submit to a test required under § 60-6,197.
Thus, a refusal to submit can be used to enhance the DUI pen-
alty. but, because Grizzle has not been convicted of DUI, we
do not reach this issue, as such a determination would merely
be an advisory opinion. In the absence of an actual case or
controversy requiring judicial resolution, it is not the function
of the courts to render a judgment that is merely advisory. State
v. Head, supra.
because Grizzle has not been convicted of DUI, his claim of
being subjected to multiple punishments—which is contingent
upon being convicted of third-offense DUI—is not ripe for
adjudication. As the Supreme Court stated in State v. Humbert,
272 Neb. 428, 433, 722 N.W.2d 71, 76 (2006), the defendant
“can assert his double jeopardy claims as to cumulative pun-
ishments based on convictions for greater and lesser offenses
when and if that issue is presented.”
CONCLUSION
We conclude that DUI and refusal to submit are not the same
offense for double jeopardy purposes and that the State is not
barred from prosecuting multiple offenses in a single prosecu-
tion. Grizzle’s claim that the penalty provision for third-offense
DUI subjected him to multiple punishments is not ripe for
appellate review. Accordingly, we affirm the denial of Grizzle’s
plea in bar.
A ffirmed.
STATe v. GrIzzLe 	55
Cite as 18 Neb. App. 48