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State of Nebraska, appellee, v. 

Louis R. Grutell, appellant.

___ N.W.2d ___

Filed May 22, 2020. No. S-18-352.

1. Appeal and Error. An appellate court may find plain error on appeal 

when an error unasserted or uncomplained of at trial, but plainly evident 

from the record, prejudicially affects a litigant’s substantial right and, 

if uncorrected, would result in damage to the integrity, reputation, and 

fairness of the judicial process.

2. Statutes. Statutory interpretation presents a question of law.

3. Criminal Law: Statutes. To determine the elements of a crime, courts 

look to the text of the enacting statute.

4. Drunk Driving: Proof. Under Neb. Rev. Stat. § 60-6,196 (Reissue 

2010), a driving under the influence violation is a single offense that can 

be proved in more than one way.

5. Drunk Driving: Evidence: Proof. To prove a violation of Neb. Rev. 

Stat. § 60-6,196 (Reissue 2010), the essential elements the State must 

prove beyond a reasonable doubt are (1) that the defendant was operating or was in actual physical control of a motor vehicle and (2) that at 

the time the defendant did so, he or she was either (a) under the influence of alcoholic liquor or of any drug, or (b) had a concentration of .08 

of 1 gram or more by weight of alcohol per 100 milliliters of his or her 

blood, or (c) had a concentration of .08 of 1 gram or more by weight of 

alcohol per 210 liters of his or her breath.

6. Drunk Driving: Proof. When the State has charged an aggravated 

offense of driving under the influence, alleging as part of the offense 

that the defendant also had a breath alcohol concentration of .15 or 

more, that allegation is considered an essential element the State must 

prove beyond a reasonable doubt.

7. Drunk Driving. The plain language of Neb. Rev. Stat. § 60-6,108(1) 

(Reissue 2010) shows the driving under the influence statutes apply not 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

06/26/2020 09:08 AM CDT
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just on Nebraska’s highways as that term is defined, but everywhere in 

Nebraska except private property not open to public access. Stated differently, the only place in Nebraska where the driving under the influence statutes do not apply to the operation or control of a motor vehicle 

is on private property which is not open to public access.

8. Indictments and Informations: Complaints. In Nebraska, a criminal 

complaint or information does not need to affirmatively negate any 

statutory exceptions which are not descriptive of the offense.

9. Indictments and Informations: Statutes. It is well-established that an 

information is sufficient if it alleges the crime in the language of the 

enacting statute.

10. Drunk Driving. The exception in Neb. Rev. Stat. § 60-6,108(1) (Reissue 

2010) for private property not open to public access is not a material 

element of the offense of driving under the influence. Instead, the exception in § 60-6,108(1) creates an affirmative defense to the crime of driving under the influence.

11. Criminal Law: Trial: Evidence: Proof. In the absence of a statute 

placing the burden of proving an affirmative defense on the defendant 

in a criminal case, the nature of an affirmative defense is such that 

the defendant has the initial burden of going forward with evidence of 

the defense, and once the defendant has produced sufficient evidence 

to raise the defense, the issue becomes one which the State must 

disprove.

12. ____: ____: ____: ____. In a criminal case, the evidence necessary to 

raise an affirmative defense may be adduced either by the defendant’s 

witnesses or in the State’s case in chief without the necessity of the 

defendant’s presenting evidence. A defendant need only adduce a slight 

amount of evidence to satisfy this initial burden of raising an affirmative defense.

Petition for further review from the Court of Appeals, 

Moore, Chief Judge, and Riedmann and Bishop, Judges, on 

appeal thereto from the District Court for Stanton County, 

Mark A. Johnson, Judge. Judgment of Court of Appeals 

affirmed.

Nathan S. Lab and James K. McGough, of McGough Law, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, Nathan A. Liss, and, 

on brief, Joe Meyer, for appellee.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik, 

and Freudenberg, JJ.

Stacy, J.

Following a jury trial in district court, Louis R. Grutell was 

convicted and sentenced for driving under the influence of 

alcohol (DUI), fourth offense, with a concentration of more 

than .15 of 1 gram of alcohol per 210 liters of breath. 1 He 

appealed his conviction, assigning plain error to the district 

court’s failure to address the provisions of Neb. Rev. Stat. 

§ 60-6,108(1) (Reissue 2010). Section 60-6,108(1) provides, in 

relevant part, that Nebraska’s DUI statutes “shall apply upon 

highways and anywhere throughout the state except private 

property which is not open to public access.” Grutell had not 

requested any rulings or instructions based on § 60-6,108(1), 

but on direct appeal, he argued it was plain error for the district 

court not to address the statute.

In a memorandum opinion, the Nebraska Court of Appeals 

found no plain error and affirmed. 2 We granted Grutell’s 

petition for further review. For the reasons set out below, 

we affirm.

BACKGROUND

In May 2017, the State filed an information in the district 

court for Stanton County charging Grutell with DUI, fourth 

offense, with a concentration of more than .15 of 1 gram of 

alcohol per 2l0 liters of breath, a Class IIA felony. 3 The information did not reference § 60-6,108 and did not affirmatively 

allege that Grutell was operating a motor vehicle on a highway or on private property open to public access. Grutell pled 

not guilty, and a jury trial was held.

1 See Neb. Rev. Stat. §§ 60-6,196 (Reissue 2010) and 60-6,197.02 and 

60-6,197.03(8) (Cum. Supp. 2018).

2 State v. Grutell, No. A-18-352, 2019 WL 3425909 (Neb. App. July 30, 

2019) (selected for posting to court website).

3 See §§ 60-6,196, 60-6,197.02(1)(a)(i)(A), and 60-6,197.03(8).
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TRIAL

Opening Statements

During opening statements, Grutell’s counsel suggested the 

evidence would show that Grutell did not consume alcohol 

until after his vehicle got stuck in a roadside ditch. Counsel 

remarked this would present a “problem” for the State because 

the State would not be able to show that Grutell “actually 

operated that motor vehicle on a public road or highway while 

under the influence.” The State objected to these remarks, 

arguing it did not have to show Grutell was operating a vehicle 

on a public road or highway. The district court initially overruled the State’s objection, but a few hours later it reversed its 

ruling. Outside the presence of the jury, the court explained 

that after conducting some research, it concluded the State was 

not required to prove the offense of DUI occurred on a public 

street or highway. The court went on to add that “if the defend

ant argues that this [DUI] was required to be on a street or 

highway, then upon objection, the Court will instruct the jury 

that it is not required.”

Deputy’s Testimony

The arresting deputy sheriff testified that at approximately 

8 p.m. on February 17, 2017, he was patrolling Highway 24 

when he observed a vehicle stranded in the ditch alongside a 

gravel road that intersected the highway. The vehicle’s headlights were on, and the vehicle appeared to be rocking back 

and forth in the ditch. The deputy saw tire tracks on the traveled surface of the gravel road that led directly to the vehicle 

in the ditch.

The vehicle was registered to Grutell, who was the only 

occupant. The deputy found Grutell in the driver’s seat of the 

vehicle with the engine running. When Grutell was asked to 

step out of the vehicle, he staggered and swayed as he walked. 

Grutell smelled strongly of alcohol, had slurred speech, and 

had glassy, bloodshot eyes. Grutell told the deputy he had 

come from a bar and restaurant in Norfolk, Nebraska, and was 
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on his way to visit his ex-wife at a different bar, where she 

worked as a bartender. The deputy asked Grutell whether he 

had consumed any alcohol that day, and Grutell said he “had 

a few at home” and then had “a couple more” at the bar in 

Norfolk. Grutell later told the officer that if he was charged 

with DUI, he would say he had not been driving the vehicle at 

all and was just “check[ing] on the vehicle in the ditch.”

The deputy administered field sobriety tests. Grutell was 

unable to complete one of the tests and showed signs of 

impairment on all the others. Grutell was arrested for DUI and 

was transported to the Norfolk police station where a breath 

test was conducted. Grutell had a breath alcohol concentration 

of .176. On appeal, he does not challenge either the breath testing process or the test result.

Motion for Directed Verdict

At the close of the State’s case, Grutell moved for a directed 

verdict arguing the State had failed to prove he was in “actual 

physical control” of a motor vehicle while intoxicated. As best 

we can determine from the record, Grutell’s theory was that 

even if he was intoxicated while sitting behind the wheel of 

a running vehicle, the vehicle was stuck in the ditch at the 

time so he could not have exercised actual physical control 

over anything that would have caused the vehicle to move. 

The district court overruled the motion, reasoning that there 

was evidence the vehicle was rocking in the ditch when it was 

first observed by the deputy and that there was also evidence 

Grutell had operated the vehicle on the gravel roadway immediately before getting stuck in the ditch.

Grutell’s Testimony and 

Closing Arguments

Grutell testified in his own defense. He testified that he 

was driving to visit his ex-wife at the bar where she worked 

when he missed his turn. While attempting to make a twopoint turn on the gravel road, his vehicle fell into the ditch 

and became stuck. Grutell testified he did not have a cell 
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phone with him and decided not to walk for help; instead, he 

remained inside the vehicle and began drinking a bottle of 

rum he had purchased earlier that afternoon. Grutell denied 

having consumed alcohol earlier in the day, and he denied 

having told the deputy any such thing. Grutell testified that by 

the time the deputy arrived on the scene a few hours later, he 

had consumed half the bottle of rum. He acknowledged that 

no bottle of rum was found during the inventory search of his 

vehicle, but testified that was because he had thrown it out of 

the vehicle. Grutell agreed that the deputy found him sitting 

behind the wheel of his vehicle with the engine running and 

the headlights on, but he said that he kept the headlights on so 

someone might see him and that he kept the engine running to 

stay warm while he waited.

At the close of all the evidence, Grutell renewed his motion 

for directed verdict without further argument. The State resisted 

the motion, and the district court overruled it.

In his closing argument, Grutell’s counsel asked the jury to 

return a verdict of not guilty if it believed Grutell’s testimony 

that he had not consumed any alcohol until after his vehicle 

became stuck in the ditch. Similar to the argument presented 

in support of the motion for directed verdict, defense counsel 

argued during closing:

It’s true that you can be in the ditch, you can be there 

with a vehicle, and you can be charged with a DUI and 

be guilty. But it’s also true that you can be in the ditch, 

you can be under the influence of alcohol, and if you did 

it at the time when that car is not movable anymore, that 

is not a DUI.

The State did not object to this argument.

Jury Verdict, Enhancement, 

and Sentence

After deliberating for more than an hour, the jury returned a 

unanimous verdict finding Grutell guilty of DUI with an alcohol concentration greater than .15. A presentence investigation 
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was ordered, and the matter was set for an enhancement and 

sentencing hearing.

At that hearing, the court received evidence of Grutell’s 

prior DUI convictions and found him guilty of DUI, fourth 

offense, with a breath alcohol concentration of more than .15. 

Grutell was sentenced to a term of imprisonment for a period 

of 18 to 36 months, and his operator’s license was revoked for 

a period of 15 years. He filed a timely appeal, represented by 

new counsel.

COURT OF APPEALS

One of Grutell’s assignments of error to the Court of Appeals 

focused on § 60-6,108(1). That statute provides in relevant part 

that Nebraska’s DUI statutes “shall apply upon highways and 

anywhere throughout the state except private property which is 

not open to public access.” 4 In describing the practical effect 

of § 60-6,108(1), we have said it means that “Nebraska’s DUI 

statutes do not apply to operation or control of a vehicle on 

private property that is not open to public access.” 5

It is undisputed that while Grutell’s case was before the 

district court, he did not reference § 60-6,108(1), did not file 

a motion or submit a proposed jury instruction premised on 

§ 60-6,108(1), and did not at any point contend the ditch where 

he was arrested was private property not open to public access. 

But on appeal, he argued the district court committed plain 

error in not addressing § 60-6,108(1).

As relevant to the issue on further review, Grutell argued 

the trial court plainly erred by “fail[ing] to rule on the issue 

of § 60-6,108 and its application to the case at hand” 6 and 

by failing to dismiss the case “pursuant to §60-6,108” 7 in 

response to Grutell’s motions for directed verdict. Grutell also 

4 § 60-6,108(1).

5 State v. Matit, 288 Neb. 163, 168, 846 N.W.2d 232, 237 (2014).

6 Brief for appellant at 12.

7 Id.
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suggested that the reason his trial counsel did not expressly 

raise § 60-6,108(1) was because of the court’s “admonition” 8

early in the trial that the State did not have to prove the DUI 

occurred on a public highway. Finally, Grutell argued the evidence at trial was insufficient to sustain his DUI conviction 

“because there was no evidence that [Grutell’s] operation or 

actual physical control of the vehicle occurred on a public 

roadway or private property with public access, as required by 

. . . §60-6,108.” 9

The Court of Appeals considered each of these arguments 

and, in a memorandum opinion, found none had merit. 10 It 

reasoned that under § 60-6,108(1), Nebraska’s DUI statutes do 

not apply just on highways, but instead apply everywhere in 

Nebraska except on private property not open to public access. 

It rejected Grutell’s suggestion that the trial court had precluded him from raising § 60-6,108(1), and instead, it found 

that because Grutell had not offered evidence or argument that 

the DUI statutes did not apply to the ditch where he was found, 

there was no need for the district court to make a finding, or to 

instruct the jury, on the requirements of § 60-6,108(1). In its 

analysis, the Court of Appeals also remarked that the requirements of § 60-6,108(1) are “not an essential element of [DUI] 

under § 60-6,196(1).” 11

Grutell petitioned this court for further review, arguing 

primarily that the Court of Appeals’ analysis had the effect 

of improperly shifting the burden of proof on a material element of the crime of DUI from the State to the defendant. We 

granted further review to address Grutell’s argument that the 

provisions of § 60-6,108(1) are a material element of the crime 

of DUI.

8 Id.

9 Reply brief for appellant at 2.

10 Grutell, supra note 2.

11 Id. at *7, citing State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015) 

(holding when instructing jury it is proper for court to describe offense in 

language of statute).
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ASSIGNMENTS OF ERROR

Grutell assigns, restated, that the Court of Appeals erred in 

its plain error review by (1) rejecting his claim that the district 

court precluded him from challenging the status of the ditch 

under § 60-6,108(1), (2) shifting the burden of proof to Grutell 

to show he was on private property that was not open to public 

access, and (3) failing to determine as a matter of law whether 

a ditch adjacent to a gravel road satisfies the requirements of 

§ 60-6,108(1).

STANDARD OF REVIEW

[1] An appellate court may find plain error on appeal when 

an error unasserted or uncomplained of at trial, but plainly 

evident from the record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the 

integrity, reputation, and fairness of the judicial process. 12

[2] Statutory interpretation presents a question of law. 13

ANALYSIS

[3] All of Grutell’s assignments of error turn on the central 

premise that the provisions of § 60-6,108(1) are an essential 

element of the crime of DUI which the State must, in every 

case, prove beyond a reasonable doubt. To determine the elements of a crime, we look to the text of the enacting statute. 14

Material Elements of DUI

The crime of DUI is defined in § 60-6,196, one of many 

statutes in the Nebraska Rules of the Road. That statute 

provides:

(1) It shall be unlawful for any person to operate or be 

in the actual physical control of any motor vehicle:

(a) While under the influence of alcoholic liquor or of 

any drug;

12 State v. Munoz, 303 Neb. 69, 927 N.W.2d 25 (2019).

13 State v. Brye, 304 Neb. 498, 935 N.W.2d 438 (2019).

14 State v. Mann, 302 Neb. 804, 925 N.W.2d 324 (2019).
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(b) When such person has a concentration of eighthundredths of one gram or more by weight of alcohol per 

one hundred milliliters of his or her blood; or

(c) When such person has a concentration of eighthundredths of one gram or more by weight of alcohol per 

two hundred ten liters of his or her breath. 15

[4-6] We have explained that under § 60-6,196, a DUI 

violation is a single offense that can be proved in more than 

one way. 16 Based on the text of § 60-6,196, the essential elements the State must prove beyond a reasonable doubt are 

(1) that the defendant was operating or was in actual physical control of a motor vehicle and (2) that at the time the 

defendant did so, he or she was either (a) under the influence 

of alcoholic liquor or of any drug, or (b) had a concentration 

of .08 of 1 gram or more by weight of alcohol per 100 milliliters of his or her blood, or (c) had a concentration of .08 

of 1 gram or more by weight of alcohol per 210 liters of his 

or her breath. 17 And where, as here, the State has charged an 

aggravated offense, 18 alleging as part of the DUI offense that 

the defendant also had a breath alcohol concentration of .15 

or more, that allegation is also considered an essential element the State must prove beyond a reasonable doubt. 19 But 

none of the statutes defining the offense of DUI, or establishing the penalties for DUI, contain any geographic limitations 

or exceptions.

It is another statute contained within the Nebraska Rules of 

the Road, § 60-6,108(1), that limits the applicability of the DUI 

statutes by providing in relevant part:

(1) The provisions of the Nebraska Rules of the Road 

relating to operation of vehicles refer exclusively to 

15 § 60-6,196.

16 State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).

17 See id.

18 See § 60-6,197.03.

19 See State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010).
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operation of vehicles upon highways except where a 

different place is specifically referred to in a given section, but sections 60-6,196 [(defining crime of DUI)], 

60-6,197 [(addressing chemical tests for DUI)], [and] 

60-6,197.04 [(addressing preliminary breath test for 

DUI)] shall apply upon highways and anywhere throughout the state except private property which is not open to 

public access.

(Emphasis supplied.)

[7] The plain language of § 60-6,108(1) shows the Legislature 

intends the DUI statutes to apply not just on Nebraska’s highways as that term is defined, 20 but everywhere in Nebraska 

except private property not open to public access. Stated differently, the only place in Nebraska where the DUI statutes do 

not apply to the operation or control of a motor vehicle is on 

private property which is not open to public access. 21 As such, 

the provisions of § 60-6,108(1) are best understood as creating 

a geographical exception to the DUI statutes for private property not open to public access.

Is Exception in § 60-6,108(1) 

Material Element of DUI?

The central question presented in this appeal is whether 

the exception set out in § 60-6,108(1) is a material element 

of the crime of DUI, such that the State must always disprove the exception in order to prove the crime of DUI. It 

is significant to our analysis that the exception at issue does 

not appear in the statute defining the crime, but, rather, in a 

separate statute.

Sometimes, when enacting a separate statutory exception to 

a criminal offense, the Legislature has been clear that the State 

is not required to negate the exception to prove the offense and 

the burden of proving the exception is on the person claiming 

20 See Neb. Rev. Stat. § 60-624 (Reissue 2010).

21 Matit, supra note 5.
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its benefit. 22 The exception found in § 60-6,108(1) contains no 

such language. But that does not mean the State is required, in 

every DUI case, to negate the exception in § 60-6,108(1).

As a general rule, most jurisdictions hold that when a statutory exception appears in the statute defining the crime, the 

prosecution is required to plead and prove the defendant does 

not fall within the exception, but when the exception appears in 

a separate statute, it is considered a matter of defense. 23 Cases 

in Nebraska have followed this general rule. 24

[8] In Nebraska, a criminal complaint or information does 

not need to affirmatively negate any statutory exceptions which 

are not descriptive of the offense. 25 Thirty years ago, in State v. 

Golgert,

 26 we applied this rule in DUI cases.

[9] In Golgert, we considered whether an earlier codification 

of § 60-6,108(1) 27 required the State to affirmatively allege in 

the complaint that the crime of DUI occurred on a “highway.” 

At the time, the earlier codification of § 60-6,108(1) provided that the statutes related to the crimes of careless driving 

22 See, e.g., Neb. Rev. Stat. § 8-1121 (Reissue 2012) (“[i]n any proceeding 

under the Securities Act of Nebraska, the burden of proving an exemption 

or an exception from a definition shall be upon the person claiming 

it”); Neb. Rev. Stat. § 28-432(1) (Reissue 2016) (State need not negate 

exemptions or exceptions set out in Uniform Controlled Substances Act; 

burden of proving exemption or exception shall be upon person claiming 

its benefit).

23 See Annot., 153 A.L.R. 1218 (1944) (cases cited therein).

24 Compare, e.g., Mann, supra note 14 (exception appearing in statute 

defining offense is material element State must prove); State v. Hind, 

143 Neb. 479, 10 N.W.2d 258 (1943) (State required to plead and prove 

exception contained within statute defining crime); Roberts v. State, 

110 Neb. 759, 195 N.W. 114 (1923) (exception not contained in statute 

defining offense is matter of defense); Holmes v. State, 82 Neb. 406, 118 

N.W. 99 (1908) (State required to plead and prove exception contained 

within statute defining crime).

25 See Jacox v. State, 154 Neb. 416, 48 N.W.2d 390 (1951).

26 State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986).

27 See Neb. Rev. Stat. § 39-603(1) (Reissue 1984).
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and reckless driving applied “upon highways and anywhere 

throughout the state,” but that another series of statutes in 

the Nebraska Rules of the Road, including the DUI statutes, 

applied only on “highways” as that term was then defined. 28

Golgert noted the well-established rule that an information is 

sufficient if it alleges the crime in the language of the enacting 

statute, and it observed that the text of the statute defining DUI 

did not address highways. Because the DUI enacting statute 

did not include the limitation that the offense must occur on a 

highway, we held that being on a highway was “not an element 

of the crime which must be alleged in the complaint.” 29

We pause to acknowledge that even after Golgert, it is a 

relatively common practice for prosecutors, when charging 

DUI, to include allegations in the complaint or information 

that at the time the defendant was operating or in actual 

physical control of a motor vehicle, he or she was not on 

private property not open to public access. Similarly, the DUI 

records we see on appeal show it is a common practice, in 

DUI trials, for courts to routinely instruct the jury on the 

requirements of § 60-6,108(1), either through the elements 

instruction or through definitional instructions. While the 

better practice may be to routinely instruct the jury on the 

requirements of § 60-6,108(1), the question here is whether it 

was plain error for the trial court to not address the exception 

at all. Like the Court of Appeals, we can find no plain error 

in that regard.

[10] We agree with the Court of Appeals that the exception in § 60-6,108(1) is not a material element of the offense 

of DUI which the State must plead and prove in every case. 30

28 See id.

29 Golgert, supra note 26, 223 Neb. at 955, 395 N.W.2d at 523. Accord 

State v. Wagner, 295 Neb. 132, 888 N.W.2d 357 (2016) (information 

charging refusal of chemical test is sufficient if it alleges facts or elements 

necessary to constitute offense described in statute and intended to be 

punished).

30 See Golgert, supra note 26.
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Instead, the exception in § 60-6,108(1) creates an affirmative 

defense to the crime of DUI, and that important distinction 

impacts the burden of proof.

§ 60-6,108(1) and Burden of Proof

[11,12] In State v. Edwards,

 31 we recognized that courts 

in some jurisdictions require criminal defendants to bear the 

burden of proving an affirmative defense. But in Nebraska, we 

have adopted the rule that in the absence of a statute placing 

the burden of proving an affirmative defense on the defendant 

in a criminal case, 32 the nature of an affirmative defense is 

such that the defendant has the initial burden of going forward 

with evidence of the defense, and once the defendant has 

produced sufficient evidence to raise the defense, the issue 

becomes one which the State must disprove. 33 The evidence 

necessary to raise an affirmative defense may be adduced 

either by the defendant’s witnesses or in the State’s case 

in chief without the necessity of the defendant’s presenting 

evidence. 34 A defendant need only adduce a slight amount of 

evidence to satisfy this initial burden of raising an affirmative defense. 35

As several of our prior cases addressing § 60-6,108(1) demonstrate, it is common for a defendant to raise the applicability 

of § 60-6,108(1) in pretrial motions and during trial. 36 When 

31 State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).

32 See, e.g., Neb. Rev. Stat. §§ 28-202 and 29-2203 (Reissue 2016).

33 Edwards, supra note 31; State v. Kinser, 252 Neb. 600, 567 N.W.2d 287 

(1997).

34 See Kinser, supra note 33.

35 Id.

36 See, e.g., State v. Pester, 294 Neb. 995, 885 N.W.2d 713 (2016) 

(§ 60-6,108(1) raised in motion to quash, motion to suppress, and motion 

for directed verdict); Matit, supra note 5 (§ 60-6,108(1) raised in motion to 

suppress and at trial); State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011) 

(raising § 60-6,108(1) in motion to suppress, at trial, and at enhancement 

hearing); State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004) (raising 

§ 60-6,108(1) at trial).
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cases have presented a question whether a vehicle was on private property not open to public access, it has generally been 

treated as a fact question for the fact finder to determine. 37 And 

our prior cases show that when § 60-6,108(1) was raised in 

a case involving a jury, the jury was instructed in a way that 

required the State to disprove the applicability of the defense. 38

As such, while our prior cases did not expressly characterize 

the exception in § 60-6,108(1) as an affirmative defense, we 

have consistently treated it as such.

With this framework in mind, we address Grutell’s assignments of error on further review.

No Plain Error

In his brief on further review, Grutell first argues that the 

Court of Appeals erred in rejecting his claim that the district 

court prevented him from raising § 60-6,108(1). This argument 

focuses on the trial court’s remark, made outside the presence 

of the jury, that the State was not required to prove that the 

DUI offense occurred on a public highway. The trial court’s 

remark was a correct statement of the law, and we agree with 

the Court of Appeals that this remark did not preclude Grutell 

from raising the defense that his vehicle was on private property not open to public access.

Next, Grutell argues the Court of Appeals erred when it 

found that his failure to invoke § 60-6,108(1) prevented a 

finding of plain error by the trial court in not addressing that 

statute. Grutell argues that the Court of Appeals’ analysis 

improperly shifted the burden of proof on § 60-6,108(1) from 

the State to the defense. We disagree.

37 See, Hoppens v. Nebraska Dept. of Motor Vehicles, 288 Neb. 857, 852 

N.W.2d 331 (2014); Matit, supra note 5; Prater, supra note 36. But 

see State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011) (whether 

residential driveway was private property not open to public access was 

question of statutory interpretation and thus matter of law, since Legislature 

defined “[p]rivate road or driveway” in Neb. Rev. Stat. § 60-649 (Reissue 

2010)).

38 See, e.g., Pester, supra note 36; Matit, supra note 5.
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As we have already explained, the exception in § 60-6,108(1) 

is not a material element of DUI. Rather, it is a separate statutory exception to the criminal offense of DUI, and as such, it 

is a matter to be raised initially as an affirmative defense. The 

Court of Appeals correctly observed that in this court’s prior 

opinions addressing § 60-6,108(1), the issue of whether the 

defendant was on private property not open to public access 

was raised by the defense through pretrial motions and through 

the introduction of evidence at trial. 39 Because Grutell never 

raised the affirmative defense of § 60-6,108(1), the Court of 

Appeals correctly rejected his claim that the trial court plainly 

erred in not addressing it.

Finally, Grutell argues the Court of Appeals erred in failing 

to address, as a matter of law, whether § 60-6,108(1) applies to 

a ditch next to a gravel road. Again we disagree.

As stated earlier, the issue of whether a vehicle was being 

operated or controlled on private property not open to public 

access is ordinarily a fact question to be determined by the 

fact finder, and not an issue to be determined as a matter of 

law. For the sake of completeness, we note that in State v. 

Thelen,

 40 we recently held as a matter of statutory interpretation that the ditch area within the county’s right-of-way is part 

of the “public road” for purposes of Neb. Rev. Stat. § 39-301 

(Reissue 2016). We express no opinion regarding the applicability, if any, of the holding in Thelen to questions under 

§ 60-6,108(1). Instead, we emphasize that, on this record, it 

was not necessary for either the trial court or the Court of 

Appeals to address whether § 60-6,108(1) applies to a roadside 

ditch, because Grutell did not raise that affirmative defense in 

the trial court.

Instead, Grutell pursued an entirely different defense theory. Based on his testimony that he had not become intoxicated until after his vehicle got stuck in the ditch, he argued 

39 See, e.g., cases cited supra note 36.

40 State v. Thelen, ante p. 334, 940 N.W.2d 259 (2020).
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the State could not show he had actual physical control over 

a “movable” vehicle while intoxicated. The jury rejected 

this theory.

On this record, Grutell did nothing to invoke the provisions 

of § 60-6,108(1) and there was no evidence adduced at trial 

by either party to create a fact issue regarding the applicability of § 60-6,108(1). The Court of Appeals correctly rejected 

Grutell’s claims of plain error.

CONCLUSION

Finding no plain error in how either the trial court or the 

Court of Appeals addressed § 60-6,108(1), we affirm.

Affirmed.

Funke, J., participating on briefs.