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State of Nebraska, appellee, v.

Todd A. Wagner, appell

State of Nebraska, appellee, v.

Brandon B. Rohde, appe

___ N.W.2d ___

Filed December 2, 2016. Nos. S-15-788, S-16-065.

1. Constitutional Law: Statutes: Judgments: Appeal and Error. The 

constitutionality and construction of a statute are questions of law, 

regarding which an appellate court is obligated to reach conclusions 

independent of those reached by the court below.

2. Statutes: Legislature: Intent. In construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

3. ____: ____: ____. Components of a series or collection of statutes pertaining to a certain subject matter should be conjunctively considered 

and construed to determine the intent of the Legislature, so that different 

provisions are consistent, harmonious, and sensible.

4. Criminal Law: Statutes: Legislature: Intent. Although the rule of lenity requires a court to resolve ambiguities in a penal code in the defendant’s favor, the touchstone of the rule of lenity is statutory ambiguity, 

and where the legislative language is clear, a court may not manufacture 

ambiguity in order to defeat that intent.

5. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of 

a statute.

6. Constitutional Law: Statutes. It is the duty of a court to give a statute 

an interpretation that meets constitutional requirements if it can reasonably be done.

7. Double Jeopardy: Intent. The primary purpose of the Double Jeopardy 

Clause is to protect against multiple trials.

Nebraska Supreme Court Online Library

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

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8. Sentences: Double Jeopardy. As to the protection against multiple 

punishments for the same offense, the Double Jeopardy Clause does no 

more than prevent the sentencing court from prescribing greater punishment than the Legislature intended.

9. Drunk Driving: Words and Phrases. Under Neb. Rev. Stat. 

§ 60-6,197.03(8) (Cum. Supp. 2014), “current violation” encompasses 

violations of both Neb. Rev. Stat. § 60-6,196 (Reissue 2010) and Neb. 

Rev. Stat. § 60-6,197 (Cum. Supp. 2016).

10. Constitutional Law: Criminal Law: Statutes. A penal statute must 

define the criminal offense with sufficient definiteness that ordinary 

people can understand what conduct is prohibited and in a manner that 

does not encourage arbitrary and discriminatory enforcement.

11. Appeal and Error. An appellate court will not address arguments that 

are too generalized or vague to be understood.

12. Indictments and Informations. The function of an information is twofold. With reasonable certainty, an information must inform the accused 

of the crime charged so that the accused may prepare a defense to the 

prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense.

13. ____. The information may use the language of the statute or its 

equivalent.

Appeals from the District Court for Lancaster County: 

Stephanie F. Stacy and Steven D. Burns, Judges.

Mark E. Rappl for appellant in No. S-15-788.

Joe Nigro, Lancaster County Public Defender, and Nathan 

Sohriakoff for appellant in No. S-16-065.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel,

and Funke, JJ., and Inbody, Ju

Wright, J.

NATURE OF CASE

These two appeals involve identical charges, similar facts, 

and identical assignments of error and arguments. Therefore, 

although they were briefed and argued separately, it is 
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appropriate to address the two appeals in a single opinion. 

The defendants appeal the denial of their pleas in bar and 

motions to quash in relation to the application of Neb. Rev. 

Stat. § 60-6,197.03(8) (Cum. Supp. 2014) in sentencing them 

for the crime of refusal to submit to a chemical test as 

required by Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 2016). 

Both defendants have three prior convictions for driving under 

the influence (DUI).1 The defendants argue that the application of § 60-6,197.03(8) is inappropriate because the “current 

violation” referred to therein must mean a current DUI violation, and not a refusal violation. For the reasons set forth, 

we affirm.

BACKGROUND

In case No. S-16-065, Brandon B. Rohde pled no contest 

to the refusal of a chemical test, with three prior convictions, 

under §§ 60-6,197 and 60-6,197.03(8), in relation to acts 

committed on April 13, 2015. In case No. S-15-788, Todd A. 

Wagner pled no contest to refusal of a chemical test, with three 

prior convictions, under §§ 60-6,197 and 60-6,197.03(8), in 

relation to acts committed on December 2, 2013. In both cases, 

the pleas were accepted and the defendants were found guilty 

of refusal of a chemical test, as prohibited by § 60-6,197.

Section 60-6,197(3) states that it is a crime to refuse to submit to a chemical test, while § 60-6,196 states that it is a crime 

to operate or be in control of a motor vehicle while under 

the influence of drugs or alcohol. But neither § 60-6,196 nor 

§ 60-6,197 sets forth any punishment for those crimes.

Section 60-6,197.03 has 10 subsections, which are introduced by stating, “Any person convicted of a violation of 

section 60-6,196 or 60-6,197 shall be punished as follows.” 

Subsection (8) of § 60-6,197.03 states that it applies to “such 

person” who has had three prior convictions and, “as part of 

the current violation,” had a breath or blood alcohol concentration of .15 or above “or refused to submit to a test as required 

1 See Neb. Rev. Stat. § 60-6,196 (Reissue 2010).
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under section 60-6,197.” Subsection (8) provides for harsher 

penalties than subsection (7), which applies, “[e]xcept as provided in subdivision (8) of this section,” to “such person” who 

has had three prior convictions and has an alcohol concentration of .08 or above.

The defendants filed pleas in bar alleging that application 

of § 60-6,197.03(8) would subject them to multiple punishments for the same offense by using the same act of refusing 

to submit to a chemical test as an element of the underlying 

crime of refusal, in violation of § 60-6,197, and as an element 

of “enhancement” under § 60-6,197.03(8). The defendants also 

filed motions to quash repeating this double jeopardy argument and further asserting that (1) the meaning of “current 

violation” in § 60-6,197.03(8) is a DUI under § 60-6,196, and 

not refusal under § 60-6,197; (2) § 60-6,197.03(8) is unconstitutionally vague and overbroad by failing to define “current 

violation”; (3) the enhanced charge under § 60-6,197.03(8) 

violates due process, because the prior convictions upon which 

the enhancement is based were for DUI’s and not refusals; and (4) the application of § 60-6,197.03(8) is cruel and 

unusual punishment.

The courts denied the motions. As to the defendants’ 

arguments concerning double jeopardy and the meaning of 

§ 60-6,197.03(8), the courts concluded that “current violation” in § 60-6,197.03(8) was unambiguous and encompasses 

violations of either § 60-6,196 or § 60-6,197, as described in 

the introductory sentence of § 60-6,197.03. The courts found 

that the Legislature had determined to treat refusal and aggravated DUI (breath or blood alcohol concentration of .15 or 

above) similarly for purposes of determining penalties when 

a defendant has prior convictions. That determination was not 

enhancement, but, rather, as one court explained, “a choice the 

Legislature has made as to the category of the crime itself.” 

The crime of refusal was “enhanced” only by the three prior 

convictions, and, as the other court reasoned, “referencing the 

underlying offense in this context does not equate to a second 
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prosecution for the same offense, nor does it result in multiple 

punishments for the same offense.”

Upon evidence of three prior convictions, the courts sentenced the defendants in accordance with § 60-6,197.03(8). 

The defendants appeal.

ASSIGNMENTS OF ERROR

The defendants both assign that the district court erred by 

overruling their (1) pleas in bar and (2) motions to quash.

STANDARD OF REVIEW

[1] The constitutionality and construction of a statute are 

questions of law, regarding which we are obligated to reach 

conclusions independent of those reached by the court below.2

ANALYSIS

§ 60-6,197.03: “as part of the

current violati

[2,3] The defendants’ principal argument is that 

§ 60-6,197.03(8) was meant to apply only to persons who 

violated the DUI statute, § 60-6,196, and not to persons who 

violated the refusal statute, § 60-6,197. In construing a statute, a court must determine and give effect to the purpose 

and intent of the Legislature as ascertained from the entire 

language of the statute considered in its plain, ordinary, 

and popular sense.3 Components of a series or collection of 

statutes pertaining to a certain subject matter should be conjunctively considered and construed to determine the intent 

of the Legislature, so that different provisions are consistent, 

harmonious, and sensible.4 We find no ambiguity or inconsistency in reading § 60-6,197.03(8) as encompassing underlying refusal violations. And we find it sensible to prevent 

prior offenders from avoiding, through the act of refusing a 

2 State v. Perina, 282 Neb. 463, 804 N.W.2d 164 (2011).

3 State v. Smith, 282 Neb. 720, 806 N.W.2d 383 (2011).

4 See State v. Raatz, 294 Neb. 852, 885 N.W.2d 38 (2016).
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chemical test, the greater penalty for having a breath or blood 

alcohol concentration of .15 or above, regardless of whether 

the underlying violation is refusal or DUI.

Section 60-6,197.03 sets forth the punishments for “[a]ny 

person convicted of a violation of section 60-6,196 or 60-6,197 

. . . .” The version of § 60-6,197.03 in effect at the time of 

the defendants’ crimes provided that any person convicted 

of a violation of § 60-6,196 or § 60-6,197 shall be punished 

as follows:

(1) Except as provided in subdivision (2) of this section, if such person has not had a prior conviction, such 

person shall be guilty of a Class W misdemeanor, and the 

court shall, as part of the judgment of conviction, order 

that the operator’s license of such person be revoked for a 

period of six months . . . .

. . . .

(2) If such person has not had a prior conviction and, 

as part of the current violation, had a concentration of 

fifteen-hundredths of one gram or more by weight of 

alcohol per one hundred milliliters of his or her blood 

or fifteen-hundredths of one gram or more by weight of 

alcohol per two hundred ten liters of his or her breath, 

such person shall be guilty of a Class W misdemeanor, 

and the court shall, as part of the judgment of conviction, 

revoke the operator’s license of such person for a period 

of one year . . . .

. . . .

(7) Except as provided in subdivision (8) of this section, if such person has had three prior convictions, such 

person shall be guilty of a Class IIIA felony, and the court 

shall, as part of the judgment of conviction, order that the 

operator’s license of such person be revoked for a period 

of fifteen years . . . .

. . . .

(8) If such person has had three prior convictions and, 

as part of the current violation, had a concentration of 
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fifteen-hundredths of one gram or more by weight of 

alcohol . . . or refused to submit to a test as required 

under section 60-6,197, such person shall be guilty of a 

Class III felony, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such 

person for a period of fifteen years . . . .

(Emphasis supplied.)

The defendants assert that the reference to “current violation” in § 60-6,197.03(8) is, at the very least, ambiguous. They 

argue that we must construe “current violation” as limited to a 

current DUI violation and as excluding a current refusal violation. They argue that this reading of the statute is required 

in light of the rule of lenity, the context of subsection (8) 

with the other language of the statute, and because construing subsection (8) as encompassing underlying refusal violations would impose double punishment. We find no merit to 

these arguments.

[4] Although the rule of lenity requires a court to resolve 

ambiguities in a penal code in the defendant’s favor, the 

touchstone of the rule of lenity is statutory ambiguity, and 

where the legislative language is clear, we may not manufacture ambiguity in order to defeat that intent.5

 The language of 

§ 60-6,197.03 is straightforward. Section 60-6,197.03 states 

that it is setting forth in its subsections the punishments for 

“[a]ny person convicted of a violation of section 60-6,196 

or 60-6,197 . . . .” (Emphasis supplied.) Each subsection 

then refers back to “such person.” We find that “such person” plainly refers to “[a]ny person convicted of a violation of section 60-6,196 or 60-6,197 . . . .” (Emphasis supplied.) And when certain subsections, such as subsection 

(8), refer to specified acts “as part of the current violation” 

of “such person,” it is equally plain that “current violation” 

refers back to “a violation of section 60-6,196 or 60-6,197.” 

(Emphasis supplied.)

5 State v. Ramirez, 274 Neb. 873, 745 N.W.2d 214 (2008).
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[5] “[C]urrent violation” thus plainly encompasses a violation of either § 60-6,196 or § 60-6,197. As the State points 

out, the defendants ask us to read a “DUI” violation into 

§ 60-6,197.03(8), thereby excluding refusal violations. It is not 

within the province of a court to read a meaning into a statute 

that is not warranted by the language; neither is it within the 

province of a court to read anything plain, direct, or unambiguous out of a statute.6

 As we will explain below, we reject the 

defendants’ arguments that this reading of § 60-6,197.03(8) 

is in any way contrary to the language of the statute read as 

a whole, or to the Double Jeopardy Clauses of the U.S. and 

Nebraska Constitutions.

The defendants argue that by referring to the acts of having a breath or blood alcohol concentration of .15 or above or 

refusing to submit to testing as being “‘part of’” the “‘current 

violation,’” those acts must be something “above and beyond” 

the underlying violation charged.7 They point out that evidence 

of refusing a chemical test in the context of a refusal violation 

is not an act “above and beyond” the violation.8 The defendants 

reason that the act of refusing a chemical test must therefore 

refer only to evidence submitted as circumstantial evidence of 

a DUI violation.9

This argument misconstrues the meaning of the phrase “as 

part of.” To be “part of” is not the same as to be “above and 

beyond.” It means, in fact, the opposite. A “part of” something 

is a “piece” or “segment” of it.10 Considering the phrase “as 

part of” in the context of § 60-6,197.03(8), the Legislature 

plainly utilized that phrase because of its broadness. The 

phrase “as part of” does not call into question our reading of 

the words “current violation.”

6 State v. Raatz, supra note 4.

7 Brief for appellant in case No. S-15-788 at 19 and for appellant in case 

No. S-16-065 at 18.

8 Id.

9 See § 60-6,197(6).

10 See Merriam-Webster’s Collegiate Dictionary 844 (10th ed. 2001).
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The defendants relatedly argue that we must read “current 

violation” as limited to a DUI violation, because such reading 

is the only reading that would be consistent with the use, in 

the same sentence, of the element of having a breath or blood 

alcohol concentration of .15 or above. Having an alcohol concentration of .15 or above, the defendants argue, is evidence 

of a DUI violation and an aggravator. It is not an essential element of a DUI violation and would not, as a practical matter, 

be evidence of a refusal violation. The defendants assert that 

the act of refusing a chemical test must concomitantly refer to 

the act of refusal only as an aggravator and as circumstantial 

evidence in a trial charging a DUI violation. They assert that 

it would be inconsistent for the Legislature to intend that the 

phrase “refused to submit to a [chemical] test” in § 60-6,197.03 

also encompasses that act as an essential element of a refusal 

violation. We disagree. While the same words used in the same 

sentence are presumed to have the same meaning,11 we find no 

reason to presume that these different words used in the same 

sentence must be restricted to a parallel status in relation to different underlying violations.

The defendants next argue that the Legislature expressed, 

through § 60-6,197.03(2), that it did not wish to treat people 

who have a breath or blood alcohol concentration of .15 or 

above the same as people who refuse chemical testing. In this 

regard, the defendants point out that, under subsection (2), a 

person who has no prior convictions is subject to a greater 

punishment only if, “as part of the current violation,” that 

person had an alcohol concentration of .15 or above. There 

is no specific reference in § 60-6,197.03(1) or (2) to the act 

of refusal. A person without prior convictions who is convicted of refusal under § 60-6,197 (or who refused a chemical test as part of violating § 60-6,196) is punished under 

§ 60-6,197.03(1) the same as a person who did not refuse a 

chemical test.

11 See State v. Covey, 290 Neb. 257, 859 N.W.2d 558 (2015).
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The defendants’ assumptions about legislative intent is contrary both to the plain language of the subsections directly 

at issue and to the legislative history of § 60-6,197.03. The 

language, “or refused to submit to a test as required under section 60-6,197,” was added by 2007 Neb. Laws, L.B. 578, to 

each of the provisions applicable to persons with prior convictions. These provisions had previously provided only for the 

punishment of a person who, as part of the current violation, 

had a breath or blood alcohol concentration of .15 or above. 

At the floor debate, Senator Kruse explained the reason for 

the amendment:

During the summer we discovered that there is a bit of a 

loophole in there and so, as I say, make corrections. The 

bill stated that if a person is a repeat offender and has a 

high BAC [breath or blood alcohol concentration] that 

there’s additional sanctions. Some persons have learned, 

through advice of their attorneys, to refuse the test and 

then, by current law, that would then be at .08. So this 

corrects that, makes a refusal of the test the same as the 

offense which is what we do in other parts of the statute, 

and really it’s no more than that.12

The Legislature thus intended to prevent legally savvy 

offenders from avoiding, through refusal of a chemical test, 

the greater penalty for a breath or blood alcohol concentration of .15 or above. The Legislature presumably did not also 

add this “or refused” language to § 60-6,197.03(2), because 

persons without prior convictions would not have had the 

opportunity to be advised by an attorney of this legal loophole. For persons with prior convictions, however, there is no 

logical reason for this loophole to be closed only for persons 

who happen to be charged with a DUI violation rather than a 

refusal violation.

12 Floor Debate, L.B. 578, General Affairs Committee, 100th Leg., 1st Sess. 

33 (May 9, 2007).
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[6] The defendants lastly argue that if we fail to read 

§ 60-6,197.03(8) as limited to DUI violations, persons convicted of refusal violations would be subjected to multiple 

punishments for the same offense, in violation of the Double 

Jeopardy Clauses of the federal and Nebraska Constitutions. 

It is the duty of a court to give a statute an interpretation 

that meets constitutional requirements if it can reasonably be 

done.13 However, the defendants misunderstand the principles 

prohibiting double jeopardy.

[7,8] The Double Jeopardy Clauses of both the federal 

Constitution and the Nebraska Constitution 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.14 The primary purpose of the Double Jeopardy 

Clause is to protect against multiple trials.15 Thus, as to the 

protection against multiple punishments for the same offense, 

“the Double Jeopardy Clause does no more than prevent the 

sentencing court from prescribing greater punishment than the 

legislature intended.”16

The question of what punishments are constitutionally permissible is no different from the question of what punishment 

the legislative branch intended to be imposed.17

We have already answered the question of what the 

Legislature intended, as reflected by the plain language of 

§ 60-6,197.03(8), and which is consistent with the statutory 

language as a whole and with sound policy. Nevertheless, 

the defendants argue that § 60-6,197.03(8), when applied to 

refusal violations, “‘double dip[s]’” the act of refusal as a 

material element of the underlying refusal offense and as a 

13 State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).

14 State v. Ramirez, supra note 5.

15 Missouri v. Hunter, 459 U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).

16 Id., 459 U.S. at 366.

17 Missouri v. Hunter, supra note 15.
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sentencing aggravator.18 They assert that such “double dipping” is an inherent vice, contrary to principles prohibiting 

double jeopardy.

The cases cited by the defendants do not stand for this 

proposition. Rather, most of the cases cited by the defendants 

hold that the Legislature did not intend for the offender to 

be punished under both a specific statute providing for an 

increased punishment due to a specific aggravator and under a 

generally applicable enhancement statute based upon the same 

aggravator.19 These courts reason that there is a presumption 

that the Legislature did not intend such double enhancement 

for the same act.

An enhancement is a fact that increases the punishment 

range to a certain range above what is ordinarily prescribed for 

the crime that was charged.20 Double enhancement of a criminal sentence occurs when a factor already used to enhance or 

aggravate an offense or penalty is reused to subject a defendant 

to a further enhanced or aggravated offense or penalty.21

The cases from other jurisdictions cited by the defendants are not controlling and are inapposite to the case at 

bar. The act of refusing a chemical test is not an aggravator 

for an underlying punishment that is then punished further 

under a separate statute. There is no punishment set forth in 

§ 60-6,197 at all. Furthermore, unlike in those cases cited by 

the defendants, there is no ambiguity about whether a generally applicable statute applies to a specific crime. The statutes 

18 Brief for appellant in case No. S-15-788 at 30 and for appellant in case 

No. S-16-065 at 32.

19 See, e.g., People v. Guevara, 216 Ill. 2d 533, 837 N.E.2d 901, 297 Ill. 

Dec. 450 (2005); People v. Ferguson, 132 Ill. 2d 86, 547 N.E.2d 429, 138 

Ill. Dec. 262 (1989); Vennard v. State, 803 N.E.2d 678 (Ind. App. 2004). 

Compare State v. Jennings, 106 Wash. App. 532, 24 P.3d 430 (2001).

20 See, e.g., Navarro v. State, 469 S.W.3d 687 (Tex. App. 2015); People v. 

Muhammad, 157 Cal. App. 4th 484, 68 Cal. Rptr. 3d 695 (2007).

21 See, e.g., People v. Melvin, 2015 IL App (2d) 131005, 37 N.E.3d 310, 394 

Ill. Dec. 831 (2015).
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here at issue fall under the narrowly tailored Nebraska Rules 

of the Road.22

We rely instead on a case in our jurisdiction. In State v. 

Ramirez,

23 we rejected the defendant’s double jeopardy argument that the same prior conviction could not be used as 

both the element of being a felon in possession of a weapon 

and as a predicate offense for purposes of habitual criminal 

enhancement. At the time Ramirez was decided, Neb. Rev. 

Stat. § 28-1206 (Reissue 2008) stated that being a felon in 

possession of a firearm was a Class III felony, but it did not 

provide for specific sentencing dependent upon the number 

of prior convictions. We explained that the element of being 

a felon merely establishes “status” for the crime of violating § 28-1206.24 We said that “[p]rohibiting a convicted felon 

from possessing a firearm neither punishes the felon for the 

underlying felony, nor enhances the sentence for another conviction—it is a new and separate crime of which the prior 

conviction is merely an element.”25

Accordingly, we concluded that the use of the same felony 

conviction as an element of that underlying offense and as 

an element of enhancement under the habitual criminal statute “simply does not involve double penalty enhancement.”26

We said, “There is a significant distinction between double enhancement, which involves the ‘stacking’ of multiple 

enhancement provisions . . . and the use of a conviction to 

establish status and then enhance a sentence.”27 Being a felon 

in possession of a firearm was a Class III felony, with no indication it should be treated differently from any other Class III 

22 See Neb. Rev. Stat. §§ 60-601 to 60-6,383 (Reissue 2010 & Cum. Supp. 

2016).

23 State v. Ramirez, supra note 5.

24 Id. at 883, 745 N.W.2d at 222.

25 Id. at 884, 745 N.W.2d at 223.

26 Id. at 883, 745 N.W.2d at 222.

27 Id.
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felony for purposes of sentence enhancement. Only the habitual criminal statute was a sentence enhancement.28

We squarely rejected in Ramirez the defendants’ premise in 

this case that using the same act as an element of the underlying crime and as an element of enhancement inherently implicates double jeopardy. And it is even clearer here that double 

jeopardy is not implicated by the “double dipping” of refusal 

as an element of §§ 60-6,197 and 60-6,197.03(8), because 

§ 60-6,197 sets forth no punishment. Without the provisions 

of § 60-6,197.03, there would be no sentencing statute for 

the violation of refusing a chemical test. The presumptive 

sentence for a person who refuses to submit to a chemical test 

and who has three prior convictions is set forth by subsection (8).

In other words, subsection (8) is the only sentencing provision that applies under these facts. There is no separate underlying crime for which the defendant is punished, and then an 

“enhancement” of that sentence. There are differing classes of 

punishment under § 60-6,197.03, depending on the surrounding facts of the underlying violations.

The court in Navarro v. State29 noted that various subsections were effectively separate offenses and not enhancement 

provisions in a similar statutory scheme, setting forth one class 

of misdemeanor for driving while intoxicated and another 

class of misdemeanor for driving while intoxicated with a 

blood alcohol level of .15 or above. The subsections, the court 

explained, described specific types of forbidden conduct that 

affected the degree of the offense, and there was no enlargement of the sentence beyond that for which the crime was 

ordinarily prescribed.30

In such circumstances, where only one sentencing provision is applicable to a given set of facts, there is not multiple 

punishment as contemplated by the Double Jeopardy Clause.

28 Id.

29 Navarro v. State, supra note 20.

30 Id.
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We are perplexed by the defendants’ insistence that the 

presumptive sentencing for their crimes is a Class IIIA felony 

as set forth in § 60-6,197.03(7) and that such sentencing has 

been “enhanced” to a Class III felony by § 60-6,197.03(8). 

This appears to be little more than a circular argument of 

their own making. By reading “current violation” as limited 

to DUI violations, the defendants conclude that subsection 

(7) provides the presumptive sentencing for their crimes, and 

thus, they argue that we must read § 60-6,197.03(8) as limited 

to DUI violations. But subsection (7) clearly states: “Except 

as provided in subdivision (8) of this section, if such person 

has had three prior convictions, such person shall be guilty of 

a Class IIIA felony . . . .” (Emphasis supplied.) And we have 

rejected the defendants’ reading of “current violation.”

[9] In conclusion, we find no reason to depart from our reading of § 60-6,197.03(8): “current violation” encompasses violations of both §§ 60-6,196 and 60-6,197. Section 60-6,197.03 

may be a complex statute, but it not ambiguous. It plainly sets 

forth that it encompasses violations of either § 60-6,196 or 

§ 60-6,197.

Unconstitutionally

[10] Having found § 60-6,197.03(8) to be unambiguous, 

we find no merit to the defendants’ alternative argument that 

§ 60-6,197.03(8) is unconstitutionally vague. Due process of 

law requires that criminal statutes be clear and definite.31 A 

penal statute must define the criminal offense with sufficient 

definiteness that ordinary people can understand what conduct 

is prohibited and in a manner that does not encourage arbitrary 

and discriminatory enforcement.32 We do not seek mathematical certainty, but, rather, flexibility and reasonable breadth.33

As applied to the defendants’ violations of §§ 60-6,197 and 

60-6,197.03(8), ordinary people could understand that they 

31 State v. Pierson, 239 Neb. 350, 476 N.W.2d 544 (1991).

32 See In re Interest of A.M., 281 Neb. 482, 797 N.W.2d 233 (2011).

33 Id.
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would be punished under § 60-6,197.03(8) if, as part of a 

violation of § 60-6,197, they refused a chemical test and had 

three prior convictions.

Cruel and Unusual Puni

and Due Pro

We next consider the defendants’ due process and cruel 

and unusual punishment arguments in relation to their prior 

convictions. Operative January 1, 2012, before the defendants 

committed the acts leading to the current refusal convictions, 

the Legislature amended the statutory scheme so that “prior 

conviction” included either prior refusal or DUI convictions, 

i.e., to allow for cross-enhancement.34 Before 2012, for a violation of § 60-6,196, “prior conviction” was defined as any 

conviction for a violation of § 60-6,196, and for a violation of 

§ 60-6,197, “prior conviction” meant any prior conviction for 

violating § 60-6,197.35 There was no cross-enhancement.

Since 2012, § 60-6,197.02 has stated:

(1) A violation of section 60-6,196 or 60-6,197 shall 

be punished as provided in sections 60-6,196.01 and 

60-6,197.03. For purposes of sentencing under sections 

60-6,196.01 and 60-6,197.03:

(a) Prior conviction means a conviction for a violation committed within the fifteen-year period prior to 

the offense for which the sentence is being imposed 

as follows:

(i) For a violation of section 60-6,196 [and section 

60-6,197 the prior convictions described are identical]:

. . . .

(4) A person arrested for a violation of section 60-6,196 

or 60-6,197 before January 1, 2012, but sentenced pursuant to section 60-6,197.03 for such violation on or after 

January 1, 2012, shall be sentenced according to the 

34 See 2011 Neb. Laws, L.B. 667.

35 See § 60-6,197.02(1)(a)(i)(A) and (1)(a)(ii)(A) (Reissue 2010). See, also, 

State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
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provisions of section 60-6,197.03 in effect on the date 

of arrest.

The defendants were arrested and sentenced after January 

1, 2012. They argue it is disproportionate to elevate a misdemeanor to a felony based upon prior DUI convictions when 

there was no such “‘cross-enhancement’” before 2012, at 

the time their prior DUI’s were committed.36 They assert this 

retroactive cross-enhancement violates the prohibition against 

cruel and unusual punishment and relatedly assert that their 

due process rights were violated by punishing them as repeat 

offenders when they had never before committed the crime 

of refusal.

The defendants concede that in State v. Hansen,

37 we said 

statutes expanding the “look-back” period for prior convictions do not violate ex post facto principles, because the 

habitual criminal statutes do not punish the defendant for 

previous offenses; instead, they punish the defendant’s persistence in crime. Nevertheless, the defendants argue that 

redefining what constitutes a prior conviction is more significant than expanding the temporal scope of the prior convictions that can be used for purposes of enhancement. They also 

state that they are not making an argument based on ex post 

facto principles.

For their due process argument, the defendants cite only to 

Weaver v. Graham,

38 which refers to protection of preexisting entitlements, something not at issue here. The defendants 

do not specify whether they rely on principles of procedural 

or substantive due process or explain how “due process” 

connects to their conclusion that it is unconstitutional to 

use their prior DUI convictions to satisfy the elements of 

§ 60-6,197.03(8).

36 Brief for appellant in case No. S-15-788 at 27 and for appellant in case 

No. S-16-065 at 28.

37 State v. Hansen, 258 Neb. 752, 755, 605 N.W.2d 461, 464 (2000).

38 Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981).
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[11] We find that the due process issue raised by the 

defendants has been insufficiently argued for this court to 

address it. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the 

error to be considered by an appellate court.39 This court will 

not address arguments that are too generalized or vague to 

be understood.40

And we find no merit to the defendants’ cruel and unusual 

punishment argument. The U.S. Supreme Court has upheld 

habitual criminal statutes against similar challenges, explaining that the harsher sentence is justified by the fact that those 

persons who commit repeated criminal acts have shown they 

are incapable of conforming to the norms of society as established by criminal law.41 This justification does not depend 

on the previous crimes used for enhancement as being in 

violation of the same statutes for which the defendants are 

presently being convicted. We conclude that it was not cruel 

and unusual to subject the defendants to a harsher penalty 

for their current refusal convictions based on their previous 

DUI convictions.

Insufficient Alleg

Finally, the defendants assert that the charging informations were defective because they failed to mirror the language of § 60-6,197.03(8) that “as part of the current violation,” the defendants refused to submit to a test as required 

by § 60-6,197. The defendants concede that the informations alleged that under § 60-6,197.03(8), the defendants had 

refused to submit to a chemical test and had three prior convictions. For reasons that are not entirely clear, the defendants 

nonetheless argue that by excluding the “as part of the current 

39 State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).

40 Marcuzzo v. Bank of the West, 290 Neb. 809, 862 N.W.2d 281 (2015).

41 See State v. Johnson, 290 Neb. 369, 859 N.W.2d 877 (2015), citing Ewing 

v. California, 538 U.S. 11, 123 S. Ct. 1179, 155 L. Ed. 2d 108 (2003).
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violation” phrasing from the informations, the State failed to 

sufficiently allege Class III felonies under § 60-6,197.03(8) 

and that instead, they were charged only with Class IIIA felonies under § 60-6,197.03(7).

[12] The function of an information is twofold.42 With reasonable certainty, an information must inform the accused of 

the crime charged so that the accused may prepare a defense 

to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense.43 When an information alleges 

all the facts or elements necessary to constitute the offense 

described in the statute and intended to be punished, it is 

sufficient.44

[13] The information may use the language of the statute or 

its equivalent.45 Here, it was sufficient for the State to make 

reference to §§ 60-6,197 and 60-6,197.03(8), to refusal, and 

to the three prior convictions. We find no merit to the defendants’ assertion that the informations were defective.

CONCLUSION

For the foregoing reasons, we affirm the judgments of the 

district court.

Affirmed

Stacy, J., not participatin

42 State v. Brunzo, 262 Neb. 598, 634 N.W.2d 767 (2001).

43 Id.

44 Chadek v. State, 138 Neb. 626, 294 N.W. 384 (1940).

45 See Barton v. State, 111 Neb. 673, 197 N.W. 423 (1924).