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STATE V. BIXB

Cite as 315 Neb. 549

State of Nebraska, appellee, v. 

Clay Y. Bixby, appellant.

___ N.W.2d ___

Filed December 8, 2023. No. S-23-168.

1. Prior Convictions: Appeal and Error. On a claim of insufficiency of 

the evidence, an appellate court, viewing and construing the evidence 

most favorably to the State, will not set aside a finding of a previous 

conviction for the purposes of sentence enhancement supported by relevant evidence.

2. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for purposes of sentence enhancement, the State has the burden to 

prove the fact of the prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based 

upon the preponderance of the evidence standard.

3. Trial: Evidence: Proof. Preponderance of the evidence requires proof 

which leads the fact finder to find that the existence of the contested fact 

is more probable than its nonexistence.

4. Sentences: Drunk Driving: Prior Convictions: Proof: Time. The 

plain and ordinary meaning of Neb. Rev. Stat. § 60-6,197.02 (Reissue 

2021) does not require the State to prove the exact date of the prior 

offense for purposes of sentence enhancement.

5. Sentences: Prior Convictions: Evidence: Appeal and Error. On an 

appeal of a sentence enhancement hearing, an appellate court views and 

construes the evidence most favorably to the State.

6. Statutes: Appeal and Error. An appellate court will not resort to interpretation of statutory language to ascertain the meaning of words that 

are plain, direct, and unambiguous.

7. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Any 

conviction record obtained after Gideon v. Wainwright, 372 U.S. 335, 

83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), is entitled to a presumption of 

regularity, such that once the government establishes the existence of a 

prior conviction, it becomes the defendant’s burden to prove that he or 

Nebraska Supreme Court Online Library

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

12/08/2023 09:07 AM CST
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she did not have counsel and did not waive the right to counsel at the 

time of conviction.

Appeal from the District Court for Grant County: Travis P. 

O’Gorman, Judge. Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

Michael T. Hilgers, Attorney General, and Melissa R. 

Vincent for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Funke, J.

INTRODUCTION

Clay Y. Bixby appeals his conviction for driving under the 

influence (DUI), third offense. He argues that the district court 

for Grant County, Nebraska, erred in using evidence offered by 

the State of two prior DUI convictions to enhance his sentence. 

Finding no error, we affirm his conviction and sentence.

BACKGROUND

This is Bixby’s third appeal arising from his arrest in March 

2018 for DUI. That offense led to the State’s charging Bixby 

with DUI under Neb. Rev. Stat. § 60-6,196 (Reissue 2021), 

third offense, aggravated, among other charges.

After a mistrial and the denial of Bixby’s plea in bar, 1 we 

denied Bixby’s petition for further review. Before Bixby was 

to be retried by the State, Bixby moved for absolute discharge 

on speedy trial grounds. The district court granted that motion, 

but we reversed that decision and remanded the cause for further proceedings. 2 Bixby was retried and convicted by a jury of 

DUI, a Class W misdemeanor.

1 See State v. Bixby, No. A-19-237, 2020 WL 1026734 (Neb. App. Mar. 3, 

2020) (selected for posting to court website).

2 See State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
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The district court heard Bixby’s subsequent sentence 

enhancement on January 18, 2023. At the hearing, the State 

offered two exhibits, exhibits 30 and 31, which the State indicated were records of Bixby’s two prior convictions for DUI 

offered for sentence enhancement purposes.

Exhibit 30 was a certified copy of a journal entry and order 

of Bixby’s conviction from Thomas County, Nebraska. The 

exhibit showed a “CR 10” case identification number. The 

exhibit also showed that at a hearing on March 1, 2011, Bixby 

pled guilty to “DUI-1st offense” under § 60-6,196, a Class W 

misdemeanor. He was sentenced on that same date to terms of 

probation, license impoundment, and a fine.

Exhibit 31 was a certified copy of a “Judgment of 

Conviction” from the Sixth Judicial Circuit Court in Bennett 

County, South Dakota. The exhibit showed a docket number beginning with “03C12.” The exhibit also showed that 

Bixby was charged by information, was arraigned, and pled 

guilty on November 27, 2012, to “driving under influence-1st 

of[fense]” under a South Dakota statute, S.D. Codified Laws 

§ 32-23-2 (2011). He was sentenced on February 6, 2013, to 

terms of imprisonment, license revocation, and a fine.

Neither exhibit contained a copy of the charging document, nor specifically identified the date of Bixby’s underlying 

DUI offenses. The State did not provide any further evidence 

regarding the prior DUI offenses.

Bixby objected to the admission of both exhibits, arguing 

that neither met the requirements of a valid prior conviction for 

purposes of sentence enhancement. Bixby articulated several 

different reasons why the prior convictions were invalid for 

sentence enhancement. These arguments are largely the same 

as those Bixby now raises on appeal and will be detailed in 

our analysis.

The district court entered its order on February 15, 2023, 

finding that both of Bixby’s prior convictions were valid for 

purposes of sentence enhancement. In relevant part, the order 

stated the following:
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The [S]tate made a prima facie case with respect to 

both Exhibits 30 and 31. The offense at issue in this case 

occurred on March 9, 2018. The State can enhance with 

prior convictions dating back to March 9, 2003. The sentencing in Exhibit 30 occurred on March 1, 2011. The 

case has a CR 10 case number, meaning the case was 

filed in 2010. If this offense occurred prior to March 

9, 2003, that would mean there was a delay in charging, convicting and sentencing of over seven years. This 

is unreasonable.

Likewise, the sentencing in Exhibit 31 occurred on 

February 6, 2013. That would require a delay of over 9 

years. Again, this is unreasonable. Both exhibits are prima 

facie valid for enhancement purposes. The State proved 

by a preponderance of the evidence that both prior convictions occurred within 15 years of the offense at issue. 

The burden shifted to [Bixby] to show the court otherwise. [He] failed to do so.

. . . .

[Bixby] also challenges Exhibit 31, a South Dakota 

conviction, on the ground that the State failed to show 

that the law[s] in South Dakota and Nebraska . . . have 

the same scope and application. This Court disagrees.

Although the statute cited in Exhibit 31 (32-12-2) is 

the sentencing statute, [Bixby] was obviously convicted 

under 32-23-1, the [DUI] statute. In South Dakota, one 

can be convicted of DUI if there is 0.08 percent or more 

[by] weight of alcohol in that person’s blood. The same 

is true in Nebraska. In addition, South Dakota defined 

“under the influence” as “to a degree which renders 

the person incapable of safely driving.” This is similar 

to Nebraska’s definition as “sufficient to impair to any 

appreciable degree the ability to operate a motor vehicle 

in a prudent and cautious manner.” The burden then 

shifted to [Bixby] to “bring mitigating facts to the attention of the court[]” to show otherwise.
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Exhibits 30 and 31 are both valid and usable prior convictions. Both are admitted. [Bixby] will be sentenced on 

a third offense [DUI], a Class W Misdemeanor.

Having enhanced Bixby’s DUI conviction to a third offense, 

the district court consequently sentenced him to 18 months of 

probation, a $1,000 fine, and a 2-year license revocation.

Bixby timely filed the present appeal, and we moved the 

case to our docket. 3

ASSIGNMENT OF ERROR

Bixby assigns, restated, that the district court erred in enhancing his DUI conviction to a third offense because the two prior 

DUI convictions were invalid for enhancement purposes.

STANDARD OF REVIEW

[1] On a claim of insufficiency of the evidence, an appellate 

court, viewing and construing the evidence most favorably to 

the State, will not set aside a finding of a previous conviction 

for the purposes of sentence enhancement supported by relevant evidence. 4

ANALYSIS

Bixby’s sole argument on appeal is that the district court 

erred in enhancing his DUI conviction to a third offense because 

the two prior DUI convictions were invalid for enhancement 

purposes. In support of this assigned error, Bixby argues that 

the prior convictions were invalid for three different reasons. 

Before addressing each of these arguments below, we briefly 

review the relevant law governing prior convictions and sentence enhancement.

[2,3] We declared some years ago that in order to prove a 

prior conviction for purposes of sentence enhancement, the 

3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).

4 See, State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016); State v. Taylor, 

286 Neb. 966, 840 N.W.2d 526 (2013).
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State has the burden to prove the fact of the prior conviction 

by a preponderance of the evidence, and that the trial court 

determines the fact of prior convictions based upon the preponderance of the evidence standard. 5 A preponderance of the 

evidence requires proof which leads the fact finder to find that 

the existence of the contested fact is more probable than its 

nonexistence. 6 In other words, a preponderance of the evidence 

is the equivalent of the greater weight of the evidence. 7 The 

greater weight of the evidence requires proof which leads the 

trier of fact to find that the existence of the contested fact is 

more likely true than not true. 8

Neb. Rev. Stat. § 60-6,197.02 (Reissue 2021) details the 

process for determining what constitutes a valid prior DUI 

offense for purposes of sentence enhancement. It provides that 

for purposes of sentence enhancement, a “[p]rior conviction” 

is “a conviction for a violation committed within the fifteenyear period prior to the offense for which the sentence is being 

imposed.” 9 This includes (1) any conviction for a violation of 

§ 60-6,196—which is what Bixby was convicted of in both 

of his Nebraska DUI prosecutions—or for another Nebraska 

DUI statute, 10 (2) any conviction for a violation of a Nebraska 

DUI ordinance enacted in conformance with a Nebraska DUI 

statute, 11 and (3) “[a]ny conviction under a law of another 

5 See, State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). See, also, 

State v. Teppert, 307 Neb. 695, 950 N.W.2d 594 (2020); Taylor, supra note 

4; State v. Macek, 278 Neb. 967, 774 N.W.2d 749 (2009); State v. Hall, 

270 Neb. 669, 708 N.W.2d 209 (2005).

6 Taylor, supra note 4. See, also, State v. Ebert, 303 Neb. 394, 402, 

929 N.W.2d 478, 484 (2019) (“[m]ore probable than not” is generally 

preponderance of evidence standard).

7 Gilliam, supra note 4; Flores v. Flores-Guerrero, 290 Neb. 248, 859 

N.W.2d 578 (2015).

8 Gilliam, supra note 4.

9 § 60-6,197.02(1)(a).

10 See § 60-6,197.02(1)(a)(i)(A).

11 See § 60-6,197.02(1)(a)(i)(B).
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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” one of Nebraska’s DUI 

statutes. 12 We have interpreted “conviction” for purposes of 

§ 60-6,197.02 to mean “a finding of guilt by a jury or a judge, 

or a judge’s acceptance of a plea of guilty or no contest.” 13

The statute also defines “[f]ifteen-year period” as “the period 

computed from the date of the prior offense to the date of the 

offense which resulted in the conviction for which the sentence 

is being imposed.” 14

To prove the prior conviction for sentence enhancement 

under § 60-6,197.02(2), “[t]he prosecutor shall present as evidence for purposes of sentence enhancement a court-certified 

copy or an authenticated copy of a prior conviction in another 

state. The court-certified or authenticated copy shall be 

prima facie evidence of such prior conviction.” According to 

§ 60-6,197.02(3), after the State meets its burden of proving 

the fact of the prior convictions, the convicted person is then 

“given the opportunity to review the record of his or her prior 

convictions, bring mitigating facts to the attention of the court 

prior to sentencing, and make objections on the record regarding the validity of such prior convictions.”

Simply put, here, for the State to enhance Bixby’s present 

DUI conviction to a third offense, it had the burden to prove by 

a preponderance of the evidence that (1) the offense underlying each prior conviction either was a violation of a Nebraska 

DUI statute or ordinance or, if from another state, would have 

also been a violation of a Nebraska DUI statute and (2) the 

date of the offense underlying each conviction occurred within 

15 years of the date of the current offense.

12 § 60-6,197.02(1)(a)(i)(C). Accord, State v. Brown, 300 Neb. 57, 912 

N.W.2d 241 (2018); Gilliam, supra note 4.

13 Gilliam, supra note 4, 292 Neb. at 782, 874 N.W.2d at 57.

14 § 60-6,197.02(1)(c).
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Prior Offenses Occurred Within 

15 Years of Current Offense

Bixby first argues that the State failed to prove by a preponderance of the evidence that the offenses underlying both 

of his prior convictions occurred within 15 years of the date 

of his current offense. Specifically, Bixby argues that exhibits 

30 and 31 failed to show any evidence of the dates of his prior 

offenses and that, in effect, the district court had to guess the 

dates of the offenses. We disagree.

[4] Bixby is correct that neither prior conviction record 

explicitly showed the date on which that prior offense was 

committed. However, as we established in State v. Taylor,

 15

prior conviction records do not have to list the exact date of the 

prior offense to be used for sentence enhancement. More specifically, we held in Taylor that the plain and ordinary meaning 

of § 60-6,197.02 does not require the State to prove the exact 

date of the prior offense for purposes of sentence enhancement. 16 Although having proof of the exact offense date would 

be the easiest method of proof, the statute does not require 

an exact date. 17 Rather, the State must prove by a preponderance of the evidence that the prior offense occurred in the 15 

years prior to the current offense. 18 That said, what constitutes 

relevant evidence sufficient to satisfy the State’s burden in 

proving the fact of a prior conviction for purposes of sentence 

enhancement will vary from case to case.

[5] On an appeal of a sentence enhancement hearing, we 

view and construe the evidence most favorably to the State. 19

Further, we have long held that judgments imposing sentences 

in a criminal case are entitled to a presumption of regularity 

15 Taylor, supra note 4.

16 See id.

17 Id.

18 See id.

19 Id.; State v. Brooks, 22 Neb. App. 598, 858 N.W.2d 267 (2014).
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and validity. 20 Here, the record is clear that Bixby’s current 

DUI offense was committed on March 9, 2018. Thus, looking 

back 15 years, the State had the burden of proving by a preponderance of the evidence that the underlying offense for any of 

Bixby’s prior convictions occurred on or after March 9, 2003. 

Viewing and construing exhibits 30 and 31 most favorably to 

the State and affording the exhibits a presumption of regularity and validity, we find that there was sufficient evidence to 

satisfy the State’s burden.

Exhibit 30, the prior conviction from Thomas County, 

showed that Bixby pled guilty and was sentenced at a hearing on March 1, 2011. Further, the prior conviction showed 

that Bixby’s case had a “CR 10” identification number, more 

than likely meaning the case was initially filed in 2010. The 

State could enhance Bixby’s current conviction with prior convictions of offenses occurring as far back as March 9, 2003. 

Despite no date of offense listed in the exhibit, the district 

court found that it would be unreasonable to conclude there 

was a delay of over 7 years between the case’s filing date and 

when Bixby was charged, convicted, and sentenced. We find no 

error in that conclusion.

The same can be said of exhibit 31, the prior conviction 

from South Dakota. The exhibit showed that Bixby was 

charged, was arraigned, and pled guilty on November 27, 

2012, and then was sentenced on February 6, 2013. Further, 

the prior conviction shows that Bixby’s case had a “C12” 

identification number. It was more than likely that the case 

was initially filed in 2012. Again, the State had to prove the 

offense occurred on or after March 9, 2003. Despite no date 

of offense listed in the exhibit, the district court similarly 

found that it would be unreasonable to conclude there was a 

delay of over 9 years between the case’s filing date and when 

Bixby was charged, convicted, and sentenced. We again find 

no error in the court’s conclusion.

20 See, e.g., State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).
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Further, the relevant statutes of limitations for Bixby to be 

prosecuted for his prior DUI offenses provide additional support to our conclusion. Bixby was convicted in the present case 

of DUI under § 60-6,196. As shown in exhibit 30, Bixby was 

convicted under that statute for his first Nebraska DUI offense 

as well. According to Neb. Rev. Stat. § 60-6,197.03 (Reissue 

2021), as well as exhibit 30 and the present record, both of 

Bixby’s Nebraska DUI convictions were Class W misdemeanors. 21 Exhibit 31 similarly shows that Bixby was convicted in 

South Dakota under § 32-23-2. Exhibit 31 does not show the 

classification of that offense; however, at the enhancement 

hearing, Bixby offered exhibit 32, which is a copy of the text 

of § 32-23-2 (Supp. 2023), which is the current version of that 

statute and provides, in relevant part, that “[i]f conviction for a 

violation of § 32-23-1 is for a first offense, the person is guilty 

of a Class 1 misdemeanor.”

We take judicial notice of the fact 22 that at the time of 

each of Bixby’s prior convictions and the present appeal, 

the statute of limitations for a person to be prosecuted for a 

Class W misdemeanor in Nebraska was 18 months 23 and the 

statute of limitations for a person to be prosecuted for a Class 

1 misdemeanor in South Dakota was 7 years. 24 Applying the 

relevant statutes of limitations here, Bixby must have been 

charged within 18 months of the date of the offense for his 

21 Accord Neb. Rev. Stat. § 28-106(1) (Reissue 2016).

22 See, Burns v. Burns, 293 Neb. 633, 640, 879 N.W.2d 375, 382 (2016) 

(“[a] court may judicially notice adjudicative facts, which are not subject 

to reasonable dispute, at any stage of the proceeding”); State v. Thayer, 

235 Neb. 70, 72, 453 N.W.2d 474, 476 (1990) (“it is the duty of [all] 

courts to take judicial notice of the laws enacted by the Legislature [and] 

the public law prevailing within the forum. This is rule is applicable to 

all general statutes”). See, also, Neb. Rev. Stat. § 25-12,101 (Reissue 

2016) (providing that every court in Nebraska must take judicial notice of 

statutes of other states).

23 See Neb. Rev. Stat. § 29-110(2) (Reissue 2016).

24 See S.D. Codified Laws § 23A-42-2 (2016).
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Nebraska DUI conviction and within 7 years of the date of 

the offense for his South Dakota DUI conviction. Bixby’s 

prior Nebraska case was more than likely filed in 2010, and 

he pled guilty and was sentenced in 2011. His South Dakota 

case was more than likely filed in 2012, and he pled guilty in 

2012 and was sentenced in 2013. As such, we agree with the 

State that the statutes of limitations provide additional bases 

as to why Bixby more likely than not committed both prior 

DUI offenses on or after March 9, 2003, within 15 years of 

his current offense.

We also note that Bixby’s argument about the prior convictions’ failing to show a date of offense mirrors the argument 

made by the defendant in Taylor.

 25 There, the State had to 

prove by a preponderance of the evidence that the defendant 

committed his prior DUI offense after 1999. 26 However, as 

here, the defendant’s prior conviction record did not list the 

date of the underlying offense. 27 Nonetheless, at the sentence 

enhancement hearing in Taylor, there was evidence presented 

that the defendant had been charged in the prior case with 

DUI with a blood alcohol concentration of .08 of 1 gram or 

more by weight of alcohol per 210 liters of breath. 28 That 

fact proved to be crucial in our analysis because, in 2001, 

the Nebraska Legislature lowered the prohibited blood alcohol concentration level from .10 to .08. 29 Accordingly, even 

though the prior conviction record did not list the date of the 

prior offense, we concluded that the preponderance of the evidence established that the defendant’s DUI offense occurred 

after 2001. 30

25 Taylor, supra note 4.

26 Id.

27 Id.

28 Id.

29 Id.

30 Id.
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We find the rationale in Taylor to be instructive. In the same 

way here, despite Bixby’s prior conviction records’ not listing 

the dates of the offenses, there was sufficient evidence from 

exhibits 30 and 31 to conclude that the offenses were committed after 2003, within the 15-year look-back period.

For these reasons, we conclude that the relevant evidence 

supports the district court’s finding that the State met its 

burden, proving by a preponderance of the evidence that 

the prior offenses occurred within 15 years of the date of 

Bixby’s current offense. Viewing and construing that evidence 

most favorably to the State, we find no error in the district 

court’s finding.

As noted above, according to § 60-6,197.02(3), after the 

State met its burden of proving the fact of Bixby’s prior convictions for sentence enhancement, the burden then shifted to 

Bixby to review his prior conviction records, bring mitigating 

facts to the attention of the court prior to sentencing, and make 

objections on the record regarding the validity of such prior 

convictions. Bixby had the opportunity to present his own 

evidence showing that his prior convictions occurred before 

March 9, 2003, outside the 15-year look-back period from the 

date of his current offense, thus rendering them invalid for 

enhancement purposes.

Yet, the only evidence Bixby presented was the text of 

the statute cited in exhibit 31 that he was convicted under in 

South Dakota, which is addressed later in our analysis. As 

we explained in both Taylor 31 and State v. Garcia,

 32 defend

ants in enhancement proceedings are in a unique position to 

produce evidence concerning their prior convictions because 

it is peculiarly within their knowledge. Bixby knew when 

his prior DUI offenses occurred, more so than the State and 

district court. If the offenses underlying his 2011 Nebraska 

31 Id.

32 State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011), overruled on other 

grounds, Vann, supra note 20.
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conviction and 2013 South Dakota conviction occurred outside the 15-year look-back period, that fact would go to an 

essential element of his enhanced sentence. It was Bixby’s 

burden to produce evidence to that effect and rebut the State’s 

prima facie case for enhancement. 33 Bixby failed to do so 

here. We accordingly infer that such evidence cannot be produced. 34 Even if we were to agree with Bixby that there are 

reasons why there could have been a delay between the dates 

of his prior offenses and his conviction and sentencing dates, 

explaining why the offenses may have occurred before March 

9, 2003, nothing in the record indicates that Bixby made such 

an argument to the district court at the enhancement hearing 

or presented any evidence in support of this argument.

Our conclusion in favor of the State aside, we emphasize 

that had the State offered the charging documents underlying 

Bixby’s prior convictions to the district court, it would have 

been much simpler to prove the dates of the prior offenses 

and the fact that they occurred within 15 years of the current 

offense. Here, enough information could be gleaned from the 

prior conviction records that the State offered to conclude 

that the State met its burden. However, that may not always 

be the case.

Similarity of South Dakota DUI Statute 

to Nebraska DUI Statute

Bixby next argues that the district court erred in enhancing 

his DUI conviction to a third offense because his conviction 

for DUI in South Dakota under § 32-23-2 (2011) was not 

substantially similar to his conviction for DUI in Nebraska 

33 See Garcia, supra note 32, 281 Neb. at 12-13, 792 N.W.2d at 891 (“it is 

not fundamentally unfair to consider the relative positions of the defendant 

and the prosecution in this regard and to place at least the burden of 

production on the defendant to show that a prior conviction cannot be used 

for enhancement”).

34 See Garcia, supra note 32 (citing State v. Minor, 188 Neb. 23, 195 

N.W.2d 155 (1972)).
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under § 60-6,196. In particular, Bixby contends that the two 

states’ DUI statutes contained different elements and that 

thus, the offense for which he was convicted in South Dakota 

would not have been a violation of § 60-6,196 and could not 

have been used for sentence enhancement. We disagree.

As the State correctly asserts on appeal, Bixby’s argument 

is based on an improper comparison between § 32-23-2 and 

§ 60-6,196. Although exhibit 31 shows that Bixby was convicted of DUI, first offense, under § 32-23-2, that statute is 

merely a sentencing statute, setting forth the penalty for a 

violation of a separate statute, S.D. Codified Laws § 32-23-1 

(2011). Exhibit 32, which Bixby offered, was a copy of the text 

of § 32-23-2 (Supp. 2023), which is the current version of that 

statute and provides, in relevant part, as follows:

If conviction for a violation of § 32-23-1 is for a first 

offense, the person is guilty of a Class 1 misdemeanor, 

and the court shall revoke the person’s driver license for 

not less than thirty days. . . . The court may also order the 

revocation of the person’s driving privilege for a further 

period not to exceed one year or restrict the privilege 

in such manner as it sees fit for a period not to exceed 

one year.

It would be unreasonable to deem Bixby’s South Dakota prior 

conviction invalid for sentence enhancement solely because the 

South Dakota judgment of conviction cites § 32-23-2 (2011), 

rather than § 32-23-1. As the text of § 32-23-2 makes clear, 

§ 32-23-2 sets forth the penalties a person will be subjected to 

only “[i]f conviction for a violation of § 32-23-1 is for a first 

offense.” It is therefore apparent that Bixby’s conviction for a 

violation of § 32-23-1 as a first offense was a prerequisite to 

the imposition of the sentence and penalties in § 32-23-2. Bixby 

could not have been sentenced without first being convicted. 

True enough, § 32-23-2, a sentencing statute, and § 60-6,196, 

a substantive DUI statute, do not share the same elements 

for a DUI. However, we find that the appropriate comparison 
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of statutes here is between § 60-6,196 and § 32-23-1 (South 

Dakota’s substantive DUI statute).

The starting point in a comparison of another state’s statutorily defined offense to a Nebraska statutory DUI offense 

should be to compare the relevant statutory language in the 

other state to the language of the relevant Nebraska statute. 35

This is because the definition of “prior conviction” under 

§ 60-6,197.02 includes a conviction in another state when 

the offense for which the person was convicted would have 

been a violation of § 60-6,196 or one of the other enumerated 

Nebraska DUI-related statutes. 36 After an initial comparison of the other state’s statutory definition of the offense to 

Nebraska’s statutory definition of a DUI-related offense, if 

it is clear that the offense as statutorily defined in the other 

state would have been a violation of the relevant Nebraska 

statute, no further inquiry is required. 37 The prior conviction must be for the offense of DUI to be valid for sentence 

enhancement. 38

Turning to the DUI statutes at issue here, § 60-6,196 states 

in relevant part:

(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;

 . . . .

(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.

Similarly, § 32-23-1 states, in relevant part:

No person may drive or be in actual physical control of 

any vehicle while:

35 Brown, supra note 12.

36 Id.

37 Id.

38 See id.
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STATE V. BIXB

Cite as 315 Neb. 549

(1) There is 0.08 percent or more by weight of alcohol 

in that person’s blood as shown by chemical analysis of 

that person’s breath, blood, or other bodily substance;

(2) Under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained 

pursuant to a valid prescription, or any combination of 

an alcoholic beverage, marijuana, or such controlled drug 

or substance;

(3) Under the influence of any controlled drug or substance obtained pursuant to a valid prescription, or any 

other substance, to a degree which renders the person 

incapable of safely driving;

(4) Under the combined influence of an alcoholic beverage and or any controlled drug or substance obtained 

pursuant to a valid prescription, or any other substance, 

to a degree which renders the person incapable of safely 

driving[.]

[6] In comparing these statutes, we find that the text of both 

is plain and unambiguous. An appellate court will not resort 

to interpretation of statutory language to ascertain the meaning of words that are plain, direct, and unambiguous. 39 Both 

statutes prohibit a person from operating, driving, or being in 

actual physical control of a vehicle while under the influence 

of alcohol or any drug or while having a blood alcohol concentration of .08 percent or more. In essence, both statutes include 

the same elements necessary to establish a conviction for DUI. 

We therefore conclude that Bixby’s DUI conviction in South 

Dakota would have been a violation of § 60-6,196 as well and 

is thus valid to be used for sentence enhancement. 40

Bixby relies on a Nebraska Court of Appeals decision, State 

v. Miller,

 41 to suggest that the South Dakota conviction was 

39 See State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).

40 See Brown, supra note 12. Cf. State v. Mitchell, 285 Neb. 88, 825 N.W.2d 

429 (2013).

41 State v. Miller, 11 Neb. App. 404, 651 N.W.2d 594 (2002) (superseded by 

statute on other grounds, specifically § 60-6,197.02(2)).
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STATE V. BIXB

Cite as 315 Neb. 549

also invalid because the State failed to offer the South Dakota 

charging document setting out the elements of the crime he 

was eventually convicted of and that in effect, the district court 

here could not compare the elements of Bixby’s Nebraska 

DUI with the elements of his South Dakota DUI. But as we 

mentioned previously, while offering a copy of a charging 

document is perhaps the best practice to prove the fact of a 

prior conviction for purposes of sentence enhancement, it is 

not required in order for the State to meet its burden. Bixby’s 

reading of Miller to suggest otherwise is misguided.

In addition, it is not the State’s initial burden under 

§ 60-6,197.02 to show a substantial similarity of every element 

of the respective DUI laws or show that the facts surrounding the prior conviction would have resulted in a violation 

of Nebraska DUI laws as they existed at that time. 42 A courtcertified or authenticated copy of a prior conviction—like 

exhibit 31—is prima facie evidence of such conviction for purposes of sentence enhancement. 43 The burden then shifted to 

Bixby to challenge the validity of the prior conviction, which 

he failed to adequately do.

Given our finding that Bixby’s South Dakota DUI offense, 

as statutorily defined in South Dakota, would have been a 

violation of the Nebraska DUI statute that Bixby was twice 

convicted of, no further inquiry is required. 44 Bixby’s conviction under South Dakota law was for the offense of DUI and 

was sufficiently similar to his DUI convictions under Nebraska 

law. We conclude that the district court did not err in finding 

Bixby’s South Dakota DUI conviction was valid for enhancement purposes.

Mitigating Factors

Bixby lastly argues that the district court erred in enhancing his DUI conviction to a third offense because the 

42 Mitchell, supra note 40; Garcia, supra note 32.

43 § 60-6,197.02(2).

44 See Brown, supra note 12.
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STATE V. BIXB

Cite as 315 Neb. 549

court failed to consider mitigating factors pursuant to 

§ 60-6,197.02(3). As noted above, once the State met its 

burden of proving the fact of Bixby’s prior convictions for 

purposes of sentence enhancement, Bixby then had the opportunity under § 60-6,197.02(3) to bring mitigating facts to the 

attention of the court prior to sentencing. Bixby argues that 

the mitigating fact here was that the South Dakota prior conviction from 2013 showed that he was represented by counsel 

on the date he pled guilty, yet failed to show that he was 

represented by or waived counsel on the date of his sentencing. But as Bixby correctly acknowledged at the enhancement 

hearing, this argument is foreclosed by our precedent, namely 

State v. Vann.

 45

[7] We stated in Vann that any conviction record obtained 

after Gideon v. Wainwright 46 is entitled to a presumption of 

regularity, such that once the government establishes the existence of a prior conviction, it becomes the defendant’s burden 

to prove that he or she did not have counsel and did not waive 

the right to counsel at the time of conviction. 47 Accordingly, 

courts can presume that a defendant had or waived counsel at 

the time of a prior conviction and records of conviction are 

admissible unless the defendant can show that he or she did not 

have or waive counsel at the time of conviction. 48

Bixby does not challenge Vann on appeal; he argues only 

that had the district court convicted and sentenced him when 

his present case was initiated in 2018, before Vann was 

decided, it would have determined that the 2013 South Dakota 

prior conviction was invalid for sentence enhancement because 

it fails to show that he had or waived counsel at the time of 

45 Vann, supra note 20. See, also, State v. Warlick, 308 Neb. 656, 956 N.W.2d 

269 (2021); Teppert, supra note 5.

46 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 

(1963).

47 See Vann, supra note 20.

48 See id.
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STATE V. BIXB

Cite as 315 Neb. 549

his sentencing. This argument is without merit. Despite the 

pre-Vann status of the law at the early pendency of Bixby’s 

case, the sentence enhancement hearing and district court 

order that Bixby challenges in this appeal occurred in 2023, 

after Vann. Bixby’s South Dakota DUI conviction is therefore 

valid for sentence enhancement purposes under Vann, even 

though exhibit 31 does not show whether Bixby had or waived 

counsel at the time of his sentencing in that case.

We further agree with the State that even though exhibit 

31 does not show the presence or waiver of counsel at 

Bixby’s sentencing, that could be only a mitigating fact under 

§ 60-6,197.02(3) that the district court could have considered 

in determining Bixby’s sentence within the enhanced penalty range for DUI, third offense, not a fact that would allow 

the court to disregard the otherwise valid prior conviction 

altogether. 49 We therefore find that the district court did not 

err by failing to consider mitigating factors when enhancing 

Bixby’s sentence.

CONCLUSION

For the foregoing reasons, we conclude that the district 

court’s use of Bixby’s two prior convictions to enhance his 

sentence to DUI, third offense, was not in error. Therefore, 

we affirm.

Affirmed.

49 See Brooks, supra note 19.