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28-106 Misdemeanors; classification of penalties; sentences; where served.

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28-106. Misdemeanors; classification of penalties; sentences; where served.(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, misdemeanors are divided into seven classes which are distinguished from one another by the following penalties which are authorized upon conviction:Class I misdemeanor........Maximum — not more than one year imprisonment, or one thousand dollars fine, or bothMinimum — noneClass II misdemeanor.......Maximum — six months imprisonment, or one thousand dollars fine, or bothMinimum — noneClass III misdemeanor......Maximum — three months imprisonment, or five hundred dollars fine, or bothMinimum — noneClass IIIA misdemeanor.....Maximum — seven days imprisonment, five hundred dollars fine, or bothMinimum — noneClass IV misdemeanor.......Maximum — no imprisonment, five hundred dollars fineMinimum — one hundred dollars fineClass V misdemeanor........Maximum — no imprisonment, one hundred dollars fineMinimum — noneClass W misdemeanor.......Driving under the influence or implied consentFirst conviction Maximum — sixty days imprisonment and five hundred dollars fineMandatory minimum — seven days imprisonment and four hundred dollars fine Second convictionMaximum — six months imprisonment and five hundred dollars fineMandatory minimum — thirty days imprisonment and five hundred dollars fineThird conviction Maximum — one year imprisonment and six hundred dollars fineMandatory minimum — ninety days imprisonment and six hundred dollars fine(2) Sentences of imprisonment in misdemeanor cases shall be served in the county jail, except that in the following circumstances the court may, in its discretion, order that such sentences be served in institutions under the jurisdiction of the Department of Correctional Services:(a) If the sentence is for a term of one year upon conviction of a Class I misdemeanor;(b) If the sentence is to be served concurrently or consecutively with a term for conviction of a felony; or(c) If the Department of Correctional Services has certified as provided in section 28-105 as to the availability of facilities and programs for short-term prisoners and the sentence is for a term of six months or more. SourceLaws 1977, LB 38, § 6; Laws 1982, LB 568, § 1; Laws 1986, LB 153, § 1; Laws 1992, LB 291, § 1; Laws 1998, LB 309, § 1; Laws 2002, LB 82, § 3; Laws 2005, LB 594, § 1.AnnotationsThe proper determination of punishment for fourth offense driving under the influence of an alcoholic liquor or drug is governed by subsection (1) of this section and not by section 28-107(3). State v. Schultz, 252 Neb. 746, 566 N.W.2d 739 (1997).For a Class III misdemeanor, a sentence of five days in jail with a fine of three hundred dollars is within the statutory maximum and will not be disturbed on appeal absent an abuse of discretion. State v. Rosenberry, 209 Neb. 383, 307 N.W.2d 823 (1981).
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  • 28-106. Misdemeanors; classification of penalties; sentences; where served.(1) For purposes of the Nebraska Criminal Code and any statute passed by the Legislature after the date of passage of the code, misdemeanors are divided into seven classes which are distinguished from one another by the following penalties which are authorized upon conviction:Class I misdemeanor........Maximum — not more than one year imprisonment, or one thousand dollars fine, or bothMinimum — noneClass II misdemeanor.......Maximum — six months imprisonment, or one thousand dollars fine, or bothMinimum — noneClass III misdemeanor......Maximum — three months imprisonment, or five hundred dollars fine, or bothMinimum — noneClass IIIA misdemeanor.....Maximum — seven days imprisonment, five hundred dollars fine, or bothMinimum — noneClass IV misdemeanor.......Maximum — no imprisonment, five hundred dollars fineMinimum — one hundred dollars fineClass V misdemeanor........Maximum — no imprisonment, one hundred dollars fineMinimum — noneClass W misdemeanor.......Driving under the influence or implied consentFirst conviction Maximum — sixty days imprisonment and five hundred dollars fineMandatory minimum — seven days imprisonment and four hundred dollars fine Second convictionMaximum — six months imprisonment and five hundred dollars fineMandatory minimum — thirty days imprisonment and five hundred dollars fineThird conviction Maximum — one year imprisonment and six hundred dollars fineMandatory minimum — ninety days imprisonment and six hundred dollars fine(2) Sentences of imprisonment in misdemeanor cases shall be served in the county jail, except that in the following circumstances the court may, in its discretion, order that such sentences be served in institutions under the jurisdiction of the Department of Correctional Services:(a) If the sentence is for a term of one year upon conviction of a Class I misdemeanor;(b) If the sentence is to be served concurrently or consecutively with a term for conviction of a felony; or(c) If the Department of Correctional Services has certified as provided in section 28-105 as to the availability of facilities and programs for short-term prisoners and the sentence is for a term of six months or more. SourceLaws 1977, LB 38, § 6; Laws 1982, LB 568, § 1; Laws 1986, LB 153, § 1; Laws 1992, LB 291, § 1; Laws 1998, LB 309, § 1; Laws 2002, LB 82, § 3; Laws 2005, LB 594, § 1.AnnotationsThe proper determination of punishment for fourth offense driving under the influence of an alcoholic liquor or drug is governed by subsection (1) of this section and not by section 28-107(3). State v. Schultz, 252 Neb. 746, 566 N.W.2d 739 (1997).For a Class III misdemeanor, a sentence of five days in jail with a fine of three hundred dollars is within the statutory maximum and will not be disturbed on appeal absent an abuse of discretion. State v. Rosenberry, 209 Neb. 383, 307 N.W.2d 823 (1981).

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