A man convicted of multiple drunk driving violations appealed to the Nebraska Supreme Court, saying his sentencing was too harsh. On Friday, the court agreed with him.
On May 2, 2012, Travis Mitchell was arrested and later convicted of his fourth DUI offense in Lincoln. He had been in a traffic accident that left his vehicle suspended on a guide wire that supported a utility pole near 70th and Dudley Street. The officer observed Mitchell jumping out of his car. While speaking with Mitchell, the officer smelled the odor of alcohol on his breath.
The Lancaster County District Court determined that a prior conviction in Colorado of driving while ability impaired could be used to enhance his sentence, which was 3-5 years in prison plus a license revocation of 15 years.
A conviction of DWAI means the person had a blood-alcohol level of .05 and .08. For DUI, the BAC would be .08 and above. DWAI requires that “a person has consumed alcohol… that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been….To exercise clear judgment, sufficient physical control or due care in the safe operation of a vehicle.” In other words, tipsy.
The Lancaster County Court ruled that since the DWAI and DUI laws both considered the BAC level of .08, it was reasonable to consider Mitchell’s DWAI conviction in Colorado as one of four DUIs.
The Nebraska Supreme Court disagreed, saying the DWAI conviction could not be used to enhance the penalty for a conviction of DUI in Nebraska. Mitchell will now be re-sentenced.