AGO Opinion 98018
Eligibility for Compensation From the Crime Victim's Reparation Fund When a Person is Killed In a Motor Vehicle Accident, But the Operators of the Vehicles Involved are Not Charged With a Violation Specified in Neb. Rev. Stat. § 81-1822.
DATE: March 9, 1998
SUBJECT: Eligibility for Compensation From the Crime Victim's Reparation Fund When a Person is Killed In a Motor Vehicle Accident, But the Operators of the Vehicles Involved are Not Charged With a Violation Specified in Neb. Rev. Stat. § 81-1822.
REQUESTED BY: Allen Curtis, Director Nebraska Commission on Law Enforcement and Criminal Justice
WRITTEN BY: Don Stenberg, Attorney General
Timothy J. Texel, Assistant Attorney General
You have requested the opinion of this office regarding whether
a claim submitted under the Crime Victim's Reparations Act, §§ 81-
1801 to 81-1841 (1994 and Cum. Supp. 1996) ("the Act") is eligible
for compensation when the victim is killed as a result of an
automobile accident, but the drivers of the vehicles involved in the
accident causing the victim's death are not charged with a violation
specified in Neb. Rev. Stat. § 81-1822. It is our opinion that when
the driver or drivers of vehicles involved in a motor vehicle
accident causing a person's death are not charged with a violation
specified in Neb. Rev. Stat. § 81-1822(4), claims for compensation
from injuries or death caused by the accident are not eligible for
compensation under the Act.
In your opinion request, you described the following factual
background. You explained that On January 9, 1997, a vehicle driven
by Kristopher Spencer was traveling southbound on southwest 56th
street. Paul Childers was a passenger in the vehicle driven by Mr.
Spencer. Mr. Spencer failed to stop at a stop sign at the
intersection of southwest 56th and West Denton Road. Mr. Spencer's
vehicle was struck on the passenger side by another vehicle traveling
through the intersection. Mr. Childers died at the scene of the
The police report received by the Crime Commission included
statements from the victim's wife that Mr. Spencer had been drinking
before leaving the Childers' home. The firefighter who attended to
Mr. Childers at the accident scene stated that he saw empty beer cans
in the interior of the vehicle and could smell a strong odor of
alcohol. The police report also included a copy of the Post Arrest
Chemical Test Advisement for Mr. Spencer, stating that he was under
arrest for operating a motor vehicle while under the influence of
alcoholic liquor or drugs. Evidently Mr. Spencer was unable to sign
the form. Mr. Spencer was ticketed for driving with a suspended
license and was later charged with motor vehicle homicide. Although
Mr. Spencer was initially arrested for driving under the influence of
alcohol, he was never charged with this offense. You informed us
that the police report indicated the other driver appeared normal,
and was neither arrested nor charged with driving under the influence
of alcohol or drugs.
Mr. Childers' wife submitted a claim for compensation with the
Crime Victim's Reparations Committee ("CVR Committee"). The hearing
officer denied the claim because the victim was not free from
culpability, pursuant to Neb. Rev. Stat. § 81-1816 and Title 80,
Nebraska Administrative Code ("NAC"), Chapter 1, § 008 and Chapter 4,
§ 005. Subsequent to the hearing officer's decision, the CVR
Committee received the blood alcohol content reports on Mr. Spencer
and Mr. Childers. Mr. Childers' BAC was reported at .141, while Mr.
Spencer's was .037. The claimant appealed the hearing officer's
decision to the CVR Committee. The hearing was conducted on January
29, 1998. At the hearing, the applicant's attorney argued that § 81-
1822(4) only applies when a victim is injured, not when he or she is
killed. He urged that Mrs. Childers is therefore eligible to receive
compensation. The CVR Committee denied the claim, finding that it
was not eligible for compensation.
The Act provides for the compensation of victims of crimes
committed in Nebraska, or when Nebraska residents are the victims of
crimes while traveling outside Nebraska. Your opinion request
centers on the provisions in § 81-1822(4). This statute specifies
circumstances when compensation shall not be awarded. Section 81-
81-1822. Compensation; situations when not awarded.
No compensation shall be awarded:
. . . .
(4) If the victim is injured as a result of the
operation of a motor vehicle, boat, or airplane (a) unless
the vehicle was used in a deliberate attempt to injure or
kill the victim, (b) unless the operator is charged with a
violation of section 60-6,196 or 60-6,197, or a city or
village ordinance enacted in conformance with either of
such sections, or (c) unless any chemical test of the
operator's breath, blood, or urine indicates an alcohol
concentration equal to or in excess of the limits
prescribed in section 60-6,196 . . . .
Neb. Rev. Stat. § 81-1822 (1994) (emphasis in original). Sections
60-6,196 and 60-6,197 pertain to driving under the influence of
alcoholic liquor or drugs.
The language in § 81-1822 mandates that no compensation can be
awarded for victims of motor vehicle accidents. The statute does
provide for limited exceptions under which victims of motor vehicle
accidents are eligible for compensation. With regard to injuries
sustained from motor vehicles, the use of the word "unless" indicates
that compensation is not normally intended for injuries sustained
from the operation of motor vehicles. The circumstances provided in
§ 81-1822(4)(a), (b), and (c) are exceptions to that general rule.
Compensation cannot be awarded in the absence of the criteria listed
in § 81-1822(4). When a statute specifies the object or method by
which it is to operate, or forbids certain things, it is to be
construed as excluding all other objects or methods not expressly
mentioned. State v. Wragge, 246 Neb. 864, 867, 524 N.W.2d 54, 57
(1994); Nebraska City Education Ass'n v. School Dist. of Nebraska
City, 201 Neb. 303, 306, 267 N.W.2d 530, 532 (1978). Therefore, if
the facts surrounding a claim for compensation do not demonstrate
compliance with the criteria establishing an exception to the general
rule, the CVR Committee is not authorized to pay compensation. See
Op. Att'y Gen. No. I97-026.
The language in § 81-1822(4) indicates that the Legislature
intended to compensate those persons injured in motor vehicle
accidents only when the victim's injuries were the result of a person
engaged in criminal activity. The criminal activities listed are the
deliberate attempt to harm another person through use of a motor
vehicle, or harming someone while engaged in driving under the
influence of alcohol or drugs. The statutory language used indicates
that injuries resulting from automobile accidents
not involving those criminal activities are not entitled to
compensation. See Op. Att'y Gen. No. I97-026.
We do not agree with the argument that § 81-1822(4) applies only
when a person is injured, but not when a person is killed. Section
81-1822(4) begins by stating that no compensation shall be awarded
"If the victim is injured as a result of the operation of a motor
vehicle. . ." (emphasis added). On its face, § 81-1822(4) states
only that it applies when a person is injured as a result of an
accident, not when he or she is killed. However, § 81-1801 defines
the term "victim." It states that "Victim shall mean a person who is
injured or killed as a result of conduct specified in section 81-
1818." Neb. Rev. Stat. § 81-1801 (1994) (emphasis added). The plain
language defining the term "victim," a term used in § 81-1822(4),
indicates that both injuries and death are contemplated by the term
"victim." The language in § 81-1822(4)(a) supports this conclusion.
It states that compensation is allowed when a person uses a motor
vehicle in "a deliberate attempt to injure or kill the victim."
Section 81-1818, cited in § 18-1801, states:
The committee or hearing officer may order the payment
of compensation for personal injury or death which resulted
. . . .
(2) The commission or attempt on the part of one
other than the applicant of an unlawful criminal act
committed or attempted in the State of Nebraska.
Neb. Rev. Stat. § 18-1818 (1994). The language in § 81-1818, as with
§ 81-1801, indicates that the Act applies not only to claims for
injuries caused by crime, but also to claims based on situations when
an innocent person dies from injuries caused by criminal acts. There
are also other instances in the Act where the Legislature does not
create separate categories for those injured by crimes and those who
die as a result of crimes. See § 81-1815, § 81-1819.
We now turn to whether a claim for compensation is eligible if
a person is killed in a motor vehicle accident when the driver or
drivers involved are not charged with driving under the influence of
alcohol or drugs.
For a claim to be eligible for compensation for injuries
sustained in a motor vehicle accident, the responsible driver or
drivers must have either been charged with a violation of § 60-6,196
or § 60-6,197 or a chemical test must indicate the driver had
a blood alcohol concentration equal to or in excess of the limit
established in § 60-6,196. See § 81-1822(4)(b) and (c). Section 60-
6,196 pertains to driving under the influence of alcohol or drugs,
while § 60-6,197 primarily deals with refusal to submit to a chemical
test for the presence of alcohol or drugs. In the situation
presented in your opinion request, neither driver was charged with a
violation of § 60-6,196 or § 60-6,197. Likewise, neither driver was
determined to have had a blood alcohol level in violation of the
limit prescribed in § 60-6,196. In instances where there is no
evidence that the actions of the drivers involved were an intentional
attempt to harm the victim, and the other factors in § 18-1822(4) are
not met, the facts indicate that the claim for reimbursement is not
eligible for compensation.
It is our conclusion that, absent evidence of certain specified
criminal activities, the Crime Victim's Reparations Act does not
authorize compensation for persons injured or killed as a result of
motor vehicle accidents. Compensation for injuries sustained due to
the operation of motor vehicles is limited to those circumstances
when the driver or drivers involved: 1) are found to have used the
vehicle in a deliberate attempt to harm the victim, 2) are charged
with a violation specified in § 81-1822(4)(b), or 3) are found to
have had a blood alcohol concentration in violation of § 60-6,196.
Although we have not reviewed the entire record of evidence presented
at the CVR Committee hearing, the facts presented in your opinion
request support the conclusion of the CVR Committee to deny the claim
for compensation. In situations where the blood alcohol
concentrations of the drivers involved are not in violation of the
levels set in § 60-6,196, and where the drivers involved are not
charged with violations of 60-6,196 or 60-6,197 or an ordinance
enacted thereunder, the CVR Committee lacks the statutory authority
to award compensation. We also conclude that the provisions of § 81-
1822(4) include situations where the victim is killed as result of
injuries sustained in a motor vehicle accident.
Timothy J. Texel
Assistant Attorney General