AGO Opinion 82192

February 11, 1982
Senator John W. DeCamp
Member of the Legislature
State Capitol
Lincoln, NE 68509

Dear Senator DeCamp:

This is in reply to your inquiry concerning enforcement of mandatory license suspension. You state this information is necessary as an aid in drafting other mandatory-type legislation.

You specifically ask what is necessary to insure enforcement of a mandatory suspension law or under what theory a Judge might be allowed not to enforce that portion of a law. You refer specifically to LB 76, Eighty-Seventh Legislature, ~which is now contained In Neb. Rev. Stat. 928-905 (Supp. 1981).

The most obvious area which comes to mind in which a court might avoid entering a mandatory suspension of two years, as required in the foregoing section, is probation. Nothing is said in Neb. Rev. Stat. §28-905 which would eliminate this possibility.

(4) When an offender who has been convicted of a crime is not sentenced to imprisonment, the court may sentence him to probation.

There may be other sections also dealing with suspension of sentence and probation.

Another factor which may inhibit enforcement is the fact that when a court enters a sentence favorable to the defendant he, as a practical matter, will not complain; conversely, the county attorney under present procedures, has no effective appeal although we understand there is pending before the Legislature a proposal which would make it possible for the county attorney to appeal unsatisfactory criminal sentences, but we have not studied this proposal to determine its applicability.

Hoping this will be of assistance to you, we are,

Very truly yours,

Attorney General