Colo. offense can’t count toward Neb. DUI sentence

OMAHA, Neb. (AP) — A Lincoln man’s Colorado conviction for driving while impaired can’t be used to enhance his Nebraska sentence for drunken driving, the Nebraska Supreme Court said Friday.

The state’s high court ordered a new sentencing hearing for Travis Mitchell, 39, who was sentenced in 2011 to three to five years in prison for a fourth-offense drunken driving conviction.

Lincoln police determined Mitchell was drunk in 2010 when he wrecked his car in Lincoln, and he was convicted the next year. At his April 2011 sentence enhancement hearing, prosecutors presented three previous convictions: two Nebraska DUIs and a Colorado conviction for driving while ability impaired.

Mitchell appealed, saying the Colorado offense is not comparable to Nebraska’s DUI law. The Colorado law cites drivers who have consumed alcohol and whose ability to drive has been affected “to the slightest degree,” and sets a blood alcohol range between .05 and .08. Nebraska’s DUI law cites drivers with a blood alcohol level of .08 or higher who have been impaired “to an appreciable degree.”

Prosecutors argued that the evidence surrounding his Colorado arrest showed Mitchell was more than slightly impaired, with arresting officers reporting that Mitchell’s vehicle was drifting and jerking on the road when he was stopped.

Both the Lancaster County District Court and the Nebraska Court of Appeals rejected Mitchell’s appeal, saying the Colorado DWAI conviction could have been convicted as a DUI violation if the incident had occurred in Nebraska.

But the Nebraska Supreme Court said that was wrong. Colorado’s laws make a distinction between DWAI and DUI, the high court said.

“Mitchell pled guilty to the charge of DWAI,” Judge John Wright wrote for the Nebraska Supreme Court. “The theoretical possibility that a defendant’s conviction for DWAI could have satisfied the Nebraska elements for DUI is not enough. The prior out-of-state conviction must be for the offense of DUI.”

Neither the Lancaster County prosecutor nor Mitchell’s attorney immediately returned messages left Friday seeking comment.

Online state prison records show Mitchell is out on parole. He could not be reached Friday for comment.