Felonies, Misdemeanors, and Infractions in Nebraska

The Nebraska Justice system classifies criminal offenses into two broad categories. This classification which assigns matching penalties with different gravity of crimes are: felonies and misdemeanors. The different penalties for all these criminal offenses are clearly described under the Nebraska criminal code. Summarily, Nebraska crimes are tried on the basis of these categories.

What is a felony in Nebraska?

Felonies are a group of serious criminal offenses that attract penalties ranging from sentences of one year in state prison to life imprisonment upon conviction. Felonies are further divided into ten groups and they are classified on the basis of severity and sentencing penalties as follows:

• Class I felony
• Class IA felony
• Class IB felony
• Class IC felony
• Class ID felony
• Class II felony
• Class IIA felony
• Class III felony
• Class IIIA felony
• Class IV felony

Class I felonies are the most serious of the felony offenses and upon conviction, fetch the death penalty. A typical example is first degree murder.

Class IA felonies refer to criminal offenses that are punishable by a sentence of life imprisonment in a state prison. An example of a Class IA felony is kidnapping.

Class IB felony is a group of crimes that attract a possible penalty of a life imprisonment sentence. Aggravated assault is a common example.

Class IC felonies refer to a class of criminal offenses that are punishable by prison terms of up to fifty years. An example of this class of crime is the use of a firearm to perpetrate a felony.

Class ID felonies are crimes that are upon conviction carry a sentence of up to fifty years imprisonment. Assault of a police officer is an example of this class of crime.

Class II felonies are a group of criminal offenses that are punishable by a prison sentence of up to fifty years. Human trafficking falls under this group of felonies.

Class IIA felonies are crimes that attract a penalty of up to twenty years imprisonment upon conviction. Manslaughter is a typical example.

Class III felonies are criminal offenses that are punishable by prison terms of up to four years, two years post-release supervision and/or fines of up to $25,000. Example of this class of felony is strangulation.

Class IIIA felonies are crimes that are punishable by three years in prison, eighteen months post-release supervision and/or up to $10,000 fines.

Class IV felonies are the least serious of felonies. They refer to criminal offenses that as a result of conviction carry a prison sentence of up to two years, two years post-release supervision and/or up to $10,000 in fines (NE Code §§ 28–105).

The presence of previous convictions also has serious impacts on the charges and penalties assigned.

What are some examples of felonies in Nebraska?

Some examples of felonies in the state of Nebraska include the following:

Class I felony:

• First degree murder

Class IA felony:

• Kidnapping,
• Murder
• Arson

Class IB felony:

• Sexual assault of a child (of the first degree)
• Aggravated assault
• Manslaughter

Class IC felony:

• Robbery
• Use of a firearm to perpetrate a felony
• Possession of certain amounts of illegal substance

Class ID felony:

• Assault of a police officer
• Manufacture/Distribution of child pornography
• Possession of illegal substance (10–28grams)

Class II felony:

• Human trafficking
• Assault in the first degree
• Sexual assault in the first degree
• Robbery

Class IIA felony:

• Manslaughter
• Assault in the second degree
• Burglary

Class III felony:

• Strangulation with a deadly instrument
• Forgery in the first degree
• Second degree sexual assault
• Manufacture or distribution of certain drugs.

Class IIIA felony:

• Terroristic threats
• Manufacture or distribution of certain drugs,
• Criminal child enticement.

Class IV felony:

• Assisted suicide,
• Forgery in the second degree
• Flee to avoid arrest (second/third offense)

Can I get a Felony Removed from a Court Record in Nebraska?

Felony conviction records of adults cannot be erased in the state of Nebraska. The state’s laws on expungement of criminal records solely provides for limited specific records to be expunged (erased) or sealed (Neb. Rev. Stat. §§ 29–2264). The following limited records are eligible for expungement or sealing in the state of Nebraska:

• Erroneous arrest records (Neb. Rev. Stat. § 29–3523(6).
• Non-conviction criminal records (Neb. Rev. Stat. § 29–3523)
• Pardoned conviction records (Neb. Rev. Stat.§§ 29–3523(5))
• Set-aside records of trafficking victims (Neb. Rev. Stat.§§ 29–3523(4))
• Juvenile criminal records (Neb. Rev. Stat. §§ 43–2,108.01 through 43–2,108(05)

Conviction records for felony probationers can, however, be legally set-aside or pardoned. A set-aside is a court order issued by the sentencing judge in the original criminal case which nullifies the conviction or makes it void. It also removes some of the civil restrictions and disabilities caused as a consequence of the conviction. Setting aside a felony conviction does not delete the records but is included as part of the individual’s criminal history records. This inclusion serves to inform potential employers or other interested members of the public of the nullified conviction record. It, however, does not cancel the legal requirement to register as a sex offender.

A set-aside conviction may also be employed in the following contexts:

• As a prior offense in determining a subsequent penalty or sentence,
• In the revocation of certain certifications (like law enforcement training).
• As a basis for a witness impeachment. (Neb. Stat §§ 29–2264(5)(c) to (h)).

In the state of Nebraska, felony convictions are eligible for a set-aside order if:

• No jail or imprisonment term has been served
• All the terms of probation have been fully satisfied or,
• All the assigned fines and court fees have been duly paid (usually for fine-only offenses)

The judge, in reaching the decision to set-aside a felony conviction, may check if:

• The individual’s best interest will be well-served by the set-aside order.
• The setting-aside is also in alignment with the welfare or benefit of the Nebraska public.

Other additional factors considered by a sentencing judge before granting a set-aside order include:

• The presence (or absence) of any other criminal convictions in the aftermath of subject conviction;
• The type and nature of the conviction, if present;
• The likelihood that the convicted offender abide by the law and stay conviction free
• The time interval between the individual’s last crime and his or her set- aside request

The decision to set-aside a felony conviction is at the discretion of the judge. An individual convicted of more than one felony will be required to file and submit one request per conviction (i.e. multiple requests).

An individual convicted of a felony can ensure proper filing of his or her request for a “set-aside” by checking with the specific clerk of the district or county court. The clerk informs him or her of the specific court rules that guide request applications in that particular county. A convicted offender’s expected final outcome may be adversely affected if he or she fails to adhere to the local court rules.

The following information are generally required when requesting for a felony to be set-aside:

• The date of the felony
• The specific felony charge
• The felony charge outcome (if it is guilty or not guilty)
• The convicted offender’s sentence (fine, probation or imprisonment).

A convicted offender who is not in possession of his or her court record may avail himself or herself of the following options:

• Obtain a copy of his or her criminal history through the Nebraska State Patrol (for a small fee)
• Search Nebraska Court records for his or her court case on a one-time basis (for a small fee)
• Employ the public access terminal at the sentencing courthouse to retrieve relevant information on his or her record.

The final stage of the set-aside filing process involves sending the original petition or request to the sentencing courthouse. The convicted offender also serves the prosecutor a copy of the petition who may either be a city prosecutor or a county attorney. The original petition as well as the copy can be delivered either in person or through mail. The clerk’s office is responsible for assigning a petition schedule which is usually mailed to the petitioner. The petition schedule is basically a notice of the date and time of the hearing.

The convicted petitioner must attend the court hearing in order to obtain a set-aside order. The judge and the prosecutor reviews the criminal history record of the petitioner. Only subsequent criminal convictions after the subject conviction are considered in granting the order. If the judge approves, then an order to set-aside the felony conviction is entered. Most county courts provide a copy of the order to the petitioner via mail. While in some other courts, the petitioner may be required to provide an order for the judge’s endorsement (signature).

Is expungement the same as sealing court records in Nebraska?

Expungement, which is the erasure or deletion of criminal records, is not the same as sealing court records in Nebraska. The state’s laws do not generally provide for the expungement of adult criminal records. Sealing court records essentially prohibits the subject records from being accessed by members of the public. Sealed records do not show up on background checks by potential employers or interested parties. Adult conviction records for which jail or prison terms have been served can only be sealed when a pardon for the offense has been granted. Sealing can also be done in relation to non-conviction records. Sealed records can, however, be accessed by law enforcement agents and individuals backed by a court order.

How Long Does a Felony Stay on Your Record in Nebraska?

An adult felony conviction can stay on a convicted offender’s record for the rest of his or her life. Barring a state pardon or set-aside order, a person convicted of a felony will have the conviction permanently on his or her criminal history records. In addition to a pardon or set-aside order, the convicted offender may appeal for a reversal of conviction. If successful, subject records can be subsequently sealed by court order.

What is a Misdemeanor in Nebraska?

Misdemeanors are less serious criminal offenses than felonies in the state of Nebraska.They are generally associated with less grave penalties than felonies. Misdemeanors attract penalties of less than twelve months in county jail upon conviction. They divided into seven classes as follows:

• Class I Misdemeanors
• Class II Misdemeanors
• Class III Misdemeanors
• Class IIIA Misdemeanors
• Class IV Misdemeanors
• Class V Misdemeanors
• Class W Misdemeanors

Class I Misdemeanors are criminal offenses that are punishable by sentences of up to twelve months in jail or fines of up to $1,000, or both. An example of a Class I misdemeanor is impersonating a peace officer.

Class II Misdemeanors refer to crimes that fetch punishments of up to six months in jail or fines of up to $1,000, or both. Second degree criminal trespass is a typical Class II misdemeanor.

Class III Misdemeanors are criminal violations that attract a punishment of up to three months in jail or fines of up to $500, or both. An example of this class is littering.

Class IIIA Misdemeanors are crimes that impose upon conviction penalties of jail time of up to seven days or up to $500 in fines, or both. Possession of at least one ounce of marijuana is an example of his class of misdemeanor.

Class IV Misdemeanors refer to criminal offenses that attract a punishment of fines of between $100 and $500. Harassment of a police animal is a common example.

Class V Misdemeanors are also non-jailable violations which are only punishable by fines of up to $100 upon conviction. An example of this class is smoking or using tobacco products by a juvenile.

Class W Misdemeanors are DUI crimes that attract maximum penalties ranging from sixty days to one year in jail as well as fines between $500 and $1,000. This penalty is determined by whether the individual has a conviction history of either a first, second or third DUI violation.

What are some examples of Misdemeanors in Nebraska?

Examples of crimes that fall under misdemeanors include the following:

Class I Misdemeanors:

• Third degree assault
• Identity theft(with gains valued at less than $200)
• Impersonating a peace officer

Class II Misdemeanors:

• Passing a bad check
• Hazing
• Destruction of Property (valued between $500 and $1,500)
• Property theft (less than $500 in value)

Class III Misdemeanors:

• Reckless driving (first offense)
• Littering
• Marijuana possession (weighing between an ounce and a pound)
• Property theft (valued at or less than $200)

Class IIIA Misdemeanors:

• Third marijuana possession offense(at most one ounce)
• Repeatedly owning a dangerous dog

Class IV Misdemeanors:

• Specific agricultural crimes
• Specific gambling offenses
• Harassment of a police animal
• Purchase of lottery ticket

Class V Misdemeanors:

• Sale of a kitten or puppy without its mother by an individual
• Smoking or using tobacco products by a juvenile.
• Blocking the exit/entrance of a polling location

Class W Misdemeanors:

• DUI (Driving under the influence)

Can I Get a Misdemeanor Removed from a Record in Nebraska?

A non-juvenile misdemeanor conviction cannot be removed from an offender’s record by expungement or court sealing in Nebraska. Expungement of records is only permitted for specific exceptional cases by the state’s laws. Although Misdemeanor conviction records cannot be deleted or erased, they can, however, be set-aside (if no jail term was served) or pardoned.

The following limited records are eligible for expungement or sealing in the state of Nebraska:

• Erroneous arrest records (Neb. Rev. Stat. § 29–3523(6)).
• Non-conviction criminal records (Neb. Rev. Stat. § 29–3523)
• Pardoned conviction records (Neb. Rev. Stat.§§ 29–3523(5))
• Set-aside records of trafficking victims (Neb. Rev. Stat.§§ 29–3523(4))
• Juvenile criminal records (Neb. Rev. Stat. §§ 43–2108.01 through Neb.Rev.43–2108.05)

Fine-only misdemeanor convictions are eligible for setting-aside only if the terms of probation have been completed and court fees and fines paid. A set-aside order, however, does not expunge (destroy) or seal misdemeanor records. It only removes, partially, the civil impedances and disabilities imposed by the conviction. For imprisonment related misdemeanor convictions, full civil liberties and qualifications can be fully restored by obtaining a pardon. A convicted offender on probation, can only file a petition for pardon three years after probation sentencing.

In addition to expunging erroneous arrest records, the state’s laws also stipulates certain time frames after which specific arrest records can no longer stay on an individual’s criminal history:

• One year for arrest cases in which the prosecuting attorney decides not to file charges
• Two years for arrest cases where no charges have been filed due to completed diversion
• Three years for arrest cases where filed charges were dismissed by the court based on the prosecuting attorney’s motion

All pardons are granted by the Board of Pardons in the state of Nebraska. It is essentially forgiveness for a criminal conviction formally granted by the Nebraska state Board. The board is made up of the Nebraska State Governor, the Secretary of State and The Attorney General. They have been ascribed the constitutional powers to forgive all conviction cases except for cases of treason and impeachment. For a misdemeanor to be eligible for pardon, it must meet the following conditions:

• Three years must have passed since the completion of the assigned sentence
• All terms of probation, parole or supervised release must be fully satisfied
• No arrest, prosecution or conviction must have occurred within the 3-year period

Individuals sentenced for federal crimes are not eligible for state pardons.

Can a DUI Be Expunged in Nebraska?

A DUI cannot be removed by expungement or court sealing in Nebraska. However, a petition for state pardon from the state governor can be obtained. The Nebraska Board of Pardons generally accepts requests for reprieve for persons with revoked driver’s licenses. The Board particularly considers license revocations spanning a fifteen years for a third DUI violation or a lifetime.

The convicted DUI offender actually applies for reprieve to the Nebraska Department of Motor Vehicle (DMV). The application is then evaluated and sent to the Board of Pardons for a final decision. The requester may be permitted to drive a motor vehicle fitted with an ignition lock device, if the Board approves. The permission to drive is however granted after a ignition interlock permit has been requested for.

What constitutes an Infraction in Nebraska?

Infractions constitute the least severe group of offenses in the Nebraska state. They are the lightest of offenses that impose penalties of fines upon conviction. Traffic violations make up the majority of offenses that are defined as infractions. They refer to offenses against traffic laws in the state of Nebraska. Additional penalties for traffic infractions include:

• Increased insurance
• Court fees
• Driver’s license suspension
• Driver’s license revocation

A common example of traffic infractions is driving without a seatbelt.

A person may be served or issued a citation (or ticket) by a law enforcement agent for violation of traffic law or any other infraction. Service can be done in person by the law enforcement officer if present at the scene of the violation. It can also be done by certified mail if the issuing officer is absent.

An alleged infraction offender may choose to waive his or her rights and not enter an appearance in court. This option is permitted when the “waiver allowed” box at the bottom of the citation is marked. He or she can then proceed to pay the assigned fine and court costs for the violation. Fines in the state of Nebraska are set by the Supreme Court and compiled into a statewide waiver/fine schedule. A defendant can pay fines and court cost via the following ways:

• Electronically (or online) by visiting the Nebraska Judicial Branch Internet Payment System.
• By mail when he or she downloads the Waiver and Plea of Guilty form and mails his or her payment to the specific county court

A defendant must, however, enter an appearance in court on the date specified if the offense charged does not warrant a waiver. A defendant may choose any of the following three options on his or her first appearance in court:

• Enter a guilty plea
• Enter a “no contest plea”
• Enter a “no guilty” plea

A defendant who enters either a guilty or no contest plea will be found guilty by the judge and assigned the appropriate legal penalty. A no guilty plea, however, causes the judge to schedule another court date for the defendant to present his case to the court. A defendant who either fails to pay or enter an appearance in court will have a warrant issued for his arrest and likely suffer the suspension of his driver’s license.

What are some examples of Infractions in Nebraska?

The following are some common examples of infractions in Nebraska:

Traffic infractions:

• Driving on suspended license
• Railroad crossing
• Driving with no insurance
• Speeding
• Illegal U-turn
• Running a stop sign or red light
• Driving without a seatbelt
• Talking on the phone while driving
• Driving on the shoulder

Some other examples of infractions in Nebraska include:

• Possession of drug paraphernalia (First offense) (Neb. Rev. Stat. §28–416 (2014))
• Possession of marijuana (1 ounce or less).
• Consumption of cigarettes or tobacco products by a juvenile.

Can Infractions be Expunged from a Nebraska Criminal Court Record?

An infraction cannot be expunged in the state of Nebraska. It can, however, be set aside or pardoned. An individual convicted of infraction is eligible to petition for a set-aside order under the following conditions:

• When he or she has satisfactorily met all the conditions of probation
• When all assigned fines and court fees have been duly paid.

The order to set aside the infraction conviction nullifies the conviction and removes most civil impedances caused by it.