Session Review: Judiciary
Senators approved a bill this session that prohibits chemical abortions from being administered from remote satellite locations. Measures relating to driving under the influence (DUI), juvenile truancy, a substance ban and picketing funerals also were passed.
Abortion
LB521, introduced by Sen. Tony Fulton of Lincoln, makes it a Class IV felony for a physician to knowingly or recklessly use or prescribe any instrument, device, medicine, drug or other substance to perform, induce or attempt an abortion without being physically present in the same room as the patient.
LB521 passed on a 38-9 vote.
Senators also passed a bill that would amend parental notification requirements related to abortion.
LB690, introduced by Sen. Lydia Brasch of Bancroft, requires notarized written consent from a minor’s parent or guardian before the minor can have an abortion, except in cases of medical emergency. The bill replaces the previous requirement that the parent or guardian be notified of the procedure by registered or certified mail with return receipt requested.
Under the bill, the consent requirement can be waived if a judge finds, by clear and convincing evidence, that a minor is both sufficiently mature and well informed to decide whether to have the abortion. The abortion may still be performed if a court finds by clear and convincing evidence that an abortion is in the best interest of the pregnant minor even in the absence of parental consent. If the pregnant woman declares that she is a victim of abuse by either of her parents, the consent of a grandparent will suffice.
An unauthorized person providing consent will be guilty of a Class III misdemeanor.
LB690 passed on a 41-6 vote.
Criminal Justice
Senators passed two bills that revise DUI-related provisions.
LB667, introduced by Norfolk Sen. Mike Flood:
• creates a new offense of motor vehicle homicide of an unborn child;
• makes motor vehicle homicide and DUI-serious bodily injury separate crimes from DUI;
• increases the 12-year look-back limitation to 15 years in the DUI enhancement statutes;
• creates penalties regarding boating while under the influence;
• creates the enhanced punishment of a Class IIIA felony and a minimum of 30 days imprisonment for procuring when it proximately causes serious bodily injury or death;
• revises the administrative license revocation (ALR) process;
• makes ignition interlock devices mandatory for first and second DUI offenses; and
• creates penalties for tampering with an ignition interlock device if it is required under ALR.
Under the bill, a person who is driving under an ignition interlock permit and has no prior DUI convictions can operate a vehicle only for purposes of employment, education, substance abuse treatment, parole or probation supervision, health care for themselves or their dependents, court-ordered community service obligations and ignition interlock servicing.
LB667 passed on a 46-0 vote.
LB675, introduced by Omaha Sen. Pete Pirsch, increases penalties for DUI offenders with prior convictions and creates felony penalties for failing to stop after an accident that results in serious injury or death.
The bill, passed 46-0, also:
• increases a probation fine to $2,000;
• increases the fine amount for Class W misdemeanors from the current range of $400 to $600 to a $500 to $1,000 range;
• changes the look-back period for sentence enhancement purposes to 15 years;
• creates a new offense of a prior DUI offender with a blood alcohol content level of .02 or higher, which will be a Class IIIA misdemeanor; and
• requires a person who has at least four prior convictions to serve a minimum of two years and complete a diagnostic evaluation before being eligible for parole.
Senators passed another bill that increases criminal penalties.
Under LB61, introduced by Elk Creek Sen. Lavon Heidemann, the penalty for viewing or recording a person in a state of undress without his or her knowledge in a place of solitude or seclusion increases from a Class III to a Class I misdemeanor.
The bill, passed 47-0, also increases to a Class IV felony the penalty for making a video or electronic recording of an unlawful intrusion. Distributing such a recording is a Class III felony.
In addition, the bill places a three-year statute of limitations on the crime beginning when a victim reaches the age of 21 or when a victim or law enforcement receives notice of the existence of a video or the distribution of images or video.
Finally, the bill requires a defendant over the age of 19 whose victim was under the age of 18 to register under the Sex Offender Registration and Notification Act.
LB665, introduced by Pirsch, prohibits attempts to solicit, coax, entice or lure a child under the age of 14 to enter a place intending to seclude him or her from a parent, guardian, legal custodian or the general public, whether or not the person knows the age of the child.
Violations will be a Class IIIA felony. If a perpetrator has been previously convicted of criminal child enticement, assault or sexual assault of a child, or kidnapping or false imprisonment of a victim younger than 18, he or she could be guilty of a Class III felony.
The bill passed on a 45-0 vote.
Temporary insanity will no longer be an accepted defense for crimes committed while the offender is voluntarily under the influence of drugs or alcohol.
Under LB100, introduced by Lincoln Sen. Colby Coash, defendants charged with committing crimes while intoxicated may no longer use intoxication as a defense, unless they can prove by clear and convincing evidence that they did not know that a substance was a toxicant when they used it.
LB100 was approved on 42-2 vote.
Senators passed two bills that revise criminal penalty provisions.
Under LB191, introduced by Omaha Sen. Brenda Council, the state Department of Correctional Services may reduce the time by three days each month during a 12 month period of incarceration during which the inmate has not been found guilty of a Class I or Class II offense or has not had more than three Class III offenses of the department’s disciplinary code.
Passed 45-0, the bill directs the Parole Board to reduce a parolee’s parole term by an additional 10 days for each month of his or her term for good conduct in conformity with the conditions of a parole. Parolees are currently eligible for a reduction of two days for each month.
The bill passed on a 45-0 vote.
LB12, introduced by Lexington Sen. John Wightman and passed 45-0, strikes the phrase “without parole” in the sections of law for a Class I felony penalty.
LB137, introduced by Omaha Sen. Scott Lautenbaugh, requires that a verified motion for post-conviction relief be filed within one year after the date a judgment of conviction becomes final.
The bill, passed 45-0, allows for some exceptions.
LB415, introduced by Cortland Sen. Norm Wallman, would make it a Class I misdemeanor to bring prohibited items into a detention facility, provide them to an inmate or for an inmate to possess them. Unlawful items would include weapons, tools or anything that could be useful for an inmate to use to escape. The bill remains on general file.
Under a bill held in committee, a political subdivision could restrict sexual predators from living within 500 feet of a park that covers at least 2,500 square feet. LB508, introduced by Hoskins Sen. Dave Bloomfield, would not be retroactive.
Juveniles
Senators gave approval to a bill that revises juvenile truancy and excessive absenteeism policies and practices this session.
LB463, introduced by Omaha Sen. Brad Ashford at the request of the governor, requires that at least half of the Learning Community Coordinating Council operating funds be used for truancy intervention programs that incorporate evidence-based practices pursuant to a plan developed by participating superintendents.
The bill also authorizes the council to administer pilot projects related to truancy initiatives that would share information regarding at-risk youth and provides a grant program for Court Appointed Special Advocates.
Under the bill, passed 46-0, inspections of juveniles’ sealed records will be allowed by:
• a person who is the subject of the record;
• the court, city attorney or county attorney for purposes of collection of any remaining parental support or obligations;
• a law enforcement agency if such a person applies for employment with an agency; and
• the state Department of Correctional Services, the Office of Juvenile Services, a juvenile assessment center or a criminal or juvenile detention facility where an individual is committed.
A bill that changes provisions for minors who are victims of sexual or domestic assault also was passed this session.
Under LB479, introduced by Omaha Sen. Steve Lathrop, a victim of sexual or domestic assault who is at least 18 years of age can be examined and treated by a physician without the consent or notification of a parents or guardian.
LB479 passed on a 46-0 vote.
Controlled substances
Omaha Sen. Beau McCoy introduced two bills to prevent the use of certain controlled substances.
LB19 expands the Uniform Controlled Substances Act to ban the class of synthetic cannabinoids used to make the drug commonly known as K2 or Spice.
Those found to be in possession of substances related to the drug will be guilty of:
• an infraction, receive a citation and a $300 fine and could be assigned to attend a course as prescribed for the first offense;
• a Class IV misdemeanor, receive a citation and a $400 fine and may be imprisoned no longer than five days for a second offense; and
• a Class III misdemeanor, receive a citation and a $500 fine and be imprisoned no longer than seven days for the third and subsequent offenses.
The bill passed 49-0.
A statewide electronic tracking system will be implemented for purchases of methamphetamine precursor chemicals at the point of sale under LB20.
Under the bill, retailers will receive an immediate web-based notification when a person is attempting to purchase illegal amounts of pseudoephedrine, a drug found in over-the-counter cold medications that is used in meth-making.
Passed on a 44-0 vote, the bill also:
• ensures that no claim or cause of action shall arise against a seller based upon the electronic submission of information to the exchange;
• allows the retailer to store certain information obtained from the purchaser’s license or identification card in case it is needed by law enforcement; and
• prohibits the sale of products containing more than 9 grams of pseudoephedrine base or 9 grams of phenylpropanolamine base during a 30-day period unless purchased pursuant to a medical order.
LB20 was approved on a 44-0 vote.
Courts
Senators passed two bills this session that revise court provisions.
Among other provisions, LB669, introduced by Flood:
• expands the state Supreme Court’s options for funding sources to compensate court interpreters;
• provides for clerks and staff of the district and country courts to assist one another on court services;
• eliminates the requirement that divisions of a county court be located outside the county seat and that certain cases be filed with the county court clerk in the county seat;
• creates a new position of Judicial Hearing Officer and allows the court to appoint officers as needed;
• provides courts greater scheduling flexibility;
• authorizes a court to order that a juvenile be placed directly with the state Department of Health and Human Services to obtain a pre-adjudication evaluation; and
• allow for a divorce decree to be entered without a hearing if both parties have certified that they have made every reasonable effort to reconcile.
The bill passed 47-0.
LB648, introduced by Imperial Sen. Mark Christensen, requires the state Department of Health and Human Services or contract agency to make a child’s placement information available for courts to use when notifying foster parents of placement hearings. The notice must be mailed or personally delivered to the counsel or party at least five days before the review or hearing.
The bill, approved 44-0, also requires the court to ask a foster parent, preadoptive parent or relative caring for the child present at the hearing about the well-being of the child.
Adoption
Senators gave final approval to two bills that give adoptive parents more access to information about children being considered for adoption.
LB94, introduced by Omaha Sen. Gwen Howard, requires that adoptive parents have access to a child’s HHS file after filing a petition for adoption and before entry of an adoption decree.
Passed 38-0, the bill also requires that adoptive parents be informed that they may review a child’s file at any time following finalization of an adoption by making a written request to the department.
LB124, introduced by Lincoln Sen. Bill Avery, amends Nebraska adoption placement law to include in a child’s medical history the race, ethnicity, nationality, Indian tribe – when applicable and in compliance with the Nebraska Indian Child Welfare Act – or other cultural history of either or both biological parents.
The bill passed on a 44-0 vote.
Firearms
Lawmakers passed a bill that makes mental health records accessible when conducting background checks for firearm purchases.
LB512, introduced by Christensen, removes a maximum five-year retention requirement for HHS mental health records. Records include whether a person is disqualified from purchasing or possessing a handgun and will be made available to the National Instant Criminal Background Check System. The Nebraska State Patrol can access the system when determining a person’s eligibility to own a gun.
The bill, passed 43-0, enables a person who has been barred from buying or possessing a gun for mental health reasons to resubmit an application if he or she no longer suffers from the disqualifying condition.
Additionally, the bill allows valid handgun permits issued by previous states of new state residents to be recognized in Nebraska.
The bill passed on a 43-0 vote.
Other bills
Lawmakers gave final approval to a bill that seeks to strengthen the state’s guardian and conservatorship system for vulnerable adults.
LB157, sponsored by Coash, requires that a potential guardian or conservator complete a criminal background check and file the results with the court 10 days prior to an appointment hearing.
Exceptions to the background check requirements include financial institutions serving as conservators and expedited, temporary and emergency guardian/conservator appointments.
Passed on a 49-0 vote, the bill allows a judge to intervene when an interested person submits concerns, through an affidavit, that a ward’s safety, health or financial welfare is at risk. An interested person who files an affidavit in bad faith with the court concerning a vulnerable adult will be required to pay
the opposing party reasonable attorney’s fees and costs.
The bill also allows the court to refer contested guardian/conservator cases to mediation or other dispute resolution.
LB157 passed 49-0.
A bill permitting mothers to breast-feed a child in public was approved by lawmakers.
Fullerton Sen. Annette Dubas, sponsor of LB197, said legislation was needed to codify that a woman is not breaking a law by breast-feeding in public.
The bill passed 46-0.
Senators voted to increase the minimum distance required for picketing funerals.
LB284, introduced by Omaha Sen. Bob Krist, prohibits picketing of a funeral or memorial service within 500 feet of a cemetery, mortuary, church or other place of worship at the time of a funeral or memorial service. The previous limit was 300 feet.
The bill passed on a 48-0 vote.
LB673, introduced by Flood, requires a court to order a judgment creditor to pay a judgment debtor’s court costs and attorney fees when the judgment creditor has refused, without a good faith reason, to execute a release of the judgment for child support, spousal support or subordination of a lien.
Under the bill, passed 49-0, a showing that all support payments are current shall be evidence that the judgement creditor did not have a good faith reason to refuse to execute such release or subordination.
The bill also provides procedural protections in custody and visitation cases for military parents who are moving or deploying.
