Opinion
No. 36699.
Filed February 16, 1968.
1. Criminal Law: Statutes. The terms of a penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. 2. ___: ___. It is a fundamental requirement of due process of law that a criminal statute be reasonably clear and definite. 3. ___: ___. A municipal ordinance may constitute reckless driving and willful reckless driving separate offenses and provide separate minimum penalties for each offense.
Appeal from the district court for Scotts Bluff County: TED R. FIEDLER, Judge. Affirmed.
Bertrand V. Tibbels, for appellant.
Marvin L. Holscher, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, McCOWN, and NEWTON, JJ.
Donald Lee Green, the defendant, was convicted of willful reckless driving in violation of an ordinance of the city of Scottsbluff, Nebraska, and sentenced to pay a fine of $100. The defendant's motion for new trial was overruled and he has appealed.
The sole issue upon the appeal is the validity of the ordinance involved. The constitutionality of the ordinance was challenged in the trial court by demurrer and a motion to quash.
The ordinance in question, section 20-295, provides as follows: "No vehicle shall be driven, used, operated, parked, or stopped in a negligent, careless, reckless, or willful reckless manner, or in such manner as to endanger or interfere with the lawful traffic or use of the streets, or in such a manner that the vehicle shall not be under the complete control of the driver."
The defendant contends that the ordinance purports to create six separate offenses and that the terms used are so vague and ambiguous that the offenses created are not clearly defined.
In this case the defendant was charged with willful reckless driving. The question here is whether "willful reckless driving" can be prohibited and a penalty imposed for that offense. In disposing of this appeal it is not necessary to determine whether all of the other five separate offenses created by the ordinance are valid and effective.
The terms of a penal statute creating an offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. It is a fundamental requirement of due process of law that a criminal statute be reasonably clear and definite. State v. Adams, 180 Neb. 542, 143 N.W.2d 920.
In a number of decisions, statutes prohibiting reckless driving have been held valid. See, State v. Andrews, 108 Conn. 209, 142 A. 840; State v. Hamilton, 133 W. Va. 394, 56 S.E.2d 544, 12 A. L. R. 2d 573; 7 Am. Jur. 2d, Automobiles and Highway Traffic, 263, p. 815; 61 C. J. S., Motor Vehicles, 609, p. 698; Annotation, 12 A. L. R. 2d 580.
Reckless driving has been prohibited by statute in Nebraska since 1935. Laws 1935, c. 134, 3, p. 485. The 1935 Act defined the offense as driving "in such a manner as to indicate either a wilful or wanton disregard for the safety of persons or property." In 1947, the statute was amended, and driving in such a manner as to indicate "an indifferent or wanton disregard for the safety of persons or property" was constituted reckless driving. Willful reckless driving was defined as driving in such a manner as to indicate "a willful disregard for the safety of persons or property." Laws 1947, c. 148, 3, p. 410. The pertinent portion of the statute now appears as sections 39-7,107 and 39-7,107.02, R.R.S. 1943.
Reckless driving is defined in Webster's Third New International Dictionary, at p. 1896, as driving that evidences "a deliberate or culpably negligent disregard of life and property and creates an unreasonable risk of harm to others." The deliberate or wanton disregard for the safety of others or their property is the fundamental characteristic of reckless driving. Willful reckless driving is characterized by a deliberate, as distinguished from an indifferent, disregard for the safety of others or their property.
Reckless driving and willful reckless driving are terms which have a general recognized and understood meaning. Reckless driving and willful reckless driving may be prohibited by legislative enactments and separate penalties imposed for their violation.
The penalty provided for a violation of the ordinance involved in this case is contained in a later section, section 20-701. That section provides for a fine of not less than $1 nor more than $100. In 1959 the section was amended to prescribe minimum fines for certain violations. The minimum fines prescribed by the 1959 amendment for violating section 20-295 are as follows: "Section 20-295 as amended — negligent driving: Five Dollars ($5.00), careless driving: Fifteen Dollars ($15.00), reckless driving: Twenty-five Dollars ($25.00), willful reckless driving: Fifty Dollars ($50.00), other provisions of such Section: Five Dollars ($5.00)."
The defendant contends that the minimum fines provision in section 20-701 is invalid because it permits the police to control the minimum fine to be imposed by designating the offense which is to be charged.
The fact that the prosecuting authority may have some discretion in deciding what the appropriate charge should be in a particular case cannot restrict the legislative determination as to what the minimum penalty should be for a particular offense. To the extent that identical offenses should carry identical penalties, the argument may have merit, but a distinction exists between reckless driving and willful reckless driving. The contention has no merit so far as this case is concerned.
The judgment of the district court is affirmed.
AFFIRMED.
SMITH, J., participating on briefs.