State v. Perina

review of the record, we find by clear and convincing evidence
that respondent has violated § 3-508.4(a) through (d) and his
oath as an attorney, § 7-104, and that respondent should be and
hereby is publicly reprimanded. Respondent is directed to pay
costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114
and 7-115 (Reissue 2007) and Neb. Ct. R. §§ 3-310(P) and
3-323(B) within 60 days after an order imposing costs and
expenses, if any, is entered by the court.
Judgment of public reprimand.
State of nebraSka , appellee , v.
arthur p. perina , appellant.
804 N.W.2d 164
Filed October 7, 2011. 	No. S-09-1021.
1. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which an
appellate court is obligated to reach conclusions independent of those reached by
the court below.
2. Criminal Law: Statutes: Legislature: Intent. When construing a criminal stat-
ute, the existence of a criminal intent is regarded as essential, even though the
terms of the statute do not require it, unless it clearly appears that the Legislature
intended to make the act criminal without regard to the intent with which it
was done.
3. Criminal Law: Statutes: Intent. If a criminal statute omits mention of intent
and where it seems to involve what is basically a matter of policy; where the
standard imposed is, under the circumstances, reasonable and adherence thereto
properly expected of a person; where the penalty is relatively small; where the
conviction does not gravely besmirch; where the statutory crime is not taken over
from the common law; and where legislative purpose is supporting, the statute
can be construed as one not requiring criminal intent.
4. Criminal Law: Due Process: Proof. Due process protects an accused against
conviction except upon proof beyond a reasonable doubt of every fact necessary
to constitute the crime charged.
5. Due Process: Intent. Due process is not violated merely because mens rea is not
a required element of a prescribed crime.
6. Constitutional Law: Statutes. A motion to quash is the proper method to chal-
lenge the constitutionality of a statute.
7. Constitutional Law: Statutes: Pleas. Challenges to the constitutionality of a
statute as applied to a defendant are properly preserved by a plea of not guilty.
8. Homicide: Motor Vehicles: Public Policy: Intent: Proof. Misdemeanor motor
vehicle homicide is a public welfare offense which does not require proof of
mens rea.
STATe v. PeRINA 	463
Cite as 282 Neb. 463
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

Appeal from the District Court for Sarpy County, david k.
arterburn, Judge, on appeal thereto from the County Court
for Sarpy County, todd J. hutton, Judge. Judgment of District
Court affirmed.
Andrew J. Wilson, of Walentine, O’Toole, McQuillan &
Gordon, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
heavican, c.J., connolly, gerrard, Stephan, mccormack ,
and miller-lerman, JJ., and caSSel , Judge.
gerrard, J.
The Nebraska Criminal Code provides that “[a] person who
causes the death of another unintentionally while engaged in
the operation of a motor vehicle in violation of the law of the
State of Nebraska or in violation of any city or village ordi-
nance commits motor vehicle homicide.”1 The appellant, Arthur
P. Perina, challenges that provision on the ground that it crimi-
nalizes negligent acts.
BACkGROuND
Joshua Wayland was killed in a traffic accident caused when
a dump truck driven by Perina ran a red light at the intersection
of Highways 50 and 370 in Sarpy County, Nebraska. Perina
was driving north on Highway 50, in heavy rain, and was
unable to stop when the traffic light changed at the Highway
370 off ramp. Wayland was turning south onto Highway 50
from the off ramp, and Perina’s truck struck Wayland’s car
on the driver’s side. Wayland died as a result of the injuries
he sustained in the accident. Perina’s blood alcohol test was
negative, and there is no indication that alcohol or drugs were
a contributing factor to the accident.
Perina was charged with one count of motor vehicle homi-
cide,2 a Class I misdemeanor, and one count of violation of a
1 Neb. Rev. Stat. § 28-306(1) (Reissue 2008).
2 See id.
464 	282 NeBRASkA RePORTS

traffic control device,3 a traffic infraction. Motor vehicle homi-
cide is punishable by up to 1 year’s imprisonment, a $1,000
fine, or both.4 Perina filed a motion to quash the motor vehicle
homicide charge, asserting that § 28-306 was unconstitutional
because it violated his right to due process. At the hearing on
the motion, the court asked Perina’s counsel whether he was
making a facial challenge to the statute. Counsel explained:
The specific claim that we’re making that [Perina’s] due
process right is being violated is that the statute, motor
vehicle homicide statute, criminalizes mere negligence.
It doesn’t define what level of negligence is involved. It
just simply makes it a criminal act when one violates a
traffic offense and a death results from that, and that’s
the challenge. So it’s on its face.
The county court rejected Perina’s constitutional argument and
overruled his motion to quash. Perina pled not guilty to both
charges, and a bench trial was held on a stipulated record.
Perina renewed his constitutional challenge, and it was again
overruled. Perina was convicted of both charges and sentenced
to 24 months’ probation and fines totaling $1,025. Perina
appealed, reasserting his constitutional claim in the district
court. But the district court affirmed Perina’s convictions and
sentence. Perina appealed and filed a petition to bypass the
Nebraska Court of Appeals, which we granted.
ASSIGNMeNT OF eRROR
Perina assigns that the district court erred by affirming the
county court’s denial of his motion to quash based upon the
unconstitutionality of § 28-306.
STANDARD OF RevIeW
[1] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.5
3 See Neb. Rev. Stat. § 60-6,119 (Reissue 2010).
4 See Neb. Rev. Stat. § 28-106 (Reissue 2008).
5 See, State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011); State v. Prescott,
280 Neb. 96, 784 N.W.2d 873 (2010).
STATe v. PeRINA 	465
Cite as 282 Neb. 463

ANALySIS
We begin by noting a dispute between the parties about
whether Perina is challenging § 28-306 facially or as applied.
A challenge to a statute asserting that no valid application of
the statute exists because it is unconstitutional on its face is a
facial challenge.6 But a plaintiff can only succeed in a facial
challenge by establishing that no set of circumstances exists
under which the act would be valid, i.e., that the law is uncon-
stitutional in all of its applications.7 The State argues that in
this case, Perina’s facial challenge clearly fails, because even
if it is conceded that § 28-306 unconstitutionally criminalizes
negligence, there would remain circumstances not involving
simple negligence in which the statute could be constitution-
ally applied. And furthermore, the State argues, Perina has
waived an “as-applied” challenge by not raising it below. We
disagree with the State’s contentions. But explaining why will
require an examination of the theoretical underpinnings of
Perina’s argument.
Perina’s constitutional argument is based on the principles
articulated by the u.S. Supreme Court in Morissette v. United
States.8 In Morissette, the defendant was convicted of violat-
ing 18 u.S.C. § 641 (2006), which provided, then as now, that
“[w]hoever embezzles, steals, purloins, or knowingly converts”
u.S. government property is punishable by fine or imprison-
ment. The defendant had found spent bomb casings in a rural
area of Michigan and salvaged them. He explained that he had
no intention of stealing anything, but thought the property had
been abandoned. Nonetheless, he was convicted, because the
trial court determined that the statute required no element of
criminal intent and that any necessary intent could be presumed
from the defendant’s act. The u.S. Supreme Court ultimately
disagreed, explaining:
6 State v. Liston, 271 Neb. 468, 712 N.W.2d 264 (2006).
7 See, Washington State Grange v. Washington State Republican Party, 552
u.S. 442, 128 S. Ct. 1184, 170 L. ed. 2d 151 (2008); United States v.
Salerno, 481 u.S. 739, 107 S. Ct. 2095, 95 L. ed. 2d 697 (1987).
8 Morissette v. United States, 342 u.S. 246, 72 S. Ct. 240, 96 L. ed. 288
(1952).
466 	282 NeBRASkA RePORTS

The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or tran-
sient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual
to choose between good and evil. A relation between
some mental element and punishment for a harmful act
is almost as instinctive as the child’s familiar exculpatory
“But I didn’t mean to,” and has afforded the rational basis
for a tardy and unfinished substitution of deterrence and
reformation in place of retaliation and vengeance as the
motivation for public prosecution.9
The Court reasoned that as the common law of crimes had
been codified, even if the statute was silent regarding mens
rea, courts had “assumed that the omission did not signify
disapproval of the principle but merely recognized that intent
was so inherent in the idea of the offense that it required no
statutory affirmation.”10 However, the Court recognized the
principle that some crimes, which became known as public
welfare offenses, can involve no mental element, “but consist
only of forbidden acts or omissions.”11 Indeed, the Court had
already explained in United States v. Balint12 that
in the prohibition or punishment of particular acts, the
State may in the maintenance of a public policy provide
“that he who shall do them shall do them at his peril and
will not be heard to plead in defense good faith or igno-
rance.” Many instances of this are to be found in regula-
tory measures in the exercise of what is called the police
power where the emphasis of the statute is evidently upon
achievement of some social betterment rather than the
punishment of the crimes as in cases of mala in se.
9 Id., 342 u.S. at 250-51.
10 Id., 342 u.S. at 252.
11 Id., 342 u.S. at 253.
12 United States v. Balint, 258 u.S. 250, 252, 42 S. Ct. 301, 66 L. ed. 604
(1922).
STATe v. PeRINA 	467
Cite as 282 Neb. 463

But the Morissette Court clarified that such offenses did not
arise from the common law, instead having been created
because of changing social circumstances that required new
duties and crimes that did not require any ingredient of intent.
For instance, the Court noted:
The industrial revolution multiplied the number of work-
men exposed to injury from increasingly powerful and
complex mechanisms, driven by freshly discovered sources
of energy, requiring higher precautions by employers.
Traffic of velocities, volumes and varieties unheard of
came to subject the wayfarer to intolerable casualty risks
if owners and drivers were not to observe new cares
and uniformities of conduct. Congestion of cities and
crowding of quarters called for health and welfare regula-
tions undreamed of in simpler times. Wide distribution of
goods became an instrument of wide distribution of harm
when those who dispersed food, drink, drugs, and even
securities, did not comply with reasonable standards of
quality, integrity, disclosure and care. Such dangers have
engendered increasingly numerous and detailed regula-
tions which heighten the duties of those in control of par-
ticular industries, trades, properties or activities that affect
public health, safety or welfare.13
Such offenses, the Court said, do not “fit neatly” into
accepted classifications of common-law offenses, because they
are not in the nature of the “positive aggressions or invasions”
with which the common law dealt, but instead were “in the
nature of neglect where the law requires care, or inaction
where it imposes a duty.”14 One accused of such an offense,
although not intending the violation, “usually is in a position
to prevent it with no more care than society might reasonably
expect and no more exertion than it might reasonably exact
from one who assumed his responsibilities.”15 With such legis-
lation, criminal penalties simply serve as an effective means of
13 Morissette, supra note 8, 342 u.S. at 253-54.
14 Id., 342 u.S. at 255.
15 Id., 342 u.S. at 256.
468 	282 NeBRASkA RePORTS

regulation, dispensing with the conventional mens rea require-
ment for criminal conduct.16 “‘In the interest of the larger good
it puts the burden of acting at hazard upon a person otherwise
innocent but standing in responsible relation to a public dan-
ger.’”17 But, the Court found,
we should not enlarge the reach of enacted crimes by con-
stituting them from anything less than the incriminating
components contemplated by the words used in the stat-
ute. And where Congress borrows terms of art in which are
accumulated the legal tradition and meaning of centuries
of practice, it presumably knows and adopts the cluster
of ideas that were attached to each borrowed word in the
body of learning from which it was taken and the meaning
its use will convey to the judicial mind unless otherwise
instructed. In such case, absence of contrary direction may
be taken as satisfaction with widely accepted definitions,
not as a departure from them.18
And based on that reasoning, the Court found that § 641, which
was essentially a theft offense codified from the common law,
was properly construed to require proof of criminal intent.19
So, the Court found that the trial court had erred in concluding
that such intent could be presumed from the fact of the taking,
explaining that such a presumption would be inconsistent with
a defendant’s overriding presumption of innocence.20
[2,3] Morissette has been read as establishing, “at least
with regard to crimes having their origin in the common law,
an interpretive presumption that mens rea is required.”21 The
Court has explained that “[w]hile strict-liability offenses are
not unknown to the criminal law and do not invariably offend
constitutional requirements, . . . the limited circumstances in
16 Morissette, supra note 8.
17 Id., 342 u.S. at 260.
18 Id., 342 u.S. at 263.
19 See id.
20 Morissette, supra note 8.
21 United States v. United States Gypsum Co., 438 u.S. 422, 437, 98 S. Ct.
2864, 57 L. ed. 2d 854 (1978).
STATe v. PeRINA 	469
Cite as 282 Neb. 463

which Congress has created and this Court has recognized such
offenses . . . attest to their generally disfavored status.”22 As a
result, the established rule is that when construing a criminal
statute, “‘[t]he existence of a criminal intent is regarded as
essential even though the terms of the statute do not require it,
unless it clearly appears that the legislature intended to make
the act criminal without regard to the intent with which it was
done.’”23 But if the statute
omits mention of intent and where it seems to involve
what is basically a matter of policy, where the stan-
dard imposed is, under the circumstances, reasonable and
adherence thereto properly expected of a person, where
the penalty is relatively small, where conviction does not
gravely besmirch, where the statutory crime is not taken
over from the common law, and where congressional pur-
pose is supporting, the statute can be construed as one not
requiring criminal intent. The elimination of this element
is then not violative of the due process clause.24
[4,5] But it is important to note that Morissette was con-
cerned with the construction of a statute, not the validity of a
statute. The Morissette Court did not decide whether legisla-
tive elimination of the requirement of intent from common-law
crimes was constitutional.25 Although the Morissette Court
“enunciated various factors” for courts to consider when con-
struing statutes that arguably do not require proof of mens
rea, “the Court did not establish those factors as principles of
constitutional law.”26 Morissette implicates the Due Process
Clause insofar as due process protects an accused against
22 Id., 438 u.S. at 437-38 (citations omitted).
23 State v. Pettit, 233 Neb. 436, 447, 445 N.W.2d 890, 897 (1989), overruled
on other grounds, State v. Jones, 245 Neb. 821, 515 N.W.2d 654 (1994).
24 Holdridge v. United States, 282 F.2d 302, 310 (8th Cir. 1960). Accord
Pettit, supra note 23.
25 See, Stepniewski v. Gagnon, 732 F.2d 567 (7th Cir. 1984); State v. Gabriel,
192 Conn. 405, 473 A.2d 300 (1984); State v. Foster, 91 Wash. 2d 466,
589 P.2d 789 (1979); State v. Smith, 90 N.C. App. 161, 368 S.e.2d 33
(1988), affirmed 323 N.C. 703, 374 S.e.2d 866 (1989).
26 Stepniewski, supra note 25, 732 F.2d at 570.
470 	282 NeBRASkA RePORTS

conviction except upon proof beyond a reasonable doubt of
every fact necessary to constitute the crime charged,27 but it
is clear that the constitutional requirement of due process is
not violated merely because mens rea is not a required ele-
ment of a prescribed crime.28 The Court “has never articulated
a general constitutional doctrine of mens rea,” which “has
always been thought to be the province of the States.”29 Simply
put, Morissette is a case of statutory construction30 that, by
its own terms, only establishes “criteria for distinguishing
between crimes that require a mental element and crimes that
do not.”31
[6,7] With that understood, it is apparent that the State’s
attempt to characterize Perina’s challenge as a facial challenge
and its claim that Perina waived an “as-applied” challenge are
without merit. To begin with, we do not read the record as nar-
rowly as does the State. Perina’s motion to quash was a facial
challenge, because a motion to quash is the proper method to
challenge the constitutionality of a statute,32 but it is not used to
question the constitutionality of a statute as applied.33 Instead,
challenges to the constitutionality of a statute as applied to a
defendant are properly preserved by a plea of not guilty.34 In
27 See, In re Winship, 397 u.S. 358, 90 S. Ct. 1068, 25 L. ed. 2d 368 (1970);
State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003); Gabriel, supra
note 25.
28 See, e.g., United States Gypsum Co., supra note 21; United States v.
Engler, 806 F.2d 425 (3d Cir. 1986); United States v. Ayo-Gonzalez, 536
F.2d 652 (5th Cir. 1976).
29 Powell v. Texas, 392 u.S. 514, 535-36, 88 S. Ct. 2145, 20 L. ed. 2d 1254
(1968).
30 See, Stepniewski, supra note 25; Ayo-Gonzalez, supra note 28; Gabriel,
supra note 25; Foster, supra note 25; Smith, supra note 25.
31 Morissette, supra note 8, 342 u.S. at 260. See, e.g., United States v.
X-Citement Video, Inc., 513 u.S. 64, 115 S. Ct. 464, 130 L. ed. 2d 372
(1994); Staples v. United States, 511 u.S. 600, 114 S. Ct. 1793, 128 L. ed.
2d 608 (1994); United States Gypsum Co., supra note 21.
32 See State v. Kelley, 249 Neb. 99, 541 N.W.2d 645 (1996).
33 See State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
34 State v. Conklin, 249 Neb. 727, 545 N.W.2d 101 (1996).
STATe v. PeRINA 	471
Cite as 282 Neb. 463

this case, the basis of Perina’s constitutional claim was abso-
lutely clear from the outset of the proceedings and reasserted
by Perina at every juncture. And both the county court and the
district court addressed the substance of Perina’s claim.
But more fundamentally, the distinction between a facial and
an “as-applied” challenge makes little sense in the context of a
Morissette argument, because Morissette provides no basis for
striking down a statute—just for construing it. Morissette is the
basis for an interpretive principle explaining when mens rea
should be read into a criminal offense and when it should not
be. It would make little sense to hold that a statute has different
elements “as applied” to a particular defendant.
So, we find no merit to the State’s argument that Perina waived
his Morissette argument by not preserving an “as-applied” chal-
lenge below. But we understand the State’s confusion, because
Perina’s argument does seem to be that pursuant to Morissette,
§ 28-306 is unconstitutional. As explained above, this can-
not be correct. In Morissette, for instance, the Court did not
invalidate the statute at issue—it simply explained that proof of
intent was required and that a jury question had been presented
on that issue. Granted, the constitutional validity of a strict-
liability criminal statute may be implicated under other circum-
stances: for instance, where an act is not per se blameworthy,
such that the doer might not be alert to the consequences of
the deed.35 But such a statute is not presented here,36 and under
Morissette, a statute is not “unconstitutional”—it is simply
construed incorrectly. Therefore, there is no merit to Perina’s
assignment of error.
Perina does argue, in the alternative, that § 28-306 could
be construed to require proof of mens rea. It is questionable
whether that argument is encompassed in Perina’s assignment
35 See, United States v. Freed, 401 u.S. 601, 91 S. Ct. 1112, 28 L. ed. 2d 356
(1971); Powell, supra note 29; Lambert v. California, 355 u.S. 225, 78 S.
Ct. 240, 2 L. ed. 2d 228 (1957); Engler, supra note 28. See, also, Stanley
v. Turner, 6 F.3d 399 (6th Cir. 1993) (Ohio involuntary manslaughter stat-
ute based on obviously wrongful and blameworthy conduct of violating
traffic safety laws did not deny due process).
36 See Stanley, supra note 35.
472 	282 NeBRASkA RePORTS

of error or was clearly raised below. But even on the merits, we
are not persuaded. We refused an effectively identical argument
in State v. Mattan.37 It is, in fact, long established that neither
intent, nor even negligence, is an element of the crime of motor
vehicle homicide; instead, “[n]egligence may be and usually is
a basic element in unlawful operation and may be proved but
the essential element of the crime as declared by the statute is
the unlawful act.”38 And other courts, applying Morissette, have
concluded that a defendant’s ordinary negligence may form
the basis for a conviction of motor vehicle homicide.39 As the
Idaho Court of Appeals has explained, “[r]egulation of motor
vehicle operation is an area without roots in the common law.
Traffic laws are enacted for the benefit of the traveling public
and it is reasonable to expect compliance with these laws.”40
The court noted that Idaho’s motor vehicle homicide statute, as
a misdemeanor, carried a relatively minor penalty of a fine of
not more than $2,000, or a term of imprisonment of not more
than a year.41 And, the court observed, such punishment “is
directed not at evil conduct but at negligent acts or omissions
tragically resulting in loss of life.”42 So, the court reasoned,
“[a] conviction under this statute, although deeply regrettable,
does not gravely besmirch the defendant’s character.”43
37 See State v. Mattan, 207 Neb. 679, 300 N.W.2d 810 (1981).
38 Pribyl v. State, 165 Neb. 691, 703, 87 N.W.2d 201, 210 (1957). Cf.,
Schluter v. State, 153 Neb. 317, 44 N.W.2d 588 (1950); Fielder v. State,
150 Neb. 80, 33 N.W.2d 451 (1948); Benton v. State, 124 Neb. 485, 247
N.W. 21 (1933); Schultz v. State, 89 Neb. 34, 130 N.W. 972 (1911).
39 See, State of Oregon v. Wojahn, 204 Or. 84, 282 P.2d 675 (1955); Haxforth
v. State, 117 Idaho 189, 786 P.2d 580 (Idaho App. 1990); Smith, supra
note 25; People v. McKee, 15 Mich. App. 382, 166 N.W.2d 688 (1968).
See, also, Commonwealth v. Berggren, 398 Mass. 338, 496 N.e.2d 660
(1986); State v. Miles, 203 kan. 707, 457 P.2d 166 (1969); State v. Russo,
38 Conn. Supp. 426, 450 A.2d 857 (Conn. Super. 1982).
40 Haxforth, supra note 39, 117 Idaho at 191, 786 P.2d at 582.
41 See Idaho Code Ann. § 18-4007(3)(c) (Cum. Supp. 2009).
42 Haxforth, supra note 39, 117 Idaho at 191, 786 P.2d at 582.
43 Id.
STATe v. PeRINA 	473
Cite as 282 Neb. 463

Therefore, while the court acknowledged that misdemeanor
motor vehicle homicide has some relationship to the general
felony of manslaughter at common law, the court concluded
that it resembles more closely a public welfare offense and,
as such, need not contain a criminal negligence requirement.44
Similarly, the Oregon Supreme Court explained that it was
“convinced that the negligent homicide statute is a police regu-
lation, and that the legislature did not intend that any form of
moral culpability should be an element of the offense,” because
“[t]he crime created by the act is not one that casts great stigma
upon those convicted, nor is the penalty prescribed by the act
so great that its imposition upon those who had no evil pur-
poses tends to shock the sense of natural justice.”45
In arguing to the contrary, Perina relies upon Com. v. Heck,46
an opinion of the Superior Court of Pennsylvania in which the
court concluded that Pennsylvania’s motor vehicle homicide
statute violated the Pennsylvania constitution. We do not find
Heck persuasive, for several reasons. First, Perina neglects
to mention that the Supreme Court of Pennsylvania granted
review of the Superior Court’s decision and, while affirming
it on other grounds, expressly “reject[ed] the Superior Court’s
analysis of the due process issue in this case.”47 Second,
the Superior Court’s conclusion rested upon the Pennsylvania
constitution; the court expressly disclaimed any reliance on
the federal Constitution,48 the Due Process Clause of which
we have held to be coextensive with that of the Nebraska
Constitution.49 And finally, the Pennsylvania statute at issue in
that case, unlike Nebraska’s, permitted a term of imprisonment
of up to 5 years. Heck, to the limited extent that it stands for
44 See id.
45 Wojahn, supra note 39, 204 Or. at 139, 282 P.2d at 702.
46 Com. v. Heck, 341 Pa. Super. 183, 491 A.2d 212 (1985).
47 Com. v. Heck, 517 Pa. 192, 194, 535 A.2d 575, 576 (1987). See Smith,
supra note 25.
48 Heck, supra note 46.
49 See, Keller v. City of Fremont, 280 Neb. 788, 790 N.W.2d 711 (2010);
State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
474 	282 NeBRASkA RePORTS

the proposition urged by Perina, is plainly distinguishable from
this case.
[8] As noted above, motor vehicle homicide in Nebraska
is generally a Class I misdemeanor,50 absent certain excep-
tions not relevant here, and as a Class I misdemeanor, it is
punishable at the sentencing court’s discretion by up to 1
year’s imprisonment, a $1,000 fine, or both.51 But it carries no
minimum penalty.52 Taken as a whole, the standard imposed by
the statute is reasonable. While it bears some relationship to
manslaughter, it is more directly related to the predicate traf-
fic offenses upon which it is based, which are not taken from
the common law and were expressly identified in Morissette as
an example of a public welfare offense. A conviction does not
gravely besmirch the character of the defendant, and the pen-
alty, while it could potentially include a term of imprisonment,
is relatively small for an offense which causes a person’s death.
We conclude that when Morissette’s interpretative principles
are considered, misdemeanor motor vehicle homicide is a pub-
lic welfare offense which does not require proof of mens rea.
We find no merit to Perina’s argument that § 28-306 should be
construed differently.
CONCLuSION
The district court did not err in rejecting Perina’s constitu-
tional arguments or affirming the county court’s decision to
convict him of motor vehicle homicide without proof of mens
rea. The district court’s judgment is affirmed.
affirmed.
Wright, J., not participating.
50 See § 28-306(2).
51 See §§ 28-106 and 28-306(2).
52 See id.
STATe v. PeRINA 	475
Cite as 282 Neb. 463