Mandatory Two-Year License Revocation/Impoundment for Felony “Operating a Motor Vehicle to Avoid Arrest” Under § 28-905(3)(b), Even When the Sentence Is Probation

Case: State v. Perry, 318 Neb. 613 (Neb. Mar. 14, 2025)

1. Introduction

State v. Perry arises from a late-night traffic stop in Bellevue, Nebraska, that escalated into a high-speed flight. Officer Molly Coon stopped a vehicle after observing what she believed was a malfunctioning left rear turn signal and after learning the registered owner, Detron L. Perry, had a suspended license. When the officer attempted to compel Perry to exit the vehicle, he accelerated away, ran a red light, and weaved around another vehicle.

Perry was charged and convicted of (1) driving under suspension (Class III misdemeanor) and (2) operating a motor vehicle to avoid arrest (Class IV felony, enhanced due to willful reckless driving). On appeal, he challenged (a) the denial of his motion to suppress (arguing no probable cause for the stop), (b) the sufficiency of the evidence for the “driving under suspension” conviction (arguing defective notice), and (c) the sufficiency of the evidence for the “avoid arrest” conviction (arguing he was not told he was under arrest). Separately, the State asserted plain error in sentencing: the district court failed to impose a two-year license revocation/impoundment purportedly mandated by Neb. Rev. Stat. § 28-905(3)(b).

The Nebraska Supreme Court affirmed the convictions and suppression ruling, but vacated the sentence and remanded for resentencing because § 28-905(3)(b) requires a mandatory two-year revocation or impoundment as part of the judgment of conviction for felony violations—regardless of whether the sentence is probation.

2. Summary of the Opinion

3. Analysis

A. Precedents Cited

1) Standards of review and appellate record scope

• State v. Anderson, 317 Neb. 435, 10 N.W.3d 334 (2024): The court relied on Anderson to restate the two-part suppression review framework: historical facts for clear error, legal Fourth Amendment conclusions reviewed independently.
• State v. Shiffermiller, 302 Neb. 245, 922 N.W.2d 763 (2019): Cited for de novo review of the ultimate reasonable-suspicion and probable-cause determinations, while giving due weight to trial-court inferences.
• State v. Npimnee, 316 Neb. 1, 2 N.W.3d 620 (2024): Cited for the sufficiency-of-the-evidence standard—viewing evidence in the light most favorable to the State and deferring credibility and weight determinations to the factfinder.
• Mullins v. Box Butte County, 317 Neb. 937, 13 N.W.3d 67 (2024): Cited for the proposition that statutory interpretation is a question of law reviewed independently, and later for plain-meaning interpretive principles.

2) Fourth Amendment traffic-stop principles and reasonable mistakes

• State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018): Anchors two key propositions applied here: (a) traffic stops are Fourth Amendment seizures, and (b) any traffic violation, however minor, provides probable cause to stop. The court also used Barbeau for the related principle that probable cause is not defeated by a reasonable mistake.
• Heien v. North Carolina, 574 U.S. 54, 135 S. Ct. 530, 190 L. Ed. 2d 475 (2014): Cited to support the broader Fourth Amendment rule that an objectively reasonable mistake—there, of law—can still justify a stop.
• Illinois v. Rodriguez, 497 U.S. 177, 110 S. Ct. 2793, Ill L. Ed. 2d 148 (1990), and Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949): Cited via Heien as examples recognizing that reasonable mistakes of fact can be consistent with Fourth Amendment reasonableness.

3) Notice of license suspension and “last-known address”

• State v. Moderow, 226 Neb. 470, 411 N.W.2d 647 (1987), and State v. Garst, 175 Neb. 731, 123 N.W.2d 638 (1963): The court invoked these cases to reinforce that Nebraska law does not require proof that suspension/revocation notice was actually received or that the driver had actual knowledge—mailing to the DMV-record address satisfies the notice requirement.

4) Elements of “operating a motor vehicle to avoid arrest”

• State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015): Used to reject Perry’s theory that an actual arrest (or explicit arrest announcement) is required. Armagost stands for the proposition that the offense occurs before an arrest can take place; whether the defendant is actually arrested is not material.
• State v. Claussen, 276 Neb. 630, 756 N.W.2d 163 (2008): Supports sufficiency where officers’ actions demonstrate an attempt to arrest or detain, and the defendant flees before contact is made.

5) Plain error, illegal sentences, and remand authority

• State v. Dat, ante p. 311, 15 N.W.3d 410 (2025): Cited for Nebraska’s definition of plain error—error evident from the record that, if left uncorrected, damages the integrity, reputation, or fairness of the judicial process.
• State v. Roth, 311 Neb. 1007, 977 N.W.2d 221 (2022): Supplies the proposition that a sentence contrary to statutory authority is suitable for plain error review and that an appellate court may remand for imposition of a lawful sentence.

6) Mandatory revocation under § 28-905(3)(b) and interpretive tools

• State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020): The court acknowledged Collins as having indicated (without full analysis) that subsection (3)(b), unlike the misdemeanor provision in § 28-905(2), uses mandatory language requiring revocation. Perry uses the occasion to provide the “fuller analysis” Collins did not.
• State v. Janis, 32 Neb. App. 49, 992 N.W.2d 772 (2023): The Court of Appeals relied on Collins to hold revocation mandatory for a Class IV felony under § 28-905(3)(b). The Supreme Court aligns with that outcome and strengthens the analytical foundation.
• State v. Hense, 276 Neb. 313, 753 N.W.2d 832 (2008): A key analog: interpreting near-identical “shall … as part of the judgment of conviction” language in DUI revocation statutes, the court held revocation is a mandatory component of the sentence even when the court imposes probation. Hense thus supports reading “judgment of conviction” to encompass probationary sentences and treating license sanctions as mandatory sentence components.
• State v. Godek, 312 Neb. 1004, 981 N.W.2d 810 (2022): Cited for the plain-meaning approach and the caution that courts may not read into or read out of unambiguous statutory language.
• Fountain II v. Douglas Cty. Bd. of Equal., 315 Neb. 633, 999 N.W.2d 135 (2024), and State v. Irish, 298 Neb. 61, 902 N.W.2d 669 (2017): Cited for the interpretive rule that “shall” is generally mandatory and inconsistent with discretion, and (in Irish) also for the principle that in a criminal case, “the judgment is the sentence.”
• State v. Gnewuch, 316 Neb. 47, 3 N.W.3d 295 (2024): Cited alongside Black’s Law Dictionary to support the court’s understanding of “judgment of conviction” and its relationship to the sentence.
• State v. Policky, 285 Neb. 612, 828 N.W.2d 163 (2013), and State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009): Cited to clarify the scope of discretion in provisions like § 28-905(3)(b)’s second sentence: courts may have discretion about when revocation is administered, but not about whether it must be imposed when the statute uses mandatory “shall” language.

B. Legal Reasoning

1) Suppression: probable cause based on a reasonable perception of a traffic violation

Perry’s suppression theory hinged on video evidence showing that the rear signal was blinking (though dim and irregular). The court treated the stop as justified if the officer had probable cause to believe a traffic violation occurred, and reiterated that probable cause is not defeated by reasonable mistakes. Applying that framework, the court emphasized the officer’s contemporaneous observation: the rear signal appeared not to work properly, with only a mirror signal visible. Even after video review, the rear light’s “really fast” and “very low output” blinking supported the reasonableness of the officer’s belief that the signal was not in “proper working order.” Thus, the stop did not violate the Fourth Amendment.

2) Sufficiency: “last-known mailing address” depends on DMV records, not actual receipt

For driving under suspension, Perry argued the State failed to prove proper notice because suspension letters were not mailed to his claimed address at the time of the incident. The court focused on § 60-4,100(6): notice is satisfied by mailing to the “last-known mailing address as shown by the records of the DMV.” Citing State v. Moderow and State v. Garst, the court reiterated Nebraska’s long-standing view that actual receipt or actual knowledge is not required. Given the exhibit showing DMV addresses and correspondence, the factfinder could rationally conclude the North 87th Avenue address was the “last-known” DMV-record address for notice purposes.

3) “Avoid arrest”: the offense does not require an explicit arrest announcement

Perry argued he could not be guilty of operating a motor vehicle to avoid arrest because the officer did not tell him he would be arrested or cited. The court rejected this based on binding precedent—especially State v. Armagost—that the crime occurs before arrest can take place, making the defendant’s actual arrest (or the officer’s formal announcement) immaterial. On the facts, Perry fled as the officer moved to “compel” him out of the car after learning his license was suspended, and he then drove recklessly; that sufficed under Nebraska law.

4) New/clarified rule: § 28-905(3)(b) mandates a two-year revocation/impoundment for felony convictions, even with probation; only timing may vary

The decision’s central precedential contribution is its detailed interpretation of § 28-905(3)(b). The statute provides: “The court shall, as part of the judgment of conviction … order that the operator’s license … be revoked or impounded for a period of two years …” and then states administration occurs “upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.”

Perry argued that because the statute lists multiple administration points, the district court has discretion whether to impose revocation at all (and could defer it unless probation is revoked). The Supreme Court rejected that reading as inconsistent with plain meaning. The court reasoned:

• “Shall” is mandatory and “inconsistent with the idea of discretion,” particularly when contrasted with other parts of § 28-905 that use “may.”
• “As part of the judgment of conviction” means the revocation/impoundment is part of the sentence. Using Black’s Law Dictionary’s definition and Nebraska case law, the court reiterated that “in a criminal case, the judgment is the sentence,” and that probation is a sentence.
• The second sentence governs timing, not imposition: it may allow discretion as to when the revocation is administered, but it does not override the mandatory command of the first sentence.

Because Perry’s conviction fell under § 28-905(3)(b) (felony avoidance with willful reckless driving), the district court lacked statutory authority to omit the two-year revocation/impoundment. That omission rendered the sentence unlawful, qualifying as plain error and requiring vacatur and remand for resentencing.

C. Impact

• Sentencing uniformity for felony eluding: Trial courts must include a two-year license revocation or impoundment in the sentence for felony convictions under § 28-905(3)(b), including probationary sentences. Omission is vulnerable on direct appeal via plain error even if neither party raised it below.
• Clarified scope of judicial discretion: The opinion draws a clean line: courts may have discretion about when revocation/impoundment is administered (sentencing vs. final appeal vs. probation revocation), but not about whether it is imposed.
• Reinforced traffic-stop doctrine: The decision reinforces that probable cause for a traffic stop can rest on an officer’s reasonable perception of equipment noncompliance, even if later evidence shows partial functionality. Practically, defendants challenging stops based on “video contradiction” must overcome the “reasonable mistake” principle.
• Administrative-notice prosecutions remain factfinder-driven: By reaffirming that § 60-4,100(6) looks to DMV records (not actual receipt), Perry strengthens the State’s ability to prove “driving under suspension” through certified DMV records, with disputes largely confined to whether the DMV-record address qualifies as “last-known.”

4. Complex Concepts Simplified

• Probable cause (traffic stop): A legally sufficient reason to stop a vehicle exists if an officer reasonably believes a traffic law was broken—like an equipment violation—even if the officer later turns out to be mistaken, as long as the mistake was reasonable.
• Reasonable mistake: The Fourth Amendment tolerates certain mistakes by police (fact mistakes, and sometimes law mistakes) when objectively reasonable. The stop is judged from the officer’s perspective at the time.
• “Last-known mailing address” (DMV notice): The law requires the DMV to mail notice to the address in its records. It does not require the State to prove the driver actually received the letter.
• “Judgment of conviction”: In criminal cases, this concept includes the sentence (and probation counts as a sentence). So if a statute requires something “as part of the judgment,” it must appear in the sentence.
• Plain error: An appellate court can correct an obvious, record-based legal mistake even if the parties did not object—especially when a sentence is outside what the statute authorizes.
• Mandatory vs. discretionary language: “Shall” usually means the court must do something; “may” usually means the court has a choice. Perry relies heavily on that conventional interpretive rule.

5. Conclusion

State v. Perry affirms three core points: (1) a traffic stop is lawful when an officer reasonably believes a traffic violation occurred, even if later video shows partial equipment function; (2) for “driving under suspension,” the State need only prove notice was mailed to the DMV-record “last-known” address, not actual receipt; and (3) “operating a motor vehicle to avoid arrest” does not require an explicit arrest announcement.

The decision’s principal doctrinal contribution is its clarified, plain-language interpretation of § 28-905(3)(b): for felony violations, the sentencing court must impose a two-year license revocation or impoundment as part of the judgment of conviction—including probationary sentences—though the statute may permit limited discretion on when that sanction is administered. By treating omission as plain error, the court signals that compliance is not optional and that unlawful sentences will be corrected on direct appeal.