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AGO Opinion 98018

Eligibility for Compensation From the Crime Victim's Reparation Fund When a Person is Killed In a Motor Vehicle Accident, But the Operators of the Vehicles Involved are Not Charged With a Violation Specified in Neb. Rev. Stat. § 81-1822.
Opinion 98018

DATE: March 9, 1998

SUBJECT: Eligibility for Compensation From the Crime Victim's Reparation Fund When a Person is Killed In a Motor Vehicle Accident, But the Operators of the Vehicles Involved are Not Charged With a Violation Specified in Neb. Rev. Stat. § 81-1822.




REQUESTED BY: Allen Curtis, Director Nebraska Commission on Law Enforcement and Criminal Justice




WRITTEN BY: Don Stenberg, Attorney General

Timothy J. Texel, Assistant Attorney General




You have requested the opinion of this office regarding whether

a claim submitted under the Crime Victim's Reparations Act, §§ 81-

1801 to 81-1841 (1994 and Cum. Supp. 1996) ("the Act") is eligible

for compensation when the victim is killed as a result of an

automobile accident, but the drivers of the vehicles involved in the

accident causing the victim's death are not charged with a violation

specified in Neb. Rev. Stat. § 81-1822. It is our opinion that when

the driver or drivers of vehicles involved in a motor vehicle

accident causing a person's death are not charged with a violation

specified in Neb. Rev. Stat. § 81-1822(4), claims for compensation

from injuries or death caused by the accident are not eligible for

compensation under the Act.




In your opinion request, you described the following factual

background. You explained that On January 9, 1997, a vehicle driven

by Kristopher Spencer was traveling southbound on southwest 56th

street. Paul Childers was a passenger in the vehicle driven by Mr.

Spencer. Mr. Spencer failed to stop at a stop sign at the

intersection of southwest 56th and West Denton Road. Mr. Spencer's

vehicle was struck on the passenger side by another vehicle traveling

through the intersection. Mr. Childers died at the scene of the

accident.




The police report received by the Crime Commission included

statements from the victim's wife that Mr. Spencer had been drinking

before leaving the Childers' home. The firefighter who attended to

Mr. Childers at the accident scene stated that he saw empty beer cans

in the interior of the vehicle and could smell a strong odor of

alcohol. The police report also included a copy of the Post Arrest

Chemical Test Advisement for Mr. Spencer, stating that he was under

arrest for operating a motor vehicle while under the influence of

alcoholic liquor or drugs. Evidently Mr. Spencer was unable to sign

the form. Mr. Spencer was ticketed for driving with a suspended

license and was later charged with motor vehicle homicide. Although

Mr. Spencer was initially arrested for driving under the influence of

alcohol, he was never charged with this offense. You informed us

that the police report indicated the other driver appeared normal,

and was neither arrested nor charged with driving under the influence

of alcohol or drugs.




Mr. Childers' wife submitted a claim for compensation with the

Crime Victim's Reparations Committee ("CVR Committee"). The hearing

officer denied the claim because the victim was not free from

culpability, pursuant to Neb. Rev. Stat. § 81-1816 and Title 80,

Nebraska Administrative Code ("NAC"), Chapter 1, § 008 and Chapter 4,

§ 005. Subsequent to the hearing officer's decision, the CVR

Committee received the blood alcohol content reports on Mr. Spencer

and Mr. Childers. Mr. Childers' BAC was reported at .141, while Mr.

Spencer's was .037. The claimant appealed the hearing officer's

decision to the CVR Committee. The hearing was conducted on January

29, 1998. At the hearing, the applicant's attorney argued that § 81-

1822(4) only applies when a victim is injured, not when he or she is

killed. He urged that Mrs. Childers is therefore eligible to receive

compensation. The CVR Committee denied the claim, finding that it

was not eligible for compensation.




The Act provides for the compensation of victims of crimes

committed in Nebraska, or when Nebraska residents are the victims of

crimes while traveling outside Nebraska. Your opinion request

centers on the provisions in § 81-1822(4). This statute specifies

circumstances when compensation shall not be awarded. Section 81-

1822(4) states:






81-1822. Compensation; situations when not awarded.

No compensation shall be awarded:




. . . .




(4) If the victim is injured as a result of the

operation of a motor vehicle, boat, or airplane (a) unless

the vehicle was used in a deliberate attempt to injure or

kill the victim, (b) unless the operator is charged with a

violation of section 60-6,196 or 60-6,197, or a city or

village ordinance enacted in conformance with either of

such sections, or (c) unless any chemical test of the

operator's breath, blood, or urine indicates an alcohol

concentration equal to or in excess of the limits

prescribed in section 60-6,196 . . . .




Neb. Rev. Stat. § 81-1822 (1994) (emphasis in original). Sections

60-6,196 and 60-6,197 pertain to driving under the influence of

alcoholic liquor or drugs.




The language in § 81-1822 mandates that no compensation can be

awarded for victims of motor vehicle accidents. The statute does

provide for limited exceptions under which victims of motor vehicle

accidents are eligible for compensation. With regard to injuries

sustained from motor vehicles, the use of the word "unless" indicates

that compensation is not normally intended for injuries sustained

from the operation of motor vehicles. The circumstances provided in

§ 81-1822(4)(a), (b), and (c) are exceptions to that general rule.

Compensation cannot be awarded in the absence of the criteria listed

in § 81-1822(4). When a statute specifies the object or method by

which it is to operate, or forbids certain things, it is to be

construed as excluding all other objects or methods not expressly

mentioned. State v. Wragge, 246 Neb. 864, 867, 524 N.W.2d 54, 57

(1994); Nebraska City Education Ass'n v. School Dist. of Nebraska

City, 201 Neb. 303, 306, 267 N.W.2d 530, 532 (1978). Therefore, if

the facts surrounding a claim for compensation do not demonstrate

compliance with the criteria establishing an exception to the general

rule, the CVR Committee is not authorized to pay compensation. See

Op. Att'y Gen. No. I97-026.




The language in § 81-1822(4) indicates that the Legislature

intended to compensate those persons injured in motor vehicle

accidents only when the victim's injuries were the result of a person

engaged in criminal activity. The criminal activities listed are the

deliberate attempt to harm another person through use of a motor

vehicle, or harming someone while engaged in driving under the

influence of alcohol or drugs. The statutory language used indicates

that injuries resulting from automobile accidents

not involving those criminal activities are not entitled to

compensation. See Op. Att'y Gen. No. I97-026.




We do not agree with the argument that § 81-1822(4) applies only

when a person is injured, but not when a person is killed. Section

81-1822(4) begins by stating that no compensation shall be awarded

"If the victim is injured as a result of the operation of a motor

vehicle. . ." (emphasis added). On its face, § 81-1822(4) states

only that it applies when a person is injured as a result of an

accident, not when he or she is killed. However, § 81-1801 defines

the term "victim." It states that "Victim shall mean a person who is

injured or killed as a result of conduct specified in section 81-

1818." Neb. Rev. Stat. § 81-1801 (1994) (emphasis added). The plain

language defining the term "victim," a term used in § 81-1822(4),

indicates that both injuries and death are contemplated by the term

"victim." The language in § 81-1822(4)(a) supports this conclusion.

It states that compensation is allowed when a person uses a motor

vehicle in "a deliberate attempt to injure or kill the victim."




Section 81-1818, cited in § 18-1801, states:




The committee or hearing officer may order the payment

of compensation for personal injury or death which resulted

from:




. . . .




(2) The commission or attempt on the part of one

other than the applicant of an unlawful criminal act

committed or attempted in the State of Nebraska.




Neb. Rev. Stat. § 18-1818 (1994). The language in § 81-1818, as with

§ 81-1801, indicates that the Act applies not only to claims for

injuries caused by crime, but also to claims based on situations when

an innocent person dies from injuries caused by criminal acts. There

are also other instances in the Act where the Legislature does not

create separate categories for those injured by crimes and those who

die as a result of crimes. See § 81-1815, § 81-1819.




We now turn to whether a claim for compensation is eligible if

a person is killed in a motor vehicle accident when the driver or

drivers involved are not charged with driving under the influence of

alcohol or drugs.




For a claim to be eligible for compensation for injuries

sustained in a motor vehicle accident, the responsible driver or

drivers must have either been charged with a violation of § 60-6,196

or § 60-6,197 or a chemical test must indicate the driver had

a blood alcohol concentration equal to or in excess of the limit

established in § 60-6,196. See § 81-1822(4)(b) and (c). Section 60-

6,196 pertains to driving under the influence of alcohol or drugs,

while § 60-6,197 primarily deals with refusal to submit to a chemical

test for the presence of alcohol or drugs. In the situation

presented in your opinion request, neither driver was charged with a

violation of § 60-6,196 or § 60-6,197. Likewise, neither driver was

determined to have had a blood alcohol level in violation of the

limit prescribed in § 60-6,196. In instances where there is no

evidence that the actions of the drivers involved were an intentional

attempt to harm the victim, and the other factors in § 18-1822(4) are

not met, the facts indicate that the claim for reimbursement is not

eligible for compensation.




It is our conclusion that, absent evidence of certain specified

criminal activities, the Crime Victim's Reparations Act does not

authorize compensation for persons injured or killed as a result of

motor vehicle accidents. Compensation for injuries sustained due to

the operation of motor vehicles is limited to those circumstances

when the driver or drivers involved: 1) are found to have used the

vehicle in a deliberate attempt to harm the victim, 2) are charged

with a violation specified in § 81-1822(4)(b), or 3) are found to

have had a blood alcohol concentration in violation of § 60-6,196.

Although we have not reviewed the entire record of evidence presented

at the CVR Committee hearing, the facts presented in your opinion

request support the conclusion of the CVR Committee to deny the claim

for compensation. In situations where the blood alcohol

concentrations of the drivers involved are not in violation of the

levels set in § 60-6,196, and where the drivers involved are not

charged with violations of 60-6,196 or 60-6,197 or an ordinance

enacted thereunder, the CVR Committee lacks the statutory authority

to award compensation. We also conclude that the provisions of § 81-

1822(4) include situations where the victim is killed as result of

injuries sustained in a motor vehicle accident.




Sincerely,




DON STENBERG

Attorney General






Timothy J. Texel

Assistant Attorney General