State v. Lewis

483 N.W.2d 742, 240 Neb. 642, 1992 Neb. LEXIS 147

• Court: Nebraska Supreme Court
• Decided: May 8, 1992
• Docket: S-90-1236
• Status: Published

Opinions

Per Curiam.

Defendant, Charles G. Lewis, Jr., was charged with driving while under the influence of intoxicating liquor, in violation of Lincoln Mun. Code § 10.52.020, and with operating a snowmobile on a public street, in violation of Lincoln Mun. Code § 10.65.010. The county court for Lancaster County, following trial on stipulated facts, found the defendant guilty on each charge and sentenced him to 1 year’s probation, a $200 fine, and a 60-day driver’s license suspension. Defendant appealed the driving while under the influence charge to the district court for Lancaster County, which affirmed. This appeal followed. In this court, defendant contends that a snowmobile is not a motor vehicle under the Lincoln Municipal Code provision which prohibits driving a motor vehicle while under the influence. We affirm.

The provisions of the Lincoln Municipal Code under which the defendant was convicted and sentenced are not in the record. This court will not take judicial notice of a city ordinance which does not appear in the record.

When an ordinance charging an offense is not properly made a part of the record, an appellate court presumes the existence of a valid ordinance creating the offense charged, and an appellate court will not otherwise take judicial notice of the ordinance. ... In the absence from the record of the applicable municipal ordinance, an appellate court presumes that the evidence sustains the findings of the trial court and that a sentence is within the limits set out in the applicable ordinance.

State v. King, 239 Neb. 853, 854, 479 N.W.2d 125, 126 (1992). See, also, State v. Topping, 237 Neb. 130, 464 N.W.2d 799 (1991); State v. Cottingham, 226 Neb. 270, 410 N.W.2d 498 (1987); State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986); State v. Bruce, 213 Neb. 661, 330 N.W.2d 752 (1983).

When the applicable ordinance is not in the record, the district court, on the initial appeal to that court, and the appellate court, on appeal from the district court, will presume that the evidence before the trial court supports the findings of the trial court. State v. Topping, supra; State v. Cottingham, supra. The order of the district court, affirming the order of the county court, is affirmed.

Affirmed.