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State of Nebraska v. Kelly Schmaltz. NE criminal law, choice of evils
The defendant appealed his conviction for leaving the scene of an injury accident. He argued that the lower court should have given an instruction on the choice of evils defense codified in Neb. Rev. Stat. 28-1407.
The defendant had been driving a semi truck hauling cattle at the time of the accident. He argued that leaving the scene was justified because he had to unload the cattle to avoid loss or injury to the cattle.
The trial court declined to give the instruction, since it was inapplicable where the choice was made to prevent loss of property and not a person. The supreme court agreed and affirmed the conviction.
No. S-18-925, 304 Neb. 74 (Neb. Sep. 20, 2019).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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