Nebraska DUI, Drug, Theft, and Domestic Violence Set-Aside — Offense-Specific Rules

Nebraska's set-aside statute doesn't treat all convictions equally. Section 29-2264 contains specific exclusions that bar certain offense categories entirely — and some of those exclusions surprise people. Before you invest time and filing fees in a set-aside petition, you need to know whether your specific offense qualifies.

DUI Convictions — Not Eligible for Set-Aside

This is the most common surprise. DUI and DWI convictions are classified as motor vehicle offenses under Nebraska law, and § 29-2264 explicitly excludes all motor vehicle offenses from set-aside eligibility. This includes:

• First-offense DUI (misdemeanor)
• Second-offense DUI (Class W misdemeanor)
• Third-offense DUI (Class W misdemeanor; felony if aggravated)
• Fourth-offense or subsequent DUI (felony)
• Refusal to submit to chemical testing

The exclusion applies regardless of how minor the offense was or how long ago it happened. A first-offense DUI from 15 years ago with a clean record since is treated the same as any other motor vehicle offense — no set-aside is available.

What you can do instead: If the DUI charge was dismissed or you were acquitted, the non-conviction record can be sealed under § 29-3523. If it resulted in a conviction, your only option for removing it from your record is a full pardon from the Nebraska Board of Pardons, followed by a judicial motion to seal. That requires a three-year clean-record waiting period for misdemeanors or 10 years for felonies, plus the Board's administrative processing time of two to five years.

Drug Convictions — Generally Eligible

Drug convictions do not fall under the motor vehicle or sex offense exclusions in § 29-2264, which means most drug convictions qualify for a set-aside — provided the sentence was probation, a fine, community service, or jail of one year or less.

That includes:

• Misdemeanor marijuana possession
• Felony drug possession (if the sentence was probation or jail ≤ 1 year)
• Drug paraphernalia charges
• Prescription fraud (if not combined with a sex offense)

Key limitation: If your drug conviction carried a prison sentence exceeding one year, a set-aside is unavailable. The only path is a pardon application to the Board of Pardons.

Practical note: Drug convictions combined with distribution or manufacturing charges may involve longer sentences that push them outside set-aside eligibility. Check your sentencing order carefully — the determining factor is the actual sentence imposed, not the offense classification.

Theft Convictions — Generally Eligible

Theft, shoplifting, and property crime convictions are eligible for set-aside under the same rules as any other non-excluded offense. The sentence must have been probation, a fine, community service, or jail of one year or less.

Nebraska classifies theft by value:

• Shoplifting or theft under $500: Class II misdemeanor
• Theft $500–$1,500: Class I misdemeanor
• Theft $1,500–$5,000: Class IV felony
• Theft over $5,000: Class IIA or higher felony

For misdemeanor theft, a set-aside is almost always available since the maximum sentence is under one year. For felony theft, check whether your actual sentence was within the one-year-or-less threshold.

Restitution requirement: Theft convictions almost always involve court-ordered restitution to the victim. Every dollar of restitution must be paid in full before a set-aside petition will be granted — and the court will verify this with the clerk before the hearing.

Domestic Violence Convictions — Complicated

Domestic violence convictions in Nebraska sit in a gray area under the set-aside statute:

Eligible for set-aside: A domestic assault conviction (misdemeanor) that does not involve a motor vehicle and carries a sentence of probation, fine, or jail of one year or less is technically eligible for a set-aside under § 29-2264.

Does not restore firearm rights: Even with a set-aside, federal law — 18 U.S.C. § 922(g)(9) — prohibits firearm possession for anyone convicted of a "misdemeanor crime of domestic violence." A Nebraska set-aside does not remove this federal prohibition because the statute explicitly limits its scope. Only a full pardon with express gubernatorial authorization to bear arms clears the federal firearms bar.

Protection order complications: If a protection order (restraining order) was issued as part of the domestic violence case, a set-aside of the underlying conviction does not automatically dissolve the protection order. Those are separate civil orders that must be addressed independently.

Sex Offenses and Motor Vehicle Homicide — Permanently Excluded

Two categories are permanently barred from set-aside eligibility:

Sex offenses requiring registration: Any conviction requiring registration on the Nebraska Sex Offender Registry is excluded from § 29-2264 set-aside relief. The only path is a pardon.

Motor vehicle homicide: Vehicular homicide charges, even when reduced to misdemeanors through plea negotiations, remain motor vehicle offenses under the statute and are excluded from set-aside eligibility.

Multiple Convictions

If you have multiple convictions, each one is evaluated independently. You may be able to set aside your drug conviction while your DUI remains permanently on your record. Each set-aside petition is filed separately in the court where that specific conviction was entered, which may mean filings in different courts if your convictions occurred in different counties.

The Nebraska Expungement & Record Sealing Guide includes a conviction screening worksheet to evaluate each offense against the § 29-2264 eligibility criteria, plus the complete petition process for each qualifying conviction.

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