28-912. Escape; official detention, defined; knowingly permitting an escape; penalty; defense to prosecution.
(1) A person commits escape if he or she unlawfully removes himself or herself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period. Official detention means arrest, detention in or transportation to any facility for custody of persons under charge or conviction of crime or contempt or for persons alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes. Official detention does not include supervision of probation or parole or constraint incidental to release on bail.
(2) A public servant concerned in detention commits an offense if he or she knowingly permits an escape. Any person who knowingly causes or facilitates an escape commits a Class IV felony.
(3) Irregularity in bringing about or maintaining detention, or lack of jurisdiction of the committing or detaining authority shall not be a defense to prosecution under this section if the escape is from a prison or other custodial facility or from detention pursuant to commitment by official proceedings. In the case of other detentions, irregularity or lack of jurisdiction shall be a defense only if:
(a) The escape involved no substantial risk of harm to the person or property of anyone other than the detainee; and
(b) The detaining authority did not act in good faith under color of law.
(4) Except as provided in subsections (5) and (6) of this section, escape is a Class IV felony.
(5) Escape is a Class III felony when:
(a) The detainee was under arrest for or detained on a felony charge or following conviction for the commission of an offense; or
(b) A public servant concerned in detention of persons convicted of crime purposely facilitates or permits an escape from a detention facility or from transportation thereto.
(6) Escape is a Class IIA felony when the actor employs force, threat, deadly weapon, or other dangerous instrumentality to effect the escape.
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Annotations
A juvenile is being held in detention pursuant to official proceedings when he flees from a transportation employee that is escorting him to a medical appointment. In re Interest of Matthew P., 275 Neb. 189, 745 N.W.2d 574 (2008).
When an incarcerated criminal defendant is charged with escape under subsection (1) of this section, no prejudice results from trying the defendant while he or she is wearing jail clothing. State v. Sorich, 226 Neb. 547, 412 N.W.2d 484 (1987).
Some degree of custody is essential before one can be considered to be in official detention. Constructive, as distinguished from physical, restraint sufficient to constitute a constructive seizure or detention of an arrestee exists where an officer has the intention to effect an arrest, that intention has in some way been communicated to the arrestee, the arrestee understands that he is under legal restraint, and the officer has apparent present power to control the person even though he has not yet asserted physical control. State v. Hicks, 225 Neb. 322, 404 N.W.2d 923 (1987).
Nebraska's escape statute defines one offense and sets out factors which, if present, change the range of the penalty. State v. Heathman, 224 Neb. 19, 395 N.W.2d 538 (1986).
A person on work release is within the custody and control of the Nebraska Penal and Correctional Complex. Walking away from work release is an "escape" within the meaning of this statute. State v. Stafford, 213 Neb. 595, 330 N.W.2d 739 (1983); State v. Ford, 213 Neb. 594, 330 N.W.2d 497 (1983); State v. Coffman, 213 Neb. 560, 330 N.W.2d 727 (1983).
For purposes of this section, constructive restraint takes place when an officer has the intention to effect an arrest and that intention has been communicated to the arrestee who understands that he is under legal restraint and the officer has the apparent present power to control the arrestee even though he has not asserted physical control. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981).
A person who is serving a jail sentence pursuant to official proceedings commits the crime of escape when that person flees while in the custody of a police detective who has removed the person from the jail facility in furtherance of law enforcement purposes. State v. Farr, 209 Neb. 163, 306 N.W.2d 854 (1981).
If a prisoner escapes from jail while he is being held on a charge of violation of probation, the fact that the charge may be unfounded does not prevent him from being guilty of escape. State v. Greaser, 207 Neb. 668, 300 N.W.2d 197 (1981).
Legal custody is an essential element of the crime of escape. State v. Schlothauer, 206 Neb. 670, 294 N.W.2d 382 (1980).