## Facts

- James E. Adkins and Daniel J. Sutherland were separately charged in the county court of Platte County, Nebraska, with violating Neb. Rev. Stat. § 28-4,127(1)(g) (R.S. Supp. 1974), a subsection of the Nebraska Controlled Substances Act.
- The subsection made it unlawful to “visit or to be in any room, dwelling house, vehicle, or place” where a controlled substance is being used unlawfully, if the person has knowledge that the use is occurring.
- Each complaint alleged that on or about February 20, 1975, in Platte County, the defendant was unlawfully present in the same 1968 Chevrolet automobile in which controlled substances were being used, and that the defendant knew the activity was occurring.
- The record contained little detail beyond the charging allegations; the prosecutions were based on the defendants’ alleged knowing presence rather than possession, use, or distribution.
- Adkins and Sutherland each moved to dismiss, arguing that § 28-4,127(1)(g) was unconstitutional on its face because it was vague and overbroad and violated due process.
- The county court sustained the motions and dismissed both complaints.
- The county attorney appealed to the district court, which affirmed and held the subsection unconstitutional on its face as vague and overbroad.
- The county attorney then brought consolidated error proceedings in the Nebraska Supreme Court to test the constitutionality of § 28-4,127(1)(g).

## Issues

1. Whether Neb. Rev. Stat. § 28-4,127(1)(g), which criminalizes knowing presence in a place where another person is unlawfully using a controlled substance, is unconstitutionally vague on its face under due process.
2. Whether the same provision is unconstitutionally overbroad on its face because it reaches substantial amounts of innocent conduct by imposing criminal liability without requiring use, possession, assistance, or encouragement.

## Decision

- The Nebraska Supreme Court affirmed the district court’s judgment.
- The court held that § 28-4,127(1)(g) is unconstitutional on its face.
- The court concluded the subsection is unconstitutionally vague because it fails to give fair notice of what conduct is forbidden and supplies no workable standards to limit enforcement discretion.
- The court concluded the subsection is unconstitutionally overbroad because it punishes mere knowing presence—conduct that may be innocent, passive, or unavoidable—without requiring any act that furthers unlawful drug use.
- Because the subsection was invalid, the county court’s dismissals of the complaints remained in effect.

## Legal Principles

- A penal statute violates due process for vagueness if people of ordinary intelligence cannot tell what conduct is prohibited and if the statute lacks clear enforcement standards, allowing arbitrary and uneven application.
- A statute is facially overbroad when, in addition to reaching conduct the State may punish, it also reaches a substantial amount of innocent activity by defining the offense too broadly.
- Criminal liability generally requires more than knowing proximity to another’s unlawful act; when a law punishes “being in” a place with knowledge of someone else’s drug use, without limiting elements tied to culpable conduct, the risk of punishing innocent presence is substantial.
- Adding a “knowledge” requirement does not cure vagueness or overbreadth when the act element remains open-ended (for example, when the law does not distinguish brief or compelled presence from conduct that meaningfully supports the unlawful use).

## Conclusion

State v. Adkins held that Neb. Rev. Stat. § 28-4,127(1)(g) was facially unconstitutional because it made a misdemeanor out of “visiting or being in” a vehicle or other place where controlled substances were being used unlawfully, so long as the person knew of the use; the Nebraska Supreme Court ruled that the provision gave inadequate notice, lacked limiting standards, and swept in a wide range of innocent knowing presence, so the dismissals of the complaints against Adkins and Sutherland were properly affirmed.


State v. Adkins, 241 N.W.2d 655 (1976)