Nebraska § 28-1107 - Possession of a gambling device; penalty; affirmative defense.

§ 28-1107. Possession of a gambling device; penalty; affirmative defense.

(1) A person commits the offense of possession of a gambling device if he or she manufactures, sells, transports, places, possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody, or use of any gambling device, knowing that it shall be used in the advancement of unlawful gambling activity.

(2) The owner or operator of a retail establishment who is not a manufacturer, distributor, or seller of mechanical amusement devices as defined under the Mechanical Amusement Device Tax Act, shall have an affirmative defense to possession of a gambling device described in subsection (1) of this section if the device bears an unexpired mechanical amusement device decal as required by such act. However, such affirmative defense may be overcome if the owner or operator had actual knowledge that operation of the device constituted unlawful gambling activity at any time such device was operated on the premises of the retail establishment.

(3) Notwithstanding any other provisions of this section, any mechanical game or device classified by the federal government as an illegal gambling device and requiring a federal Gambling Device Tax Stamp as required by the Internal Revenue Service in its administration of 26 U.S.C. 4461 and 4462, amended July 1, 1965, by Public Law 89-44, is hereby declared to be illegal.

(4) Possession of a gambling device is a Class II misdemeanor.

Subsection (1) of this section is severable from the remaining invalid portion of the statute. Evidence that devices were seen in bars being played by patrons shows knowledge that defendant tavern owners knew the machines, with no purpose except as "gambling devices," were used in gambling activity and was sufficient to prove defendants violated subsection (1) of this section. Subsection (2) of this section is unconstitutional for being in contravention of the express provisions of Neb. Const. art. III, section 24, which defines "games of chance" and "prize." State ex rel. Spire v. Strawberries, Inc., 239 Neb. 1, 473 N.W.2d 428 (1991).

Coin-operated electronic and video machines equipped with reset switches and meters permanently recording replays awarded are gambling devices within the meaning of this section. State v. Dodge City, 238 Neb. 439, 470 N.W.2d 795 (1991).

A gambling device is one which is used or usable to bet something of value on the outcome of a future event, which outcome is determined by an element of chance, unless the device falls within one of the exceptions contained in section 28-1101(4). State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

Free replay credits are a credit or promise involving extension of a service or entertainment and are thus something of value. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).

The definition of "gambling device" contained in section 28-1101(5), when taken in the context of this section, is not unconstitutionally overbroad. State v. Two IGT Video Poker Games, 237 Neb. 145, 465 N.W.2d 453 (1991).