concurring.
In my opinion, the results of the blood test would have been admissible under Neb. Rev. Stat. § 60-6,210(1) (Reissue 1998) if Brouillette had been tried for felony motor vehicle homicide as defined in Neb. Rev. Stat. § 28-306(3)(b) or (c) (Cum. Supp. 2000), because both of those sections require proof of the operation of a motor vehicle in violation of Neb. Rev. Stat. § 60-6,196 (Supp. 1999). However, because the State amended the charges from motor vehicle homicide to manslaughter, which does not specifically require proof of violation of § 60-6,196,1 agree with the majority that the blood tests were not admissible under § 60-6,210(1).
The amendment of the charges prior to trial also affects the harmless error analysis. In State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986), disapproved on other grounds, State v. Wright, 261 Neb. 277, 622 N.W.2d 676 (2001), this court held that where death results from the unlawful operation of a motor vehicle, a prosecutor has discretion to charge the operator with either motor vehicle homicide in violation of § 28-306 or manslaughter in violation of Neb. Rev. Stat. § 28-305 (Reissue 1995). The harmless error analysis in this case demonstrates the breadth of that discretion.
As the majority notes, there was undisputed evidence that Brouillette was proceeding south in the northbound lanes of a divided highway at the time of the fatal accident. This was a violation of the Nebraska Rules of the Road, specifically Neb. Rev. Stat. § 60-6,141(1) (Reissue 1998). In the absence of a fatality, this conduct would have constituted a “traffic infraction” punishable by a fine. Neb. Rev. Stat. §§ 60-672, 60-682, and 60-689 (Reissue 1998).
*231But, tragically, fatalities did result from Brouillette’s traffic infraction. Had he been tried under the motor vehicle homicide statute, as originally charged, proof that he violated § 60-6,141(1) could have supported only the conviction of two Class I misdemeanors, each punishable by not more than 1 year’s imprisonment, a $1,000 fine, or both. Neb. Rev. Stat. §§ 28-106 (Cum. Supp. 2000) and 28-306(1) and (2). Motor vehicle homicide is a Class I misdemeanor unless it results from reckless driving, willful reckless driving, or first-offense driving under the influence, in which case it is a Class IIIA felony punishable by a maximum of 5 years’ imprisonment, a $10,000 fine, or both. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2002); § 28-306(3)(a) and (b). If death results from a second or subsequent offense of driving under the influence, motor vehicle homicide constitutes a Class III felony punishable by 20 years’ imprisonment, a $25,000 fine, or both. §§ 28-105 and 28-306(3)(c). Thus, the Legislature designed the offense of motor vehicle homicide to increase in severity from a Class I misdemeanor to a Class in felony, depending upon the seriousness of the predicate offense involving the operation of a motor vehicle. But manslaughter, a Class HI felony, can be established by proof that the defendant, acting without malice, “causes the death of another unintentionally while in the commission of an unlawful act.” § 28-305. Brouillette’s traffic infraction, driving the wrong way on a divided highway, was unquestionably an “unlawful act,” even if it resulted from an error as to the nature of the roadway, as he contended. While it would not be sufficient to support a charge of felony motor vehicle homicide, it is sufficient to support a charge of manslaughter.
This seems anomalous. If the Legislature intended to make motor vehicle homicide a felony only in the circumstance where death results from what are arguably the three most serious offenses involving the operation of a motor vehicle, why would a less serious traffic infraction resulting in death be sufficient to establish manslaughter, a felony equivalent in degree to the most serious variant of felony motor vehicle homicide? We need not and indeed cannot answer this question, because regardless of whether predicating manslaughter on a traffic infraction seems logical or just, it is permissible under cun-ent law. If the language of a statute is clear, the words of such statute are the end of any *232judicial inquiry. State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001). Generally, where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000). In the nearly 17 years since State v. Roth, 222 Neb. 119, 382 N.W.2d 348 (1986), was decided, the Legislature has not amended § 28-305 to exclude traffic infractions from the universe of “unlawful acts” which can be the basis of a manslaughter conviction. Moreover, the Legislature repealed former Neb. Rev. Stat. § 39-669.20 (Reissue 1984), which this court applied in Roth to impose a limitation on the permissible sentence for manslaughter resulting from the operation of a motor vehicle. 1986 Neb. Laws, L.B. 153; State v. Roth, supra. Accordingly, the majority’s harmless error analysis is a correct application of the law, in which I must concur.
Wright and Gerrard, JL, join in this concurrence.