Nebraska’s Implied Consent Law: Refusal to Take a Chemical Test

If you are arrested for driving under the influence, can you refuse chemical testing?

Under Nebraska’s implied consent law, any person who operates or is in “actual physical control” of a motor vehicle is deemed to have given consent to a preliminary breath test (PBT) (a breath test conducted at roadside) and a chemical test of breath, blood, and/or urine.

However, in order to request a PBT, a police officer must have reasonable grounds to believe the motorist has:

  • consumed alcohol
  • committed a moving violation, or
  • been involved in a traffic accident.

And to request a chemical test (a blood, breath, or urine test), the officer must have reasonable grounds to believe the person was driving in violation of Nebraska’s DUI laws and have the person under arrest.

Consequences of Refusing a Test

A motorist will be arrested if PBT results indicate a BAC of .08% or more or if the motorist refuses to take the PBT. A PBT refusal is a class V misdemeanor, which is punishable by a $100 fine.

Before administering a chemical test, the arresting officer must advise the driver of the consequences of refusing. A person who refuses a chemical test is subject to an administrative license revocation (from the Department of Motor Vehicles (DMV)). Unlawful refusal is also a crime that can result in jail time, fines, and a driver’s license revocation. However, a refusal to submit to a blood test generally can’t be punished as a crime unless police first obtain a warrant from a court.

Additionally, evidence of the refusal can normally be used against the defendant in the criminal DUI trial.

Administrative License Revocation

The DMV will revoke an offender’s driving privileges for one year for refusing a chemical test. The arresting officer will generally take possession of the person’s license and issue a temporary 15-day driving permit.

A motorist whose license has been revoked for refusing a chemical test is entitled to contest the revocation at an administrative hearing. However, offenders who waive the hearing are eligible to apply for an ignition interlock permit (IID permit) to use during the revocation period. The offender can drive with the permit after completing 105 days of the revocation period.

Criminal Penalties

The criminal penalties imposed for refusing a chemical test depend on how many prior refusal or DUI convictions the defendant has and whether probation or a suspended sentence is granted.

No prior convictions. A first conviction for refusing a chemical test is a class W misdemeanor and carries:

  • seven to 60 days in jail
  • a $500 fine, and
  • a six-month license revocation.

A defendant whose sentence is suspended on a first refusal conviction will face:

  • up to 60 days in jail (no minimum jail time)
  • a $500 fine, and
  • a 60-day license revocation.

The defendant is required to apply for an IID permit for the revocation period.

One prior conviction. A defendant who has one prior refusal or DUI conviction and refused to submit to a chemical test is guilty of a class I misdemeanor. The convicted motorist will face:

  • 90 days to one year in jail
  • a $1,000 fine
  • a license revocation of 18 months to 15 years, and
  • immobilization of all vehicles owned by the defendant for five days to eight months.

Instead of immobilization, the judge can require the defendant to apply for an IID permit and install an IID after a 45-day period of no driving.

A suspended sentence for a second offense includes:

  • 30 days in jail
  • a $1,000 fine, and
  • an 18-month to 15-year license revocation (the defendant isn’t allowed to drive for 45 days and must apply for an IID permit during the period of revocation).

Two prior convictions. A defendant who has two prior refusals or DUI convictions and refused to submit to a chemical test is guilty of a class IIIA felony. A conviction will carry:

  • 180 days to three years in jail
  • nine months to 18 months post-release supervision
  • up to a $10,000 fine
  • a 15-year license revocation, and
  • immobilization of all vehicles owned by the defendant for five days to eight months (or the defendant can be required to apply for an IID permit and install an IID after a 45-day no driving period).

A suspended sentence for a third refusal offense includes:

  • 60 days in jail
  • a $1,000 fine
  • a license revocation for five to 15 years (the offender must apply for an IID permit during the period of revocation following a 45-day no driving period)
  • use of an alcohol monitoring device, and
  • no alcohol use for at least 60 days.

Evidence of the Refusal Can Be Used at Trial

Another consequence of refusing a chemical test is that the prosecutor can present evidence of the refusal to the judge or jury if the defendant goes to trial for DUI. This rule allows prosecutors to explain to the judge or jury why there’s no chemical test establishing the amount of alcohol or drugs in the driver’s system. Prosecutors can suggest that the driver refused testing in an effort to conceal intoxication.

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