If you are arrested for driving under the influence, can you refuse chemical testing?
In most DUI cases, the investigating officer will ask the driver to take a breath, blood, or urine test. The results of these tests can help the officer decide whether to make a DUI arrest and later be used by the prosecutor at trial to prove a DUI charge.
While these tests are useful tools for law enforcement, drivers who might have drugs or alcohol in their system don't have much to gain by agreeing to alcohol or drug testing. That's where Nebraska's implied consent law comes into play. Under this law, drivers who refuse an officer's lawful request for testing face consequences for a refusal.
This article covers Nebraska's implied consent law and the penalties for refusing testing.
Nebraska's DUI Implied Consent Law
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 the roadside) and a chemical test of breath, blood, and/or urine.
When Nebraska Officers Can Request a Breath, Blood, or Urine Test
In order to request a PBT (roadside breath test), 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.
Nebraska Officers are Supposed to Give an Implied Consent Advisement
Before administering a chemical test, the arresting officer must advise the driver of the consequences of refusing. In other words, the officer must tell the driver that refusing a test can lead to license suspension, jail time, and fines.
Consequences of Refusing a DUI Alcohol or Drug Test in Nebraska
Refusing alcohol or drug testing can result in criminal penalties (like jail time and fines) and administrative license-related penalties imposed by the Department of Motor Vehicles (DMV).
Test Refusals Can be Used as Evidence at a DUI Trial in Nebraska
When a driver refuses an alcohol or drug test, it can make it more difficult for prosecutors to prove a DUI charge at trial. However, prosecutors can inform the jury of the driver's refusal and argue that the driver did likely did so to conceal his or her impairment. So, it's possible to be convicted of driving under the influence even without chemical test results.
Criminal Penalties for a Refusing a Preliminary Breath Test in Nebraska
A PBT refusal is a class V misdemeanor, which is punishable by a $100 fine.
Criminal Penalties for a Refusing a Post-Arrest Alcohol or Drug Test in Nebraska
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.
Penalties for a 1st DUI Alcohol or Drug Test Refusal in Nebraska
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 ignition interlock device (IID) restricted permit for the revocation period.
Penalties for a 2nd DUI Alcohol or Drug Test Refusal in Nebraska
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.
Penalties for a 3rd DUI Alcohol or Drug Test Refusal in Nebraska
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
- use of an alcohol monitoring device, and
- no alcohol use for at least 60 days.
Also, the offender must apply for an IID permit during the period of revocation following a 45-day no-driving period.
Administrative License Revocation for Drug and Alcohol Test Refusal in Nebraska
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 to use during the revocation period. The offender can drive with the permit after completing 105 days of the revocation period.
Talk to a Nebraska DUI Lawyer
If you've been arrested for a DUI or implied consent refusal violation, you should get legal assistance. An experienced DUI attorney can review your case and help you decide on the best course of action.
