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:
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.
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.
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A motorist whose license has been revoked for refusing a chemical test is entitled to contest the revocation at an administrative hearing.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.
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:
A defendant whose sentence is suspended on a first refusal conviction will face:
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:
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:
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:
A suspended sentence for a third refusal offense includes:
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.