Breath tests in DUI cases are used by law enforcement to measure a suspect’s blood alcohol concentration (BAC), providing key evidence in DUI prosecutions. These tests, though commonly used, are fallible, and several factors can affect their accuracy.

A knowledgeable DUI attorney can challenge the results of a breath test, exploring aspects such as the calibration and operation of the testing device. To gain a deeper understanding of how breath tests impact DUI cases in Nebraska, including potential defenses and the importance of legal representation, continue reading.

Omaha Breath Test Defense Lawyer

Breath tests are a commonly tactic used by law enforcement to secure a confession for DUI cases. Without a lawyer, many indict themselves not knowing their rights as citizens or their ability to challenge the test.

Our criminal defense attorneys at Liberty Law Group are experts at DUI defense and should be your first call if placed under investigation for a DUI charge. If you or a loved one has been charged with, or are under investigation for a DUI charge then call our firm immediately at (402) 865-0501 to request a free consultation to discuss the facts of your case.

Breath Tests in Nebraska

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Nebraska DUI Law Explained

Nebraska’s law 60-6,196 addresses driving under the influence (DUI) of alcohol or drugs. It states that it’s illegal for anyone to drive or control a motor vehicle if they are affected by alcohol or any drug. Specifically, it’s unlawful if a person’s blood alcohol concentration (BAC) is 0.08% or higher, measured either through blood or breath tests. This means if a person has eight-hundredths of one gram of alcohol per one hundred milliliters of blood, or the same concentration per two hundred ten liters of breath, they are considered under the influence.

Nebraska Revised Statute 60-6,197.03 specifies the penalties for driving under the influence (DUI) of alcohol or drugs. First-time offenders without high blood alcohol levels are charged with a Class W misdemeanor punishable by up to 6 months in jail, a $500 fine, and a six-month license revocation. If the blood alcohol concentration (BAC) is very high, or if the person refuses testing, the license revocation period extends to one year.

In all DUI cases, penalties become more severe if there are prior convictions, a refusal to submit to a test, or a high BAC.

Nebraska’s Implied Consent Law

Nebraska Revised Statute 60-6,197 outlines the state’s implied consent law regarding driving under the influence of alcohol or drugs. The law states that anyone who drives or has control over a vehicle in Nebraska automatically consents to undergo chemical tests (like blood, breath, or urine tests) to measure alcohol concentration or detect drugs. This consent is implied by the act of driving itself.

If a police officer suspects that a person was driving or in control of a vehicle under the influence, the officer can require the person to undergo breath tests. The officer’s suspicion must be based on reasonable grounds. If someone is arrested under the suspicion of driving under the influence, they must, upon a police officer’s instruction, submit to the chemical tests. If the tests reveal a blood alcohol concentration of 0.08% or higher, the person faces legal consequences including fines and jail time and administrative license revocation.

The implied consent law also applies to individuals involved in car accidents in Nebraska. They may be required to undergo testing if the officer believes they were under the influence at the time of the accident. Refusing to take the test is a separate crime and can be used as evidence in any legal proceedings related to driving under the influence. The law requires that individuals must be informed that refusing the test is a crime. Without this advisement, criminal charges for refusal cannot be brought.

Nebraska’s Preliminary Breath Test Law

The Preliminary Breath Test (PBT) is a portable device used by Nebraska officers to test drivers suspected of DUI. In Nebraska, police officers use PBTs in cases of suspected DUIs. According to Nebraska Revised Statute 60-6,197.04, a police officer can require a person who is driving or in control of a motor vehicle to take a PBT.

This requirement can be made if the officer has reasonable grounds to suspect that the person has alcohol in their body, has committed a moving traffic violation, or has been involved in a traffic accident. The PBT helps officers establish probable cause for an arrest. Officers must ensure that handheld PBTs are used according to the manufacturer’s guidelines and follow correct observation procedures. The process for administering PBTs is detailed by Nebraska Department of Health and Human Services.

After conducting a PBT, officers are required to complete and submit documentation, including DUI reports, to the Records Unit. This is for proper record-keeping of the PBT process used. If a person refuses to take this PBT, or if the test results indicate an alcohol concentration of 0.08% or higher, the individual will be arrested.

Additionally, refusal to take the PBT is considered a separate offense and is classified as a Class V misdemeanor punishable by a $100 fine. However, it’s important to note that the results from a PBT are typically not admissible in court for determining BAC levels.

Furthermore, in Nebraska, the law specifies that if a properly calibrated PBT device is available, it must be used. Nonetheless, if a PBT device is not accessible at the scene, officers can still determine impairment through other means. Also, Nebraska Statute 60-6,204 outlines specific conditions under which a person arrested for DUI must undergo a more comprehensive chemical test of their blood, breath, or urine. This requirement applies even without a PBT in certain situations. These situations include when the necessary equipment for a breath test is unavailable, or the individual is unconscious or otherwise unable to take a PBT.

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Nebraska’s DUI Chemical Test Requirements

Nebraska Revised Statute 60-6,201 states that any blood, breath, or urine test conducted must follow specific methods approved by the Nebraska Department of Health and Human Services. These tests, if conducted correctly, are admissible as evidence in court for cases involving DUI.

To ensure the validity of these tests, they must be administered by individuals holding a valid permit from the Department. Exceptions are made for medical professionals like physicians and nurses in licensed healthcare facilities, who can withdraw blood for testing without needing a permit, provided they are acting upon a police officer’s request.

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Nebraska’s Law on Individual’s Rights in DUI Tests

Post-arrest, officers are required to inform a person suspected of DUI about their rights and the implications of chemical tests through the Post Arrest Chemical Test Advisement. This advisement informs the individual of the consequences of refusing the test and the consequences for taking the test and failing it.

Additionally, officers must document the arrest and evidence collected. Under Nebraska Revised Statute 60-6,199, when a police officer requires a driver to undergo a chemical test to determine the presence of alcohol or drugs, the officer has the discretion to decide the type of test.

However, the person being tested has the right to seek an independent evaluation. This means they can choose a physician to conduct additional tests to evaluate their condition. If the officer who initiated the test refuses to allow this additional independent testing, the results from the original test administered by the officer cannot be used as evidence in court.

Furthermore, the law says that if the person tested requests it, the results of the test conducted under the officer’s direction must be shared with them.

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The Role of DataMaster in Nebraska DUI Cases

The DataMaster device is a specially certified instrument designed to perform evidential breath alcohol tests (EBTs). These tests determine the BAC of individuals accused of DUI. When an individual takes the EBT and it shows a BAC of 0.08 or more, they are charged with DUI. To ensure that the test results are accurate and can be used in court, the person operating the DataMaster must be properly trained and qualified. The DataMaster machine is supposed to be rigorously tested and certified, and its usage involves detailed procedures. In Omaha, for example, after a DUI arrest, the arresting officer transports the person to a testing location, which could be the Omaha Police Department (OPD) Headquarters, Douglas County Department of Corrections (DCDC) for a breath test, or a hospital for a blood test. A DataMaster certified officer can conduct the test at various locations. The process of recording and managing DataMaster test results is also crucial. The court requires original test record printouts, not copies, to maintain result integrity. In Omaha, officers use a specific form to attach the original printouts and the individual’s right index fingerprint for identification. These forms, with the attached original test records, are sent to the OPD Crime Lab Unit. Nebraska law typically only allows one EBT per person for an incident. This rule is to prevent testing the person multiple times for the same incident, which could make legal matters more complex and challenge the fairness of the process. If the EBT results in a BAC below 0.08, officers still complete DUI reports. Further actions by police depend on the situation. If the individual seems to be under the influence of drugs, they can be charged with DUI. If alcohol is the only factor, the case is reviewed by the prosecutor at arraignment to decide on the DUI charge or to consider a lesser offense.

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What makes a breath test admissible in court?

A Breath Test is only admissible in court if the following elements have been proven:

  1. The testing device was working properly at the time of the testing
  2. The person administering the test was qualified and held a valid permit
  3. The test was properly conducted under methods estanlished by the Nebraska Department of Health and Human Services
  4. All other statutes have been met

See State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017) for more information.

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DUI Defenses Related to Breath Tests in Nebraska

In Nebraska, defenses against DUI charges often involve challenging the validity and accuracy of breath tests. These tests are a critical component in DUI cases, as they are used to measure the blood alcohol concentration (BAC) of a driver. However, several factors can undermine their reliability.

Inaccurate or Improperly Administered Preliminary Breath Test

One defense could be to challenge the PBT’s accuracy if it was not administered according to the specific steps set by the Nebraska Department of Health and Human Services. Issues like improper calibration, maintenance of the device, or lack of officer certification in administering the PBT can render the results unreliable.

Inaccurate or Improperly Administered Evidentiary Breath Test

The EBT must be conducted with properly maintained and calibrated equipment by a certified officer. The defense can challenge the test results by questioning the maintenance records of the device, the certification of the officer, and the procedure followed in documenting the test results. If discrepancies are found, the reliability of the test can be contested.

Defense Based on Inconsistency Between BAC and Observed Impairment

If the observed impairment symptoms do not align with the BAC levels from the breath tests, the defense can argue that the officer’s judgment of intoxication was incorrect. This is particularly relevant if the BAC results are below the legal limit, but the driver is still charged with DUI.

Inaccuracy in Officer Reports

If there are inconsistencies or inaccuracies in the officer’s report regarding the administration of the breath test, these can be used to challenge the validity of the results. The defense might argue that such discrepancies call into question the reliability of the evidence.

Rising Blood Alcohol Concentration

The defense of rising BAC centers on the timing of alcohol absorption into the bloodstream. After consuming alcohol, it takes time for it to be fully absorbed and reach peak levels in the blood. If a breath test is administered during this absorption phase, it may not accurately reflect the BAC at the time of driving. The defense might argue that the driver’s BAC was below the legal limit while operating the vehicle but rose above the limit by the time of the test. This defense challenges the timing and relevance of the BAC results in relation to the actual time of driving.

Medical Conditions Affecting Breath Test Results

Certain medical conditions can influence the accuracy of breath test results. For example, individuals with diabetes might have ketones in their breath, which can be falsely identified as alcohol by some breathalyzers, leading to inflated BAC readings. GERD or similar gastrointestinal conditions can cause regurgitation of stomach contents, including alcohol, into the mouth. This can lead to higher BAC readings as the breath test may detect mouth alcohol rather than truly measuring the alcohol concentration in the bloodstream. Conditions like asthma or chronic obstructive pulmonary disease (COPD) can affect a person’s ability to provide an adequate breath sample, potentially leading to inaccurate readings.

Illegal Traffic Stop

The legality of the traffic stop leading to a DUI charge is crucial. If the stop was made without reasonable suspicion, which must be based on observable facts like erratic driving, then the evidence gathered, including breath test results, can be argued as inadmissible in court.

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Role of a DUI Lawyer in DUI Cases

A DUI lawyer plays a vital role in defending someone charged with a DUI. Their expertise is crucial in navigating the complex legal system and understanding DUI laws. They offer personalized legal advice, ensuring the defendant’s rights are protected throughout the process. The lawyer examines the case details, including how the arrest was conducted and the breath test evidence gathered, to identify any procedural errors or violations of rights. They can negotiate with prosecutors, potentially reducing charges or penalties, and represent the defendant in court, advocating on their behalf. Their knowledge of the law and court practices is invaluable in formulating a defense strategy.

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Frequently Asked Questions

What happens if you refuse a breath test in Nebraska?

Refusal can result in criminal charges and be used as evidence in DUI proceedings.

Can a breath test accurately measure your BAC in a DUI case?

Breath tests measure BAC, but various factors can affect their accuracy.

What are the legal BAC limits for driving in Nebraska?

It’s illegal to drive with a BAC of 0.08% or higher.

What penalties can you face for a first-time DUI offense in Nebraska?

Possible penalties include up to 6 months in jail, a $500 fine, and a six-month license revocation.

How does Nebraska’s implied consent law affect you if stopped for DUI?

Driving in Nebraska implies consent to chemical tests, refusal of which can have legal consequences.

What is the role of a Preliminary Breath Test (PBT) in Nebraska DUI cases?

PBTs help establish probable cause for arrest but are typically not admissible in court for determining BAC.

How is an Evidentiary Breath Test (EBT) conducted in Nebraska DUI cases?

Tests are done using approved methods and equipment and must be administered by certified individuals.

Do you have any rights regarding DUI tests in Nebraska?

Yes. For example, you can seek an independent evaluation after a chemical test.

Can the results of breath tests be challenged in court?

Yes, challenges can involve questioning the test’s accuracy, administration, or officer reports.

How can a DUI attorney assist in Nebraska DUI cases?

A DUI attorney provides legal advice, represents you in court, and can challenge breath test evidence and procedures.

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Additional Resources

Nebraska Implied Consent Laws: This article explains the laws that require drivers suspected of impaired driving to submit to a breath test at the time of the stop and also a chemical test, whether by blood, breath, or urine sample, at the police station after arrest. Explains that law enforcement officers can request a PBT at the time of the traffic stop whenever an officer has reasonable grounds to believe the driver has consumed alcohol, or committed a moving violation, or was involved in a traffic accident.

Nebraska Breath Test Laws: These brief summaries of Nebraska laws discuss the requirement to take a breath test at the scene of a traffic stop and the potential consequences of failing or refusing the test. The brief also explains that the roadside breath test, or PBT, is to help the officer establish probable cause for an arrest on suspicion of DUI. If the result shows the driver has more than .08% BAC, the officer will likely take the suspect to the station for a chemical test of blood, breath, or urine.

Defective Alcohol Test Machine Case: This article reports on an alcohol breath test machine in Nebraska that hadn’t been properly calibrated in nearly three years. Prosecutors say that more than 180 cases that relied on the tests from the faulty machine may be jeopardized.

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Find a DUI Breath Test Defense Lawyer in Nebraska

Our firm proudly serves Omaha in Douglas County, including Lincoln in Lancaster County, Papillion in Sarpy County, Fremont in Dodge County, and Council Bluffs in Pottawatomie County, Iowa, and the surrounding areas. If you or a loved one has been charged or is under investigation for DUI, call our firm immediately at (402) 865-0501 to request a free consultation to discuss the facts of your case.