When facing the decision to undergo a chemical test in a DUI situation, it’s crucial to understand the significant consequences of refusal, which range from jail time and hefty fines to license suspension. Below, individuals can get much-needed clarity into Nebraska’s DUI laws, including the state’s implied consent law, the defenses available to individuals who are criminally charged, and how a DUI lawyer’s guidance and advocacy can make a substantial difference in the outcome of an individual’s case.
DUI Test Refusal Lawyer in Omaha, Nebraska
The privacy rights regarding DUI tests and the potential consequences of refusing one are widely misunderstood by many. In such a DUI situation, the best practice is to consult an attorney. Our criminal defense and DUI attorneys at Liberty Law Group.
If you or a loved one have been charged with refusing to take a drug test, call our firm at (402) 865-0501 to request a free consultation to discuss the facts of your case.
DUI Test Refusal
- Nebraska DUI Law Refresher
- Nebraska Implied Consent Law
- Penalties for Refusing to Take a Sobriety Test in Nebraska
- Possible Defenses Against Drug Test Refusal Charges
- How an Attorney Can Help Someone Charged With Refusing to Take a Drug Test During a DUI Stop
- Frequently Asked Questions
- Additional Resources
Nebraska DUI Law Overview
Nebraska Revised Statute 60-6,196 makes it illegal to operate or control a motor vehicle while under the influence of alcohol or drugs. This law applies if a person’s blood alcohol concentration is 0.08% or higher, measured either by blood or breath. Most DUI offenses are classified as misdemeanors; however, certain situations, such as aggravating circumstances in a DUI case or prior DUI convictions, can result in the charge being classified as a felony.
Nebraska’s DUI Implied Consent Law Explained
Nebraska Revised Statute 60-6,197 states that an individual operating or in control of a vehicle in Nebraska is automatically considered to have given their consent to undergo chemical tests (such as blood, breath, or urine tests) to determine the presence of alcohol or drugs.
A police officer could require a driver, whom they reasonably suspect of being under the influence, to submit to a chemical test. This provision applies when there are observable signs or reasonable suspicions of intoxication.
If an individual fails the test, indicating illegal alcohol concentration or the presence of drugs, they are subject to immediate administrative license revocation. Further, if convicted, they face additional penalties including fines and jail time.
In the event of a motor vehicle accident, the law allows a peace officer to require chemical testing of any involved individuals if there are reasonable grounds to believe they were under the influence at the time of the accident.
Consequences of Refusal
In Nebraska, under Revised Statute 60-6,197.03, specific penalties are outlined for individuals who refuse to submit to a chemical test when suspected of DUI.
A first offense is classified as a Class W Misdemeanor. The penalties include 7 to 60 days in jail, though a minimum of either 2 days or 120 hours of community service may be imposed instead. The maximum fine is $500, and the license revocation period can extend up to one year. Additionally, there’s a 45-day waiting period for the ignition interlock device.
For a second offense, the crime elevates to a Class I Misdemeanor. The jail time for this offense can be up to one year with a minimum of 30 days. The maximum fine increases to $1,000. License revocation extends from 18 months to 15 years. The waiting period for the ignition interlock device remains 45 days, and the use of an alcohol monitoring device becomes mandatory.
A third offense is more severe, classified as a Class IIIA Felony. The punishment includes jail time of up to three years with a minimum of 60 days. Fines range from $1,000 to $10,000. The license revocation period is set between 5 to 15 years. The ignition interlock device waiting period is 45 days, and the requirement for an alcohol monitoring device continues.
When an individual has three prior DUI convictions and is arrested again for refusing to take a DUI test, they face a Class IIA felony punishable by 0-20 years in prison. The penalty includes a mandatory one-year prison sentence and loss of the individual’s driver’s license for 15 years. If probation is given, they must pay a $2,000 fine, spend 120 days in jail, and use an alcohol monitoring device for at least 120 days after release.
If an individual with four or more prior DUI convictions refuses the test, they face charges of a Class II felony. This charge carries a prison sentence ranging from 1 to 50 years, including a mandatory minimum of two years. Additionally, the individual’s driver’s license will be revoked for 15 years. In the case of probation, the penalties include a prohibition from driving for 45 days, a $2,000 fine, a jail term of 180 days, and the requirement to use a continuous alcohol monitoring device for a minimum of 180 days following their release from jail.
Additionally, an individual’s refusal to submit to a chemical test is admissible as evidence in legal proceedings. In DUI-related trials, the prosecution may use the refusal as an indication of the individual’s awareness of their likely failure of the test. However, it is mandatory for officers to inform individuals that their refusal to take a test is a criminal offense. If this advisement is not given, the state cannot pursue criminal charges for the refusal, although this does not prevent the refusal from being considered in other charges.
Refusing the Preliminary Breath Test
Under Nebraska Revised Statute 60-6,197.04, a law enforcement officer is authorized to require a preliminary breath test for alcohol concentration from any person driving or in control of a vehicle if the officer has reasonable grounds to suspect alcohol consumption. This may be due to a moving traffic violation or involvement in a traffic accident. If a person refuses this preliminary breath test, or if the test results indicate a violation of the legal alcohol limit, the individual will be arrested. Specifically, refusal to submit to this preliminary breath test constitutes a Class V misdemeanor.
Administrative License Revocation for Refusing Chemical Test
Under Nebraska Revised Statute 60-498.01, when a driver in Nebraska is arrested under suspicion of DUI and refuses to submit to a blood, breath, or urine test, the officer will immediately initiate the process of revoking the driver’s license. This revocation becomes automatic 15 days after the date of arrest. This administrative action leads to the loss of driving privileges, irrespective of the eventual outcome of any criminal proceedings.
The arresting officer is required to submit a sworn report to the Director of Motor Vehicles within ten days of the arrest, detailing the arrest and the driver’s refusal to undergo the chemical test. If a driver does refuse the test, their license is confiscated at the time of arrest, and they are issued a temporary license valid for 15 days.
The individual has the right to request an administrative license revocation hearing. This request must be delivered to the Department of Motor Vehicles within 10 days following the arrest. A hearing focuses on whether the officer had probable cause for the arrest and if the individual indeed refused the chemical test.
Individuals may opt for an ignition interlock permit as an alternative to challenging the revocation. This permit allows them to drive vehicles equipped with an ignition interlock device during the revocation period. However, drivers who refuse the chemical test are not immediately eligible for an ignition interlock permit or a 24/7 sobriety program permit.
Potential Defenses
Challenging Probable Cause
One defense against a criminal charge of refusing a DUI test in Nebraska involves challenging the probable cause for the arrest. The defendant can argue that the arresting officer lacked reasonable grounds to believe the person was operating or in physical control of a vehicle under the influence. If it can be successfully demonstrated that the officer did not have a valid reason to suspect DUI, the entire basis of the charge, including the subsequent refusal to submit to a chemical test, could be invalidated.
Failure of Police to Provide Warning of Refusal Consequences
Another defense is disputing the adequacy of the information provided by law enforcement regarding the consequences of refusal. Under Nebraska law, individuals are required to be informed that refusal to submit to a chemical test is a separate crime. If the officer failed to provide this advisement, or if the advisement was unclear or incomplete, the defense could argue that the refusal was not made with a full understanding of the legal implications.
Failure of Police to Allow Individual to Consult With an Attorney
Nebraska law allows people suspected of DUI to speak with their attorney before deciding on the test. Talking to an attorney ensures that the accused person can understand their legal rights and the consequences of their choices in DUI situations. However, if someone tries but fails to contact their attorney, they still have to decide whether to take the chemical test. Typically, a ‘reasonable attempt’ to contact a lawyer means trying for 20 minutes. If charged with refusing to submit to a chemical test, an individual might argue that a denial of the right to speak with a lawyer affected their decision-making process regarding the chemical test and could challenge the admissibility of the test results or the validity of the arrest process.
Medical or Health Reasons for Refusal
Defendants may also argue that medical or health reasons prevented them from submitting to the test. If a person has a legitimate health issue, such as a respiratory problem that makes it impossible or unsafe to undergo a breathalyzer test, this might serve as a valid defense.
Contesting the Officer’s Conduct
A further defense could involve contesting the conduct or behavior of the arresting officer. If the officer’s actions were coercive, it could be argued that the refusal was a response to the officer’s conduct rather than an intentional refusal to comply with the law.
Retaining a Lawyer in a DUI Refusal Case
A DUI attorney in Nebraska provides meaningful guidance and representation in DUI refusal cases, ensuring the protection of the client’s legal rights. They scrutinize all evidence, such as police reports and test results, to identify potential inaccuracies or constitutional violations that could lead to reductions or dismissals of charges. In cases with substantial evidence, they negotiate plea bargains to secure lesser charges or reduced sentences.
DUI lawyers also handle license revocation matters, representing clients in DMV hearings and advising on license reinstatement, including the use of ignition interlock devices. They explore alternatives to incarceration such as probation, which could consist of community service, alcohol education programs, and abstinence.
Moreover, each defense strategy that a DUI lawyer uses is personalized, considering the client’s unique circumstances and history. Finally, attorneys offer practical advice and support, helping clients understand the implications of DUI convictions on their lives.
Frequently Asked Questions
What are the consequences of refusing a DUI test in Nebraska?
Penalties could include jail time, fines, license revocation, and mandatory use of an alcohol monitoring device.
How does Nebraska’s implied consent law affect you during a DUI stop?
Individuals consent to chemical tests; refusal leads to immediate administrative license revocation.
What happens if you refuse a preliminary breath test in Nebraska?
Refusal is a Class V misdemeanor, leading to arrest and potential legal consequences.
How is license revocation handled if you refuse a chemical test for DUI in Nebraska?
Immediate revocation starts post-arrest, but individuals can request a hearing to contest revocation.
What are some defenses against charges of refusing a chemical test in Nebraska?
Challenging probable cause for arrest, inadequacy of refusal advisement, or denial of attorney consultation regarding the chemical tests.
What are the penalties for a first refusal?
Individuals face 0- 60 days in jail, a $500 fine, and a one-year license revocation.
How does a DUI lawyer help in refusal cases?
They examine evidence, negotiate plea deals, represent clients in hearings, and explore alternative sentencing options.
What are the penalties for repeated DUI test refusals in Nebraska?
Longer jail sentences, larger fines, and extended license revocation periods.
Is refusal to take a DUI test admissible in court?
Yes, refusal can be used as evidence in DUI cases.
Additional Resources
Nebraska BAC Test Refusal: This article explains that, while drivers can refuse to participate in field sobriety tests, they are required by state law to submit to a chemical test of BAC level. If the driver refuses, the law requires that the officer explain potential consequences of refusal, and request again that they take the test.
Nebraska Implied Consent: This article explains that Nebraska has a “no refusal” law. It explains that BAC testing might be done by breath, blood, or urine analysis, but that the law enforcement officer can only administer the breath test. Also notes that the mandatory consequence of refusing to participate in a test is a 90-day license suspension, in addition to any criminal charges that may follow.
Boating Under the Influence (BUI) laws in Nebraska: Explains state laws and best practices to stay safe and avoid legal trouble. Also discusses the fact that refusing to submit to a chemical blood alcohol test will bring the same penalties as a BUI conviction.
Find a DUI Test Refusal Lawyer in Omaha, Nebraska | Liberty Law Group
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 Pottawattamie County, Iowa and the surrounding areas. If you or a loved one has been charged or is under investigation for refusing to take a drug test, don’t wait, call our firm immediately at (402) 865-0501 to request a free consultation to discuss the facts of your case.
