Get help from a Nebraska DUI Lawyer by using the drop-down
menu below
or by calling 1-800-852-8005.
Select the county where your arrest occurred: |
If you have been charged with a Nebraska DUI there are two things that you need to consider:
1) Take the charge seriously.
A conviction for a Nebraska DUI will have long lasting consequences. A
criminal record can affect your employment, your future and your
personal freedom.
2) Hire an experienced Nebraska DUI Lawyer.
Understanding the Nebraska DUI laws and courtroom proceedings can be a
challenge. Hiring a qualified Nebraska DUI Lawyer from DUILaws.com who
focuses on DUI defense can make a difference in the outcome of your
case.
The Nebraska DUI Defense Lawyers at DUILaws.com offer an initial review of your case. Your inquiry is both free and confidential.
To begin fighting your Nebraska DUI, use the drop-down menu above to locate a Nebraska Attorney in your county. But do it now, as time is very critical in a Nebraska DUI case.
If you are arrested for driving under the influence in of
Nebraska you will have to undergo two entirely separate
proceedings regarding the DUI arrest. The first is a
criminal proceeding for the offense that you will have to deal with in
a court setting. The second is a civil proceeding regarding whether or
not you will be able to keep your Nebraska driver's
license, this is done through the Nebraska Department of Motor
Vehicles.
You may be arrested a Nebraska DUI regardless of
whether or not you have submitted to a breath, blood, or urine test,
and additionally regardless of whether or not the results of the test
reveal a blood/breath alcohol result of .08% or higher.
If you are a Nebraska resident
and your breath test results indicate a result of .08% or higher, the
state of Nebraska can suspend or revoke your drivers license. It is
important to realize that hiring an experienced DUI attorney to help walk you through
the necessary actions will prevent delay in your case.
Nebraska DUI Laws
Section
60-498.01
(1) Because persons who drive while under the
influence of alcohol present a hazard to the health and safety of all
persons using the highways, a procedure is needed for the swift and
certain revocation of the operator's license of any person who has
shown himself or herself to be a health and safety hazard (a) by
driving with an excessive concentration of alcohol in his or her body
or (b) by driving while under the influence of alcohol.
(2) If a person arrested as described in subsection
(2) of section 60-6,197 refuses to submit to the chemical test of
blood, breath, or urine required by section 60-6,197, the test shall
not be given except as provided in section 60-6,210 for the purpose of
medical treatment and the arresting peace officer, as agent for the
Director of Motor Vehicles, shall verbally serve notice to the arrested
person of the intention to immediately confiscate and revoke the
operator's license of such person and that the revocation will be
automatic thirty days after the date of arrest unless a petition for
hearing is filed within ten days after the date of arrest as provided
in subsection (6) of this section. The arresting peace officer shall
within ten days forward to the director a sworn report stating (a) that
the person was arrested as described in subsection (2) of section
60-6,197 and the reasons for such arrest, (b) that the person was
requested to submit to the required test, and (c) that the person
refused to submit to the required test.
(3) If a person arrested as described in subsection
(2) of section 60-6,197 submits to the chemical test of blood or breath
required by section 60-6,197, the test discloses the presence of
alcohol in any of the concentrations specified in section 60-6,196, and
the test results are available to the arresting peace officer while the
arrested person is still in custody, the arresting peace officer, as
agent for the director, shall verbally serve notice to the arrested
person of the intention to immediately confiscate and revoke the
operator's license of such person and that the revocation will be
automatic thirty days after the date of arrest unless a petition for
hearing is filed within ten days after the date of arrest as provided
in subsection (6) of this section. The arresting peace officer shall
within ten days forward to the director a sworn report stating (a) that
the person was arrested as described in subsection (2) of section
60-6,197 and the reasons for such arrest, (b) that the person was
requested to submit to the required test, and (c) that the person
submitted to a test, the type of test to which he or she submitted, and
that such test revealed the presence of alcohol in a concentration
specified in section 60-6,196.
(4) On behalf of the director, the arresting peace
officer submitting a sworn report under subsection (2) or (3) of this
section shall serve notice of the revocation on the arrested person,
and the revocation shall be effective thirty days after the date of
arrest. The notice of revocation shall contain a statement explaining
the operation of the administrative revocation procedure. The peace
officer shall also provide to the arrested person an addressed envelope
and a petition form which the arrested person may use to request a
hearing before the director to contest the revocation. The petition
form shall clearly state on its face that the petition must be
completed and delivered to the Department of Motor Vehicles or
postmarked within ten days after receipt or the person's right to a
hearing to contest the revocation will be foreclosed. The director
shall prepare and approve the form for the petition, the addressed
envelope, and the notice of revocation and shall provide them to law
enforcement agencies.
If the person has an operator's license, the
arresting peace officer shall take possession of the license and issue
a temporary operator's license valid for thirty days. The arresting
peace officer shall forward the operator's license to the department
along with the sworn report made under subsection (2) or (3) of this
section.
(5)(a) If the results of a chemical test indicate
the presence of alcohol in a concentration specified in section
60-6,196, the results are not available to the arresting peace officer
while the arrested person is in custody, and the notice of revocation
has not been served as required by subsection (4) of this section, the
peace officer shall forward to the director a sworn report containing
the information prescribed by subsection (3) of this section within ten
days after receipt of the results of the chemical test. If the sworn
report is not received within ten days, the revocation shall not take
effect.
(b) Upon receipt of the report, the director shall
serve the notice of revocation on the arrested person by certified or
registered mail to the address appearing on the records of the
director. If the address on the director's records differs from the
address on the arresting peace officer's report, the notice shall be
sent to both addresses. The notice of revocation shall contain a
statement explaining the operation of the administrative revocation
procedure. The director shall also provide to the arrested person an
addressed envelope and a petition form which the arrested person may
use to request a hearing before the director to contest the revocation.
The petition form shall clearly state on its face that the petition
must be completed and delivered to the department or postmarked within
ten days after receipt or the person's right to a hearing to contest
the revocation will be foreclosed. The director shall prepare and
approve the form for the petition, the addressed envelope, and the
notice of revocation. The revocation shall be effective thirty days
after the date of mailing.
(c) If the records of the director indicate that the
arrested person possesses an operator's license, the director shall
include with the notice of revocation a temporary operator's license
which expires thirty days after the date of mailing. Any arrested
person who desires a hearing and has been served a notice of revocation
pursuant to this subsection shall return his or her operator's license
with the petition requesting the hearing. If the operator's license is
not included with the petition requesting the hearing, the director
shall deny the petition.
(6)(a) An arrested person's operator's license
confiscated pursuant to subsection (4) of this section shall be
automatically revoked upon the expiration of thirty days after the date
of arrest. An arrested person's operator's license confiscated pursuant
to subsection (5) of this section shall be automatically revoked upon
the expiration of thirty days after the date of mailing of the notice
of revocation by the director. The arrested person shall postmark or
return to the director a petition within ten days after the receipt of
the notice of revocation if the arrested person desires a hearing. The
petition shall be in writing and shall state the grounds on which the
person is relying to prevent the revocation from becoming effective.
The hearing and any prehearing conference may be conducted in person or
by telephone, television, or other electronic means at the discretion
of the director, and all parties may participate by such means at the
discretion of the director.
(b) The director shall conduct the hearing within
twenty days after a petition is filed. Upon receipt of a petition, the
director shall notify the petitioner of the date and location for the
hearing by certified or registered mail postmarked at least seven days
prior to the hearing date. The filing of the petition shall not prevent
the automatic revocation of the petitioner's operator's license at the
expiration of the thirty-day period. A continuance of the hearing to a
date beyond the expiration of the temporary operator's license shall
stay the expiration of the temporary license when the request for
continuance is made by the director.
(c) At hearing the issues under dispute shall be
limited to:
(i) In the case of a refusal to submit to a chemical
test of blood, breath, or urine:
(A) Did the peace officer have probable cause to
believe the person was operating or in the actual physical control of a
motor vehicle in violation of section 60-6,196 or a city or village
ordinance enacted in conformance with such section; and
(B) Did the person refuse to submit to or fail to
complete a chemical test after being requested to do so by the peace
officer; or
(ii) If the chemical test discloses the presence of
alcohol in a concentration specified in section 60-6,196:
(A) Did the peace officer have probable cause to
believe the person was operating or in the actual physical control of a
motor vehicle in violation of section 60-6,196 or a city or village
ordinance enacted in conformance with such section; and
(B) Was the person operating or in the actual
physical control of a motor vehicle while having an alcohol
concentration in violation of subsection (1) of section 60-6,196.
(7) The director shall adopt and promulgate rules
and regulations to govern the conduct of the hearing and insure that
the hearing will proceed in an orderly manner. The director may appoint
a hearing officer to preside at the hearing, administer oaths, examine
witnesses, take testimony, and report to the director. All proceedings
before the hearing officer shall be recorded. Upon receipt of the
arresting peace officer's sworn report, the director's order of
revocation has prima facie validity and it becomes the petitioner's
burden to establish by a preponderance of the evidence grounds upon
which the operator's license revocation should not take effect. The
director shall make a determination of the issue within seven days
after the conclusion of the hearing. A person whose operator's license
is revoked following a hearing requested pursuant to this section may
appeal the order of revocation as provided in section 60-498.04.
Constitutionality
This section does not create an unconstitutional classification between
those who submit to urine tests and those who submit to blood and
breath tests pursuant to this section. Kalisek v. Abramson, 257 Neb.
517, 599 N.W.2d 834 (1999).
Administrative license revocation statutes are reviewed using the
rational relationship standard of review. The administrative license
revocation statutes do not violate equal protection, nor do they
constitute cruel and unusual punishment. Schindler v. Department of
Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The Legislature intended administrative license revocation to be a
civil sanction, and the sanction is not so punitive in purpose or
effect as to negate the Legislature's intent; therefore, administrative
license revocation for failure to submit to a chemical test does not
violate double jeopardy. State v. Howell, 254 Neb. 247, 575 N.W.2d 861
(1998).
The purpose of administrative license revocation is to protect the
public from the health and safety hazards of driving and to deter drunk
driving. Criminal prosecution and punishment following a hearing under
this section do not violate the Double Jeopardy Clause of the U.S.
Constitution. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).2.
Refusal to submit to test
Failure to produce an adequate breath sample constitutes a refusal to
submit to breath test. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511
(1986).
A motorist's subsequent offer to take a blood alcohol test previously
refused does not nullify or cure such driver's initial refusal to take
the test requested by the arresting officer. Hoyle v. Peterson, 216
Neb. 253, 343 N.W.2d 730 (1984).
Adoption of this section did not change rule that refusal to submit to
test may be shown in prosecution for driving while under influence of
intoxicating liquor. State v. Meints, 189 Neb. 264, 202 N.W.2d 202
(1972).3. Rules and regulations
When the applicable rules and regulations are not strictly complied
with, the Department of Motor Vehicles cannot obtain the benefit of a
presumption that all facts recited in the sworn report are true.
Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d 644
(2002).
Due process is denied where the rules and regulations governing the
administrative license revocation procedure were not on file with the
Secretary of State for at least 5 days at the time of the arrest.
Dannehl v. Department of Motor Vehicles, 3 Neb. App. 492, 529 N.W.2d
100 (1995).4. Venue
For purposes of subsection (6)(a) of this section, an administrative
license revocation hearing is held at the location of the hearing
officer. Gracey v. Zwonechek, 263 Neb. 796, 643 N.W.2d 381
(2002).
Pursuant to subsection (6)(a) of this section, generalized objections
directed to the method by which a license revocation hearing was being
held are not objections to venue. Davis v. Wimes, 263 Neb. 504, 641
N.W.2d 37 (2002).
Subsection (6)(a) of this section is a venue statute. Reiter v. Wimes,
263 Neb. 277, 640 N.W.2d 19 (2002).
Subsection (6)(a) of this section, establishing the location for
administrative license revocation hearings, is a venue statute. A
telephonic hearing under the Administrative Procedure Act pertaining to
license revocation is subject to the terms of subsection (6)(a) of this
section. Muir v. Nebraska Dept. of Motor Vehicles, 260 Neb. 450, 618
N.W.2d 444 (2000).
5. Prima facie case
A sworn statement containing the recitations required by this section
establishes a prima facie case under the provisions of the
administrative license revocation statutes. McPherrin v. Conrad, 248
Neb. 561, 537 N.W.2d 498 (1995).
The burden is upon the state to make a prima facie case for revocation
before the director. Mackey v. Director of Motor Vehicles, 194 Neb.
707, 235 N.W.2d 394 (1975).
6. Miscellaneous
Pursuant to subsection (2) of this section, the administrative license
revocation process must be based on a valid arrest, because the sworn
report which triggers the administrative license revocation must be
prepared by an "arresting peace officer" who has "validly arrested" a
driver. Young v. Neth, 263 Neb. 20, 637 N.W.2d 884 (2002).
Under subsection (6)(c)(i)(A) of this section, a peace officer must
have probable cause prior to revoking a driver's license for refusal to
submit to a chemical test. State v. Howell, 254 Neb. 247, 575 N.W.2d
861 (1998).
Pursuant to subsection (3) of this section, after January 1, 1993, a
person who agrees to submit to a chemical test and fails it is subject
to automatic administrative license revocation. Smith v. State, 248
Neb. 360, 535 N.W.2d 694 (1995).
The oath to an affidavit is not required to be administered with any
particular ceremony, but the affiant must perform some corporal act
whereby he consciously takes upon himself the obligation of an oath.
Moore v. Peterson, 218 Neb. 615, 358 N.W.2d 193 (1984).
This section simply forstalls a forcible taking of a specimen. Wiseman
v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).
This section is pari materia with section 39-727.03 (transferred to
section 60-6,197), and other sections mentioned in opinion. Stevenson
v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
When an arrested driver is released before the results of blood alcohol
content testing are known to the arresting officer, then under
subsection (5)(a) of this section (60-6,205 (Reissue 1993)) the
arresting officer is "unable to serve" notice, and the statutory
provision allowing service by certified mail by the Department of Motor
Vehicles becomes operative. Kuebler v. Abramson, 4 Neb. App. 420, 544
N.W.2d 513 (1996).
Section 60-498.02
Driving under influence of alcohol; revocation of operator's license;
reinstatement; procedure; eligibility for employment driving permit and
ignition interlock device.
(1) At the expiration of thirty days after the date
of arrest as described in subsection (2) of section 60-6,197 or if
after a hearing pursuant to section 60-498.01 the Director of Motor
Vehicles finds that the operator's license should be revoked, the
director shall (a) revoke the operator's license of a person arrested
for refusal to submit to a chemical test of blood, breath, or urine as
required by section 60-6,197 for a period of one year and (b) revoke
the operator's license of a person who submits to a chemical test
pursuant to such section which discloses the presence of a
concentration of alcohol specified in section 60-6,196 for a period of
ninety days unless the person's driving record abstract maintained in
the department's computerized records shows one or more prior
administrative license revocations on which final orders have been
issued during the immediately preceding twelve-year period at the time
the order of revocation is issued, in which case the period of
revocation shall be one year. Except as otherwise provided in section
60-6,211.05, a new operator's license shall not be issued to such
person until the period of revocation has elapsed. If the person
subject to the revocation is a nonresident of this state, the director
shall revoke only the nonresident's operating privilege as defined in
section 60-474 of such person and shall immediately forward the
operator's license and a statement of the order of revocation to the
person's state of residence.
(2) At the expiration of thirty days after an order
of revocation is entered under subsection (1) of this section, (a) any
person whose operator's license has been administratively revoked for a
period of ninety days for submitting to a chemical test pursuant to
section 60-6,197 which disclosed the presence of a concentration of
alcohol in violation of section 60-6,196 may make application to the
director for issuance of an employment driving permit pursuant to
section 60-4,130 and (b) any person who submitted to a chemical test
pursuant to section 60-6,197 and has his or her operator's license
revoked for ninety days pursuant to subsection (1) of this section is
eligible for an order pursuant to section 60-6,211.05 to operate a
motor vehicle equipped with an ignition interlock device upon
presentation of sufficient evidence to the Department of Motor Vehicles
that such a device is installed.
This subsection shall not apply to nor shall any
person be eligible for the benefit of this subsection during any period
of time during which his or her operator's license is subject to an
administrative revocation order for refusal to submit to a chemical
test of blood, breath, or urine as required by section 60-6,197 or is
subject to a one-year revocation under subdivision (1)(b) of this
section.
(3) A person may have his or her eligibility for a
license reinstated upon payment of a reinstatement fee as required by
section 60-694.01.
(4)(a) A person whose operator's license is subject
to revocation pursuant to subsection (3) of section 60-498.01 shall
have all proceedings dismissed or his or her operator's license
immediately reinstated without payment of the reinstatement fee upon
receipt of suitable evidence by the director that:
(i) Within the thirty-day period following the date
of arrest, the prosecuting attorney responsible for the matter declined
to file a complaint alleging a violation of section 60-6,196 and
notified the director by first-class mail or facsimile transmission of
such decision and the director received such notice within such period
or the notice was postmarked within such period; or
(ii) The defendant, after trial, was found not
guilty of violating section 60-6,196 or such charge was dismissed on
the merits by the court.
(b) The director shall adopt and promulgate rules
and regulations establishing standards for the presentation of suitable
evidence of compliance with subdivision (a) of this subsection.
(c) If a charge is filed for a violation of section
60-6,196 pursuant to an arrest for which all proceedings were dismissed
under this subsection, the prosecuting attorney shall notify the
director by first-class mail or facsimile transmission of the filing of
such charge and the director may reinstate an administrative license
revocation under this section as of the date that the director receives
notification of the filing of the charge, except that a revocation
shall not be reinstated if it was dismissed pursuant to section
60-498.01.
Annotations:
Administrative revocation of a driver's license under this section is a
civil sanction and does not constitute punishment for purposes of
double jeopardy. State v. Isham, 261 Neb. 690, 625 N.W.2d 511
(2001).
Administrative license revocation statutes are reviewed using the
rational relationship standard of review. The administrative license
revocation statutes do not violate equal protection, nor do they
constitute cruel and unusual punishment. Schindler v. Department of
Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The proscription that there can be no revocation of one's driver's
license and operating privileges if the refusal to submit to a chemical
test is reasonable under the circumstances contained in this section
(formerly section 39-669.16 (Reissue 1988)), relates only to
administrative license revocations by the Director of Motor Vehicles.
In a criminal proceeding, however, the inquiry centers on the existence
of reasonable grounds for the arresting officer to believe that an
operator was driving while under the influence of alcohol. State v.
Boyd, 242 Neb. 144, 493 N.W.2d 344 (1992).
Pursuant to subsection (4) of this section, a Department of Motor
Vehicles regulation cannot, as a prerequisite to dismissing an
administrative license revocation proceeding, require a prosecuting
attorney to provide one of four particular reasons for failing to file
a criminal driving under the influence of alcohol charge, as such a
requirement modifies, alters, and restricts the provisions of this
section. Dozler v. Conrad, 3 Neb. App. 735, 532 N.W.2d 42 (1995).
Section 60-498.03
Operator's license revocation decision; notice; contents.
(1) The Director of Motor Vehicles shall reduce the
decision revoking an operator's license under sections 60-498.01 to
60-498.04 to writing, and the director shall notify the person in
writing of the revocation. The notice shall set forth the period of
revocation and be served by mailing it to such person by certified or
registered mail to the address provided to the director at the hearing
or, if the person does not appear at the hearing, to the address
appearing on the records of the director. If the address on the
director's records differs from the address on the arresting peace
officer's report, the notice shall be sent to both addresses.
(2) If the director does not revoke the operator's
license, the director shall immediately notify the person in writing of
the decision. The notice shall set forth the time and place the person
may obtain his or her license. The notice shall be mailed by certified
or registered mail as provided in subsection (1) of this section. No
reinstatement fee shall be charged for return of the confiscated
operator's license pursuant to this subsection.
Annotations:
Administrative license revocation statutes are reviewed using the
rational relationship standard of review. The administrative license
revocation statutes do not violate equal protection, nor do they
constitute cruel and unusual punishment. Schindler v. Department of
Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
A refusal to submit to a chemical test for alcohol occurs when the
licensee, after being asked to submit to a test, so conducts himself as
to justify a reasonable person in the requesting officer's position in
believing that the licensee understood that he was asked to submit to a
test and manifested an unwillingness to do so. Wohlgemuth v. Pearson,
204 Neb. 687, 285 N.W.2d 102 (1979).
A preliminary refusal followed by a consent to submit to a test for
blood alcohol content does not furnish a basis for imposition of the
sanction prescribed by the statute if a test was in fact performed and
the state was not prejudiced by the delay in performing the test.
Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (1979).
Section 60-498.04
License revocation; appeal; notice of judgment.
Any person who feels himself or herself aggrieved
because of the revocation of his or her operator's license under
sections 60-498.01 to 60-498.04 may appeal therefrom to the district
court of the county where the alleged events occurred for which he or
she was arrested in accordance with the Administrative Procedure Act.
The district court shall allow any party to an appeal to appear by
telephone at any proceeding before the court for purposes of the
appeal. Such appeal shall suspend the order of revocation until the
final judgment of a court finds against the person so appealing. The
court shall provide notice of the final judgment to the Department of
Motor Vehicles. The period of revocation shall commence at the time of
final judgment of the court for the full period of the time of
revocation.
Annotations:
Neither this section nor subsection (2)(a) of section 84-917 provides
that its jurisdictional provisions are exclusive. Reiter v. Wimes, 263
Neb. 277, 640 N.W.2d 19 (2002).
Administrative license revocation statutes are reviewed using the
rational relationship standard of review. The administrative license
revocation statutes do not violate equal protection, nor do they
constitute cruel and unusual punishment. Schindler v. Department of
Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The venue requirements of this section governing the right to appeal
are mandatory and must be complied with in order for the appellate
court to acquire jurisdiction. An appeal from an order of the Director
of Motor Vehicles revoking an operator's license for refusing to take a
blood, breath, or urine test must be filed in the district court of the
county in which the alleged events occurred for which the operator was
arrested. Jackson v. Jensen, 225 Neb. 671, 407 N.W.2d 758 (1987).
On appeal to district court from order of Director of Motor Vehicles
under section 39-669.16 (transferred to section 60-6,206) revoking
operator's license, the burden is on licensee to establish ground for
reversal. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235
N.W.2d 394 (1975).
On appeal from order of revocation of a motor vehicle operator's
license under the implied consent law, review is de novo as in equity.
Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).
Section 60-4,163
Alcoholic liquor; prohibited operation; effect.
No person shall operate or be in the actual physical
control of a commercial motor vehicle while having any alcoholic liquor
in his or her body. Any person who operates or is in the actual
physical control of a commercial motor vehicle while having any
alcoholic liquor in his or her body or who refuses to submit to a test
or tests to determine the alcoholic content of his or her blood or
breath shall be placed out of service for twenty-four hours, shall be
subject to disqualification as provided in sections 60-4,167 and
60-4,168, and shall be subject to prosecution for any violation of
sections 60-6,196 and 60-6,197.
Any order to place a person out of service for
twenty-four hours issued by a law enforcement officer shall be made
pursuant to section 392.5(c) of the federal Motor Carrier Safety
Regulations adopted pursuant to section 75-363, as such regulation
existed on September 1, 2001.
Section 60-4,164
Alcoholic liquor; implied consent to submit to chemical tests; refusal
or failure; penalty; officer; report.
(1) Any person who operates or is in the actual
physical control of a commercial motor vehicle upon a highway in this
state shall be deemed to have given his or her consent to submit to a
chemical test or tests of his or her blood or breath for the purpose of
determining the amount of alcoholic content in his or her blood or
breath.
(2) Any law enforcement officer who has been duly
authorized to make arrests for violations of traffic laws of this state
or of ordinances of any city or village who, after stopping or
detaining the operator of any commercial motor vehicle, has reasonable
grounds to believe that the operator was driving or in the actual
physical control of a commercial motor vehicle while having any
alcoholic liquor in his or her body may require such operator to submit
to a chemical test or tests of his or her blood or breath for the
purpose of determining the alcoholic content of such blood or
breath.
(3) Any law enforcement officer who has been duly
authorized to make arrests for violations of traffic laws of this state
or of ordinances of any city or village may require any person who
operates or has in his or her actual physical control a commercial
motor vehicle upon a highway in this state to submit to a preliminary
breath test of his or her breath for alcoholic content if the officer
has reasonable grounds to believe that such person has any alcoholic
liquor in his or her body, has committed a moving traffic violation, or
has been involved in a traffic accident. Any such person who refuses to
submit to a preliminary breath test shall be placed under arrest and
shall be guilty of a Class V misdemeanor. Any person arrested for
refusing to submit to a preliminary breath test or any person who
submits to a preliminary breath test the results of which indicate the
presence of any alcoholic liquor in such person's body may, upon the
direction of a law enforcement officer, be required to submit to a
chemical test or tests of his or her blood or breath for a
determination of the alcoholic content.
(4) Any person operating or in the actual physical
control of a commercial motor vehicle who submits to a chemical test or
tests of his or her blood or breath which discloses the presence of any
alcoholic liquor in his or her body shall be placed out of service for
twenty-four hours by the law enforcement officer.
(5) Any person operating or in the actual physical
control of a commercial motor vehicle who refuses to submit to a
chemical test or tests of his or her blood or breath or any person
operating or in the actual physical control of a commercial motor
vehicle who submits to a chemical test or tests of his or her blood or
breath which discloses an alcoholic concentration of: (a)
Four-hundredths of one gram or more by weight of alcohol per one
hundred milliliters of his or her blood or (b) four-hundredths of one
gram or more by weight of alcohol per two hundred ten liters of his or
her breath shall be placed out of service for twenty-four hours by the
law enforcement officer, and the officer shall forward to the director
a sworn report. The report shall state that the person was operating or
in the actual physical control of a commercial motor vehicle, was
requested to submit to the required chemical test or tests, and refused
to submit to the required chemical test or tests or submitted to the
required chemical test or tests and possessed an alcohol concentration
at or in excess of that specified by this subsection.
(6) Any person involved in a commercial motor
vehicle accident in this state may be required to submit to a chemical
test or tests of his or her blood or breath by any law enforcement
officer if the officer has reasonable grounds to believe that such
person was driving or was in actual physical control of a commercial
motor vehicle on a highway in this state while under the influence of
alcoholic liquor at the time of the accident. A person involved in a
commercial motor vehicle accident subject to the implied consent law of
this state shall not be deemed to have withdrawn consent to submit to a
chemical test or tests of his or her blood or breath by reason of
leaving this state. If the person refuses a test or tests under this
section and leaves the state for any reason following an accident, he
or she shall remain subject to this section upon return.
Section 60-4,164.01
Alcoholic liquor; blood test; withdrawing requirements; damages;
liability.
(1) Any physician, registered nurse, other trained
person employed by a licensed health care facility or health care
service defined in the Health Care Facility Licensure Act, a clinical
laboratory certified pursuant to the federal Clinical Laboratories
Improvement Act of 1967, as amended, or Title XVIII or XIX of the
federal Social Security Act, as amended, to withdraw human blood for
scientific or medical purposes, or a hospital shall be an agent of the
State of Nebraska when performing the act of withdrawing blood at the
request of a peace officer pursuant to section 60-4,164. The state
shall be liable in damages for any illegal or negligent acts or
omissions of such agents in performing the act of withdrawing blood.
The agent shall not be individually liable in damages or otherwise for
any act done or omitted in performing the act of withdrawing blood at
the request of a peace officer pursuant to such section except for acts
of willful, wanton, or gross negligence of the agent or of persons
employed by such agent.
(2) Any person listed in subsection (1) of this
section withdrawing a blood specimen for purposes of section 60-4,164
shall, upon request, furnish to any law enforcement agency or the
person being tested a certificate stating that such specimen was taken
in a medically acceptable manner. The certificate shall be signed under
oath before a notary public and shall be admissible in any proceeding
as evidence of the statements contained in the certificate. The form of
the certificate shall be prescribed by the Department of Health and
Human Services Regulation and Licensure and such forms shall be made
available to the persons listed in subsection (1) of this
section.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Section 60-4,164.01
Alcoholic liquor; blood test; withdrawing requirements; damages;
liability.
(1) Any physician, registered nurse, other trained
person employed by a licensed health care facility or health care
service defined in the Health Care Facility Licensure Act, a clinical
laboratory certified pursuant to the federal Clinical Laboratories
Improvement Act of 1967, as amended, or Title XVIII or XIX of the
federal Social Security Act, as amended, to withdraw human blood for
scientific or medical purposes, or a hospital shall be an agent of the
State of Nebraska when performing the act of withdrawing blood at the
request of a peace officer pursuant to section 60-4,164. The state
shall be liable in damages for any illegal or negligent acts or
omissions of such agents in performing the act of withdrawing blood.
The agent shall not be individually liable in damages or otherwise for
any act done or omitted in performing the act of withdrawing blood at
the request of a peace officer pursuant to such section except for acts
of willful, wanton, or gross negligence of the agent or of persons
employed by such agent.
(2) Any person listed in subsection (1) of this
section withdrawing a blood specimen for purposes of section 60-4,164
shall, upon request, furnish to any law enforcement agency or the
person being tested a certificate stating that such specimen was taken
in a medically acceptable manner. The certificate shall be signed under
oath before a notary public and shall be admissible in any proceeding
as evidence of the statements contained in the certificate. The form of
the certificate shall be prescribed by the Department of Health and
Human Services Regulation and Licensure and such forms shall be made
available to the persons listed in subsection (1) of this
section.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Section 60-4,165
Alcoholic liquor; rights of person tested.
The law enforcement officer who requires a chemical
test or tests pursuant to section 60-4,164 may direct whether the test
or tests will be of blood or breath. The person tested shall be
permitted to have a physician of his or her choice evaluate his or her
condition and perform or have performed whatever laboratory tests are
deemed appropriate in addition to and following the test or tests
administered at the direction of the law enforcement officer. If the
officer refuses to permit such additional test or tests to be taken,
the original test or tests shall not be competent evidence. Upon the
request of the person tested, the results of the test or tests taken at
the direction of the law enforcement officer shall be made available to
him or her.
Section 60-4,166
Any person who is unconscious or who is in a condition rendering him or her incapable of refusal to submit to a chemical test or tests pursuant to section 60-4,164 shall be deemed not to have withdrawn the consent provided for in such section, and a chemical test or tests may be given.
Section 60-4,167
Upon receipt of a law enforcement officer's sworn report provided for in section 60-4,164, the director shall serve the notice of disqualification to the person who is the subject of the report by registered or certified mail to the person's last-known address appearing on the records of the director. If the address on the director's records differs from the address on the arresting officer's report, the notice of disqualification shall be sent to both addresses. The notice of disqualification shall contain a statement explaining the operation of the disqualification procedure and the rights of the person. The director shall also provide to the person a self-addressed envelope and a petition form which the person may use to request a hearing before the director to contest the disqualification. The petition form shall clearly state on its face that the petition must be completed and delivered to the department or postmarked within ten days after receipt or the person's right to a hearing to contest the disqualification will be foreclosed. The director shall prescribe and approve the form for the petition, the self-addressed envelope, and the notice of disqualification. If not contested, the disqualification shall automatically take effect thirty days after the date of mailing of the notice of disqualification by the director. Any chemical test or tests made under section 60-4,164, if made in conformity with the requirements of section 60-6,201 shall be competent evidence of the alcoholic content of such person's blood or breath. The commercial driver's license of the person who is the subject of the report shall be automatically disqualified upon the expiration of thirty days after the date of the mailing of the notice of disqualification by the director. The director shall conduct the hearing in the county in which the violation occurred or in any county agreed to by the parties. Upon receipt of a petition, the director shall notify the petitioner of the date and location for the hearing by certified or registered mail postmarked at least seven days prior to the hearing date.
After granting the petitioner an opportunity to be heard on such issue, if it is not shown to the director that the petitioner's refusal to submit to such chemical test or tests was reasonable or unless it is shown to the director that the petitioner was not operating or in the actual physical control of a commercial motor vehicle with an alcoholic concentration in his or her blood or breath equal to or in excess of that specified in subsection (5) of section 60-4,164, the director shall enter an order pursuant to section 60-4,169 revoking the petitioner's commercial driver's license and privilege to operate a commercial motor vehicle in this state and disqualifying the person from operating a commercial motor vehicle for the period specified by section 60-4,168.
Section 60-4,167.01
Alcoholic liquor; disqualification decision; director; duties.
(1) The director shall reduce the decision disqualifying a commercial driver from operating a commercial motor vehicle pursuant to a hearing under section 60-4,167 to writing and the director shall notify the person in writing of the disqualification within seven days following a hearing. The decision shall set forth the period of disqualification and be served by mailing it to such person by certified or registered mail to the address provided to the director at the hearing or, if the person does not appear at the hearing, to the address appearing on the records of the director. If the address on the director's records differs from the address on the arresting peace officer's report, the notice shall be sent to both addresses.
(2) If the director does not disqualify the commercial driver from operating a commercial motor vehicle, the director shall notify the person in writing of the decision within seven days following a hearing. The notice shall be mailed by certified or registered mail as provided in subsection (1) of this section. No reinstatement fee shall be charged.
Section 60-4,167.02
Any person who feels himself or herself aggrieved because of such disqualification pursuant to a hearing under section 60-4,167 may appeal to the district court of the county where the alleged violation occurred in accordance with the Administrative Procedure Act. The appeal shall not suspend the disqualification unless a stay is allowed by the court pending a final determination of the review. If a stay is allowed and the final judgment of the court finds against the person appealing, the period of disqualification shall commence at the time of the final judgment of the court for the full period of the time of disqualification.
Section 60-6,196
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
(2) Any person who operates or is in the actual physical control of any motor vehicle while in a condition described in subsection (1) of this section shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08.
Cross References:
Applicability of statute to private property,see section 60-6,108.
Conviction of felony involving use of motor vehicle,transmittal of abstract, see section 60-497.02.
Ineligibility for pretrial diversion,see section 29-3604.
Motor vehicle homicide penalty,see section 28-306.
Operator's license,assessment of points and revocation, see sections 60-497.01, 60-498, and 60-4,182 et seq.
Violation of ordinance,prosecuting attorney, consult victim, see section 29-120.
Annotations:
1. Constitutionality
Driving under the influence of alcoholic liquor or drugs is criminalized under this section, and the fact that a defendant has previously been convicted of such offense is irrelevant to the guilt or innocence of the defendant and is relevant only to the defendant's sentence. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).
This section is a criminal driving under the influence of alcohol statute and is not part of the statutory scheme for an administrative license revocation. Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).
Successive, separate prosecutions under this section for driving while intoxicated and operating a motor vehicle with a suspended license do not violate the Double Jeopardy Clause of the U.S. Constitution. State v. Grimm, 240 Neb. 863, 484 N.W.2d 830 (1992).
This section does not violate equal protection. Proscribing a particular concentration of breath alcohol is not wholly irrelevant to achieving the purpose of prohibiting people from driving while under the influence of drugs or alcohol. The relationship between the classification and its goal is rational. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
Statute is valid exercise of police power, and court in which such conviction is had, is vested with jurisdiction to enforce statutory provisions. Smith v. State, 124 Neb. 587, 247 N.W. 421 (1933).2. Motor vehicle homicide
When the predicate offense for motor vehicle homicide is drunk driving in violation of this section, drunk driving is a lesser-included offense in motor vehicle homicide. State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).
Driving an automobile while under the influence of alcoholic liquor was an unlawful act upon which conviction of motor vehicle homicide could be based. Rimpley v. State, 169 Neb. 171, 98 N.W.2d 868 (1959).3. Manslaughter
Death arising from violation of this section may constitute manslaughter. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948).
Operating motor vehicle while under the influence of intoxicating liquor is an unlawful act under manslaughter statute. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).
Conviction of manslaughter was sustained where driver was intoxicated. Benton v. State, 124 Neb. 485, 247 N.W. 21 (1933).
Defendant may be tried and punished under general statute relating to manslaughter, though acts charged may be punishable under this section. Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927).4. Offense
A half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver's condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
A violation of this section is one offense, which may be proven in different ways. A person's breath alcohol concentration may be probative of impairment under subsection (1), as well as proof of a violation of this section based solely on breath alcohol concentration pursuant to subsection (3). State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
An alcohol violation in this section may be proved in either one of two ways: (1) that a person operated or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor; or (2) that a person while driving a motor vehicle or who was in physical control of a motor vehicle had ten-hundredths of one percent or more by weight of alcohol in his/her body fluid as shown by chemical analysis of his/her blood, breath, or urine. State v. Babcock, 227 Neb. 649, 419 N.W.2d 527 (1988).
The substantive offense is driving while under the influence of alcohol or with more than .10 percent of alcohol in one's body fluid. The number of times a person has previously been convicted of such a charge is not itself a crime but, rather, is a factor which the trial court is to consider in imposing sentence. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
This section defines one offense which can be proved by any of three ways: (1) By proof that the defendant was in physical control of a motor vehicle while under the influence of alcoholic liquor; (2) by proof that the defendant was in physical control of a motor vehicle while under the influence of any drug; or (3) by proof that the defendant was in physical control of a motor vehicle while having ten-hundreths of one percent or more by weight of alcohol in his or her body fluid. State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982).
A violation of this section is either a misdemeanor or a felony and is not a traffic infraction within the meaning of section 39-602(106), R.R.S. 1943 (currently section 60-672). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).
This section defines but one offense which may result from three conditions. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).
This section is pari materia with section 39-727.03 (transferred to section 60-6,197) and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
Operation of motor vehicle while under the influence of intoxicating liquor is a criminal offense. State v. Berg, 177 Neb. 419, 129 N.W.2d 117 (1964).
It is unlawful to operate or be in the actual physical control of any motor vehicle while under the influence of intoxicating liquor. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
Operation of motor vehicle while under the influence of intoxicating liquor is a punishable offense. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).
Only one crime is defined. Uldrich v. State, 162 Neb. 746, 77 N.W.2d 305 (1956).
Statute defines but one crime, that of operating a motor vehicle while under the influence of alcoholic liquor or drug. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948).5. Testing/sufficiency of evidence
If a test for the presence of alcohol or drugs is utilized, it is one piece of evidence that the defendant's ability to operate a motor vehicle is impaired; it is not conclusive under subsection (1)(a) of this section. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, impairment can be shown by observations of witnesses, particularly police officers who are trained to make these observations. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, it is a crime to operate a motor vehicle under the influence of alcoholic liquor or drugs, or both, to a degree that the alcoholic liquor or drugs, or both, appreciably impair the driver's ability to operate the motor vehicle. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, the phrase "under the influence of alcoholic liquor or of any drug" means the ingestion of alcohol or drugs in an amount sufficient to impair to any appreciable degree the driver's ability to operate a motor vehicle in a prudent and cautious manner. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, the State is required to prove that the defendant was in actual physical control of a motor vehicle and that the defendant's ability to operate a motor vehicle was impaired by reason of the influence of alcoholic liquor or of drugs. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
A violation of this section is one offense, but it can be proved in more than one way, i.e., excessive blood alcohol content shown through a chemical test or by evidence of physical impairment plus other well-known indicia of intoxication. State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
Where the evidence established that the defendant was found behind the wheel of a vehicle which was parked on an Interstate off ramp with the engine running and the headlights on, there was sufficient evidence for the trier of fact to establish that the defendant was operating a motor vehicle. State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996).
A half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver's condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
It is not necessary for a conviction for driving under the influence of alcoholic liquor that a sample of blood, breath, or urine show a certain concentration of alcohol in a defendant's blood, breath, or urine, as those are alternate offenses under this section. Either a law enforcement officer's observations of the defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving while under the influence of alcoholic beverages. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).
A test made in compliance with section 39-669.11 (transferred to section 60-6,201) is sufficient to make a prima facie case on the issue of blood alcohol concentration. Matters of driving and testing are properly viewed as going to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of this section. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
Circumstantial evidence may be used to establish physical control of a motor vehicle within the meaning of this section. State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987).
A breath test result which is subject to a margin of error must be adjusted so as to give the defendant the benefit of that margin. However, when there is a conflict in the evidence as to what that margin of error actually is, we will affirm the decision of the trier of fact so long as there is sufficient evidence in the record, if believed, to sustain its finding of guilt. State v. Hvistendahl, 225 Neb. 315, 405 N.W.2d 273 (1987).
An alcohol-related violation of this provision may be proved by establishing that one was in actual physical control of a motor vehicle while under the influence of alcohol or that one was in actual physical control of a motor vehicle while having ten-hundreths of 1 percent by weight of alcohol in his or her body fluid. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
Evidence was sufficient to find defendant guilty of driving while under the influence in violation of this section, where he was found asleep at the wheel of an automobile parked in the roadway and appeared intoxicated when awakened. Circumstantial evidence may serve to establish the operation or actual physical control of a motor vehicle, under the provisions of this section. State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986).
Operation or physical control of an auto may be established by circumstantial evidence. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).
Instructions given correctly set forth the elements of driving under influence and driving with ten-hundreths of one percent of alcohol in the body fluid. State v. Tripple, 190 Neb. 713, 211 N.W.2d 920 (1973).
Presumption arising from body fluid test applies only to prosecutions under this section. Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955).
Conviction sustained of drunken driving based in part on evidence of blood test. Schacht v. State, 154 Neb. 858, 50 N.W.2d 78 (1951).
Evidence which went before a jury of a defendant's failure to pass a chemical breath test for which he was not properly advised of the consequences was prejudicial and constituted plain error so as to require a reversal of the conviction and a remand for a new trial. State v. Hingst, 4 Neb. App. 768, 550 N.W.2d 686 (1996).6. Miscellaneous
"Operate," as used in this section, refers to the actual physical handling of the controls of the vehicle while under the influence of intoxicating liquor; therefore, it is unlawful for any person to actually physically handle the controls of any motor vehicle while under the influence of alcohol or while having the prohibited amount of alcohol in one's breath. State v. Baker, 236 Neb. 261, 461 N.W.2d 251 (1990).
As used in this section, the phrase "under the influence of alcoholic liquor" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989).
The phrase "under the influence of alcohol" means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987).
The phrase "under the influence of alcoholic liquor," as used in this provision, means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
A defendant charged with driving under the influence, pursuant to this section, has only a statutory right to a jury trial, pursuant to section 24-536 (transferred to section 25-2705), for which proper demand is required. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
A complaint for violation of this section need not allege that a defendant operated a motor vehicle on a public highway. State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986).
A jury need only be unanimous in its conclusion that the defendant violated the law by committing the act and need not be unanimous as to which of several consistent theories it believes resulted in the violation. State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986).
Conviction upon charge of refusal to submit to a chemical test under section 39-669.08 (transferred to section 60-6,197) did not operate to bar defendant's trial upon charge under this section. State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).
A defendant charged under this section is entitled to a jury trial as provided under section 24-536, R.R.S. 1943 (transferred to section 25-2705). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).
It was harmless error, if any, for court to accept defendant's written, all inclusive "Petition to Enter Plea of Guilty" without orally informing him he was waiving a trial by jury. State v. Cooper, 196 Neb. 728, 246 N.W.2d 65 (1976).
This section defines but one offense. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).
Under facts in this case, sentence to three years imprisonment was not excessive. State v. Klinkacek, 190 Neb. 293, 207 N.W.2d 524 (1973).
Word operate as used in this section relates to actual physical handling of controls of a motor vehicle. State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969).
Testimony to support conviction may come from a nonexpert witness. State v. Lewis, 177 Neb. 173, 128 N.W.2d 610 (1964).
Instruction given by trial court defining the term under the influence of alcoholic liquor was not erroneous. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).
As used in this section, the word operate relates to the actual physical handling of the controls of an automobile. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).
Instruction defining the meaning of statutory terms was not erroneous. Shanahan v. State, 162 Neb. 676, 77 N.W.2d 234 (1956).
Jury trial for violation of this section could be waived. Peterson v. State, 157 Neb. 618, 61 N.W.2d 263 (1953).
Complaint was not defective because words intoxicating liquor were used instead of words alcoholic liquor. Franz v. State, 156 Neb. 587, 57 N.W.2d 139 (1953).
Driver's license revoked for one year upon plea of guilty, and plea not set aside upon claim of defendant that she was not advised of her constitutional rights. Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829 (1957).
Section 60-6,197
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; when test administered; refusal; penalty.
(1) Any person who operates or has in his or her actual physical control a motor vehicle in this state shall be deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine.
(2) Any peace officer who has been duly authorized to make arrests for violations of traffic laws of this state or of ordinances of any city or village may require any person arrested for any offense arising out of acts alleged to have been committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine when the officer has reasonable grounds to believe that such person was driving or was in the actual physical control of a motor vehicle in this state while under the influence of alcoholic liquor or drugs in violation of section 60-6,196.
(3) Any person arrested as described in subsection (2) of this section may, upon the direction of a peace officer, be required to submit to a chemical test or tests of his or her blood, breath, or urine for a determination of the concentration of alcohol or the presence of drugs. If the chemical test discloses the presence of a concentration of alcohol in violation of subsection (1) of section 60-6,196, the person shall be subject to the administrative revocation procedures provided in sections 60-498.01 to 60-498.04 and upon conviction shall be punished as provided in sections 60-6,197.02 to 60-6,197.08. Any person who refuses to submit to such test or tests required pursuant to this section shall be subject to the administrative revocation procedures provided in sections 60-498.01 to 60-498.04 and shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08.
(4) Any person involved in a motor vehicle accident in this state may be required to submit to a chemical test of his or her blood, breath, or urine by any peace officer if the officer has reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle on a public highway in this state while under the influence of alcoholic liquor or drugs at the time of the accident. A person involved in a motor vehicle accident subject to the implied consent law of this state shall not be deemed to have withdrawn consent to submit to a chemical test of his or her blood, breath, or urine by reason of leaving this state. If the person refuses a test under this section and leaves the state for any reason following an accident, he or she shall remain subject to subsection (3) of this section and section 60-498.02 upon return.
(5) Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged.
(6) Refusal to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be admissible evidence in any action for a violation of section 60-6,196 or a city or village ordinance enacted in conformance with such section.
Cross References:
Applicability of statute to private property,see section 60-6,108.
Conviction of felony involving use of motor vehicle,transmittal of abstract, see section 60-497.02.
Ineligibility for pretrial diversion,see section 29-3604.
Operator's license,assessment of points and revocation, see sections 60-497.01, 60-498, and 60-4,182 et seq.
Violation of ordinance,prosecuting attorney, consult victim, see section 29-120.
Annotations:
1. Constitutional
Implied Consent Law as amended in 1971 does not involve compulsion within Fifth Amendment; is constitutional; and penalties are as provided in section 39-727 (transferred to section 60-6,196). State v. Manley, 189 Neb. 415, 202 N.W.2d 831 (1972).
Implied Consent Law held constitutional. State v. Williams, 189 Neb. 127, 201 N.W.2d 241 (1972).2. Effective
The preliminary test referred to in section 60-6,197.04 (formerly subsection (3) of section 60-6,197) is a different procedure and not a chemical test that will satisfy requirements for a conviction under subsection (3) (formerly subsection (4) of this section). State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).
Offering of a preliminary breath test under section 39-669.08 (3) (transferred to section 60-6,197) herein, is not a condition precedent to an arrest under this section. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).
For implied consent to be effective, person from whom blood sample is taken must have been arrested or taken into custody before test is given. State v. Baker, 184 Neb. 724, 171 N.W.2d 798 (1969).
For implied consent to be effective, person must have been arrested or taken into into custody before the test may be demanded. Prigge v. Johns, 184 Neb. 103, 165 N.W.2d 559 (1969).
For implied consent to be effective, person from whom blood sample is taken must have been arrested or taken into custody before test is given. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).3. Test
A refusal to submit to a chemical test occurs within the meaning of subsection (4) of this section when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer's position in believing that the licensee understood that he was being asked to submit to a test and manifested an unwillingness to take it. State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988).
The choice of whether one's blood or urine shall be tested for determination of alcohol content belongs to the licensee; a licensee who, upon the request of a law enforcement officer to do so, refuses to specify which fluid he or she will produce for such testing has refused to submit to a chemical test in violation of subsection (4) of this section. State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988).
It is established that as a condition precedent to a valid request by an officer to submit to a chemical test under the implied consent law, the arresting officer must have "reasonable grounds" to believe that the licensee was either driving a motor vehicle or in actual physical control of same while under the influence of intoxicating liquor. Larson v. Jensen, 228 Neb. 799, 424 N.W.2d 352 (1988).
A person is not exempted from the provisions of the refusal statute merely because he was too intoxicated to take the test. State v. Medina, 227 Neb. 736, 419 N.W.2d 864 (1988).
Anything less than an unqualified, unequivocal assent to an officer's request to submit to a chemical test constitutes a refusal. State v. Medina, 227 Neb. 736, 419 N.W.2d 864 (1988); Clontz v. Jensen, 227 Neb. 191, 416 N.W.2d 577 (1987).
Deputy had reasonable grounds to request that defendant submit to a chemical test of his blood, breath, or urine where the defendant was observed under circumstances from which the trier of fact could find beyond a reasonable doubt that the defendant had driven while under the influence of alcoholic liquor, in violation of section 39-669.07 (transferred to section 60-6,196). State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986).
A refusal to submit to a chemical test occurs within the meaning of the implied consent law when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer's position in believing that the licensee understood he was being asked to submit to a test and manifested an unwillingness to take it. Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986).
Where no issue as to the propriety of an arrest is raised and the evidence of the preliminary breath test is relevant only for the limited purpose of establishing probable cause to require a driver to submit to a test of his blood, urine, or breath, the admissibility of the preliminary breath test is a matter of law and should therefore be admitted into evidence out of the presence of the jury. State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986).
Reasonable grounds for arrest and arrest are conditions precedent to a valid request to submit to a chemical test. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
A condition precedent to a valid request by an officer to submit to a chemical test is that the officer must have reasonable grounds to believe that the licensee was either driving a motor vehicle or in the actual physical control of same while under the influence of alcoholic liquor. Emmons v. Jensen, 221 Neb. 444, 378 N.W.2d 147 (1985).
A delay in chemical testing is nonprejudicial unless it materially affects the results of the test. Jamros v. Jensen, 221 Neb. 426, 377 N.W.2d 119 (1985).
Justifiable refusal to take a body fluids test depends on some illegal or unreasonable aspect of the request to submit, the test itself, or both. A conditional refusal is a refusal under Nebraska's implied consent law. A motor vehicle driver is not entitled to consult a lawyer before submitting to a body fluids test because the suspension of a driver's license which results from refusal is a remedial, not strictly punitive, measure. Bapat v. Jensen, 220 Neb. 763, 371 N.W.2d 742 (1985).
Under the Nebraska Implied Consent Law, an officer may provide more than one opportunity to acquire a sufficient breath sample, even though only one chance is necessary. Raymond v. Department of Motor Vehicles, 219 Neb. 821, 366 N.W.2d 758 (1985).
Only tests taken pursuant to class A or B permits are such a chemical test as to comport with the requirement of subsection (1) of this section and a chemical analysis as to comport with section 39-669.07 (transferred to section 60-6,196). The preliminary test referred to in subsection (3) of this section is a different procedure and not such a chemical test or chemical analysis as to satisfy requirements for a conviction under section 39-669.07 (transferred to section 60-6,196). State v. Green, 217 Neb. 70, 348 N.W.2d 429 (1984).
An operator has refused to submit to a test when he conducts himself in a way which would justify a reasonable person in believing that he understood he had been asked to take the test and manifested an unwillingness to take it. Bauer v. Peterson, 212 Neb. 174, 322 N.W.2d 389 (1982).
The results of a test made under the provisions of section 39-669.08 (transferred to section 60-6,197) may be received in evidence only if the requirements of section 39-669.11 (transferred to section 60-6,201) are met. In order to show that the requirements have been met it is necessary to show that the method of performing the test was approved by the Nebraska Department of Health and that the person administering the test was qualified and had a valid license from the Department of Health. State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980).
The revocation of a motorist's license to operate a motor vehicle for his refusal to take test under this section on the ground that he has been denied the services of legal counsel is not a deprivation of a constitutional right. Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970).
Test under this section is not required to be delayed at request of arrested motorist until he be permitted to contact legal counsel. State v. Oleson, 180 Neb. 546, 143 N.W.2d 917 (1966). "Chemical test or tests" may refer to a test conducted with chemicals. However, the term also encompasses a test that determines the chemical composition of a person's blood, breath, or urine. State v. Crabtree, 3 Neb. App. 363, 526 N.W.2d 688 (1995).
Subsection (2) of this section, previously codified at subsection (2) of section 39-669.08, does not require and section 60-6,204, previously codified at section 39-669.14, was interpreted as not requiring a valid preliminary breath test as a prerequisite to chemical testing of a person arrested for driving under the influence. In this section, "chemical test," as previously codified at section 39-669.08, was interpreted to be a test to determine the body fluid levels of a certain chemical, as well as a test utilizing chemicals. State v. Cash, 3 Neb. App. 319, 526 N.W.2d 447 (1995).4. Implied consent
The giving of a sample under this section does not involve a question of involuntariness, want of due process, or self incrimination. State v. Turner, 263 Neb. 896, 644 N.W.2d 147 (2002).
Under subsection (5) (formerly subsection (10) of this section), a person arrested for driving under the influence must be advised that refusal to submit to a chemical test is a separate crime for which the person may be charged, but he or she need not be advised of any additional consequences of a refusal to submit to a chemical test. State v. Turner, 263 Neb. 896, 644 N.W.2d 147 (2002).
Pursuant to subsection (5) (formerly subsection (10) of this section), substantial compliance with the statute will suffice under certain circumstances. State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998).
Pursuant to subsection (10) of this section (60-6,197 (Reissue 1993)), a driver-arrestee who is required to submit to a chemical blood, breath, or urine test under this section should be advised of the natural and direct legal consequence of submitting to a chemical test. Such consequences include that any incriminating results from such a test may be used against the person in a criminal proceeding. State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997).
A sensible reading of subsection (10) of this section (60-6,197 (Reissue 1993)) indicates that the Legislature intended drivers to be advised of the natural and direct legal consequences flowing from submitting to a chemical blood, breath, or urine test and failing it. State v. Emrich, 251 Neb. 540, 557 N.W.2d 674 (1997).
Advisory form under subsection (10) of this section (60-6,197 (Reissue 1993)) must fully advise a motorist of the consequences of both refusing to submit to a chemical breath test and of submitting to and failing such test, and the failure of the advisory form to do so is plain error. Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996).
Pursuant to subsection (10) of this section (60-6,197 (Reissue 1993)), advisory form signed by motorist which failed to mention consequences fails to meet the advisory requirements set forth in this section. Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996).
Subsection (10) of this section (60-6,197 (Reissue 1993)) requires an arresting officer to advise the arrestee of the natural and direct legal consequences of refusing to submit to the chemical test or taking the test and failing it. Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).
One cannot evade the effect of this section simply by repeatedly screaming, while the implied consent form is read to him or her, that he or she does not understand. For purposes of enhancement, a knowing and intelligent waiver of counsel may not be inferred from a defendant's pro se appearance at trial in a prior conviction. At a minimum, a sufficiently complete checklist or other docket entry may be used to establish a valid waiver of counsel as to prior convictions for enhancement purposes. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).
Under subsections (3) and (4) of this section, evidence obtained from a driver by testing body fluids in the implied consent context is not testimonial or communicative in nature and does not fall within the constitutional right against self-incrimination. State v. Green, 229 Neb. 493, 427 N.W.2d 304 (1988).
Without an implied consent advisement a motorist cannot be cited for a refusal. Jamros v. Jensen, 221 Neb. 426, 377 N.W.2d 119 (1985).
In the absence of a valid authorizing statute, the results of a test of blood for alcoholic content are inadmissible where the blood sample is taken involuntarily and requirements of the Fourth Amendment to the United States Constitution have not been satisfied. State v. Howard, 193 Neb. 45, 225 N.W.2d 391 (1975).
Implied Consent Law as amended in 1971 does not involve compulsion within Fifth Amendment; is constitutional; and penalties are as provided in section 39-727, 1971 Supp. State v. Manley, 189 Neb. 415, 202 N.W.2d 831 (1972).
This section, by its terms, applies to situations where there is no actual consent. State v. Seager, 178 Neb. 51, 131 N.W.2d 676 (1964).
This section sets forth the implied consent rule. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
Any person who operates a motor vehicle upon a public highway thereby gives consent to chemical test of blood or urine. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).
Drawing of blood sample by physician who had been directed to act as coroner's physician from body of fatally injured passenger in automobile did not violate prohibition against unreasonable searches and seizures, and result of tests performed by competent chemist using accepted procedures and facilities were admissible. Gardner v. Meyers, 491 F.2d 1184 (8th Cir. 1974).5. Miscellaneous
A sentencing court, as part of its judgment of conviction under the implied consent law, in addition to ordering the convicted person not to drive any vehicle in the state for any purpose for 6 months, shall order that the operator's license of such person be revoked for a like period. The proscription that there can be no revocation of one's driver's license and operating privileges if the refusal to submit to a chemical test is reasonable under the circumstances contained in section 39-669.16 (Transferred to section 60-6,206), relates only to administrative license revocations by the Director of Motor Vehicles. In a criminal proceeding, however, the inquiry centers on the existence of reasonable grounds for the arresting officer to believe that an operator was driving while under the influence of alcohol. State v. Boyd, 242 Neb. 144, 493 N.W.2d 344 (1992).
An officer can require a driver to submit to a preliminary breath test without proof of intoxication if the officer has reasonable grounds to believe that such person has committed a moving traffic violation and/or has been involved in a traffic accident. State v. Lowrey, 239 Neb. 343, 476 N.W.2d 540 (1991).
Subsection (4)(a) of this section and section 39-669.07(b) (transferred to section 60-6,196) require that the relevant periods of revocation of one's operator's license not run concurrently with any jail term imposed. Revocation of one's operator's license for a period of 180 days does not fulfill the requirement of subsection (4)(a) of this section that revocation be for a period of 6 months. State v. Contreras, 236 Neb. 455, 461 N.W.2d 562 (1990).
Where the elements of a crime defined by statute are set out in an information or complaint, it is sufficient; and if words appear in such information or complaint which might be stricken, leaving a crime sufficiently charged, and such words do not tend to negative any of the essential averments, they may be treated as surplusage and be entirely rejected. State v. Blankenfeld, 229 Neb. 411, 427 N.W.2d 65 (1988).
Officer had reasonable grounds to believe defendant was under influence of alcohol when operating or in control of vehicle. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986).
It is no defense that a licensee asked to submit to a chemical test under the implied consent law does not understand the consequences of refusal or is not able to make a reasoned judgment as to what course of action to take. Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986).
A driver is not entitled to consult with an attorney before submitting to a chemical test under the implied consent law, nor is a delay in the test required due to a driver's request to consult with an attorney. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
There is no requirement that Miranda warnings be given prior to a request to submit to a chemical analysis of blood, breath, or urine under the Nebraska implied consent law. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
The trial court must advise a defendant charged with refusal to submit to a chemical test of the penalties for first, second, or third offense. However, when the defendant was charged with, advised of the penalty for, and convicted of first offense refusal, the failure to advise him of the penalties for repeat offenses was not error. State v. Tichota, 218 Neb. 444, 356 N.W.2d 85 (1984).
Conviction under this section did not operate to bar trial upon charge under section 39-669.07 (transferred to section 60-6,196), driving while intoxicated. State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).
Accused waives his right to choose the type of test by voluntarily taking either the blood or urine test. State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977).
Single request for chemical test is sufficient, but more than one request may be permissible, and request need not be made at scene of arrest. Stender v. Sullivan, 196 Neb. 810, 246 N.W.2d 643 (1976).
On appeal to district court from order of Director of Motor Vehicles under section 39-669.16 (transferred to section 60-6,206) revoking operator's license, the burden is on licensee to establish ground for reversal. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).
Procedural due process in connection with hearing as to reasonableness of refusal to submit to test was not violated by fact the notice thereof specified the director's office as the place of hearing but the hearing was held in a different room in the same building and party was advised of the change when he appeared in the director's office. Atkins v. Department of Motor Vehicles, 192 Neb. 791, 224 N.W.2d 535 (1974).
Emotional upset due to pending divorce was not good reason for actions indicating intoxication and for refusal to submit to chemical test of body fluids. Duffack v. Kissack, 192 Neb. 634, 223 N.W.2d 484 (1974).
It was not necessary to again advise a person of the consequences of refusing to submit to a test after he had been admonished and refused to submit. State v. Twiss, 192 Neb. 402, 222 N.W.2d 108 (1974).
Refusal of request to contact attorney affords no reasonable ground for refusing to take alcoholic test. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
Refusal to submit to test may be shown in prosecution for driving while under influence of intoxicating liquor. State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972).
A qualified or conditional consent is not sanctioned nor is a dissent on ground party has taken medicine and doesn't know what effect it will have. Doran v. Johns, 186 Neb. 321, 182 N.W.2d 900 (1971).
Officer had reason to arrest person who was driving under influence of intoxicating liquor. Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d 843 (1970).
A conditional or qualified refusal to take the test is a refusal to submit to the test within the meaning of the act. State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970).
Section does not sanction qualified or conditional consent; such a consent is in fact a refusal. Preston v. Johns, 186 Neb. 14, 180 N.W.2d 135 (1970).
Plea of guilty under this section does not establish reasonableness of a refusal to submit to a chemical test under Implied Consent Act. Ziemba v. Johns, 183 Neb. 644, 163 N.W.2d 780 (1968).
Conviction of driving while under the influence of intoxicating liquor sustained. State v. Oleson, 180 Neb. 546, 143 N.W.2d 917 (1966).
Sentence imposed was within the limits prescribed by this section. State v. Koziol, 177 Neb. 648, 130 N.W.2d 557 (1964).
Section 60-6,197.01
Driving under influence of alcoholic liquor or drug; second and subsequent violations; restrictions on motor vehicles.
Upon conviction for a second or subsequent violation of section 60-6,196 or 60-6,197, the court shall impose either of the following restrictions on all motor vehicles owned by the person so convicted:
(1)(a) The court shall order the motor vehicle or motor vehicles immobilized at the owner's expense for a period of time not less than five days and not more than eight months and shall notify the Department of Motor Vehicles of the period of immobilization. Any immobilized motor vehicle shall be released to the holder of a bona fide lien on the motor vehicle executed prior to such immobilization when possession of the motor vehicle is requested as provided by law by such lienholder for purposes of foreclosing and satisfying such lien. If a person tows and stores a motor vehicle pursuant to this subdivision at the direction of a peace officer or the court and has a lien upon such motor vehicle while it is in his or her possession for reasonable towing and storage charges, the person towing the vehicle has the right to retain such motor vehicle until such lien is paid. For purposes of this subdivision, immobilized or immobilization means revocation or suspension, at the discretion of the court, of the registration of such motor vehicle or motor vehicles, including the license plates; and
(b)(i) Any immobilized motor vehicle shall be released by the court without any legal or physical restraints to any registered owner who is not the registered owner convicted of a second or subsequent violation of section 60-6,196 or 60-6,197 if an affidavit is submitted to the court by such registered owner stating that the affiant is employed, that the motor vehicle subject to immobilization is necessary to continue that employment, that such employment is necessary for the well-being of the affiant's dependent children or parents, that the affiant will not authorize the use of the motor vehicle by any person known by the affiant to have been convicted of a second or subsequent violation of section 60-6,196 or 60-6,197, that affiant will immediately report to a local law enforcement agency any unauthorized use of the motor vehicle by any person known by the affiant to have been convicted of a second or subsequent conviction of section 60-6,196 or 60-6,197, and that failure to release the motor vehicle would cause undue hardship to the affiant.
(ii) A registered owner who executes an affidavit pursuant to subdivision (1)(b)(i) of this section which is acted upon by the court and who fails to immediately report an unauthorized use of the motor vehicle which is the subject of the affidavit is guilty of a Class IV misdemeanor and may not file any additional affidavits pursuant to subdivision (1)(b)(i) of this section.
(iii) The department shall adopt and promulgate rules and regulations to implement the provisions of subdivision (1) of this section; or
(2) As an alternative to subdivision (1) of this section, the court shall order the installation of an ignition interlock device on each of the owner's motor vehicles if the owner was sentenced to an operator's license revocation of at least one year and has completed at least one year of such revocation. No license reinstatement may occur until sufficient evidence is presented to the department that an ignition interlock device is installed on each vehicle and that the applicant is eligible for use of an ignition interlock device. The installation of an ignition interlock device shall be for a period not less than six months commencing upon the end of such year of the operator's license revocation. Notwithstanding any other provision of law, if the owner was convicted of a second or subsequent violation of section 60-6,196 or 60-6,197, no ignition interlock device shall be ordered by any court or state agency under any circumstances until at least one year of the operator's license revocation shall have elapsed.
Section 60-6,197.02
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; terms, defined; prior convictions; use.
(1) A violation of section 60-6,196 or 60-6,197 shall be punished as provided in section 60-6,197.03. For purposes of sentencing under section 60-6,197.03:
(a) Prior conviction means a conviction for a violation committed within the twelve-year period prior to the offense for which the sentence is being imposed as follows:
(i) For a violation of section 60-6,196:
(A) Any conviction for a violation of section 60-6,196;
(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,196;
(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of section 60-6,196; or
(D) Any conviction for a violation of section 60-6,198; or
(ii) For a violation of section 60-6,197;
(A) Any conviction for a violation of section 60-6,197;
(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,197; or
(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of section 60-6,197;
(b) Prior conviction includes any conviction under section 60-6,196, 60-6,197, or 60-6,198, or any city or village ordinance enacted in conformance with any of such sections, as such sections or city or village ordinances existed at the time of such conviction regardless of subsequent amendments to any of such sections or city or village ordinances; and
(c) Twelve-year period means the period computed from the date of the prior offense to the date of the offense which resulted in the conviction for which the sentence is being imposed.
(2) In any case charging a violation of section 60-6,196 or 60-6,197, the prosecutor or investigating agency shall use due diligence to obtain the person's driving record from the Department of Motor Vehicles and the person's driving record from other states where he or she is known to have resided within the last twelve years. The prosecutor shall certify to the court, prior to sentencing, that such action has been taken. The prosecutor shall present as evidence for purposes of sentence enhancement a court-certified copy or an authenticated copy of a prior conviction in another state. The court-certified or authenticated copy shall be prima facie evidence of such prior conviction.
(3) For each conviction for a violation of section 60-6,196 or 60-6,197, the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person's prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.
Annotations:
1. Enhancement
This section (formerly subsection (2) of section 60-6,196) authorizes a trial court to consider prior convictions of a defendant for driving under the influence of alcoholic liquor or drug within the 12 years prior to the offense for which a defendant currently stands trial and is not ex post facto as to a conviction prior to its passage, since an offender subject to enhancement of punishment under this statute is not receiving additional punishment for his or her previous convictions but is being penalized for an offense committed after its passage. This section deals with offenses committed after its passage, permits an inquiry into a defendant's previous convictions, and in fixing the penalty, does not punish the defendant for previous offenses but for persistence in violating this section. State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (2000).
The language of this section permits a defendant to challenge the validity of a prior driving under the influence conviction offered for purposes of enhancement on the ground that it was obtained in violation of the defendant's Sixth Amendment right to counsel. State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
Legislative amendments to the length of the cleansing period provided by this section will not implicate vested due process rights of individuals with prior convictions used for enhancement. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).
Prior driving under the influence convictions are not necessary elements of a subsequent driving under the influence charge, but, rather, are used to determine the sentence to be imposed for a later driving under the influence conviction. Thus, the district court did not violate the Double Jeopardy Clause when it remanded a conviction for second-offense driving under the influence to the county court with directions to enter a judgment finding the defendant guilty of third-offense driving under the influence and to sentence her accordingly. State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).2. Offense
In a prosecution under this section (formerly subsection (6) of section 60-6,196) for driving when one's operator's license has been revoked pursuant to subdivision (2)(c) of this section, proof of the prior conviction under subdivision (2)(c) is an essential element of the offense, and thus, the State has the burden to prove the prior conviction. A prior third-offense drunk driving conviction may be used as an element of a violation under this section (formerly subsection (6) of section 60-6,196) even though the prior conviction is not subject to a collateral attack. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).
This section is a continuance and affirmation of the previous section 39-669.07. Convictions under section 39-669.07 can be used for the purpose of sentence enhancements under this section. State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).3. Sufficiency of evidence
Subsection (c) of this section (formerly section 39-669.07 (Reissue 1988)) limits the proof which can be used to establish the defendant's prior driving while under the influence convictions. State v. Jenson, 236 Neb. 869, 464 N.W.2d 326 (1991).4. Miscellaneous
The time limitations for the use of prior driving under the influence convictions set forth in this section do not apply to the use of prior driving under the influence convictions to section 28-306. State v. Tlamka, 7 Neb. App. 579, 585 N.W.2d 101 (1998).
Section 60-6,197.03
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; penalties.
Any person convicted of a violation of section 60-6,196 or 60-6,197 shall be punished as follows:
(1) If such person has not had a prior conviction, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator's license of such person be revoked or impounded for a period of six months from the date ordered by the court. Such revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator's license of such person be revoked or impounded for a period of sixty days from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05, and such order of probation or sentence suspension shall also include, as one of its conditions, the payment of a four-hundred-dollar fine;
(2) Except as provided in subdivision (4) of this section, if such person has had one prior conviction, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator's license of such person be revoked for a period of one year from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator's license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for five days or the imposition of not less than two hundred forty hours of community service;
(3) Except as provided in subdivision (4) of this section, if such person has had two prior convictions, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator's license of such person be revoked for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator's license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a six-hundred-dollar fine and either confinement in the city or county jail for ten days or the imposition of not less than four hundred eighty hours of community service;
(4) If such person has had one or two prior convictions and, as part of the current violation, had a concentration of sixteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or sixteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class I misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator's license of such person for any purpose for a period of at least one year but not more than fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. The court shall also sentence such person to