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Nebraska DWI/DUI: Refusal to Take a Blood, Breath or Urine Test
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In Nebraska, if you get pulled over for a DWI and the officer asks you to take a blood, breath or urine test, do you have to take one? What happens if you refuse?
Nebraska law requires you to take a blood, breath or urine test if you are arrested for a DWI. Nebraska’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving while intoxicated, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving.
Nebraska law also allows for a preliminary blood or breath test before you are arrested. This works like a field sobriety test. The officer can use the results to establish probable cause that you have been driving while intoxicated. If the results are above the legal limit, then the officer can arrest you and ask you to submit to another chemical test. It will not help you to refuse to take this test because the officer can arrest you for doing so. Then you will be in the same situation as if you had submitted to the preliminary test in the first place - the officer can request another chemical test that you cannot refuse without penalty.
You could be arrested for a DWI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you. Generally, actual physical control means you are in the car and could make it move. This rule does not apply, however, to private property. So you could drink beer in your car while the car is parked in your driveway. To read more about where DWI laws apply, see the case State v. McCabe, 282 Neb. 500 (2011). You may need to go to a Nebraska law library to find this case.
You can read Nebraska’s implied consent law in Nebraska Revised Statute 60-6,197 and about the preliminary tests in Nebraska Revised Statute 60-6,197.04.
Refusing to Take the Test
Once you are arrested, the officer should tell you that refusing to take a test is a crime that carries its own penalties. The penalty for refusal is suspension of your license for 90 days. This suspension is in addition to any consequence you may face if you are later found guilty of a DWI – even without evidence of the test. If the officer does not tell you this, then the state cannot punish you for refusing. You can’t try to stop the officer from telling you this, however. One driver tried repeatedly screaming, “I don’t understand!” while the officer explained the penalties. Although this driver was not forced to take a chemical test, the court convicted him of refusal. You can read about this in the case State v. Green, 470 N.W.2d 736 (1991).
In most situations, if you refuse to take a mandatory blood, breath or urine test, then you cannot be forced to do so. There are exceptions, however. An officer can order a test without asking you first if you are involved in an accident, even if you are rendered unconscious or dead.
You can read about the penalties for refusal in Nebraska Revised Statute 60-6,211.02.
Should You Refuse to Take a Mandatory DWI Test in Nebraska?
It usually does not help you to refuse to take a blood or breath test when you are arrested for a DWI. In Nebraska, the penalty for DWI includes suspension of your license, jail time and fines. This is more severe than a suspension of your license for refusal. Refusing the test, however, does not guarantee that you won’t be convicted. You can still be found guilty of a DWI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DWI.
Get Help With Your DWI
If you have been arrested on a DWI charge in Nebraska or any other state, get help from an experienced DWI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DWI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DWI. To avoid or reduce the consequences, your best bet is to find an attorney who knowledgeable about your state’s laws and about how the system works in your county’s court.
by: Teresa Wall-Cyb