In Nebraska, a person is guilty of a DUI if the person operates any motor vehicle while under the influence of alcoholic liquor or of any drug. Neb. Rev. Stat. Ann. § 60-6, 196 (LexisNexis 2010).
Any person who operates or is in actual physical control of a motor vehicle in Nebraska shall be deemed to have given his or her consent to submit to a chemical test or tests of his blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs. Id. § 60-6,197.
Refusal will result in driver’s license suspension for 6 months, imprisonment for 7 to 60 days, and a fine. Id. §§ 28-106, 60-6, 197-197.03.
Any person who refuses to submit to such preliminary breath test or whose preliminary breath test results indicate an alcohol concentration in violation of section 60-6,196 shall be placed under arrest. Any person who refuses to submit to such preliminary breath test shall be guilty of a Class V misdemeanor. Id. § 60-6, 197.04.
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. Id. § 60-6, 197(6).
The person tested shall be permitted to have a physician of their choice evaluate his or her condition and perform or have performed whatever laboratory tests he or she deems appropriate, in addition to and following the test or tests administered at the direction of the officer. Neb. Rev. Stat. § 60-6,199. If the officer refuses to permit such additional test to be taken, then the original test or tests shall not be competent as evidence. Id. § 60-6, 199.
First offense class W misdemeanor – mandatory minimum of 7 days imprisonment and $400 fine.; maximum of 60 days imprisonment and $500 fine; possible license revocation or vehicle impoundment for 6 months. Id. §28-106 (Class W); Id. §60-6,197.03(1).
Second offense class W misdemeanor – mandatory minimum of 30 days imprisonment and $500 fine; maximum of 6 months imprisonment and $500 fine; license revocation for one year; after probation period a person may apply for an ignition interlock permit for the remainder of the revocation period; required to pay $500 fine; and imprisonment for 10 days, or 240 hours of community service. Id. §28-106 (Class W); Id. §60-6,197.03(3).
Third offense class W misdemeanor – mandatory minimum of 90 days imprisonment and $600 fine; Maximum: 1 year imprisonment and $600 fine; operators license to be revoked for 15 years, following a period of probation; probation requires payment of a $600 fine and imprisonment for 30 days. Id. § 28-106 (Class W); Id. § 60-6,197.03(4).
Fourth offense class IIIA felony – maximum of 5 years imprisonment, or $10,000 fine, or both; operators license to be revoked for 15 years and imprisoned for 180 days; if operator is put on probation, operator’s license to be revoked for 15 years. Revocation order requires person not to drive for 45 days, after which person may apply for an ignition interlock permit for the remainder of the revocation period; probation requires payment of $1000 fine and imprisonment for 90 days. Id. § 28-1059(class IIIA); Id. § 60-6,197.03(7).
Fifth offense class III felony – minimum of one year imprisonment; maximum of 20 years imprisonment, or $25,000 fine, or both; operators license to be revoked for 15 years; if probation is granted, revocation order requires person not to drive for 45 days, after which person may apply for an ignition interlock permit for the remainder of the revocation period; probation requires payment of $1000 fine and imprisonment for 90 days. Id. § 28-1059(class III); Id. § 60-6,197.03(9).
In Nebraska, law enforcement officials are entitled to carry out sobriety checkpoints under state law.
Stop of defendant’s automobile as she turned away from checkpoint was not based on reasonable suspicion. United States Department of Transportation policies permit a motorist who wishes to avoid checkpoint by legally turning before entering checkpoint area should be allowed to do so unless he or she commits a traffic offense. The act of avoiding sobriety checkpoint does not constitute grounds for an investigatory stop. State v. McCleery, 560 N.W.2d 789 (1997).
State v. Falcon, 260 Neb. 119 (2000) — There was sufficient evidence to convict defendant of driving under the influence of alcohol or drugs; defendant was in actual physical control of motor vehicle, he admitted to the ingestion of alcoholic liquor and drugs, his eyes were red, and drug recognition expert was of the opinion that defendant was under influence of marijuana to such extent as to impair his ability to drive.
State v. Lesac, 231 Neb. 718 (1989) — Evidence was sufficient to convict in case involving driving under influence of controlled substance, where defendant had admitted consuming four bowls of marijuana, was driving on wrong side of road when stopped by police, was found to have marijuana in his possession, had glassy eyes, and failed sobriety test.
State v. Lichti, 219 Neb. 894 (1985) –Either a law enforcement officer’s observation of defendant’s intoxicated behavior or defendant’s poor performance on field sobriety tests sheall be considered sufficient to convict for DUI. Also see — State v. Falcon, 260 Neb. 119 (2000); State v. Miles, 602 N.W.2d 666 (1999); State v. Green, 238 Neb. 328 (1991).