Do I Have to Take the Test? — Nebraska’s Implied Consent Law
One of your first questions is likely whether or not you are legally required to submit to a chemical test of any kind. Like most states, Nebraska now has an “implied consent law.” The law effectively means that if you operate a motor vehicle in the State of Nebraska you give your consent to submit to a chemical test or tests of your blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in your blood, breath, or urine. A law enforcement officer may request a chemical test if the officer has reasonable grounds to believe that you were driving or were in the actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs.
Despite the implied consent law, you can refuse the test; however, refusing comes with some serious consequences. In fact, you could be charged with a separate criminal offense for refusing a chemical test and you will be subject to an automatic administrative license revocation. The law requires a law enforcement officer to explain the request for a chemical test to you and, more importantly, to explain the consequences of refusing to submit to the test.
How Does a Breath Test Work?
Your breath test should actually begin with a mandatory observation period. This is required to ensue that you did not eat, drink, or put anything else into your mouth just prior to the test that might interfere with the test results. After the waiting period, you will be asked to blow into a small tube. The tube then stores a sample of your breath in a sample chamber in order to conduct an analysis of the breath. Because there are several different types of breath test machines, what happens next is not always scientifically the exact same procedure; however, the basic concept in all machines is that your sample breath is analyzed for the presence of alcohol. One type of machine, for example, uses an infrared radiation signature to check for the presence of ethanol, the type of alcohol consumed in alcoholic beverages. Another type of breath test machine uses fuel cell technology to check for alcohol in your breath. Because of the way your body metabolizes alcohol, if you have consumed any recently it will be found in your breath as a result of the alcohol passing through your lungs. If the machine does detect the presence of alcohol, it will perform some complex calculations to arrive at a “Breath Alcohol Concentration (BAC)” level. If your BAC level is 0.08 percent or higher, you are in violation of Nebraska’s DUI laws. The entire procedure should be conducted a second time to ensure the results are accurate.
Under ideal, controlled conditions the results of a breath test are very accurate. The world, however, does not operate under ideal controlled conditions. Consequently, the results of a breath test may not be as accurate as the prosecuting attorney would like you, and everyone else, to believe. If you were recently arrested for DUI, it helps to keep this in mind because it means you may have a viable defense that could help you avoid a conviction.
Contact a Nebraska DUI Attorney
If you have been arrested for driving under the influence (DUI) in the State of Nebraska, contact the Sarpy County DUI attorneys at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case with an experienced DUI defense lawyer.
Attorney Petersen was invited to join the National Advocacy for DUI Defense (NAFDD) organization in 2013. NAFDD vets thousands of lawyers and only chooses those who have achieved stellar results in DUI defense cases. Attorney Petersen was named one of the Top 50 defense attorneys in Nebraska out of more than 5,000.
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