If you find yourself under arrest for driving under the influence (DUI), you will be transported to the jail or police station where you will be asked to submit to a chemical test. The purpose of that test is to determine if you have alcohol in your system. Most of the time a breath test is the test of choice; however, both urine and blood tests can also be used in a DUI investigation. A DUI defense lawyer at Petersen Law Office explains when the police can do a blood draw during a DUI investigation.
Nebraska’s Implied Consent Law
Because a chemical test can be considered a type of search, which would usually require a warrant, states now use implied consent laws to get around that requirement. The State of Nebraska’s implied consent law is located in Section 60-6, 197 of the Nebraska Revised Statutes which reads as follows:
“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.”
The implied consent law effectively means that if you operate a vehicle within the State of Nebraska that you have given your consent to a blood, breath, or urine chemical test. You can withdraw that consent by refusing to submit to a chemical test; however, refusing a chemical test can increase the sentence you receive if you are ultimately convicted of DUI and extend the amount of time your driving privileges are revoked.
Why Would a Blood Test Be Used?
Testing for alcohol can be accomplished using a blood, breath, or urine test; however, a breath test is by far the most commonly used type of chemical test. Urine tests are less accurate and more complicated to monitor. A blood test is more accurate at testing for the presence of alcohol; however, drawing blood is both more invasive and more expensive. In fact, the courts have wrestled with the legality of non-consensual, warrantless blood draws for years. There are, however, some circumstances when a non-consensual, warrantless blood test may be used. The first is when the suspect is unconscious, either because he/she is under the influence of alcohol or drugs or because of an accident. If a suspect is unconscious, he/she is unable to perform the typical breath test and is unable to withdraw the consent given under the implies consent law. In addition, if you were involved in an accident that requires you to be transported to a hospital, the police may be able to use the results of a blood test taken at the hospital as part of your medical treatment to check for the presence of alcohol in your system. Another reason why the police may push for a blood test in lieu of a breath test is if they suspect that you are under the influence of something other than, or in addition to, alcohol. While a breath test can be fairly accurate (under ideal circumstances) at determining the presence of alcohol in a suspects system, it cannot check for the presence of other substances, such as illegal drugs or even over the counter medication that might impair a motorist’s driving. A blood test, on the other hand, can check for a wide variety of substances in addition to alcohol.
The law remains a bit murky on the issue of the legality of non-consensual, warrantless blood tests. If you find yourself in a position where you are being asked to consent to a blood draw as part of a DUI investigation, and you are able to give, or withdraw, your consent, remember that you do have the right to refuse the test as long as you understand the consequences of doing so.
Contact a DUI Defense Lawyer at Petersen Law Office
If you have been charged with DUI in the State of Nebraska, it is in your best interest to consult with an experienced DUI defense lawyer immediately about the specific facts and circumstances of your case. Contact a Nebraska DUI defense attorney at Petersen Law Office 24 hours a day at 402-513-2180 to discuss your case.
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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