Introduction to DUI Law

Driving Under the Influence (DUI) cases are one of the most common charges filed by the state. But DUIs are not just another run-of-the-mill criminal case. Rather, they are often very complex, technical, and require specialized experience and advanced training to effectively protect your rights.

So, whether you have been arrested due to refusing a Breathalyzer test, failing a Field Sobriety Test, or at a Sobriety Check Point, do not think you have to face your charges alone. You can find effective and experienced defense representation at the Baxley Law Office.

What is a DUI?

What is .08 alcohol concentration?

In Nebraska, it is a crime to operate or be in the actual physical control of any motor vehicle: (1) while under the influence of alcoholic liquor; (2) while under the influence of any drug; or (3) with a blood/breath alcohol concentration of eight-hundredths of one gram (0.08) or more.
"Alcohol Concentration” means: 

a) the number of grams of alcohol per 100 milliliters of blood; or

b)  the number of grams of alcohol per 210 liters of breath.

Thus, the ".08" level means 0.08 grams of alcohol per 100 milliliters of blood or 210 liters of breath.

Is the alcohol concentration level different for people under 21?

If I take a breath and/or blood test and the alcohol concentration (BAC) is less than .08, can I still be prosecuted and/or lose my license?

Yes. Under Nebraska law the alcohol concentration threshold is lowered from .08 to .02 for people under 21.
Unfortunately, yes, it is still possible to be charged and convicted of DUI even if you have a small amount of alcohol in your system. To do so, though, the state would have to prove you were "under the influence" of either alcohol or any drug.

What does "under the influence" mean?

In general, how can the government show someone is impaired?

In a 2009 case, the Nebraska Supreme Court said this requires proof of, "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."  This was not really a change in the law, but it reinforced that you don't have to be "drunk" to be "under the influence".
Broadly speaking, from observations by a witness (or police officer) of a defendant's intoxicated behavior, or from the defendant's poor performance on properly administered field sobriety tests.

When Stopped

Can I Refuse the Tests?

Field Tests & Portable Breath Test

Police officers have many tools that they use to help them determine whether a person is intoxicated for DUI purposes. There is a great deal of debate regarding the alleged accuracy and/or reliability of these tools as indicators of intoxication. The favorite roadside tools of the officer are the standardized field sobriety tests (SFSTs) and the portable breath test (PBT) device.

In Nebraska, it is a Class V misdemeanor to refuse the PBT. The maximum punishment is a $100 fine and a 90-day license revocation in the criminal proceeding.  Despite this, some innocent drivers do refuse to submit to a PBT because the specimen given is not preserved and the devices are generally not accepted as reliable or accurate in the scientific community despite their use by law enforcement.

Similarly, many innocent drivers refuse to submit to the SFSTs because they are not very coordinated and are very nervous that any test results will not accurately reflect their sobriety. Although you have a right to refuse these, the police don't have to tell you about this right.

Chemical Tests

​​Breath or Blood Tests

Nebraska has made it a crime to refuse a chemical test under many (but not all) circumstances. This separate crime is punishable in the same manner as a DUI. But there are significant constitutional concerns with these types of crimes. 

On April 20, 2016, the Supreme Court of the United States heard oral argument in Birchfield v. North Dakota. In that case the Court will determine "whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood."  Thus, the Court may or may not make these types of crimes invalid.

What if I take a Breath Test that ​incorrectly says I’m intoxicated?

Do I have the right to telephone an attorney before taking a breath or blood test?

Breath testing machines are not always accurate or reliable. A properly conducted blood test is better, but not perfect. After taking the breath test, drivers have a right to have a physician or their choice evaluate their condition and perform laboratory (blood) tests to determine any level of intoxication.

​But the police will not tell you about this right. Additionally, the Nebraska Supreme Court has recognized, “the police cannot hamper” your efforts to enforce this right. But, the police do not have to transport you anywhere to have these evaluations and tests performed.
No. There is no statute or court decision that provides that the police must allow you access to a telephone in order for you to speak to a DUI attorney for advice and assistance. However, you do have the right to stop all interrogation questions until your lawyer is present.

When does a person arrested for DUI have a right to an attorney?

This touches on rights under our Constitution (both United States and Nebraska). This is a complex area of the law and Steve Baxley has taught courses on this topic. But generally, those accused of committing a crime have an absolute right to an attorney at their trial, at sentencing, and on the first appeal. But they don’t necessarily have this right at every pre-trial stage, which precedes the trial. In fact, sometimes a person in custody has a right to assistance of an attorney for one purpose but not for another purpose (i.e., for assistance in answering police interrogation questions, but not for deciding whether or not to take a breath or blood test).

Again very generally, if someone is in police custody, when under arrest (objectively viewed) — even if the person has not been told so — he or she is entitled to be informed of their rights to remain silent, to have assistance of a lawyer prior to and during any questioning, to have a free attorney if they are financially unable to hire one, and to stop any questioning until they can consult with their lawyer.