(1) Because persons who drive while under the influence of alcohol present a hazard to the health and safety of all persons using the highways, a procedure is needed for the swift and certain revocation of the operator’s license of any person who has shown himself or herself to be a health and safety hazard (a) by driving with an excessive concentration of alcohol in his or her body or (b) by driving while under the influence of alcohol.
(2) If a person arrested as described in subsection (2) of section 60-6,197 refuses to submit to the chemical test of blood, breath, or urine required by section 60-6,197, the test shall not be given except as provided in section 60-6,210 for the purpose of medical treatment and the arresting peace officer, as agent for the Director of Motor Vehicles, shall verbally serve notice to the arrested person of the intention to immediately confiscate and revoke the operator’s license of such person and that the revocation will be automatic thirty days after the date of arrest unless a petition for hearing is filed within ten days after the date of arrest as provided in subsection (6) of this section. The arresting peace officer shall within ten days forward to the director a sworn report stating (a) that the person was arrested as described in subsection (2) of section 60-6,197 and the reasons for such arrest, (b) that the person was requested to submit to the required test, and (c) that the person refused to submit to the required test.
(3) If a person arrested as described in subsection (2) of section 60-6,197 submits to the chemical test of blood or breath required by section 60-6,197, the test discloses the presence of alcohol in any of the concentrations specified in section 60-6,196, and the test results are available to the arresting peace officer while the arrested person is still in custody, the arresting peace officer, as agent for the director, shall verbally serve notice to the arrested person of the intention to immediately confiscate and revoke the operator’s license of such person and that the revocation will be automatic thirty days after the date of arrest unless a petition for hearing is filed within ten days after the date of arrest as provided in subsection (6) of this section. The arresting peace officer shall within ten days forward to the director a sworn report stating (a) that the person was arrested as described in subsection (2) of section 60-6,197 and the reasons for such arrest, (b) that the person was requested to submit to the required test, and (c) that the person submitted to a test, the type of test to which he or she submitted, and that such test revealed the presence of alcohol in a concentration specified in section 60-6,196.
(4) On behalf of the director, the arresting peace officer submitting a sworn report under subsection (2) or (3) of this section shall serve notice of the revocation on the arrested person, and the revocation shall be effective thirty days after the date of arrest. The notice of revocation shall contain a statement explaining the operation of the administrative revocation procedure. The peace officer shall also provide to the arrested person an addressed envelope and a petition form which the arrested person may use to request a hearing before the director to contest the revocation. The petition form shall clearly state on its face that the petition must be completed and delivered to the Department of Motor Vehicles or postmarked within ten days after receipt or the person’s right to a hearing to contest the revocation will be foreclosed. The director shall prepare and approve the form for the petition, the addressed envelope, and the notice of revocation and shall provide them to law enforcement agencies.
If the person has an operator’s license, the arresting peace officer shall take possession of the license and issue a temporary operator’s license valid for thirty days. The arresting peace officer shall forward the operator’s license to the department along with the sworn report made under subsection (2) or (3) of this section.
(5)(a) If the results of a chemical test indicate the presence of alcohol in a concentration specified in section 60-6,196, the results are not available to the arresting peace officer while the arrested person is in custody, and the notice of revocation has not been served as required by subsection (4) of this section, the peace officer shall forward to the director a sworn report containing the information prescribed by subsection (3) of this section within ten days after receipt of the results of the chemical test. If the sworn report is not received within ten days, the revocation shall not take effect.
(b) Upon receipt of the report, the director shall serve the notice of revocation on the arrested person by certified or registered mail to the address appearing on the records of the director. If the address on the director’s records differs from the address on the arresting peace officer’s report, the notice shall be sent to both addresses. The notice of revocation shall contain a statement explaining the operation of the administrative revocation procedure. The director shall also provide to the arrested person an addressed envelope and a petition form which the arrested person may use to request a hearing before the director to contest the revocation. The petition form shall clearly state on its face that the petition must be completed and delivered to the department or postmarked within ten days after receipt or the person’s right to a hearing to contest the revocation will be foreclosed. The director shall prepare and approve the form for the petition, the addressed envelope, and the notice of revocation. The revocation shall be effective thirty days after the date of mailing.
(c) If the records of the director indicate that the arrested person possesses an operator’s license, the director shall include with the notice of revocation a temporary operator’s license which expires thirty days after the date of mailing. Any arrested person who desires a hearing and has been served a notice of revocation pursuant to this subsection shall return his or her operator’s license with the petition requesting the hearing. If the operator’s license is not included with the petition requesting the hearing, the director shall deny the petition.
(6)(a) An arrested person’s operator’s license confiscated pursuant to subsection (4) of this section shall be automatically revoked upon the expiration of thirty days after the date of arrest. An arrested person’s operator’s license confiscated pursuant to subsection (5) of this section shall be automatically revoked upon the expiration of thirty days after the date of mailing of the notice of revocation by the director. The arrested person shall postmark or return to the director a petition within ten days after the receipt of the notice of revocation if the arrested person desires a hearing. The petition shall be in writing and shall state the grounds on which the person is relying to prevent the revocation from becoming effective. The hearing and any prehearing conference may be conducted in person or by telephone, television, or other electronic means at the discretion of the director, and all parties may participate by such means at the discretion of the director.
(b) The director shall conduct the hearing within twenty days after a petition is filed. Upon receipt of a petition, the director shall notify the petitioner of the date and location for the hearing by certified or registered mail postmarked at least seven days prior to the hearing date. The filing of the petition shall not prevent the automatic revocation of the petitioner’s operator’s license at the expiration of the thirty-day period. A continuance of the hearing to a date beyond the expiration of the temporary operator’s license shall stay the expiration of the temporary license when the request for continuance is made by the director.
(c) At hearing the issues under dispute shall be limited to:
(i) In the case of a refusal to submit to a chemical test of blood, breath, or urine:
(A) Did the peace officer have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of section 60-6,196 or a city or village ordinance enacted in conformance with such section; and
(B) Did the person refuse to submit to or fail to complete a chemical test after being requested to do so by the peace officer; or
(ii) If the chemical test discloses the presence of alcohol in a concentration specified in section 60-6,196:
(A) Did the peace officer have probable cause to believe the person was operating or in the actual physical control of a motor vehicle in violation of section 60-6,196 or a city or village ordinance enacted in conformance with such section; and
(B) Was the person operating or in the actual physical control of a motor vehicle while having an alcohol concentration in violation of subsection (1) of section 60-6,196.
(7) The director shall adopt and promulgate rules and regulations to govern the conduct of the hearing and insure that the hearing will proceed in an orderly manner. The director may appoint a hearing officer to preside at the hearing, administer oaths, examine witnesses, take testimony, and report to the director. All proceedings before the hearing officer shall be recorded. Upon receipt of the arresting peace officer’s sworn report, the director’s order of revocation has prima facie validity and it becomes the petitioner’s burden to establish by a preponderance of the evidence grounds upon which the operator’s license revocation should not take effect. The director shall make a determination of the issue within seven days after the conclusion of the hearing. A person whose operator’s license is revoked following a hearing requested pursuant to this section may appeal the order of revocation as provided in section 60-498.04.
Constitutionality
This section does not create an unconstitutional classification between those who submit to urine tests and those who submit to blood and breath tests pursuant to this section. Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).
Administrative license revocation statutes are reviewed using the rational relationship standard of review. The administrative license revocation statutes do not violate equal protection, nor do they constitute cruel and unusual punishment. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The Legislature intended administrative license revocation to be a civil sanction, and the sanction is not so punitive in purpose or effect as to negate the Legislature’s intent; therefore, administrative license revocation for failure to submit to a chemical test does not violate double jeopardy. State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).
The purpose of administrative license revocation is to protect the public from the health and safety hazards of driving and to deter drunk driving. Criminal prosecution and punishment following a hearing under this section do not violate the Double Jeopardy Clause of the U.S. Constitution. State v. Young, 249 Neb. 539, 544 N.W.2d 808 (1996).2. Refusal to submit to test
Failure to produce an adequate breath sample constitutes a refusal to submit to breath test. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986).
A motorist’s subsequent offer to take a blood alcohol test previously refused does not nullify or cure such driver’s initial refusal to take the test requested by the arresting officer. Hoyle v. Peterson, 216 Neb. 253, 343 N.W.2d 730 (1984).
Adoption of this section did not change rule that refusal to submit to test may be shown in prosecution for driving while under influence of intoxicating liquor. State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972).3. Rules and regulations
When the applicable rules and regulations are not strictly complied with, the Department of Motor Vehicles cannot obtain the benefit of a presumption that all facts recited in the sworn report are true. Morrissey v. Department of Motor Vehicles, 264 Neb. 456, 647 N.W.2d 644 (2002).
Due process is denied where the rules and regulations governing the administrative license revocation procedure were not on file with the Secretary of State for at least 5 days at the time of the arrest. Dannehl v. Department of Motor Vehicles, 3 Neb. App. 492, 529 N.W.2d 100 (1995).4. Venue
For purposes of subsection (6)(a) of this section, an administrative license revocation hearing is held at the location of the hearing officer. Gracey v. Zwonechek, 263 Neb. 796, 643 N.W.2d 381 (2002).
Pursuant to subsection (6)(a) of this section, generalized objections directed to the method by which a license revocation hearing was being held are not objections to venue. Davis v. Wimes, 263 Neb. 504, 641 N.W.2d 37 (2002).
Subsection (6)(a) of this section is a venue statute. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).
Subsection (6)(a) of this section, establishing the location for administrative license revocation hearings, is a venue statute. A telephonic hearing under the Administrative Procedure Act pertaining to license revocation is subject to the terms of subsection (6)(a) of this section. Muir v. Nebraska Dept. of Motor Vehicles, 260 Neb. 450, 618 N.W.2d 444 (2000).
5. Prima facie case
A sworn statement containing the recitations required by this section establishes a prima facie case under the provisions of the administrative license revocation statutes. McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995).
The burden is upon the state to make a prima facie case for revocation before the director. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).
6. Miscellaneous
Pursuant to subsection (2) of this section, the administrative license revocation process must be based on a valid arrest, because the sworn report which triggers the administrative license revocation must be prepared by an “arresting peace officer” who has “validly arrested” a driver. Young v. Neth, 263 Neb. 20, 637 N.W.2d 884 (2002).
Under subsection (6)(c)(i)(A) of this section, a peace officer must have probable cause prior to revoking a driver’s license for refusal to submit to a chemical test. State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).
Pursuant to subsection (3) of this section, after January 1, 1993, a person who agrees to submit to a chemical test and fails it is subject to automatic administrative license revocation. Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).
The oath to an affidavit is not required to be administered with any particular ceremony, but the affiant must perform some corporal act whereby he consciously takes upon himself the obligation of an oath. Moore v. Peterson, 218 Neb. 615, 358 N.W.2d 193 (1984).
This section simply forstalls a forcible taking of a specimen. Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).
This section is pari materia with section 39-727.03 (transferred to section 60-6,197), and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
When an arrested driver is released before the results of blood alcohol content testing are known to the arresting officer, then under subsection (5)(a) of this section (60-6,205 (Reissue 1993)) the arresting officer is “unable to serve” notice, and the statutory provision allowing service by certified mail by the Department of Motor Vehicles becomes operative. Kuebler v. Abramson, 4 Neb. App. 420, 544 N.W.2d 513 (1996).
Section 60-498.02
Driving under influence of alcohol; revocation of operator’s license; reinstatement; procedure; eligibility for employment driving permit and ignition interlock device.
(1) At the expiration of thirty days after the date of arrest as described in subsection (2) of section 60-6,197 or if after a hearing pursuant to section 60-498.01 the Director of Motor Vehicles finds that the operator’s license should be revoked, the director shall (a) revoke the operator’s license of a person arrested for refusal to submit to a chemical test of blood, breath, or urine as required by section 60-6,197 for a period of one year and (b) revoke the operator’s license of a person who submits to a chemical test pursuant to such section which discloses the presence of a concentration of alcohol specified in section 60-6,196 for a period of ninety days unless the person’s driving record abstract maintained in the department’s computerized records shows one or more prior administrative license revocations on which final orders have been issued during the immediately preceding twelve-year period at the time the order of revocation is issued, in which case the period of revocation shall be one year. Except as otherwise provided in section 60-6,211.05, a new operator’s license shall not be issued to such person until the period of revocation has elapsed. If the person subject to the revocation is a nonresident of this state, the director shall revoke only the nonresident’s operating privilege as defined in section 60-474 of such person and shall immediately forward the operator’s license and a statement of the order of revocation to the person’s state of residence.
(2) At the expiration of thirty days after an order of revocation is entered under subsection (1) of this section, (a) any person whose operator’s license has been administratively revoked for a period of ninety days for submitting to a chemical test pursuant to section 60-6,197 which disclosed the presence of a concentration of alcohol in violation of section 60-6,196 may make application to the director for issuance of an employment driving permit pursuant to section 60-4,130 and (b) any person who submitted to a chemical test pursuant to section 60-6,197 and has his or her operator’s license revoked for ninety days pursuant to subsection (1) of this section is eligible for an order pursuant to section 60-6,211.05 to operate a motor vehicle equipped with an ignition interlock device upon presentation of sufficient evidence to the Department of Motor Vehicles that such a device is installed.
This subsection shall not apply to nor shall any person be eligible for the benefit of this subsection during any period of time during which his or her operator’s license is subject to an administrative revocation order for refusal to submit to a chemical test of blood, breath, or urine as required by section 60-6,197 or is subject to a one-year revocation under subdivision (1)(b) of this section.
(3) A person may have his or her eligibility for a license reinstated upon payment of a reinstatement fee as required by section 60-694.01.
(4)(a) A person whose operator’s license is subject to revocation pursuant to subsection (3) of section 60-498.01 shall have all proceedings dismissed or his or her operator’s license immediately reinstated without payment of the reinstatement fee upon receipt of suitable evidence by the director that:
(i) Within the thirty-day period following the date of arrest, the prosecuting attorney responsible for the matter declined to file a complaint alleging a violation of section 60-6,196 and notified the director by first-class mail or facsimile transmission of such decision and the director received such notice within such period or the notice was postmarked within such period; or
(ii) The defendant, after trial, was found not guilty of violating section 60-6,196 or such charge was dismissed on the merits by the court.
(b) The director shall adopt and promulgate rules and regulations establishing standards for the presentation of suitable evidence of compliance with subdivision (a) of this subsection.
(c) If a charge is filed for a violation of section 60-6,196 pursuant to an arrest for which all proceedings were dismissed under this subsection, the prosecuting attorney shall notify the director by first-class mail or facsimile transmission of the filing of such charge and the director may reinstate an administrative license revocation under this section as of the date that the director receives notification of the filing of the charge, except that a revocation shall not be reinstated if it was dismissed pursuant to section 60-498.01.
Annotations:
Administrative revocation of a driver’s license under this section is a civil sanction and does not constitute punishment for purposes of double jeopardy. State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
Administrative license revocation statutes are reviewed using the rational relationship standard of review. The administrative license revocation statutes do not violate equal protection, nor do they constitute cruel and unusual punishment. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The proscription that there can be no revocation of one’s driver’s license and operating privileges if the refusal to submit to a chemical test is reasonable under the circumstances contained in this section (formerly section 39-669.16 (Reissue 1988)), relates only to administrative license revocations by the Director of Motor Vehicles. In a criminal proceeding, however, the inquiry centers on the existence of reasonable grounds for the arresting officer to believe that an operator was driving while under the influence of alcohol. State v. Boyd, 242 Neb. 144, 493 N.W.2d 344 (1992).
Pursuant to subsection (4) of this section, a Department of Motor Vehicles regulation cannot, as a prerequisite to dismissing an administrative license revocation proceeding, require a prosecuting attorney to provide one of four particular reasons for failing to file a criminal driving under the influence of alcohol charge, as such a requirement modifies, alters, and restricts the provisions of this section. Dozler v. Conrad, 3 Neb. App. 735, 532 N.W.2d 42 (1995).
Section 60-498.03
Operator’s license revocation decision; notice; contents.
(1) The Director of Motor Vehicles shall reduce the decision revoking an operator’s license under sections 60-498.01 to 60-498.04 to writing, and the director shall notify the person in writing of the revocation. The notice shall set forth the period of revocation and be served by mailing it to such person by certified or registered mail to the address provided to the director at the hearing or, if the person does not appear at the hearing, to the address appearing on the records of the director. If the address on the director’s records differs from the address on the arresting peace officer’s report, the notice shall be sent to both addresses.
(2) If the director does not revoke the operator’s license, the director shall immediately notify the person in writing of the decision. The notice shall set forth the time and place the person may obtain his or her license. The notice shall be mailed by certified or registered mail as provided in subsection (1) of this section. No reinstatement fee shall be charged for return of the confiscated operator’s license pursuant to this subsection.
Annotations:
Administrative license revocation statutes are reviewed using the rational relationship standard of review. The administrative license revocation statutes do not violate equal protection, nor do they constitute cruel and unusual punishment. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
A refusal to submit to a chemical test for alcohol occurs when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer’s position in believing that the licensee understood that he was asked to submit to a test and manifested an unwillingness to do so. Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979).
A preliminary refusal followed by a consent to submit to a test for blood alcohol content does not furnish a basis for imposition of the sanction prescribed by the statute if a test was in fact performed and the state was not prejudiced by the delay in performing the test. Sedlacek v. Pearson, 204 Neb. 625, 284 N.W.2d 556 (1979).
Section 60-498.04
License revocation; appeal; notice of judgment.
Any person who feels himself or herself aggrieved because of the revocation of his or her operator’s license under sections 60-498.01 to 60-498.04 may appeal therefrom to the district court of the county where the alleged events occurred for which he or she was arrested in accordance with the Administrative Procedure Act. The district court shall allow any party to an appeal to appear by telephone at any proceeding before the court for purposes of the appeal. Such appeal shall suspend the order of revocation until the final judgment of a court finds against the person so appealing. The court shall provide notice of the final judgment to the Department of Motor Vehicles. The period of revocation shall commence at the time of final judgment of the court for the full period of the time of revocation.
Annotations:
Neither this section nor subsection (2)(a) of section 84-917 provides that its jurisdictional provisions are exclusive. Reiter v. Wimes, 263 Neb. 277, 640 N.W.2d 19 (2002).
Administrative license revocation statutes are reviewed using the rational relationship standard of review. The administrative license revocation statutes do not violate equal protection, nor do they constitute cruel and unusual punishment. Schindler v. Department of Motor Vehicles, 256 Neb. 782, 593 N.W.2d 295 (1999).
The venue requirements of this section governing the right to appeal are mandatory and must be complied with in order for the appellate court to acquire jurisdiction. An appeal from an order of the Director of Motor Vehicles revoking an operator’s license for refusing to take a blood, breath, or urine test must be filed in the district court of the county in which the alleged events occurred for which the operator was arrested. Jackson v. Jensen, 225 Neb. 671, 407 N.W.2d 758 (1987).
On appeal to district court from order of Director of Motor Vehicles under section 39-669.16 (transferred to section 60-6,206) revoking operator’s license, the burden is on licensee to establish ground for reversal. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).
On appeal from order of revocation of a motor vehicle operator’s license under the implied consent law, review is de novo as in equity. Wiseman v. Sullivan, 190 Neb. 724, 211 N.W.2d 906 (1973).
Section 60-4,163
Alcoholic liquor; prohibited operation; effect.
No person shall operate or be in the actual physical control of a commercial motor vehicle while having any alcoholic liquor in his or her body. Any person who operates or is in the actual physical control of a commercial motor vehicle while having any alcoholic liquor in his or her body or who refuses to submit to a test or tests to determine the alcoholic content of his or her blood or breath shall be placed out of service for twenty-four hours, shall be subject to disqualification as provided in sections 60-4,167 and 60-4,168, and shall be subject to prosecution for any violation of sections 60-6,196 and 60-6,197.
Any order to place a person out of service for twenty-four hours issued by a law enforcement officer shall be made pursuant to section 392.5(c) of the federal Motor Carrier Safety Regulations adopted pursuant to section 75-363, as such regulation existed on September 1, 2001.
Section 60-4,164
Alcoholic liquor; implied consent to submit to chemical tests; refusal or failure; penalty; officer; report.
(1) Any person who operates or is in the actual physical control of a commercial motor vehicle upon a highway 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 or breath for the purpose of determining the amount of alcoholic content in his or her blood or breath.
(2) Any law enforcement officer who has been duly authorized to make arrests for violations of traffic laws of this state or of ordinances of any city or village who, after stopping or detaining the operator of any commercial motor vehicle, has reasonable grounds to believe that the operator was driving or in the actual physical control of a commercial motor vehicle while having any alcoholic liquor in his or her body may require such operator to submit to a chemical test or tests of his or her blood or breath for the purpose of determining the alcoholic content of such blood or breath.
(3) Any law enforcement officer who has been duly authorized to make arrests for violations of traffic laws of this state or of ordinances of any city or village may require any person who operates or has in his or her actual physical control a commercial motor vehicle upon a highway in this state to submit to a preliminary breath test of his or her breath for alcoholic content if the officer has reasonable grounds to believe that such person has any alcoholic liquor in his or her body, has committed a moving traffic violation, or has been involved in a traffic accident. Any such person who refuses to submit to a preliminary breath test shall be placed under arrest and shall be guilty of a Class V misdemeanor. Any person arrested for refusing to submit to a preliminary breath test or any person who submits to a preliminary breath test the results of which indicate the presence of any alcoholic liquor in such person’s body may, upon the direction of a law enforcement officer, be required to submit to a chemical test or tests of his or her blood or breath for a determination of the alcoholic content.
(4) Any person operating or in the actual physical control of a commercial motor vehicle who submits to a chemical test or tests of his or her blood or breath which discloses the presence of any alcoholic liquor in his or her body shall be placed out of service for twenty-four hours by the law enforcement officer.
(5) Any person operating or in the actual physical control of a commercial motor vehicle who refuses to submit to a chemical test or tests of his or her blood or breath or any person operating or in the actual physical control of a commercial motor vehicle who submits to a chemical test or tests of his or her blood or breath which discloses an alcoholic concentration of: (a) Four-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or (b) four-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath shall be placed out of service for twenty-four hours by the law enforcement officer, and the officer shall forward to the director a sworn report. The report shall state that the person was operating or in the actual physical control of a commercial motor vehicle, was requested to submit to the required chemical test or tests, and refused to submit to the required chemical test or tests or submitted to the required chemical test or tests and possessed an alcohol concentration at or in excess of that specified by this subsection.
(6) Any person involved in a commercial motor vehicle accident in this state may be required to submit to a chemical test or tests of his or her blood or breath by any law enforcement officer if the officer has reasonable grounds to believe that such person was driving or was in actual physical control of a commercial motor vehicle on a highway in this state while under the influence of alcoholic liquor at the time of the accident. A person involved in a commercial motor vehicle accident subject to the implied consent law of this state shall not be deemed to have withdrawn consent to submit to a chemical test or tests of his or her blood or breath by reason of leaving this state. If the person refuses a test or tests under this section and leaves the state for any reason following an accident, he or she shall remain subject to this section upon return.
(1) Any physician, registered nurse, other trained person employed by a licensed health care facility or health care service defined in the Health Care Facility Licensure Act, a clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as amended, or Title XVIII or XIX of the federal Social Security Act, as amended, to withdraw human blood for scientific or medical purposes, or a hospital shall be an agent of the State of Nebraska when performing the act of withdrawing blood at the request of a peace officer pursuant to section 60-4,164. The state shall be liable in damages for any illegal or negligent acts or omissions of such agents in performing the act of withdrawing blood. The agent shall not be individually liable in damages or otherwise for any act done or omitted in performing the act of withdrawing blood at the request of a peace officer pursuant to such section except for acts of willful, wanton, or gross negligence of the agent or of persons employed by such agent.
(2) Any person listed in subsection (1) of this section withdrawing a blood specimen for purposes of section 60-4,164 shall, upon request, furnish to any law enforcement agency or the person being tested a certificate stating that such specimen was taken in a medically acceptable manner. The certificate shall be signed under oath before a notary public and shall be admissible in any proceeding as evidence of the statements contained in the certificate. The form of the certificate shall be prescribed by the Department of Health and Human Services Regulation and Licensure and such forms shall be made available to the persons listed in subsection (1) of this section.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Section 60-4,164.01
Alcoholic liquor; blood test; withdrawing requirements; damages; liability.
(1) Any physician, registered nurse, other trained person employed by a licensed health care facility or health care service defined in the Health Care Facility Licensure Act, a clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as amended, or Title XVIII or XIX of the federal Social Security Act, as amended, to withdraw human blood for scientific or medical purposes, or a hospital shall be an agent of the State of Nebraska when performing the act of withdrawing blood at the request of a peace officer pursuant to section 60-4,164. The state shall be liable in damages for any illegal or negligent acts or omissions of such agents in performing the act of withdrawing blood. The agent shall not be individually liable in damages or otherwise for any act done or omitted in performing the act of withdrawing blood at the request of a peace officer pursuant to such section except for acts of willful, wanton, or gross negligence of the agent or of persons employed by such agent.
(2) Any person listed in subsection (1) of this section withdrawing a blood specimen for purposes of section 60-4,164 shall, upon request, furnish to any law enforcement agency or the person being tested a certificate stating that such specimen was taken in a medically acceptable manner. The certificate shall be signed under oath before a notary public and shall be admissible in any proceeding as evidence of the statements contained in the certificate. The form of the certificate shall be prescribed by the Department of Health and Human Services Regulation and Licensure and such forms shall be made available to the persons listed in subsection (1) of this section.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Section 60-4,165
Alcoholic liquor; rights of person tested.
The law enforcement officer who requires a chemical test or tests pursuant to section 60-4,164 may direct whether the test or tests will be of blood or breath. The person tested shall be permitted to have a physician of his or her choice evaluate his or her condition and perform or have performed whatever laboratory tests are deemed appropriate in addition to and following the test or tests administered at the direction of the law enforcement officer. If the officer refuses to permit such additional test or tests to be taken, the original test or tests shall not be competent evidence. Upon the request of the person tested, the results of the test or tests taken at the direction of the law enforcement officer shall be made available to him or her.
Section 60-4,166
Alcoholic liquor; chemical test; unconscious person; effect on consent.
Any person who is unconscious or who is in a condition rendering him or her incapable of refusal to submit to a chemical test or tests pursuant to section 60-4,164 shall be deemed not to have withdrawn the consent provided for in such section, and a chemical test or tests may be given.
Section 60-4,167
Alcoholic liquor; officer’s report; notice of disqualification; hearing before director; procedure.
Upon receipt of a law enforcement officer’s sworn report provided for in section 60-4,164, the director shall serve the notice of disqualification to the person who is the subject of the report by registered or certified mail to the person’s last-known address appearing on the records of the director. If the address on the director’s records differs from the address on the arresting officer’s report, the notice of disqualification shall be sent to both addresses. The notice of disqualification shall contain a statement explaining the operation of the disqualification procedure and the rights of the person. The director shall also provide to the person a self-addressed envelope and a petition form which the person may use to request a hearing before the director to contest the disqualification. The petition form shall clearly state on its face that the petition must be completed and delivered to the department or postmarked within ten days after receipt or the person’s right to a hearing to contest the disqualification will be foreclosed. The director shall prescribe and approve the form for the petition, the self-addressed envelope, and the notice of disqualification. If not contested, the disqualification shall automatically take effect thirty days after the date of mailing of the notice of disqualification by the director. Any chemical test or tests made under section 60-4,164, if made in conformity with the requirements of section 60-6,201 shall be competent evidence of the alcoholic content of such person’s blood or breath. The commercial driver’s license of the person who is the subject of the report shall be automatically disqualified upon the expiration of thirty days after the date of the mailing of the notice of disqualification by the director. The director shall conduct the hearing in the county in which the violation occurred or in any county agreed to by the parties. Upon receipt of a petition, the director shall notify the petitioner of the date and location for the hearing by certified or registered mail postmarked at least seven days prior to the hearing date.
After granting the petitioner an opportunity to be heard on such issue, if it is not shown to the director that the petitioner’s refusal to submit to such chemical test or tests was reasonable or unless it is shown to the director that the petitioner was not operating or in the actual physical control of a commercial motor vehicle with an alcoholic concentration in his or her blood or breath equal to or in excess of that specified in subsection (5) of section 60-4,164, the director shall enter an order pursuant to section 60-4,169 revoking the petitioner’s commercial driver’s license and privilege to operate a commercial motor vehicle in this state and disqualifying the person from operating a commercial motor vehicle for the period specified by section 60-4,168.
(1) The director shall reduce the decision disqualifying a commercial driver from operating a commercial motor vehicle pursuant to a hearing under section 60-4,167 to writing and the director shall notify the person in writing of the disqualification within seven days following a hearing. The decision shall set forth the period of disqualification and be served by mailing it to such person by certified or registered mail to the address provided to the director at the hearing or, if the person does not appear at the hearing, to the address appearing on the records of the director. If the address on the director’s records differs from the address on the arresting peace officer’s report, the notice shall be sent to both addresses.
(2) If the director does not disqualify the commercial driver from operating a commercial motor vehicle, the director shall notify the person in writing of the decision within seven days following a hearing. The notice shall be mailed by certified or registered mail as provided in subsection (1) of this section. No reinstatement fee shall be charged.
Section 60-4,167.02
Alcoholic liquor; disqualification; appeal.
Any person who feels himself or herself aggrieved because of such disqualification pursuant to a hearing under section 60-4,167 may appeal to the district court of the county where the alleged violation occurred in accordance with the Administrative Procedure Act. The appeal shall not suspend the disqualification unless a stay is allowed by the court pending a final determination of the review. If a stay is allowed and the final judgment of the court finds against the person appealing, the period of disqualification shall commence at the time of the final judgment of the court for the full period of the time of disqualification.
Section 60-6,196
Driving under influence of alcoholic liquor or drug; penalties.
(1) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of any drug;
(b) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood; or
(c) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath.
(2) Any person who operates or is in the actual physical control of any motor vehicle while in a condition described in subsection (1) of this section shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08.
Cross References:
Applicability of statute to private property,see section 60-6,108.
Conviction of felony involving use of motor vehicle,transmittal of abstract, see section 60-497.02.
Ineligibility for pretrial diversion,see section 29-3604.
Motor vehicle homicide penalty,see section 28-306.
Operator’s license,assessment of points and revocation, see sections 60-497.01, 60-498, and 60-4,182 et seq.
Violation of ordinance,prosecuting attorney, consult victim, see section 29-120.
Annotations:
1. Constitutionality
Driving under the influence of alcoholic liquor or drugs is criminalized under this section, and the fact that a defendant has previously been convicted of such offense is irrelevant to the guilt or innocence of the defendant and is relevant only to the defendant’s sentence. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).
This section is a criminal driving under the influence of alcohol statute and is not part of the statutory scheme for an administrative license revocation. Kalisek v. Abramson, 257 Neb. 517, 599 N.W.2d 834 (1999).
Successive, separate prosecutions under this section for driving while intoxicated and operating a motor vehicle with a suspended license do not violate the Double Jeopardy Clause of the U.S. Constitution. State v. Grimm, 240 Neb. 863, 484 N.W.2d 830 (1992).
This section does not violate equal protection. Proscribing a particular concentration of breath alcohol is not wholly irrelevant to achieving the purpose of prohibiting people from driving while under the influence of drugs or alcohol. The relationship between the classification and its goal is rational. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
Statute is valid exercise of police power, and court in which such conviction is had, is vested with jurisdiction to enforce statutory provisions. Smith v. State, 124 Neb. 587, 247 N.W. 421 (1933).2. Motor vehicle homicide
When the predicate offense for motor vehicle homicide is drunk driving in violation of this section, drunk driving is a lesser-included offense in motor vehicle homicide. State v. Hoffman, 227 Neb. 131, 416 N.W.2d 231 (1987).
Driving an automobile while under the influence of alcoholic liquor was an unlawful act upon which conviction of motor vehicle homicide could be based. Rimpley v. State, 169 Neb. 171, 98 N.W.2d 868 (1959).3. Manslaughter
Death arising from violation of this section may constitute manslaughter. Vaca v. State, 150 Neb. 516, 34 N.W.2d 873 (1948).
Operating motor vehicle while under the influence of intoxicating liquor is an unlawful act under manslaughter statute. Anderson v. State, 150 Neb. 116, 33 N.W.2d 362 (1948).
Conviction of manslaughter was sustained where driver was intoxicated. Benton v. State, 124 Neb. 485, 247 N.W. 21 (1933).
Defendant may be tried and punished under general statute relating to manslaughter, though acts charged may be punishable under this section. Crawford v. State, 116 Neb. 125, 216 N.W. 294 (1927).4. Offense
A half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver’s condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
A violation of this section is one offense, which may be proven in different ways. A person’s breath alcohol concentration may be probative of impairment under subsection (1), as well as proof of a violation of this section based solely on breath alcohol concentration pursuant to subsection (3). State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
An alcohol violation in this section may be proved in either one of two ways: (1) that a person operated or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor; or (2) that a person while driving a motor vehicle or who was in physical control of a motor vehicle had ten-hundredths of one percent or more by weight of alcohol in his/her body fluid as shown by chemical analysis of his/her blood, breath, or urine. State v. Babcock, 227 Neb. 649, 419 N.W.2d 527 (1988).
The substantive offense is driving while under the influence of alcohol or with more than .10 percent of alcohol in one’s body fluid. The number of times a person has previously been convicted of such a charge is not itself a crime but, rather, is a factor which the trial court is to consider in imposing sentence. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
This section defines one offense which can be proved by any of three ways: (1) By proof that the defendant was in physical control of a motor vehicle while under the influence of alcoholic liquor; (2) by proof that the defendant was in physical control of a motor vehicle while under the influence of any drug; or (3) by proof that the defendant was in physical control of a motor vehicle while having ten-hundreths of one percent or more by weight of alcohol in his or her body fluid. State v. Hilker, 210 Neb. 810, 317 N.W.2d 82 (1982).
A violation of this section is either a misdemeanor or a felony and is not a traffic infraction within the meaning of section 39-602(106), R.R.S. 1943 (currently section 60-672). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).
This section defines but one offense which may result from three conditions. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).
This section is pari materia with section 39-727.03 (transferred to section 60-6,197) and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
Operation of motor vehicle while under the influence of intoxicating liquor is a criminal offense. State v. Berg, 177 Neb. 419, 129 N.W.2d 117 (1964).
It is unlawful to operate or be in the actual physical control of any motor vehicle while under the influence of intoxicating liquor. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
Operation of motor vehicle while under the influence of intoxicating liquor is a punishable offense. State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).
Only one crime is defined. Uldrich v. State, 162 Neb. 746, 77 N.W.2d 305 (1956).
Statute defines but one crime, that of operating a motor vehicle while under the influence of alcoholic liquor or drug. Haffke v. State, 149 Neb. 83, 30 N.W.2d 462 (1948).5. Testing/sufficiency of evidence
If a test for the presence of alcohol or drugs is utilized, it is one piece of evidence that the defendant’s ability to operate a motor vehicle is impaired; it is not conclusive under subsection (1)(a) of this section. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, impairment can be shown by observations of witnesses, particularly police officers who are trained to make these observations. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, it is a crime to operate a motor vehicle under the influence of alcoholic liquor or drugs, or both, to a degree that the alcoholic liquor or drugs, or both, appreciably impair the driver’s ability to operate the motor vehicle. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, the phrase “under the influence of alcoholic liquor or of any drug” means the 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. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
Pursuant to subsection (1)(a) of this section, the State is required to prove that the defendant was in actual physical control of a motor vehicle and that the defendant’s ability to operate a motor vehicle was impaired by reason of the influence of alcoholic liquor or of drugs. State v. Falcon, 260 Neb. 119, 615 N.W.2d 436 (2000).
A violation of this section is one offense, but it can be proved in more than one way, i.e., excessive blood alcohol content shown through a chemical test or by evidence of physical impairment plus other well-known indicia of intoxication. State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
Where the evidence established that the defendant was found behind the wheel of a vehicle which was parked on an Interstate off ramp with the engine running and the headlights on, there was sufficient evidence for the trier of fact to establish that the defendant was operating a motor vehicle. State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996).
A half-hour delay in videotaping a licensee suspected of drunk driving was not unreasonable, and the videotape was probative of the driver’s condition regarding whether a violation of this section had occurred, such delay going to the weight and not the admissibility of the videotape. A violation of this section is but one offense, which can be proved in different ways. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
It is not necessary for a conviction for driving under the influence of alcoholic liquor that a sample of blood, breath, or urine show a certain concentration of alcohol in a defendant’s blood, breath, or urine, as those are alternate offenses under this section. Either a law enforcement officer’s observations of the defendant’s intoxicated behavior or the defendant’s poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving while under the influence of alcoholic beverages. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).
A test made in compliance with section 39-669.11 (transferred to section 60-6,201) is sufficient to make a prima facie case on the issue of blood alcohol concentration. Matters of driving and testing are properly viewed as going to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of this section. State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
Circumstantial evidence may be used to establish physical control of a motor vehicle within the meaning of this section. State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987).
A breath test result which is subject to a margin of error must be adjusted so as to give the defendant the benefit of that margin. However, when there is a conflict in the evidence as to what that margin of error actually is, we will affirm the decision of the trier of fact so long as there is sufficient evidence in the record, if believed, to sustain its finding of guilt. State v. Hvistendahl, 225 Neb. 315, 405 N.W.2d 273 (1987).
An alcohol-related violation of this provision may be proved by establishing that one was in actual physical control of a motor vehicle while under the influence of alcohol or that one was in actual physical control of a motor vehicle while having ten-hundreths of 1 percent by weight of alcohol in his or her body fluid. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
Evidence was sufficient to find defendant guilty of driving while under the influence in violation of this section, where he was found asleep at the wheel of an automobile parked in the roadway and appeared intoxicated when awakened. Circumstantial evidence may serve to establish the operation or actual physical control of a motor vehicle, under the provisions of this section. State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986).
Operation or physical control of an auto may be established by circumstantial evidence. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).
Instructions given correctly set forth the elements of driving under influence and driving with ten-hundreths of one percent of alcohol in the body fluid. State v. Tripple, 190 Neb. 713, 211 N.W.2d 920 (1973).
Presumption arising from body fluid test applies only to prosecutions under this section. Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955).
Conviction sustained of drunken driving based in part on evidence of blood test. Schacht v. State, 154 Neb. 858, 50 N.W.2d 78 (1951).
Evidence which went before a jury of a defendant’s failure to pass a chemical breath test for which he was not properly advised of the consequences was prejudicial and constituted plain error so as to require a reversal of the conviction and a remand for a new trial. State v. Hingst, 4 Neb. App. 768, 550 N.W.2d 686 (1996).6. Miscellaneous
“Operate,” as used in this section, refers to the actual physical handling of the controls of the vehicle while under the influence of intoxicating liquor; therefore, it is unlawful for any person to actually physically handle the controls of any motor vehicle while under the influence of alcohol or while having the prohibited amount of alcohol in one’s breath. State v. Baker, 236 Neb. 261, 461 N.W.2d 251 (1990).
As used in this section, the phrase “under the influence of alcoholic liquor” means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Batts, 233 Neb. 776, 448 N.W.2d 136 (1989).
The phrase “under the influence of alcohol” means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987).
The phrase “under the influence of alcoholic liquor,” as used in this provision, means after the ingestion of alcohol in an amount sufficient to impair to any appreciable degree the ability to operate a motor vehicle in a prudent and cautious manner. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
A defendant charged with driving under the influence, pursuant to this section, has only a statutory right to a jury trial, pursuant to section 24-536 (transferred to section 25-2705), for which proper demand is required. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987).
A complaint for violation of this section need not allege that a defendant operated a motor vehicle on a public highway. State v. Golgert, 223 Neb. 950, 395 N.W.2d 520 (1986).
A jury need only be unanimous in its conclusion that the defendant violated the law by committing the act and need not be unanimous as to which of several consistent theories it believes resulted in the violation. State v. Parker, 221 Neb. 570, 379 N.W.2d 259 (1986).
Conviction upon charge of refusal to submit to a chemical test under section 39-669.08 (transferred to section 60-6,197) did not operate to bar defendant’s trial upon charge under this section. State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).
A defendant charged under this section is entitled to a jury trial as provided under section 24-536, R.R.S. 1943 (transferred to section 25-2705). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979).
It was harmless error, if any, for court to accept defendant’s written, all inclusive “Petition to Enter Plea of Guilty” without orally informing him he was waiving a trial by jury. State v. Cooper, 196 Neb. 728, 246 N.W.2d 65 (1976).
This section defines but one offense. State v. Weidner, 192 Neb. 161, 219 N.W.2d 742 (1974).
Under facts in this case, sentence to three years imprisonment was not excessive. State v. Klinkacek, 190 Neb. 293, 207 N.W.2d 524 (1973).
Word operate as used in this section relates to actual physical handling of controls of a motor vehicle. State v. Dubany, 184 Neb. 337, 167 N.W.2d 556 (1969).
Testimony to support conviction may come from a nonexpert witness. State v. Lewis, 177 Neb. 173, 128 N.W.2d 610 (1964).
Instruction given by trial court defining the term under the influence of alcoholic liquor was not erroneous. Langford v. Ritz Taxicab Co., 172 Neb. 153, 109 N.W.2d 120 (1961).
As used in this section, the word operate relates to the actual physical handling of the controls of an automobile. Waite v. State, 169 Neb. 113, 98 N.W.2d 688 (1959).
Instruction defining the meaning of statutory terms was not erroneous. Shanahan v. State, 162 Neb. 676, 77 N.W.2d 234 (1956).
Jury trial for violation of this section could be waived. Peterson v. State, 157 Neb. 618, 61 N.W.2d 263 (1953).
Complaint was not defective because words intoxicating liquor were used instead of words alcoholic liquor. Franz v. State, 156 Neb. 587, 57 N.W.2d 139 (1953).
Driver’s license revoked for one year upon plea of guilty, and plea not set aside upon claim of defendant that she was not advised of her constitutional rights. Kissinger v. State, 147 Neb. 983, 25 N.W.2d 829 (1957).
Section 60-6,197
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; when test administered; refusal; penalty.
(1) 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.
(2) Any peace officer who has been duly authorized to make arrests for violations of traffic laws of this state or of ordinances of any city or village may require any person arrested for any offense arising out of acts alleged to have been committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs 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 when the officer has reasonable grounds to believe that such person was driving or was in the actual physical control of a motor vehicle in this state while under the influence of alcoholic liquor or drugs in violation of section 60-6,196.
(3) Any person arrested as described in subsection (2) of this section may, upon the direction of a peace officer, be required to submit to a chemical test or tests of his or her blood, breath, or urine for a determination of the concentration of alcohol or the presence of drugs. If the chemical test discloses the presence of a concentration of alcohol in violation of subsection (1) of section 60-6,196, the person shall be subject to the administrative revocation procedures provided in sections 60-498.01 to 60-498.04 and upon conviction shall be punished as provided in sections 60-6,197.02 to 60-6,197.08. Any person who refuses to submit to such test or tests required pursuant to this section shall be subject to the administrative revocation procedures provided in sections 60-498.01 to 60-498.04 and shall be guilty of a crime and upon conviction punished as provided in sections 60-6,197.02 to 60-6,197.08.
(4) Any person involved in a motor vehicle accident in this state may be required to submit to a chemical test of his or her blood, breath, or urine by any peace officer if the officer has reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle on a public highway in this state while under the influence of alcoholic liquor or drugs at the time of the accident. A person involved in a motor vehicle accident subject to the implied consent law of this state shall not be deemed to have withdrawn consent to submit to a chemical test of his or her blood, breath, or urine by reason of leaving this state. If the person refuses a test under this section and leaves the state for any reason following an accident, he or she shall remain subject to subsection (3) of this section and section 60-498.02 upon return.
(5) Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged.
(6) 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.
Cross References:
Applicability of statute to private property,see section 60-6,108.
Conviction of felony involving use of motor vehicle,transmittal of abstract, see section 60-497.02.
Ineligibility for pretrial diversion,see section 29-3604.
Operator’s license,assessment of points and revocation, see sections 60-497.01, 60-498, and 60-4,182 et seq.
Violation of ordinance,prosecuting attorney, consult victim, see section 29-120.
Annotations:
1. Constitutional
Implied Consent Law as amended in 1971 does not involve compulsion within Fifth Amendment; is constitutional; and penalties are as provided in section 39-727 (transferred to section 60-6,196). State v. Manley, 189 Neb. 415, 202 N.W.2d 831 (1972).
Implied Consent Law held constitutional. State v. Williams, 189 Neb. 127, 201 N.W.2d 241 (1972).2. Effective
The preliminary test referred to in section 60-6,197.04 (formerly subsection (3) of section 60-6,197) is a different procedure and not a chemical test that will satisfy requirements for a conviction under subsection (3) (formerly subsection (4) of this section). State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).
Offering of a preliminary breath test under section 39-669.08 (3) (transferred to section 60-6,197) herein, is not a condition precedent to an arrest under this section. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).
For implied consent to be effective, person from whom blood sample is taken must have been arrested or taken into custody before test is given. State v. Baker, 184 Neb. 724, 171 N.W.2d 798 (1969).
For implied consent to be effective, person must have been arrested or taken into into custody before the test may be demanded. Prigge v. Johns, 184 Neb. 103, 165 N.W.2d 559 (1969).
For implied consent to be effective, person from whom blood sample is taken must have been arrested or taken into custody before test is given. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).3. Test
A refusal to submit to a chemical test occurs within the meaning of subsection (4) of this section when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer’s position in believing that the licensee understood that he was being asked to submit to a test and manifested an unwillingness to take it. State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988).
The choice of whether one’s blood or urine shall be tested for determination of alcohol content belongs to the licensee; a licensee who, upon the request of a law enforcement officer to do so, refuses to specify which fluid he or she will produce for such testing has refused to submit to a chemical test in violation of subsection (4) of this section. State v. Beerbohm, 229 Neb. 439, 427 N.W.2d 75 (1988).
It is established that as a condition precedent to a valid request by an officer to submit to a chemical test under the implied consent law, the arresting officer must have “reasonable grounds” to believe that the licensee was either driving a motor vehicle or in actual physical control of same while under the influence of intoxicating liquor. Larson v. Jensen, 228 Neb. 799, 424 N.W.2d 352 (1988).
A person is not exempted from the provisions of the refusal statute merely because he was too intoxicated to take the test. State v. Medina, 227 Neb. 736, 419 N.W.2d 864 (1988).
Anything less than an unqualified, unequivocal assent to an officer’s request to submit to a chemical test constitutes a refusal. State v. Medina, 227 Neb. 736, 419 N.W.2d 864 (1988); Clontz v. Jensen, 227 Neb. 191, 416 N.W.2d 577 (1987).
Deputy had reasonable grounds to request that defendant submit to a chemical test of his blood, breath, or urine where the defendant was observed under circumstances from which the trier of fact could find beyond a reasonable doubt that the defendant had driven while under the influence of alcoholic liquor, in violation of section 39-669.07 (transferred to section 60-6,196). State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986).
A refusal to submit to a chemical test occurs within the meaning of the implied consent law when the licensee, after being asked to submit to a test, so conducts himself as to justify a reasonable person in the requesting officer’s position in believing that the licensee understood he was being asked to submit to a test and manifested an unwillingness to take it. Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986).
Where no issue as to the propriety of an arrest is raised and the evidence of the preliminary breath test is relevant only for the limited purpose of establishing probable cause to require a driver to submit to a test of his blood, urine, or breath, the admissibility of the preliminary breath test is a matter of law and should therefore be admitted into evidence out of the presence of the jury. State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986).
Reasonable grounds for arrest and arrest are conditions precedent to a valid request to submit to a chemical test. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
A condition precedent to a valid request by an officer to submit to a chemical test is that the officer must have reasonable grounds to believe that the licensee was either driving a motor vehicle or in the actual physical control of same while under the influence of alcoholic liquor. Emmons v. Jensen, 221 Neb. 444, 378 N.W.2d 147 (1985).
A delay in chemical testing is nonprejudicial unless it materially affects the results of the test. Jamros v. Jensen, 221 Neb. 426, 377 N.W.2d 119 (1985).
Justifiable refusal to take a body fluids test depends on some illegal or unreasonable aspect of the request to submit, the test itself, or both. A conditional refusal is a refusal under Nebraska’s implied consent law. A motor vehicle driver is not entitled to consult a lawyer before submitting to a body fluids test because the suspension of a driver’s license which results from refusal is a remedial, not strictly punitive, measure. Bapat v. Jensen, 220 Neb. 763, 371 N.W.2d 742 (1985).
Under the Nebraska Implied Consent Law, an officer may provide more than one opportunity to acquire a sufficient breath sample, even though only one chance is necessary. Raymond v. Department of Motor Vehicles, 219 Neb. 821, 366 N.W.2d 758 (1985).
Only tests taken pursuant to class A or B permits are such a chemical test as to comport with the requirement of subsection (1) of this section and a chemical analysis as to comport with section 39-669.07 (transferred to section 60-6,196). The preliminary test referred to in subsection (3) of this section is a different procedure and not such a chemical test or chemical analysis as to satisfy requirements for a conviction under section 39-669.07 (transferred to section 60-6,196). State v. Green, 217 Neb. 70, 348 N.W.2d 429 (1984).
An operator has refused to submit to a test when he conducts himself in a way which would justify a reasonable person in believing that he understood he had been asked to take the test and manifested an unwillingness to take it. Bauer v. Peterson, 212 Neb. 174, 322 N.W.2d 389 (1982).
The results of a test made under the provisions of section 39-669.08 (transferred to section 60-6,197) may be received in evidence only if the requirements of section 39-669.11 (transferred to section 60-6,201) are met. In order to show that the requirements have been met it is necessary to show that the method of performing the test was approved by the Nebraska Department of Health and that the person administering the test was qualified and had a valid license from the Department of Health. State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980).
The revocation of a motorist’s license to operate a motor vehicle for his refusal to take test under this section on the ground that he has been denied the services of legal counsel is not a deprivation of a constitutional right. Rusho v. Johns, 186 Neb. 131, 181 N.W.2d 448 (1970).
Test under this section is not required to be delayed at request of arrested motorist until he be permitted to contact legal counsel. State v. Oleson, 180 Neb. 546, 143 N.W.2d 917 (1966). “Chemical test or tests” may refer to a test conducted with chemicals. However, the term also encompasses a test that determines the chemical composition of a person’s blood, breath, or urine. State v. Crabtree, 3 Neb. App. 363, 526 N.W.2d 688 (1995).
Subsection (2) of this section, previously codified at subsection (2) of section 39-669.08, does not require and section 60-6,204, previously codified at section 39-669.14, was interpreted as not requiring a valid preliminary breath test as a prerequisite to chemical testing of a person arrested for driving under the influence. In this section, “chemical test,” as previously codified at section 39-669.08, was interpreted to be a test to determine the body fluid levels of a certain chemical, as well as a test utilizing chemicals. State v. Cash, 3 Neb. App. 319, 526 N.W.2d 447 (1995).4. Implied consent
The giving of a sample under this section does not involve a question of involuntariness, want of due process, or self incrimination. State v. Turner, 263 Neb. 896, 644 N.W.2d 147 (2002).
Under subsection (5) (formerly subsection (10) of this section), a person arrested for driving under the influence must be advised that refusal to submit to a chemical test is a separate crime for which the person may be charged, but he or she need not be advised of any additional consequences of a refusal to submit to a chemical test. State v. Turner, 263 Neb. 896, 644 N.W.2d 147 (2002).
Pursuant to subsection (5) (formerly subsection (10) of this section), substantial compliance with the statute will suffice under certain circumstances. State v. Roucka, 253 Neb. 885, 573 N.W.2d 417 (1998).
Pursuant to subsection (10) of this section (60-6,197 (Reissue 1993)), a driver-arrestee who is required to submit to a chemical blood, breath, or urine test under this section should be advised of the natural and direct legal consequence of submitting to a chemical test. Such consequences include that any incriminating results from such a test may be used against the person in a criminal proceeding. State v. Christner, 251 Neb. 549, 557 N.W.2d 707 (1997).
A sensible reading of subsection (10) of this section (60-6,197 (Reissue 1993)) indicates that the Legislature intended drivers to be advised of the natural and direct legal consequences flowing from submitting to a chemical blood, breath, or urine test and failing it. State v. Emrich, 251 Neb. 540, 557 N.W.2d 674 (1997).
Advisory form under subsection (10) of this section (60-6,197 (Reissue 1993)) must fully advise a motorist of the consequences of both refusing to submit to a chemical breath test and of submitting to and failing such test, and the failure of the advisory form to do so is plain error. Perrine v. State, 249 Neb. 518, 544 N.W.2d 364 (1996).
Pursuant to subsection (10) of this section (60-6,197 (Reissue 1993)), advisory form signed by motorist which failed to mention consequences fails to meet the advisory requirements set forth in this section. Biddlecome v. Conrad, 249 Neb. 282, 543 N.W.2d 170 (1996).
Subsection (10) of this section (60-6,197 (Reissue 1993)) requires an arresting officer to advise the arrestee of the natural and direct legal consequences of refusing to submit to the chemical test or taking the test and failing it. Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).
One cannot evade the effect of this section simply by repeatedly screaming, while the implied consent form is read to him or her, that he or she does not understand. For purposes of enhancement, a knowing and intelligent waiver of counsel may not be inferred from a defendant’s pro se appearance at trial in a prior conviction. At a minimum, a sufficiently complete checklist or other docket entry may be used to establish a valid waiver of counsel as to prior convictions for enhancement purposes. State v. Green, 238 Neb. 328, 470 N.W.2d 736 (1991).
Under subsections (3) and (4) of this section, evidence obtained from a driver by testing body fluids in the implied consent context is not testimonial or communicative in nature and does not fall within the constitutional right against self-incrimination. State v. Green, 229 Neb. 493, 427 N.W.2d 304 (1988).
Without an implied consent advisement a motorist cannot be cited for a refusal. Jamros v. Jensen, 221 Neb. 426, 377 N.W.2d 119 (1985).
In the absence of a valid authorizing statute, the results of a test of blood for alcoholic content are inadmissible where the blood sample is taken involuntarily and requirements of the Fourth Amendment to the United States Constitution have not been satisfied. State v. Howard, 193 Neb. 45, 225 N.W.2d 391 (1975).
Implied Consent Law as amended in 1971 does not involve compulsion within Fifth Amendment; is constitutional; and penalties are as provided in section 39-727, 1971 Supp. State v. Manley, 189 Neb. 415, 202 N.W.2d 831 (1972).
This section, by its terms, applies to situations where there is no actual consent. State v. Seager, 178 Neb. 51, 131 N.W.2d 676 (1964).
This section sets forth the implied consent rule. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
Any person who operates a motor vehicle upon a public highway thereby gives consent to chemical test of blood or urine. Prucha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).
Drawing of blood sample by physician who had been directed to act as coroner’s physician from body of fatally injured passenger in automobile did not violate prohibition against unreasonable searches and seizures, and result of tests performed by competent chemist using accepted procedures and facilities were admissible. Gardner v. Meyers, 491 F.2d 1184 (8th Cir. 1974).5. Miscellaneous
A sentencing court, as part of its judgment of conviction under the implied consent law, in addition to ordering the convicted person not to drive any vehicle in the state for any purpose for 6 months, shall order that the operator’s license of such person be revoked for a like period. The proscription that there can be no revocation of one’s driver’s license and operating privileges if the refusal to submit to a chemical test is reasonable under the circumstances contained in section 39-669.16 (Transferred to section 60-6,206), relates only to administrative license revocations by the Director of Motor Vehicles. In a criminal proceeding, however, the inquiry centers on the existence of reasonable grounds for the arresting officer to believe that an operator was driving while under the influence of alcohol. State v. Boyd, 242 Neb. 144, 493 N.W.2d 344 (1992).
An officer can require a driver to submit to a preliminary breath test without proof of intoxication if the officer has reasonable grounds to believe that such person has committed a moving traffic violation and/or has been involved in a traffic accident. State v. Lowrey, 239 Neb. 343, 476 N.W.2d 540 (1991).
Subsection (4)(a) of this section and section 39-669.07(b) (transferred to section 60-6,196) require that the relevant periods of revocation of one’s operator’s license not run concurrently with any jail term imposed. Revocation of one’s operator’s license for a period of 180 days does not fulfill the requirement of subsection (4)(a) of this section that revocation be for a period of 6 months. State v. Contreras, 236 Neb. 455, 461 N.W.2d 562 (1990).
Where the elements of a crime defined by statute are set out in an information or complaint, it is sufficient; and if words appear in such information or complaint which might be stricken, leaving a crime sufficiently charged, and such words do not tend to negative any of the essential averments, they may be treated as surplusage and be entirely rejected. State v. Blankenfeld, 229 Neb. 411, 427 N.W.2d 65 (1988).
Officer had reasonable grounds to believe defendant was under influence of alcohol when operating or in control of vehicle. Porter v. Jensen, 223 Neb. 438, 390 N.W.2d 511 (1986).
It is no defense that a licensee asked to submit to a chemical test under the implied consent law does not understand the consequences of refusal or is not able to make a reasoned judgment as to what course of action to take. Pollard v. Jensen, 222 Neb. 521, 384 N.W.2d 640 (1986).
A driver is not entitled to consult with an attorney before submitting to a chemical test under the implied consent law, nor is a delay in the test required due to a driver’s request to consult with an attorney. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
There is no requirement that Miranda warnings be given prior to a request to submit to a chemical analysis of blood, breath, or urine under the Nebraska implied consent law. Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
The trial court must advise a defendant charged with refusal to submit to a chemical test of the penalties for first, second, or third offense. However, when the defendant was charged with, advised of the penalty for, and convicted of first offense refusal, the failure to advise him of the penalties for repeat offenses was not error. State v. Tichota, 218 Neb. 444, 356 N.W.2d 85 (1984).
Conviction under this section did not operate to bar trial upon charge under section 39-669.07 (transferred to section 60-6,196), driving while intoxicated. State v. Stabler, 209 Neb. 298, 306 N.W.2d 925 (1981).
Accused waives his right to choose the type of test by voluntarily taking either the blood or urine test. State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977).
Single request for chemical test is sufficient, but more than one request may be permissible, and request need not be made at scene of arrest. Stender v. Sullivan, 196 Neb. 810, 246 N.W.2d 643 (1976).
On appeal to district court from order of Director of Motor Vehicles under section 39-669.16 (transferred to section 60-6,206) revoking operator’s license, the burden is on licensee to establish ground for reversal. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).
Procedural due process in connection with hearing as to reasonableness of refusal to submit to test was not violated by fact the notice thereof specified the director’s office as the place of hearing but the hearing was held in a different room in the same building and party was advised of the change when he appeared in the director’s office. Atkins v. Department of Motor Vehicles, 192 Neb. 791, 224 N.W.2d 535 (1974).
Emotional upset due to pending divorce was not good reason for actions indicating intoxication and for refusal to submit to chemical test of body fluids. Duffack v. Kissack, 192 Neb. 634, 223 N.W.2d 484 (1974).
It was not necessary to again advise a person of the consequences of refusing to submit to a test after he had been admonished and refused to submit. State v. Twiss, 192 Neb. 402, 222 N.W.2d 108 (1974).
Refusal of request to contact attorney affords no reasonable ground for refusing to take alcoholic test. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
Refusal to submit to test may be shown in prosecution for driving while under influence of intoxicating liquor. State v. Meints, 189 Neb. 264, 202 N.W.2d 202 (1972).
A qualified or conditional consent is not sanctioned nor is a dissent on ground party has taken medicine and doesn’t know what effect it will have. Doran v. Johns, 186 Neb. 321, 182 N.W.2d 900 (1971).
Officer had reason to arrest person who was driving under influence of intoxicating liquor. Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d 843 (1970).
A conditional or qualified refusal to take the test is a refusal to submit to the test within the meaning of the act. State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970).
Section does not sanction qualified or conditional consent; such a consent is in fact a refusal. Preston v. Johns, 186 Neb. 14, 180 N.W.2d 135 (1970).
Plea of guilty under this section does not establish reasonableness of a refusal to submit to a chemical test under Implied Consent Act. Ziemba v. Johns, 183 Neb. 644, 163 N.W.2d 780 (1968).
Conviction of driving while under the influence of intoxicating liquor sustained. State v. Oleson, 180 Neb. 546, 143 N.W.2d 917 (1966).
Sentence imposed was within the limits prescribed by this section. State v. Koziol, 177 Neb. 648, 130 N.W.2d 557 (1964).
Section 60-6,197.01
Driving under influence of alcoholic liquor or drug; second and subsequent violations; restrictions on motor vehicles.
Upon conviction for a second or subsequent violation of section 60-6,196 or 60-6,197, the court shall impose either of the following restrictions on all motor vehicles owned by the person so convicted:
(1)(a) The court shall order the motor vehicle or motor vehicles immobilized at the owner’s expense for a period of time not less than five days and not more than eight months and shall notify the Department of Motor Vehicles of the period of immobilization. Any immobilized motor vehicle shall be released to the holder of a bona fide lien on the motor vehicle executed prior to such immobilization when possession of the motor vehicle is requested as provided by law by such lienholder for purposes of foreclosing and satisfying such lien. If a person tows and stores a motor vehicle pursuant to this subdivision at the direction of a peace officer or the court and has a lien upon such motor vehicle while it is in his or her possession for reasonable towing and storage charges, the person towing the vehicle has the right to retain such motor vehicle until such lien is paid. For purposes of this subdivision, immobilized or immobilization means revocation or suspension, at the discretion of the court, of the registration of such motor vehicle or motor vehicles, including the license plates; and
(b)(i) Any immobilized motor vehicle shall be released by the court without any legal or physical restraints to any registered owner who is not the registered owner convicted of a second or subsequent violation of section 60-6,196 or 60-6,197 if an affidavit is submitted to the court by such registered owner stating that the affiant is employed, that the motor vehicle subject to immobilization is necessary to continue that employment, that such employment is necessary for the well-being of the affiant’s dependent children or parents, that the affiant will not authorize the use of the motor vehicle by any person known by the affiant to have been convicted of a second or subsequent violation of section 60-6,196 or 60-6,197, that affiant will immediately report to a local law enforcement agency any unauthorized use of the motor vehicle by any person known by the affiant to have been convicted of a second or subsequent conviction of section 60-6,196 or 60-6,197, and that failure to release the motor vehicle would cause undue hardship to the affiant.
(ii) A registered owner who executes an affidavit pursuant to subdivision (1)(b)(i) of this section which is acted upon by the court and who fails to immediately report an unauthorized use of the motor vehicle which is the subject of the affidavit is guilty of a Class IV misdemeanor and may not file any additional affidavits pursuant to subdivision (1)(b)(i) of this section.
(iii) The department shall adopt and promulgate rules and regulations to implement the provisions of subdivision (1) of this section; or
(2) As an alternative to subdivision (1) of this section, the court shall order the installation of an ignition interlock device on each of the owner’s motor vehicles if the owner was sentenced to an operator’s license revocation of at least one year and has completed at least one year of such revocation. No license reinstatement may occur until sufficient evidence is presented to the department that an ignition interlock device is installed on each vehicle and that the applicant is eligible for use of an ignition interlock device. The installation of an ignition interlock device shall be for a period not less than six months commencing upon the end of such year of the operator’s license revocation. Notwithstanding any other provision of law, if the owner was convicted of a second or subsequent violation of section 60-6,196 or 60-6,197, no ignition interlock device shall be ordered by any court or state agency under any circumstances until at least one year of the operator’s license revocation shall have elapsed.
Section 60-6,197.02
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; terms, defined; prior convictions; use.
(1) A violation of section 60-6,196 or 60-6,197 shall be punished as provided in section 60-6,197.03. For purposes of sentencing under section 60-6,197.03:
(a) Prior conviction means a conviction for a violation committed within the twelve-year period prior to the offense for which the sentence is being imposed as follows:
(i) For a violation of section 60-6,196:
(A) Any conviction for a violation of section 60-6,196;
(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,196;
(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of section 60-6,196; or
(D) Any conviction for a violation of section 60-6,198; or
(ii) For a violation of section 60-6,197;
(A) Any conviction for a violation of section 60-6,197;
(B) Any conviction for a violation of a city or village ordinance enacted in conformance with section 60-6,197; or
(C) Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of section 60-6,197;
(b) Prior conviction includes any conviction under section 60-6,196, 60-6,197, or 60-6,198, or any city or village ordinance enacted in conformance with any of such sections, as such sections or city or village ordinances existed at the time of such conviction regardless of subsequent amendments to any of such sections or city or village ordinances; and
(c) Twelve-year period means the period computed from the date of the prior offense to the date of the offense which resulted in the conviction for which the sentence is being imposed.
(2) In any case charging a violation of section 60-6,196 or 60-6,197, the prosecutor or investigating agency shall use due diligence to obtain the person’s driving record from the Department of Motor Vehicles and the person’s driving record from other states where he or she is known to have resided within the last twelve years. The prosecutor shall certify to the court, prior to sentencing, that such action has been taken. The prosecutor shall present as evidence for purposes of sentence enhancement a court-certified copy or an authenticated copy of a prior conviction in another state. The court-certified or authenticated copy shall be prima facie evidence of such prior conviction.
(3) For each conviction for a violation of section 60-6,196 or 60-6,197, the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person’s prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.
Annotations:
1. Enhancement
This section (formerly subsection (2) of section 60-6,196) authorizes a trial court to consider prior convictions of a defendant for driving under the influence of alcoholic liquor or drug within the 12 years prior to the offense for which a defendant currently stands trial and is not ex post facto as to a conviction prior to its passage, since an offender subject to enhancement of punishment under this statute is not receiving additional punishment for his or her previous convictions but is being penalized for an offense committed after its passage. This section deals with offenses committed after its passage, permits an inquiry into a defendant’s previous convictions, and in fixing the penalty, does not punish the defendant for previous offenses but for persistence in violating this section. State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (2000).
The language of this section permits a defendant to challenge the validity of a prior driving under the influence conviction offered for purposes of enhancement on the ground that it was obtained in violation of the defendant’s Sixth Amendment right to counsel. State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
Legislative amendments to the length of the cleansing period provided by this section will not implicate vested due process rights of individuals with prior convictions used for enhancement. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).
Prior driving under the influence convictions are not necessary elements of a subsequent driving under the influence charge, but, rather, are used to determine the sentence to be imposed for a later driving under the influence conviction. Thus, the district court did not violate the Double Jeopardy Clause when it remanded a conviction for second-offense driving under the influence to the county court with directions to enter a judgment finding the defendant guilty of third-offense driving under the influence and to sentence her accordingly. State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).2. Offense
In a prosecution under this section (formerly subsection (6) of section 60-6,196) for driving when one’s operator’s license has been revoked pursuant to subdivision (2)(c) of this section, proof of the prior conviction under subdivision (2)(c) is an essential element of the offense, and thus, the State has the burden to prove the prior conviction. A prior third-offense drunk driving conviction may be used as an element of a violation under this section (formerly subsection (6) of section 60-6,196) even though the prior conviction is not subject to a collateral attack. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).
This section is a continuance and affirmation of the previous section 39-669.07. Convictions under section 39-669.07 can be used for the purpose of sentence enhancements under this section. State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).3. Sufficiency of evidence
Subsection (c) of this section (formerly section 39-669.07 (Reissue 1988)) limits the proof which can be used to establish the defendant’s prior driving while under the influence convictions. State v. Jenson, 236 Neb. 869, 464 N.W.2d 326 (1991).4. Miscellaneous
The time limitations for the use of prior driving under the influence convictions set forth in this section do not apply to the use of prior driving under the influence convictions to section 28-306. State v. Tlamka, 7 Neb. App. 579, 585 N.W.2d 101 (1998).
Section 60-6,197.03
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; penalties.
Any person convicted of a violation of section 60-6,196 or 60-6,197 shall be punished as follows:
(1) If such person has not had a prior conviction, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked or impounded for a period of six months from the date ordered by the court. Such revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of sixty days from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05, and such order of probation or sentence suspension shall also include, as one of its conditions, the payment of a four-hundred-dollar fine;
(2) Except as provided in subdivision (4) of this section, if such person has had one prior conviction, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked for a period of one year from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a five-hundred-dollar fine and either confinement in the city or county jail for five days or the imposition of not less than two hundred forty hours of community service;
(3) Except as provided in subdivision (4) of this section, if such person has had two prior convictions, such person shall be guilty of a Class W misdemeanor, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a six-hundred-dollar fine and either confinement in the city or county jail for ten days or the imposition of not less than four hundred eighty hours of community service;
(4) If such person has had one or two prior convictions and, as part of the current violation, had a concentration of sixteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood or sixteen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his or her breath, such person shall be guilty of a Class I misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such person for any purpose for a period of at least one year but not more than fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. The court shall also sentence such person to serve at least thirty days’ imprisonment in the city or county jail or an adult correctional facility.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of at least one year but not more than fifteen years from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a one-thousand-dollar fine and either confinement in the city or county jail for ten days or the imposition of not less than four hundred eighty hours of community service; and
(5) If such person has had three or more prior convictions, such person shall be guilty of a Class IV felony, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked for a period of fifteen years from the date ordered by the court and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. The court shall also sentence such person to serve at least ten days’ imprisonment in the city or county jail or an adult correctional facility.
If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court unless otherwise authorized by an order issued pursuant to section 60-6,211.05 and shall issue an order pursuant to section 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a one-thousand-dollar fine and either confinement in the city or county jail for ten days or the imposition of not less than four hundred eighty hours of community service.
Effective date September 4, 2005.
Annotations:
1. Constitutionality
Permanent license revocation upon the third conviction for drunk driving does not deprive a person of equal protection of the law, due process of law, or the right to travel, nor does it constitute cruel and unusual punishment. State v. Michalski, 221 Neb. 380, 377 N.W.2d 510 (1985).
A defendant is not entitled to a jury trial under provisions of Sixth Amendment to Constitution of the United States in trial for second offense drunk driving hereunder. State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975).
Imposition of greater penalty for subsequent offense is constitutional. Poppe v. State, 155 Neb. 527, 52 N.W.2d 422 (1952).
Legislative amendments to the length of the cleansing period provided by this section will not implicate vested due process rights of individuals with prior convictions used for enhancement. State v. Grant, 9 Neb. App. 919, 623 N.W.2d 337 (2001).
Prior driving under the influence convictions are not necessary elements of a subsequent driving under the influence charge, but, rather, are used to determine the sentence to be imposed for a later driving under the influence conviction. Thus, the district court did not violate the Double Jeopardy Clause when it remanded a conviction for second-offense driving under the influence to the county court with directions to enter a judgment finding the defendant guilty of third-offense driving under the influence and to sentence her accordingly. State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).2. Offense
This section is a continuance and affirmation of the previous section 39-669.07. Convictions under section 39-669.07 can be used for the purpose of sentence enhancements under this section. State v. Sundling, 248 Neb. 732, 538 N.W.2d 749 (1995).
Revocation for 15 years is not an element of the offense of driving with a revoked license under subsection (c) of former section. State v. Reichstein, 233 Neb. 715, 447 N.W.2d 635 (1989).3. Testing/sufficiency of the evidence
Subsection (c) of this section (formerly section 39-669.07 (Reissue 1988)) limits the proof which can be used to establish the defendant’s prior driving while under the influence convictions. State v. Jenson, 236 Neb. 869, 464 N.W.2d 326 (1991).
Under this provision (formerly part of section 60-6,196), a defendant may object to the validity of a prior conviction for enhancement purposes where there is no showing that at the time of the previous conviction he was represented by counsel or knowingly and voluntarily waived the right to counsel. State v. Fraser, 222 Neb. 862, 387 N.W.2d 695 (1986).4. Enhancement
Under the enhancement provisions of this section (formerly subsection (2) of section 60-6,196), a drunk driving offender is not receiving additional punishment for his or her previous convictions, but, rather, the offender is being penalized for persisting in committing the offense of driving while under the influence of liquor. State v. Neiss, 260 Neb. 691, 619 N.W.2d 222 (2000).
This section (formerly subsection (2) of section 60-6,196) authorizes a trial court to consider prior convictions of a defendant for driving under the influence of alcoholic liquor or drug within the 12 years prior to the offense for which a defendant currently stands trial and is not ex post facto as to a conviction prior to its passage, since an offender subject to enhancement of punishment under this statute is not receiving additional punishment for his or her previous convictions but is being penalized for an offense committed after its passage. This section deals with offenses committed after its passage, permits an inquiry into a defendant’s previous convictions, and in fixing the penalty, does not punish the defendant for previous offenses but for persistence in violating this section. State v. Hansen, 258 Neb. 752, 605 N.W.2d 461 (2000).
The language of this section permits a defendant to challenge the validity of a prior driving under the influence conviction offered for purposes of enhancement on the ground that it was obtained in violation of the defendant’s Sixth Amendment right to counsel. State v. Louthan, 257 Neb. 174, 595 N.W.2d 917 (1999).
Pursuant to section 60-6,197.06 (formerly subsection (6) of section 60-6,196), the enhancement rules applicable to offenses committed under subdivision (3) of this section (formerly section 60-6,196(2)(c)) are not applicable to license revocation offenses committed under this section. State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996).
Objections to prior convictions used for enhancement refers only to challenges based on a failure to show that in the prior proceeding defendant had counsel or voluntarily and intelligently waived his or her right to counsel. State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992).
In proceedings under subdivision (3) of this section (formerly subdivision (2)(c) of section 60-6,196) for multiple violations of this section, convictions rendered the same day, if imposed for separate offenses, may each constitute a prior conviction so as to warrant an enhanced penalty. For purposes of determining the 10-year period required by subdivision (2)(c) of this section, the time shall be computed from the date of the prior offense to that date of the offense which resulted in the current conviction. State v. Towler, 240 Neb. 103, 481 N.W.2d 151 (1992).
A previous conviction on appeal at the time the second offense is committed may not be considered a conviction for purposes of the punishment enhancement provisions of this section. State v. Estes, 238 Neb. 692, 472 N.W.2d 214 (1991).
This section (formerly part of section 60-6,196) requires only that a violator be properly convicted of two previous violations, whether the prior violation was called first or second offense. State v. Donaldson, 234 Neb. 683, 452 N.W.2d 531 (1990).
An erroneous designation in a complaint of the date on which and the county in which a prior conviction occurred will not preclude a defendant from being sentenced as one who has previously been convicted of driving while under the influence of alcohol, if the record discloses that the defendant could not have been misled or confused. State v. Wakeman, 231 Neb. 66, 434 N.W.2d 549 (1989).
For enhancement purposes under this section (formerly part of section 60-6,196), the sentencing court shall make a finding on the record concerning the number of defendant’s prior convictions for drunk driving. State v. Snodgrass, 230 Neb. 119, 430 N.W.2d 55 (1988).
For a prior conviction based on a plea of guilty to be used for enhancement purposes in an action under this section (formerly part of section 60-6,196), the record must show that the defendant entered the guilty plea to the charge. State v. Slezak, 226 Neb. 404, 411 N.W.2d 632 (1987).
Checklist evidences defendant’s waiver of counsel and satisfies State’s burden in proving validity of conviction in an enhancement hearing. State v. Thompson, 224 Neb. 922, 402 N.W.2d 271 (1987).
The substantive offense is driving while under the influence of alcohol or with more than .10 percent of alcohol in one’s body fluid. The number of times a person has previously been convicted of such a charge is not itself a crime but, rather, is a factor which the trial court is to consider in imposing sentence. State v. Jameson, 224 Neb. 38, 395 N.W.2d 744 (1986).
A certified copy of a judgment entered on a prior conviction for drunk driving may be used for enhancement purposes. State v. Hamblin, 223 Neb. 469, 390 N.W.2d 533 (1986).
A defendant may not relitigate a former conviction in an enhancement proceeding. State v. Fraser, 222 Neb. 862, 387 N.W.2d 695 (1986).
Under this provision (formerly part of section 60-6,196), the trial court is required to advise the defendant of his right to review the record of the prior conviction, bring mitigating facts to the attention of the court prior to sentencing, and object to the validity of the prior conviction. State v. Fraser, 222 Neb. 862, 387 N.W.2d 695 (1986).
The state has the burden to show only that defendant had or waived counsel at prior proceedings used for enhancement purposes. State v. Soe, 219 Neb. 797, 366 N.W.2d 439 (1985).
A transcript of conviction which fails to show on its face that counsel was afforded or the right waived cannot be used for enhancement purposes. State v. Baxter, 218 Neb. 414, 355 N.W.2d 514 (1984).
Record of an enhancement proceeding for second or third offense driving while intoxicated must show that the requirements of the statute were met. A defendant may waive the rights provided by this statute with regard to prior convictions. State v. Ziemba, 216 Neb. 612, 346 N.W.2d 208 (1984).
In sentencing under this section (formerly part of section 60-6,196) the record of the trial court must show evidence of prior convictions and whether the defendant was represented by counsel or waived such representation in those prior proceedings. State v. Prichard, 215 Neb. 488, 339 N.W.2d 748 (1983).
Where under this section (formerly part of section 60-6,196), proof has been made of a defendant’s conviction on a prior misdemeanor violation of that statute, the defendant cannot raise a collateral attack upon that conviction. State v. Kelly, 212 Neb. 45, 321 N.W.2d 80 (1982).
A defendant may not collaterally attack a prior conviction when proof of that prior conviction is offered in a proceeding on the issue of enhancement of sentence. State v. Voight, 206 Neb. 829, 295 N.W.2d 112 (1980).
Third offender need not have previously been punished as second offender, but must only have been twice previously convicted of driving under the influence. State v. Orosco, 199 Neb. 532, 260 N.W.2d 303 (1977).
Proof of prior convictions was properly made. State v. Ninneman, 179 Neb. 729, 140 N.W.2d 5 (1966).
Compliance with former sentence is not essential to proof of prior conviction. Danielson v. State, 155 Neb. 890, 54 N.W.2d 56 (1952).
Standard waiver forms, once signed by a defendant, are sufficient in an enhancement proceeding to meet the State’s burden of proving that defendant knowingly, intelligently, and voluntarily waived his or her right to counsel. State v. Werner, 8 Neb. App. 684, 600 N.W.2d 500 (1999).
The time limitations for the use of prior driving under the influence convictions set forth in this section do not apply to the use of prior driving under the influence convictions to section 28-306. State v. Tlamka, 7 Neb. App. 579, 585 N.W.2d 101 (1998).
Prior convictions of driving under the influence of alcohol under former section 39-669.07 or ordinances thereunder may properly be used to enhance convictions under this section (formerly part of section 60-6,196), as this section is a mere affirmance of the original act. State v. Sundling, 3 Neb. App. 722, 531 N.W.2d 7 (1995).
A defendant’s allegation that the State failed to show that the defendant was present at an enhancement proceeding pursuant to a prior conviction under this section (formerly part of section 60-6,196) constituted a collateral attack, which could only be raised in a separate proceeding. State v. Jones, 1 Neb. App. 816, 510 N.W.2d 404 (1993).5. Miscellaneous
Under subdivision (3) of this section (formerly subdivision (2)(c) of section 60-6,196) a 15-year revocation is part of the overall punishment of a defendant, in conjunction with the fines and jail terms imposed for the offense under Class W misdemeanors. State v. Bainbridge, 249 Neb. 260, 543 N.W.2d 154 (1996).
Under subdivison (3) of this section (formerly subdivision (2)(c) of section 60-6,196) an order of probation for a person convicted of third-offense driving while under the influence of alcoholic liquor may include a provision not to operate a motor vehicle for any reason whatsoever during the entire term of probation. State v. Seaman, 237 Neb. 916, 468 N.W.2d 121 (1991).
The relevant portion of this section (formerly part of section 60-6,196) directs in clear, plain, simple, and unambiguous words that when one convicted of first-offense driving while intoxicated is placed on probation, he or she shall be ordered not to drive for any purpose for a period of 60 days from the date of the order of probation. State v. Matthews, 237 Neb. 300, 465 N.W.2d 763 (1991).
Revocation of one’s operator’s license for a period of 365 days will not always fulfill the requirement that revocation be for a period of 1 year. State v. Contreras, 236 Neb. 455, 461 N.W.2d 562 (1990).
Credit against statutory minimum sentence for inpatient treatment was erroneous, and it was within the district court’s power to modify the judgment by striking the illegal credit. State v. Oliver, 230 Neb. 864, 434 N.W.2d 293 (1989).
In a case pending appeal when this section was amended, a sentence of lifetime suspension of a driver’s license for driving while under the influence should be vacated and in lieu thereof a sentence of suspension for 15 years imposed. State v. Painter, 224 Neb. 905, 402 N.W.2d 677 (1987).
Where the record did not show the defendant knew the penalty for second offense DUI included a mandatory minimum confinement under subsection (2) (of former section 39-669.07) when he entered his plea, the cause was remanded to determine if the defendant had such knowledge in fact. State v. Stastny, 223 Neb. 903, 395 N.W.2d 492 (1986).
Upon revocation of probation, the court may impose such punishment as may have been imposed originally for the crime of which such defendant was convicted. Resultingly, defendant who was convicted of third offense driving while intoxicated in 1980 and who violated his probation in 1984 was subject to sentencing under the penal statute in effect at the time of his conviction. State v. Jacobson, 221 Neb. 639, 379 N.W.2d 772 (1986).
A defendant’s operator’s license may not be suspended beyond one year from the judgment of conviction; that is, in this case, one year from the date sentence of probation was imposed. State v. Schulz, 221 Neb. 473, 378 N.W.2d 165 (1985).
Under subsection (1) of this section (former section 39-669.07), the court-ordered suspending of driving privileges must be for a continuous period computed from the date the order of probation is entered. State v. Ramirez, 218 Neb. 899, 360 N.W.2d 484 (1984).
A trial court does not have the authority under this section to interrupt the period of suspension or permit one convicted of driving under the influence of alcoholic liquor or drug, first or second offense, to drive for limited work-related purposes. On second offense the period of prohibition against driving must be for a period of six continuous months computed from the date the order of probation is entered. State v. Havorka, 218 Neb. 367, 355 N.W.2d 343 (1984).
A sentence within the statutory maximum will not be disturbed on appeal absent an abuse of discretion. State v. Rosenberry, 209 Neb. 383, 307 N.W.2d 823 (1981).
A sentence validly imposed takes effect from the time it is imposed, and
the subsequent order of the same court vacating that sentence was a nullity. State v. Sliva, 208 Neb. 647, 305 N.W.2d 10 (1981).
Maximum sentence under this statute not excessive in view of defendant’s record. State v. Phillips, 197 Neb. 343, 248 N.W.2d 773 (1977).
Sentence of imprisonment for one year and revocation of driver’s license was not an abuse of discretion by the trial court. State v. Frans, 192 Neb. 641, 223 N.W.2d 490 (1974).
A requirement that one convicted of driving while intoxicated attend and complete and pay for an alcohol abuse course is a valid condition of probation. State v. Muggins, 192 Neb. 415, 222 N.W.2d 289 (1974).
Section 60-6,197.04
Driving under influence of alcoholic liquor or drugs; preliminary breath test; refusal; penalty.
Any peace officer who has been duly authorized to make arrests for violation of traffic laws of this state or ordinances of any city or village may require any person who operates or has in his or her actual physical control a motor vehicle in this state to submit to a preliminary test of his or her breath for alcohol concentration if the officer has reasonable grounds to believe that such person has alcohol in his or her body, has committed a moving traffic violation, or has been involved in a traffic accident. 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.
Annotations:
The preliminary test referred to in this section (formerly subsection (3) of section 60-6,197) is a different procedure and not a chemical test that will satisfy requirements for a conviction under subsection (3) (formerly subsection (4) of section 60-6,197). State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).
Section 60-6,197.05
Driving under influence of alcoholic liquor or drugs; revocation; effect.
Any period of revocation imposed for a violation of section 60-6,196 shall be reduced by any period imposed under section 60-498.02. Any period of revocation imposed under subdivision (1) of section 60-6,197.03 for a violation of section 60-6,196 or under subdivision (2)(a) of section 60-6,196, as such section existed prior to July 16, 2004, shall not prohibit the operation of a motor vehicle under the terms and conditions of an employment driving permit issued pursuant to subsection (2) of section 60-498.02.
Effective date July 16, 2004.
Section 60-6,197.06
Operating motor vehicle during revocation period; penalties.
Any person operating a motor vehicle on the highways or streets of this state while his or her operator’s license has been revoked pursuant to subdivision (3) or (4) of section 60-6,197.03 or pursuant to subdivision (2)(c) or (2)(d) of section 60-6,196 or subdivision (4)(c) or (4)(d) of section 60-6,197, as such subdivisions existed prior to July 16, 2004, shall be guilty of a Class IV felony. If such person has had a conviction under this section or under subsection (6) of section 60-6,196 or subsection (7) of section 60-6,197, as such subsections existed prior to July 16, 2004, prior to the date of the current conviction under this section, such person shall be guilty of a Class III felony.
Effective date July 16, 2004.
Annotations:
1. Constitutionality
A subsequent prosecution of driving while the operator’s license was revoked, after defendant had already been convicted of willful reckless driving and operating a motor vehicle while intoxicated, did not violate the double jeopardy clause, because the State did not prove the entire conduct for which defendant had already been convicted. Willful reckless driving and operating a motor vehicle while intoxicated are not lesser-included offenses of operating a motor vehicle while the operator’s license was revoked, and a subsequent conviction of driving while the operator’s license is revoked would not violate the Blockburger test. State v. Woodfork, 239 Neb. 720, 478 N.W.2d 248 (1991).2. Offense
Starting a vehicle is an act within the meaning of “operating” a motor vehicle under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
Subsection (3) of former section 60-524 does not terminate a court-ordered suspension required as part of a criminal conviction under this section (formerly subsection (6) of section 60-6,196). State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
In a prosecution under this section (formerly subsection (6) of section 60-6,196) for driving when one’s operator’s license has been revoked pursuant to subdivision (2)(c) of this section, proof of the prior conviction under subdivision (2)(c) is an essential element of the offense, and thus, the State has the burden to prove the prior conviction. A prior third-offense drunk driving conviction may be used as an element of a violation under this section (formerly subsection (6) of section 60-6,196) even though the prior conviction is not subject to a collateral attack. State v. Lee, 251 Neb. 661, 558 N.W.2d 571 (1997).3. Testing/sufficiency of the evidence
A certified copy from the Department of Motor Vehicles which shows that a defendant’s operator’s license was revoked is insufficient to show that the defendant either had counsel or waived counsel at the time he was convicted of the prior offense and is therefore insufficient to support a conviction under this section (formerly subsection (6) of section 60-6,196). State v. Watkins, 4 Neb. App. 356, 543 N.W.2d 470 (1996).4. Enhancement
A felony conviction for driving under a suspended license in violation of this section may not be used either to trigger application of the habitual criminal statute or as a prior offense for purposes of penalty enhancement pursuant thereto. State v. Hittle, 257 Neb. 344, 598 N.W.2d 20 (1999).
Pursuant to this section (formerly subsection (6) of section 60-6,196), the enhancement rules applicable to offenses committed under subsection (3) of section 60-6,197.03 (formerly section 60-6,196(2)(c)) are not applicable to license revocation offenses committed under this section. State v. Kennedy, 251 Neb. 337, 557 N.W.2d 33 (1996).
Section 60-6,197.07
Driving under influence of alcoholic liquor or drugs; implied consent to submit to chemical test; city or village ordinances; authorized.
Any city or village may enact ordinances in conformance with sections 60-6,196 and 60-6,197. Upon conviction of any person of a violation of such a city or village ordinance, the provisions of sections 60-6,197.02 and 60-6,197.03 with respect to the operator’s license of such person shall be applicable the same as though it were a violation of section 60-6,196 or 60-6,197.
Effective date July 16, 2004.
Section 60-6,197.08
Driving under influence of alcoholic liquor or drugs; presentence evaluation.
Any person who has been convicted of driving while intoxicated shall, during a presentence evaluation, submit to and participate in an alcohol assessment. The alcohol assessment shall be paid for by the person convicted of driving while intoxicated. At the time of sentencing, the judge, having reviewed the assessment results, may then order the convicted person to follow through on the alcohol assessment results at the convicted person’s expense in addition to any penalties deemed necessary.
Effective date July 16, 2004.
Annotations:
1. Constitutionality
The provision in this section (formerly subsection (8) of section 60-6,196) requiring the convicted person to pay the expense for the treatment which is a portion of the sentencing order is not intended to be a punishment and therefore provides for neither a fine nor a penalty and does not on its face violate the constitutional prohibitions against excessive fines under Neb. Const. art. I, section 9, or disproportionate penalties under Neb. Const. art. I, section 15. State v. Hynek, 263 Neb. 310, 640 N.W.2d 1 (2002).
This section (formerly subsection (8) of section 60-6,196), which authorizes sentencing courts to impose alternative penalties for individuals convicted of certain driving under the influence offenses, when such individuals have undergone an alcohol assessment, does not violate the distribution of powers clause, Neb. Const. art. II, section 1. This section (formerly subsection (8) of section 60-6,196) is held to be harmonious with other sentencing provisions relating to driving under the influence offenses. State v. Divis, 256 Neb. 328, 589 N.W.2d 537 (1999).2. Miscellaneous
The purpose of this section (formerly subsection (8) of section 60-6,196) is to provide (1) an alcohol assessment to individuals who have not previously been assessed for alcohol abuse and (2) a tool for courts to review alcohol assessment results prior to sentencing in order to aid in an effective sentencing decision. In those cases where the county court orders an alcohol assessment pursuant to subsection (8) of this section, the court shall follow the mandated statutory procedure and order the convicted offender to participate in the alcohol assessment prior to sentencing. State v. Hansen, 259 Neb. 764, 612 N.W.2d 477 (2000).
Section 60-6,198
Driving under influence of alcoholic liquor or drugs; serious bodily injury; violation; penalty.
(1) Any person who, while operating a motor vehicle in violation of section 60-6,196 or 60-6,197, proximately causes serious bodily injury to another person shall be guilty of a Class IIIA felony and the court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least sixty days and not more than fifteen years from the date ordered by the court and shall order that the operator’s license of such person be revoked for the same period.
(2) For purposes of this section, serious bodily injury shall mean bodily injury which involves a substantial risk of death, a substantial risk of serious permanent disfigurement, or a temporary or protracted loss or impairment of the function of any part or organ of the body.
Cross References:
Conviction of felony involving use of vehicle,transmittal of abstract, see section 60-497.02.
Annotations:
The material elements of driving under the influence of alcohol and causing serious bodily injury are: (1) the defendant must have been operating a motor vehicle; (2) the defendant must have been operating the vehicle in violation of section 60-6,196 (driving under the influence of alcohol); and (3) the defendant’s act of driving under the influence of alcohol, in violation of section 60-6,196, must proximately cause serious bodily injury. State v. Bartlett, 3 Neb. App. 218, 525 N.W.2d 237 (1994).
Section 60-6,199
Driving under influence of alcoholic liquor or drugs; test; additional test; refusal to permit; effect; results of test; available upon request.
The peace officer who requires a chemical blood, breath, or urine test or tests pursuant to section 60-6,197 may direct whether the test or tests shall be of blood, breath, or urine. The person tested shall be permitted to have a physician of his or her 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. If the officer refuses to permit such additional test to be taken, then the original test or tests shall not be competent as evidence. Upon the request of the person tested, the results of the test or tests taken at the direction of the officer shall be made available to him or her.
Annotations:
1. Required test
An individual required to take a breath test does not have the option of requesting a blood or urine test. State v. Morse, 211 Neb. 448, 318 N.W.2d 893 (1982).
This section which provides that if an officer directs that a test shall be of the person’s blood or urine such person may choose whether the test shall be of blood or of urine, does not require the officer to notify the person of his option and if the person takes one or the other of these tests then he has waived his right to insist that the test to be made by the state be one of his choice. State v. Sommers, 201 Neb. 809, 272 N.W.2d 367 (1978).
An arrest or the taking into custody on a driving offense required before test is administered. State v. Baker, 184 Neb. 724, 171 N.W.2d 798 (1969).
Blood test was properly given and made. State v. Berg, 177 Neb. 419, 129 N.W.2d 117 (1964).
To render blood test admissible in evidence, there must be a compliance with this section. Pierce v. State, 173 Neb. 319, 113 N.W.2d 333 (1962).
Person taken into custody may choose what test shall be given. Purcha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).2. Refusal to take test
If an arrested motorist has refused a chemical test to determine the motorist’s blood-alcohol level in accordance with section 39-699.08(4), (transferred to section 60-6,197) the motorist has no right to a physician’s evaluation of the motorist’s condition or chemical tests in addition to that directed by the law enforcement officer. State v. Clark, 229 Neb. 103, 425 N.W.2d 347 (1988).
An operator has refused to submit to a test when he conducts himself in a way which would justify a reasonable person in believing that he understood he had been asked to take the test and manifested an unwillingness to take it. Bauer v. Peterson, 212 Neb. 174, 322 N.W.2d 389 (1982).
Silence in the face of a direct inquiry as to which test should be administered was equivalent to an express refusal to submit to any test. Johnson v. Dennis, 187 Neb. 95, 187 N.W.2d 605 (1971).3. Additional test
Permitting a requested independent chemical test is foundational to the admission in evidence of the result of the breath test performed by the State. Under this section, the police cannot hamper a motorist’s reasonable efforts to obtain independent chemical testing; however, the police have no statutory duty to transport a licensee for the purpose of obtaining such testing. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).
Statute does not require officer to inform person of his or her privilege to request an independent test. Heusman v. Jensen, 226 Neb. 666, 414 N.W.2d 247 (1987).
An officer is not required to inform the person to be tested of his privilege to request an independent test. State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986).
Statute does not require the officer to inform the person to be tested of his privilege to request an independent test. State v. Miller, 213 Neb. 274, 328 N.W.2d 769 (1983).
Lab results of state’s blood or urine tests are inadmissible if defendant objects after denial of requests for private physician and tests. State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977).
Failure of officer to advise motorist he could obtain additional test following one directed by officer is not excuse for motorist’s failure to submit to test. Zadina v. Weedlun, 187 Neb. 361, 190 N.W.2d 857 (1971).4. Miscellaneous
Result of test should be made available to the defendant but request should be made prior to trial. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
Registered nurse may withdraw blood for a test only if acting under the direction of a physician. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).
Section 60-6,200
Driving under influence of alcoholic liquor or drugs; chemical test; consent of person incapable of refusal not withdrawn.
Any person who is unconscious or who is otherwise in a condition rendering him or her incapable of refusal shall be deemed not to have withdrawn the consent provided by section 60-6,197 and the test may be given.
Source:
Laws 1959, c. 168, § 3, p. 614
R.R.S.1943, § 39-727.05
R.S.1943, (1988), § 39-669.10
Laws 1993, LB 370, § 295
Annotations:
Defendant found incapable of refusing taking of blood sample. Therefore, consent was implied under this statute. State v. Brittain, 212 Neb. 686, 325 N.W.2d 141 (1982).
A refusal to submit to a chemical test for alcohol occurs when the licensee after being asked to submit to a test so conducts himself as to justify a reasonable person in the requesting officer’s position in believing that the licensee understood that he was asked to submit to a test and manifested an unwillingness to do so. Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979).
To constitute a refusal to submit to a chemical test for alcohol requested under this section the only understanding required by the licensee is an understanding that he has been asked to take a test. Wohlgemuth v. Pearson, 204 Neb. 687, 285 N.W.2d 102 (1979).
Where a person is incapable of refusal by reason of injuries the same may be taken provided other conditions of section 39-669.08 (transferred to section 60-6,197) are met. Mackey v. Director of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975).
Blood may be drawn from an unconscious person only upon compliance with the requirements of statutes complimentary hereto. State v. Howard, 193 Neb. 45, 225 N.W.2d 391 (1975).
This section authorizes the taking of test for intoxication even when the defendant is unconscious. State v. Seager, 178 Neb. 51, 131 N.W.2d 676 (1964).
Drawing of blood sample by physician who had been directed to act as coroner’s physician from body of fatally injured passenger in automobile did not violate prohibition against unreasonable searches and seizures, and result of tests performed by competent chemist using accepted procedures and facilities were admissible. Gardner v. Meyers, 491 F.2d 1184 (8th Cir. 1974).
Section 60-6,201
Driving under influence of alcoholic liquor or drugs; chemical test; violation of statute or ordinance; results; competent evidence; permit; fee.
(1) Any test made under section 60-6,197, if made in conformity with the requirements of this section, shall be competent evidence in any prosecution under a state statute or city or village ordinance involving operating a motor vehicle while under the influence of alcoholic liquor or drugs or involving driving or being in actual physical control of a motor vehicle when the concentration of alcohol in the blood or breath is in excess of allowable levels.
(2) Any test made under section 60-6,211.02, if made in conformity with the requirements of this section, shall be competent evidence in any prosecution involving operating or being in actual physical control of a motor vehicle in violation of section 60-6,211.01.
(3) To be considered valid, tests of blood, breath, or urine made under section 60-6,197 or tests of blood or breath made under section 60-6,211.02 shall be performed according to methods approved by the Department of Health and Human Services Regulation and Licensure and by an individual possessing a valid permit issued by such department for such purpose, except that a physician, registered nurse, or other trained person employed by a licensed health care facility or health care service which is defined in the Health Care Facility Licensure Act or clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as such act existed on September 1, 2001, or Title XVIII or XIX of the federal Social Security Act, as such act existed on September 1, 2001, to withdraw human blood for scientific or medical purposes, acting at the request of a peace officer, may withdraw blood for the purpose of a test to determine the alcohol concentration or the presence of drugs and no permit from the department shall be required for such person to withdraw blood pursuant to such an order. The department may approve satisfactory techniques or methods to perform such tests and may ascertain the qualifications and competence of individuals to perform such tests and issue permits which shall be subject to termination or revocation at the discretion of the department.
(4) A permit fee may be established by regulation by the department which shall not exceed the actual cost of processing the initial permit. Such fee shall be charged annually to each permitholder. The fees shall be used to defray the cost of processing and issuing the permits and other expenses incurred by the department in carrying out this section. The fee shall be remitted to the State Treasurer for credit to the Department of Health and Human Services Regulation and Licensure Cash Fund as a laboratory service fee.
(5) Relevant evidence shall not be excluded in any prosecution under a state statute or city or village ordinance involving operating a motor vehicle while under the influence of alcoholic liquor or drugs or involving driving or being in actual physical control of a motor vehicle when the concentration of alcohol in the blood or breath is in excess of allowable levels on the ground that the evidence existed or was obtained outside of this state.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Annotations:
1. Admissibility of test results
Pursuant to subsection (3) of this section, a prerequisite to the validity of a breath test made under section 60-6,197(3), and consequently a prerequisite to the validity of an arrest, is that the test must be performed in accordance with the procedures approved by the Department of Health and Human Services Regulation and Licensure and “by an individual possessing a valid permit issued by such department for such purpose”. McGuire v. Department of Motor Vehicles, 253 Neb. 92, 568 N.W.2d 471 (1997).
It is not necessary for the State to introduce into evidence the actual or a certified copy of an individual’s state Department of Health permit to perform a blood, breath, or urine test of a suspect arrested for driving while under the influence of alcoholic liquor. State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).
A test made in compliance with this section is sufficient to make a prima facie case on the issue of blood alcohol concentration. Matters of driving and testing are properly viewed as going to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of section 39-669.07 (transferred to section 60-6,196). State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).
Compliance with the requirements of this section in the administration of a breath test may affect the admissibility of the test results but does not go to the question of whether a person was justified in refusing to take the test. Raymond v. Department of Motor Vehicles, 219 Neb. 821, 366 N.W.2d 758 (1985).
The requirements of this section are foundational requirements that must be laid before the admission of the test result into evidence; once the court determines that the evidence is to be admitted, weight and credibility are for the jury. State v. West, 217 Neb. 389, 350 N.W.2d 512 (1984).
The results of a test made under the provisions of section 39-669.08 (transferred to section 60-6,197) may be received in evidence only if the requirements of section 39-669.11 (transferred to section 60-6,201) are met. In order to show that the requirements have been met it is necessary to show that the method of performing the test was approved by the Nebraska Department of Health and that the person administering the test was qualified and had a valid license from the Department of Health. State v. Kolar, 206 Neb. 619, 294 N.W.2d 350 (1980); State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980).
Results of chemical tests for alcohol content admissible as evidence under specified conditions. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).
Result of test was competent evidence in prosecution for driving motor vehicle while under the influence of intoxicating liquor. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).
To be admissible in evidence, tests made must meet the requirements prescribed by statute. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).2. Error or tolerance in testing
In order to support a conviction for the offense of drunk driving based solely on a chemical test the result of the chemical test, when taken together with its tolerance for error, must equal or exceed the statutory percentage. State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978).
The Legislature having selected a particular percentage of alcohol to be a criminal offense if present in a person operating a motor vehicle, it is not unreasonable to require that a test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process. State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978).3. Effect of evidence
While the Legislature has the right to prescribe acceptable methods of testing for alcohol content in the body fluid, and perhaps the right to prescribe that such evidence is admissible in a court of law as competent evidence, it is a judicial function to determine whether the evidence, if believed, is sufficient to sustain a conviction. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).
Evidence admitted pursuant to this section does not create a presumption of guilt but may be sufficient to make out a prima facie case on blood alcohol concentration issue. State v. Dush, 214 Neb. 51, 332 N.W.2d 679 (1983).4. Effect of recodification
The substance of section 39-669.11, which requires that driving under the influence of alcohol breath tests be performed according to the Department of Health and Human Services rules, did not change in any material way when it was recodified in this section. State v. Engleman, 5 Neb. App. 485, 560 N.W.2d 851 (1997).
Section 60-6,202
Driving under influence of alcoholic liquor or drugs; blood test; withdrawing requirements; damages; liability; when.
(1) Any physician, registered nurse, other trained person employed by a licensed health care facility or health care service defined in the Health Care Facility Licensure Act, a clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as amended, or Title XVIII or XIX of the federal Social Security Act, as amended, to withdraw human blood for scientific or medical purposes, or a hospital shall be an agent of the State of Nebraska when performing the act of withdrawing blood at the request of a peace officer pursuant to sections 60-6,197 and 60-6,211.02. The state shall be liable in damages for any illegal or negligent acts or omissions of such agents in performing the act of withdrawing blood. The agent shall not be individually liable in damages or otherwise for any act done or omitted in performing the act of withdrawing blood at the request of a peace officer pursuant to such sections except for acts of willful, wanton, or gross negligence of the agent or of persons employed by such agent.
(2) Any person listed in subsection (1) of this section withdrawing a blood specimen for purposes of section 60-6,197 or 60-6,211.02 shall, upon request, furnish to any law enforcement agency or the person being tested a certificate stating that such specimen was taken in a medically acceptable manner. The certificate shall be signed under oath before a notary public and shall be admissible in any proceeding as evidence of the statements contained in the certificate. The form of the certificate shall be prescribed by the Department of Health and Human Services Regulation and Licensure and such forms shall be made available to the persons listed in subsection (1) of this section.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Section 60-6,203
Driving under the influence of alcoholic liquor or drug; violation of city or village ordinance; fee for test; court costs.
Upon the conviction of any person for violation of section 60-6,196 or 60-6,211.01 or of driving a motor vehicle while under the influence of alcoholic liquor or of any drug in violation of any city or village ordinance, there shall be assessed as part of the court costs the fee charged by any physician or any agency administering tests pursuant to a permit issued in accordance with section 60-6,201, for the test administered and the analysis thereof under the provisions of sections 60-6,197 and 60-6,211.02, if such test was actually made.
Section 60-6,204
Driving under influence of alcoholic liquor or drugs; test without preliminary breath test; when; qualified personnel.
Any person arrested for any offense involving the operation or actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs shall be required to submit to a chemical test or tests of his or her blood, breath, or urine as provided in section 60-6,197 without the preliminary breath test if the arresting peace officer does not have available the necessary equipment for administering a breath test or if the person is unconscious or is otherwise in a condition rendering him or her incapable of testing by a preliminary breath test. Only a physician, registered nurse, or other trained person employed by a licensed health care facility or health care service defined in the Health Care Facility Licensure Act or a clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as amended, or Title XVIII or XIX of the federal Social Security Act to withdraw human blood for scientific or medical purposes, acting at the request of a peace officer, may withdraw blood for the purpose of determining the concentration of alcohol or the presence of drugs, but this limitation shall not apply to the taking of a urine or breath specimen.
Cross References:
Health Care Facility Licensure Act,see section 71-401.
Annotations:
While there is no conditional or qualified refusal, if a refusal was reasonable under the circumstances, such refusal cannot be the basis of a revocation of driving privileges. Fear of needles or AIDS does not in and of itself provide a justifiable basis for refusal. If a licensee questions the qualifications of a technician who is to draw blood, the licensee shall be orally or otherwise informed of the technician’s training and experience. A licensee’s refusal to allow a blood draw is justified and reasonable in the absence of oral or other information about the technician’s training and experience after such qualifications have been questioned. Ruch v. Conrad, 247 Neb. 318, 526 N.W.2d 653 (1995).
Certified medical technologist was qualified technician to withdraw blood for purpose of determining alcoholic or drug content therein. State v. Stein, 241 Neb. 225, 486 N.W.2d 921 (1992).
This section is pari materia with section 39-727.03 (transferred to section 60-6,197), and other sections mentioned in opinion. Stevenson v. Sullivan, 190 Neb. 295, 207 N.W.2d 680 (1973).
Implied Consent Law as amended in 1971 does not involve compulsion within Fifth Amendment; is constitutional; and penalties are as provided in section 39-727 (transferred to section 60-6,196). State v. Manley, 189 Neb. 415, 202 N.W.2d 831 (1972).
Section 60-6,211.08
Open alcoholic beverage container; consumption of alcoholic beverages; prohibited acts.
(1) For purposes of this section:
(a) Alcoholic beverage means (i) beer, ale porter, stout, and other similar fermented beverages, including sake or similar products, of any name or description containing one-half of one percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor, (ii) wine of not less than one-half of one percent of alcohol by volume, or (iii) distilled spirits which is that substance known as ethyl alcohol, ethanol, or spirits of wine in any form, including all dilutions and mixtures thereof from whatever source or by whatever process produced. Alcoholic beverage does not include trace amounts not readily consumable as a beverage;
(b) Highway means a road or street including the entire area within the right-of-way;
(c) Open alcoholic beverage container means any bottle, can, or other receptacle:
(i) That contains any amount of alcoholic beverage; and
(ii)(A) That is open or has a broken seal or (B) the contents of which are partially removed; and
(d) Passenger area means the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including any compartments in such area. Passenger area does not include the area behind the last upright seat of such motor vehicle if the area is not normally occupied by the driver or a passenger and the motor vehicle is not equipped with a trunk.
(2) It is unlawful for any person in the passenger area of a motor vehicle to possess an open alcoholic beverage container while the motor vehicle is located in a public parking area or on any highway in this state.
(3) Except as provided in section 53-186, it is unlawful for any person to consume an alcoholic beverage (a) in a public parking area or on any highway in this state or (b) inside a motor vehicle while in a public parking area or on any highway in this state.
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