A Nebraska DUI Stop – Knowing What to Expect

A NEBRASKA STOP – KNOWING

WHAT TO EXPECT

Thomas M. Petersen Omaha DUI Attorney

Knowing What to Expect Won’t Make a Nebraska DUI Stop Enjoyable; However, It Might

Make You Feel More In Control of the Situation and Somewhat Less Frightened

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Regardless of whether you have been drinking or not, seeing the flashing

red lights in the mirror and being stopped because a law enforcement

officer suspects you are driving under the influence can be a frightening

experience. Despite the proliferation of reality television shows that focus

on police stops, the average person still has no real idea what to expect if

pulled over on suspicion of driving under the influence, or DUI. Knowing

what to expect won’t make a Nebraska DUI stop enjoyable; however, it

might make you feel more in control of the situation and somewhat less

frightened.

WHEN CAN AN OFFICER STOP YOU?

Contrary to popular belief,

the law does not allow a

law enforcement officer to

pull you over without cause.

In the United States, we

have certain rights and

protections which are found

in the U.S. Constitution.

Most of our rights are found in the first ten amendments to the

Constitution which are collectively known as The Bill of Rights. The Fourth

Amendment is where the right against unreasonable searches and seizures

is found. Though the founding fathers did an amazing job with the Bill of

Rights, they could not possibly envision all the possible scenarios under

which the Fourth Amendment could apply. Searching a vehicle, for

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example, was not something they could have considered. The Supreme

Court of the United States, or SCOTUS, has therefore been required to

interpret the Fourth Amendment (and other rights) and its applicability to

modern day scenarios such as the search of a vehicle. Decades ago

SCOTUS decided that because a motorist should not have a high

expectation of privacy when operating a motor vehicle on a public

roadway, a warrant is not required to search of a vehicle. Just because an

officer is not required to obtain a warrant before searching your vehicle,

however, does not mean the officer can do so without a reason.

In Nebraska, an officer must have “reasonable suspicion” in order to make

a legal stop and search of your vehicle. Whether or not “reasonable

suspicion” existed at the time of the stop is important because if the stop

was not legal then any evidence obtained as a result of the stop could be

suppressed, or kept out of a trial. Exactly what constitutes “reasonable

suspicion” is something that has been argued and debated for decades.

Often, a simple traffic infraction serves as the “reasonable suspicion”

necessary to make what is clearly a DUI stop legal. In addition, DUI

checkpoints are an exception to the “reasonable suspicion” requirement,

though there are very strict rules regarding how, when, and where

checkpoints may occur. A Nebraska DUI attorney can evaluate the facts of

your case and tell you if the officer may have lacked the reasonable

suspicion required for a legal stop.

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FIELD SOBRIETY TESTS

Once an officer has made the decision

to pull you over, he or she will typically

ask you some routine questions and

ask to see your license and

registration. At some point during this

“conversation” the officer will probably

ask you if you have had anything to

drink today. The question is frequently

asked in a non-threatening manner

aimed at eliciting a positive response from the driver. The law does not

prohibit drinking an alcoholic beverage and then driving. The law makes it

illegal to drive while “under the influence of alcohol” or with a blood alcohol

content (BAC) of 0.08 or higher. Despite this, if you admit that you have

consumed alcohol within the last 24 hours it will almost certainly lead to

additional questioning, testing, and possibly an arrest. Whether as a result

of your answers or for other reasons, if the officer suspects that you are

driving under the influence the officer will typically ask you to perform a

series of “field sobriety tests”, or FSTs. The most commonly used FSTs are

those that have been approved by the National Highway Traffic Safety

Administration, or NHTSA, and include:

Horizontal gaze nystagmus test – often referred to as the HGN

test, in this test the officer will use an object (often a pen) and move

it from side to side in front of your face while you follow it with your

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eyes only. The officer is looking for nystagmus which is in involuntary

“bouncing” or “twitching” of the eye that commonly occurs when

under the influence of alcohol.

One-leg stand— for this test you are required to stand on one leg

with the other leg pulled up about six inches while counting out loud

to thirty. Your arms cannot be used for balance.

Walk and turn – this test requires you to walk a straight-line heel to

toe for nine steps. After step nine you pivot and return along the

same line. Again, your arms cannot be used for balance.

An officer may also use non-standard tests such as asking you to recite the

alphabet backwards, touch your finger to your nose, or stand with your

feet together and tip your head backward. These tests, however, do not

carry as much weight in a court of law as the standardized tests do. Finally,

the officer may ask you to submit to a portable breath test. This is simply a

miniature field version of the breathalyzer that you will be asked to submit

to once at the station. Although the result of a portable breath test may

give the officer cause to arrest you, the results are not admissible in court.

BREATH OR BLOOD TESTS

If the officer decides to arrest you the next step is to perform a blood or

breathalyzer test, at the officer’s discretion. This type of invasive testing

would normally require the officer to obtain a warrant first. However, a

motorist gives his or her “implied consent” to submit to the test when

obtaining a Nebraska driver’s license. In essence, the law says that you’ve

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already consented to a breathalyzer, blood, or urine test when you obtain

your driver’s license. This does not mean that you cannot refuse the test;

however, refusing a breathalyzer carries with it its own set of legal

consequences. In Nebraska, your license will be impounded for 90 days by

the Court and revoked for 1 year by the Department of Motor Vehicles for

a first refusal. These penalties are in addition to any other penalties the

court orders if you are ultimately found guilty of DUI.

The purpose of the breath, blood, or urine test is to check for alcohol in

your system. Nebraska Revised Statute 60-6,196 makes it illegal to operate

a vehicle:

While under the influence of alcoholic liquor or of any drug.

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.

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.

DEFENSES TO A DUI ARREST

As you may now realize, much of what forms the basis for a DUI stop and

arrest is subjective, meaning that the officer involved in the arrest is

responsible for forming an opinion or reading results of tests. Even the

more elaborate breath test performed at the station offers numerous

avenues for a challenge by an experienced Nebraska DUI attorney. The

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results of FSTs can be challenged in a wide variety of ways. Several

studies, for example, have shown that results of FSTs are often inaccurate

if the subject has a medical condition, is overweight, or does not have the

mental capacity to understand the instructions. Despite the fact that the

FSTs are standardized, no two officers administer the tests the exact same

way nor do they interpret them the exact same way. When it comes to the

breath test given after an arrest, the results may be inaccurate if the

machine was not properly calibrated or the examiner made an error during

the administration of the test. For all of these reasons it is in your best

interest to have an experienced attorney review the facts and

circumstances surrounding your DUI stop and arrest.

Although being pulled over and ultimately arrested for a Nebraska DUI is

undoubtedly a scary occurrence, it does not necessarily mean you will be

convicted for DUI. The key to defending yourself in a DUI prosecution is to

consult with an experienced Nebraska DUI attorney early in in the process

to find out what legal avenues of defense you may have.

AAA DUI Justice Link, Standard Field Sobriety Tests

Nebraska Legislature, Nebraska Revised Statute 60-6,196

NOLO, DUI: Refusal to Take a Blood, Breath, or Urine Test

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About the Author

Thomas M. Petersen

Omaha DUI Attorney

For almost two decades Nebraska attorney Thomas M.

Petersen of Petersen Law Offices has been defending

individuals charged with driving under the influence, or

DUI. As a result of his dedication to defending his clients,

Attorney Petersen was recently selected as one of the top

50 DUI attorneys in Nebraska. If you have been charged

with an Omaha, Cass County, or Sarpy County, Nebraska,

contact the Nebraska DUI team today by calling 402-513-2180 or by filling out our

online contact form for a free evaluation of your case.

12020 Shamrock Plaza Suite #105

Omaha, Nebraska 68154

Phone: (402) 513-2180 (CALL 24/7)

Website: www.duiattorneysomaha.com