3. Effectiveness of implied consent
4. Test permitted
Any person who operates a motor vehicle in Nebraska is deemed to have given consent to submit to chemical tests for the purpose of determining the concentration of alcohol in the blood, breath, or urine. Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d 731 (2007).
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).
This section is facially constitutional, because there are circumstances under which a conviction for refusal under this section would be valid, such as when law enforcement has obtained a warrant to conduct a blood draw or if exigent circumstances exist such that there is no time to secure a warrant. State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
Under Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), this section is not unconstitutional on its face, but it was unconstitutional as applied to defendant's conviction for refusing to submit to a warrantless chemical blood test, where the U.S. Supreme Court had expressly declared the exception for a warrantless search incident to a lawful arrest for drunk driving to be unconstitutional in regard to a blood test and where there were no exigent circumstances justifying the warrantless blood test. State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
A court may not rely solely on the existence of an implied consent statute to conclude that consent to a blood test was given for Fourth Amendment purposes, and the determination of whether consent was voluntarily given requires a court to consider the totality of the circumstances. State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).
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 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).
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 (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).
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).
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).
3. Effectiveness of implied consent
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 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).
4. Test permitted
Any person arrested for suspicion of driving under the influence of alcohol may be directed by an officer to submit to a chemical test to determine the concentration of alcohol in that person's body. Snyder v. Department of Motor Vehicles, 274 Neb. 168, 736 N.W.2d 731 (2007).
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).
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).
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).
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).
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).
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).
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).
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).
Evidence of a driver's refusal to submit to a warrantless blood draw is admissible in a prosecution for driving under the influence of alcohol. State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).
An arrested motorist refuses to submit to a chemical test when the motorist's conduct, demonstrated under the circumstances confronting the officer requesting the chemical test, justifies a reasonable person's belief that the motorist understood the officer's request for a test and manifested a refusal or unwillingness to submit to the requested test. Betterman v. Department of Motor Vehicles, 273 Neb. 178, 728 N.W.2d 570 (2007).
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).
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).
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).
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).
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).
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).
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).
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).
The "current violation" referred to in section 60-6,197.03(8) may be either a violation of the driving under the influence statute, section 60-6,196, or a violation of this section. State v. Wagner, 295 Neb. 132, 888 N.W.2d 357 (2016).
The elements of driving under the influence and causing serious bodily injury are: (1) The defendant was operating a motor vehicle, (2) the defendant was operating a motor vehicle in violation of section 60-6,196 or this section, and (3) the defendant's act of driving under the influence proximately caused serious bodily injury to another person. State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
The validity of a charge for refusing to submit to a chemical test under subsection (3) of this section depends upon the State's showing a valid arrest under subsection (2). If the arrest was invalid because the police officers lacked probable cause, a conviction for refusing to submit to a chemical test is invalid. State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
The sworn report of the arresting officer must indicate (1) that the person was arrested as described in subsection (2) of this section and the reasons for the arrest, (2) that the person was requested to submit to the required test, and (3) that the person refused to submit to the required test. Nothnagel v. Neth, 276 Neb. 95, 752 N.W.2d 149 (2008).
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).
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 60-498.02), 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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
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).
On appeal to district court from order of Director of Motor Vehicles under section 39-669.16 (transferred to section 60-498.02) 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).
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).
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).
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).
Sentence imposed was within the limits prescribed by this section. State v. Koziol, 177 Neb. 648, 130 N.W.2d 557 (1964).
When a person submits to a chemical test of breath, the required recitations in the sworn report are (1) that the person was arrested as described in subsection (2) of this section—reasonable grounds to believe such person was driving while under the influence of alcoholic liquor or drugs—and the reasons for such arrest, (2) that the person was requested to submit to the required test, and (3) 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. Teeters v. Neth, 18 Neb. App. 585, 790 N.W.2d 213 (2010); Wilson v. Neth, 18 Neb. App. 41, 773 N.W.2d 183 (2009).
For purposes of an administrative license revocation, including a statement in the sworn report that the individual was arrested pursuant to this section does not provide a factual basis for the arrest, because such is a mere legal conclusion. Yenney v. Nebraska Dept. of Motor Vehicles, 15 Neb. App. 446, 729 N.W.2d 95 (2007).
"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).