a nebraska stop - knowing what to expect
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Knowing what to expect won't make a Nebraska stop enjoyable; however, it might make you feel more in control of the situation and somewhat less frightened.TRANSCRIPT
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
A Nebraska Stop – Knowing What to Expect www. duiattorneysomaha.com 2
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
A Nebraska Stop – Knowing What to Expect www. duiattorneysomaha.com 3
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.
A Nebraska Stop – Knowing What to Expect www. duiattorneysomaha.com 4
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
A Nebraska Stop – Knowing What to Expect www. duiattorneysomaha.com 5
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
A Nebraska Stop – Knowing What to Expect www. duiattorneysomaha.com 8
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