Nebraska DUI Checkpoints: No Statute, and a Real Limit on the Breath Test

Nebraska handles the suspicionless stop by statute in an unusual way. Section 60-683(4) lets any peace officer, when in uniform, require the driver of a vehicle to stop and exhibit the operator's license and registration certificate issued for the vehicle and submit to an inspection of the vehicle, the license plates and the registration certificate, and to require the driver to present the vehicle within five days for correction of any defects the inspecting officer reasonably believes put the vehicle in violation of Nebraska statutes or the rules of the Director of Motor Vehicles. Section 81-2005(5) grants the Superintendent of Law Enforcement and Public Safety and officers of the Nebraska State Patrol the same power in the same words. The official annotation to section 60-683 records State v. Shepardson, 194 Neb. 673, 235 N.W.2d 218 (1975), holding the section constitutional and reading it to authorize routine stops of motor vehicles to check registration and operator's licenses even where there is no probable cause to believe a violation has occurred or is occurring.

That sits against the ordinary rule for stopping a person. Section 29-829 lets an officer stop a person in a public place only on reasonable suspicion of a crime, and the annotations enforce it: State v. Colgrove, 198 Neb. 319, 253 N.W.2d 20 (1977), found an investigative stop and search of an automobile unconstitutional where the officer had no reasonable suspicion, and State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (1977), held that a mere radio dispatch to stop a vehicle, without proof of factual foundation, does not amount to a reasonably founded suspicion.

The practical rule at a Nebraska checkpoint is section 60-6,197.04. A peace officer authorized to make traffic arrests may require a driver to submit to a preliminary breath test only if the officer has reasonable grounds to believe that the person has alcohol in his or her body, has committed a moving traffic violation, or has been involved in a traffic accident. Those three grounds are the gate. An officer working a lane of stopped cars cannot lawfully demand a preliminary breath test from a driver who shows none of them. The consequences on the other side are heavy: anyone who refuses the preliminary test, and anyone whose preliminary test shows a concentration violating section 60-6,196, shall be placed under arrest, and refusal is itself a Class V misdemeanor.

The evidentiary chemical test comes later and only after arrest. Section 60-6,197(1) deems every person who operates or has actual physical control of a motor vehicle in Nebraska to have consented to a chemical test of blood, breath or urine, but subsection (2) permits an officer to require that test only of a person already arrested for an offense arising out of driving or actual physical control while under the influence, and only where the officer has reasonable grounds to believe the person was driving under the influence in violation of section 60-6,196. Subsection (5) requires the person to be advised that refusal is a separate crime; failure to give that advisement does not affect admissibility of the test result, but it negates the state's ability to bring any criminal refusal charge. Subsection (6) makes a refusal admissible evidence in a prosecution under section 60-6,196 or a conforming city or village ordinance.

Section 60-6,197.02 to 60-6,197.08 supply the criminal penalties, and the administrative track runs in parallel under sections 60-498.01 to 60-498.04. On a refusal or a failed evidentiary test, the arresting officer serves verbal notice, takes the license, issues a fifteen-day temporary operator's license, and forwards a sworn report to the Director of Motor Vehicles within ten days. Revocation is automatic fifteen days after the date of arrest.

04 is a Class V misdemeanor, which section 28-106 caps at a one hundred dollar fine with no imprisonment, and the same sentence of the statute requires that the refusing driver be placed under arrest. 08. The deadline that catches most drivers is administrative rather than criminal. 01(4) requires a petition for an administrative license revocation hearing to be completed and delivered to the Department of Motor Vehicles, or postmarked, within ten days after the arrest, and says in terms that otherwise the right to a hearing contesting the revocation is foreclosed.

That clock runs from arrest, not from the effective date of the revocation fifteen days later. A driving under the influence conviction also carries six points under section 60-4,182(5), and twelve points inside two years brings summary revocation under section 60-4,183. 01(8) allows an immediate application for an ignition interlock permit or a 24/7 sobriety program permit by a person who has not petitioned for a hearing, and section 60-4,115(5)(a) sets the 24/7 sobriety program permit fee at forty-five dollars.