In April 2013, the U.S. Supreme Court decided Missouri v. McNeely holding
that the natural dissolution of alcohol in one’s bloodstream does
not necessarily justify a nonconsensual blood draw absent a search warrant.
The defendant in McNeely was stopped for speeding and crossing the centerline.
During the stop, officers became suspicious that McNeely was intoxicated
and asked him to submit to a breath test. He refused. He was then taken
to the hospital where he further declined to consent to a blood draw.
Without first securing a warrant, officers instructed a lab technician
to take a sample.
McNeely argued that the blood draw was a warrantless search in violation
of his Fourth Amendment right to be free from unreasonable searches and
seizures. The state of Missouri, however, argued that because alcohol
naturally dissipates from the bloodstream, evidence of a crime may disappear
while waiting for a warrant and thus the needs of law enforcement to secure
evidence are “so compelling” that a warrantless search and
seizure of one suspected of DUI is not unreasonable.
The Supreme Court rejected Missouri’s argument and instead held that
whether natural dissipation of alcohol in the bloodstream is sufficient
to support a warrantless search and seizure of someone’s blood must
be looked at on a case by case basis, not a broad, all-encompassing rule.
What does that mean for you in Nebraska? Nebraska has what is called an
“Implied Consent” law which means that by operating a motor
vehicle on public roadways, you are agreeing to give consent to a chemical
test of your blood, breath, or urine for the purposes of determining the
concentration of alcohol or presence of drugs. See Nebraska Revised Statute
§ 606,197 (1). This doesn’t mean you are forced to provide
a sample, however. If you affirmatively revoke your consent, officers
are required by Nebraska law not to force you to provide a sample. See
Neb. Rev. Stat. § 60498.01.
Unfortunately, revoking consent is not a “get-out-of-jail-free”
card. If you refuse to submit to a test, your refusal can be charged as
a separate charge and can also be used to “enhance” a driving
under the influence sentence. This means that if you’re convicted
of the underlying DUI, as well as refusal, your sentence could be higher
than the DUI alone. In addition, your license will most likely be revoked
on the spot.
It is important to note, if you are incapacitated or otherwise incapable
of revoking implied consent, officers can still order a blood sample to
be taken. See Mackey v. Director of Dep’t of Motor Vehicles. In
addition, if you are involved in a motor vehicle accident and transported
to a hospital, the results of a blood test given by medical staff for
the purposes of medical treatment can be admissible against you if you’re
suspected of driving under the influence See Neb. Rev. Stat. § 606,210 (1).
What does this mean for McNeely in Nebraska? Luckily, Nebraska law protects
you from law enforcement forcing you to provide a blood sample if you
refuse to submit to a test. McNeely provides you with additional safeguards
against such a warrantless search and seizure of your blood during a DUI
If this sounds complicated, you’re not alone. Luckily, the attorneys
at Berry Law Firm have the knowledge and experience to not only fight
for your rights in court, but explain those rights in a clear and concise
way. If you would like to speak with one of our attorneys, feel free to
call our office at 402.466.8444.