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Anatomy of a DUI Stop

Posted By Berry Law Firm || 22-Jul-2015

The penalties for a conviction of driving under the influence of alcohol in the state of Nebraska are severe. Many times, good people who have only had a few drinks are stopped and arrested for driving under the influence. The consequences can have a long time impact on things such as employment and insurance costs.

In the State of Nebraska, a traffic violation, however minor, “...creates probable cause to stop the driver of the vehicle.” State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006), citing State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005).

This means an officer, upon belief a driver has committed any traffic offense (e.g., speeding, illegal turn, etc.), has the constitutional authority to pull that vehicle over and investigate that offense.

The officer doesn’t even need to be correct about the traffic infraction to justify stopping a vehicle. Restated, even if a person wasn’t committing a traffic infraction (e.g., speeding, illegal turn, etc.) , but the officer believed a person was committing a traffic infraction, there is legal justification to stop that vehicle and speak with the driver about what the officer believed was a traffic violation.

Continued Detention based upon Reasonable Suspicion

In order to expand the scope of a traffic stop and continue to detain a motorist for additional investigation, the officer must have “reasonable, articulable suspicion that the person is involved in criminal activity beyond that which initially justified” the traffic stop. Voichahoske, at 72.

This means in order to investigate the driver for something other than the initial traffic violation (e.g., speeding, illegal turn, etc.), the offer must be able to point to some specific observations that made him or her believe the driver may be involved in other criminal activity.

Several Nebraska cases have analyzed what constitutes reasonable suspicion.

See, for example, State v. Pickinpaugh, 17 Neb. App. 329, 762 N.W.2d 328 (2009), officer had reasonable suspicion to administer field sobriety tests when officer witnessed defendant's bloodshot eyes and slurred speech, listened to his admission that he had consumed alcohol that evening, and had information about his accident with a light pole. State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008), motorist observed to have bloodshot watery eyes, emitted strong odor of alcohol, and admitted to consuming four to five drinks. State v. Lowrey, 239 Neb. 343, 476 N.W.2d 540 (1991), officer had reasonable grounds to believe that defendant was under influence of alcoholic liquor, so as to justify requiring defendant to submit to preliminary test of his breath, based on defendant's failure to yield right-of-way, his involvement in serious automobile accident, odor of alcohol and defendant's bloodshot, watery eyes, and defendant's failure to complete field sobriety tests.

Arrest based upon Probable Cause

In order to arrest a person for driving under the influence, an officer must have probable cause you were under the influence of alcohol.

In State v. Halligan, 222 Neb. 866, 387 N.W.2d 698 (1986), the Nebraska Supreme Court held that an officer's observations of a motorist's bloodshot eyes, slurred speech, and breath with the odor of alcohol constituted probable cause for a valid warrantless arrest for drunk driving. In State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987), after police officer had initially stopped motorist who was weaving in his own lane of traffic, police officer's additional observations of motorist's glazed eyes, slurred speech and alcoholic odor constituted probable cause for believing that motorist was driving while under influence of alcohol, and thus fully supported the administration of field sobriety tests.

Penalties for a first offense, driving under the influence (BAC BELOW .15)

The penalties for a first offense, DUI, vary depending upon whether you want a sentence of probation or simply a “straight sentence” (jail but no probation).

Probation

If a defendant wants a sentence of probation, the court will likely require an alcohol evaluation. The evaluation will analyze whether the defendant has a problem with alcohol and make recommendations for treatment.

A defendant must pay the cost associated with obtaining a drug and alcohol evaluation.

It is my experience a person is likely to receive probation if he or she admits a problem, admits the alcohol use is troubling, and expresses a strong desire to change.

A term of probation usually lasts between 9-12 months. During that period of time, a defendant will be required to complete the recommended treatment from the alcohol evaluation, and the defendant will be required to pay for the treatment.

It costs money to be on probation. The initial enrollment fee for probation is approximately $30, and it is $25 per month for every month a defendant is on probation after payment of the initial fee.

Finally, there are conditions of probation. A common condition is not to possess any alcohol or enter any bars or lounges while on probation.

Violating the terms and conditions of probation will result in termination of probation and a jail sentence.

Finally, with a sentence of probation, a defendant will lose the ability to operate a motor vehicle for 60 days. A defendant will receive credit for time the license was revoked from the DMV.

Straight Sentence

Some people do not want to deal with probation, as such, they want the court to give them a “straight sentence” which is a sentence not including probation.

If a defendant wants a straight sentence, he or she will likely receive a jail sentence of 7-10 days. This simply means you can not leave your home (other than to go to work or school) for the period of your sentence.

You will also have a greater license suspension with a straight sentence. For a first offense, DUI, the court will take your license for six months if you do not take a sentence of probation.

You will receive credit for time you have lost your license from the DMV.

You can also drive with an Interlock device installed on your car after serving 60 days of the license suspension. The cost of having in Interlock device varies but is approximately $60-$90 per month.

Penalties for a first offense, driving under the influence (with a BAC above a .15)

The penalties for a first offense, DUI, vary depending upon whether you want a sentence of probation or simply a “straight sentence” (jail but no probation).

Probation

If you want a sentence of probation, the court will likely require you to obtain an alcohol evaluation. The evaluation will analyze whether you have a problem with alcohol, whether you feel you have a problem with alcohol, whether you want to change your behavior, and make recommendations for treatment.

You must pay the cost associated with obtaining a drug and alcohol evaluation.

In order to maximize your chances for probation, you need to demonstrate to the judge that probation benefit both you and society.

It is my experience that you are more likely to receive probation if you admit you have a problem, admit the alcohol use is troubling you, admit you are troubled by your legal problems, and express a strong desire to change, than if you state you do not have a problem, are not bothered by your drinking and/or your problems, and/or do not express a desire to change.

You will likely be required to be on probation for 9-12 months. During that period of time, you will be required to complete the recommended treatment from your alcohol evaluation. You must pay the cost associated with the treatment.

You will also be required to do some other things associated with probation (a driving class, and a victim impact panel).

It costs money to be on probation. The initial enrollment fee for probation is approximately $30, and it is $25 per month for every month you continue to be on probation after payment of the initial fee.

Also, there are conditions of probation. A common condition is that you not possess any alcohol. This means you cannot have alcohol in your residence, nor can you consume any alcohol while on probation. Another common condition is you not enter any bars or lounges while on probation.

Violating the terms and conditions of probation will result in you returning to Court and be subject to a sentence of jail.

If you receive a sentence of probation, you will lose your ability to operate a motor vehicle for one year. You will receive credit for time you have lost your license form the DMV (90 days).

During the one year period of time, you can operate a motor vehicle with a interlock device installed on your vehicle.

Finally, even with a sentence of probation, for a first offense with a BAC above a .15, you must serve two (2) days in jail, and the Court routinely gives house-arrest. This simply means you cannot leave your home (other than to go to work or school) for the period of your sentence.

Straight Sentence

Some people do not want to deal with probation, as such, they want the court to give them a “straight sentence” which is a sentence not including probation.

If you want a straight sentence, the possible penalty is seven (7) to sixty (60) days in jail; however, in my experience, you will likely receive a jail sentence of 7-10 days. Even with a straight sentence, the Court usually orders house arrest.

Regardless of whether you want probation or a straight sentence, the court will take your license for one year. Again, during the one year period of time, you can operate a motor vehicle with a interlock device installed on your vehicle.

You will receive credit for time you have lost your license from the DMV.

The cost of having in Interlock device varies but is approximately $60-$90 per month.

Categories: Criminal Defense, DUI