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 investigation.
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) 817-6550