Section
22-5-1 Driving under the influence of alcoholic liquor or drug; penalties; revocation of operator’s license; probation; alcohol assessment; court; powers
22-5-2 Implied consent to submit to chemical test; when test administered; refusal; penalty
22-5-3 Implied consent to submit to chemical test; terms defined; prior convictions; use
22-5-4 Implied consent to submit to chemical test; penalties
22-5-5 Drugs; test; additional test; refusal to permit; affect; results of test; available upon request
22-5-6 Drugs; chemical test; consent of person incapable of refusal not withdrawn
22-5-7 Drugs; chemical test; violation of ordinance; results; competent evidence; permit
22-5-8 Test without preliminary breath test; when; qualified personnel
22-5-9 Fee for test; court costs
22-5-10 Applicability; where
22-5-11 Classification of penalties
22-5-12 Breath test and costs
(A) It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle:
(1) While under the influence of alcoholic liquor or of any drug;
(2) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per 100 milliliters of his or her blood; or
(3) When such person has a concentration of eight-hundredths of one gram or more by weight of alcohol per 210 liters of his or her breath.
(A) Any person who operates or has in his or her actual physical control a motor vehicle in this city shall be deemed to have given his or her consent to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine.
(B) Any peace officer who has been duly authorized to make arrests for violations of traffic laws of this state or of the provisions of this municipal code may require any person arrested for any offense arising out of acts alleged to have been committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs to submit to a chemical test or tests of his or her blood, breath, or urine for the purpose of determining the concentration of alcohol or the presence of drugs in such blood, breath, or urine when the officer has reasonable grounds to believe that such person was driving or was in the actual physical control of a motor vehicle in this city while under the influence of alcoholic liquor or drugs in violation of § 22-5-1 of this article.
(C) Any person arrested as described in division (B) above may, upon the direction of a peace officer, be required to submit to a chemical test or tests of his or her blood, breath, or urine for a determination of the concentration of alcohol or the presence of drugs. If the chemical test discloses the presence of a concentration of alcohol in violation of § 22-5-1(A) of this article, the person shall be subject to the administrative revocation procedures provided in Neb. RS 60-498.01 to 60-498.04, and upon conviction, shall be punished as provided in §§ 22-5-3 and 22-5-4 of this article. Any person who refuses to submit to such test or tests required pursuant to this section shall be subject to the administrative revocation procedures provided in Neb. RS 60-498.01 to 60-498.04 and shall be guilty of a violation and upon conviction, punished as provided in §§ 25-2-3 and 25-2-4 of this article.
(D) Any person involved in a motor vehicle accident in this city may be required to submit to a chemical test of his or her blood, breath, or urine by any peace officer if the officer has reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle on a public highway (as that term is defined in Neb. RS 60-624) in this city while under the influence of alcoholic liquor or drugs at the time of the accident. A person involved in a motor vehicle accident subject to the implied consent law of this city shall not be deemed to have withdrawn consent to submit to a chemical test of his or her blood, breath, or urine by reason of leaving this city. If the person refuses a test under this section and leaves the city for any reason following an accident, he or she shall remain subject to division (C) above and Neb. RS 60-498.02, upon return.
(E) Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged.
(F) Refusal to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be admissible evidence in any action for a violation of § 22-5-1 of this article.
(1) PRIOR CONVICTION means a conviction for a violation committed within the 12-year period prior to the offense for which the sentence is being imposed as follows:
(a) For a violation of § 22-5-1 of this article:
1. Any conviction for a violation of Neb. RS 60-6,196;
2. Any conviction for a violation of a city ordinance enacted in conformance with Neb. RS 60-6,196;
3. Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of Neb. RS 60-6,196; or
4. Any conviction for a violation of Neb. RS 60-6,198.
(b) For a violation of § 22-5-2 of this article:
1. Any conviction for a violation of Neb. RS 60-6,197;
2. Any conviction for a violation of a city ordinance enacted in conformance with Neb. RS 60-6,197; or
3. Any conviction under a law of another state if, at the time of the conviction under the law of such other state, the offense for which the person was convicted would have been a violation of Neb. RS 60-6,197.
(2) Prior conviction includes any conviction under Neb. RS 60-6,196, 60-6,197, or 60-6,198, or any city ordinance enacted in conformance with any of such sections, as such sections or city ordinances existed at the time of such conviction regardless of subsequent amendments to any of such sections or city ordinances; and
(3) TWELVE-YEAR PERIOD means the period computed from the date of the prior offense to the date of the offense which resulted in the conviction for which the sentence is being imposed.
(B) In any case charging a violation of §§ 22-5-1 or 22-5-2 of this article, the prosecutor or investigating agency shall use due diligence to obtain the person’s driving record from the Department of Motor Vehicles and the person’s driving record from other states where he or she is known to have resided within the last 12 years. The prosecutor shall certify to the court, prior to sentencing, that such action has been taken. The prosecutor shall present as evidence for purposes of sentence enhancement a court-certified copy or an authenticated copy of a prior conviction in another state. The court-certified or authenticated copy shall be prima facie evidence of such prior conviction.
(C) For each conviction for a violation of §§ 22-5-1 or 22-5-2 of this article, the court shall, as part of the judgment of conviction, make a finding on the record as to the number of the convicted person’s prior convictions. The convicted person shall be given the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior to sentencing, and make objections on the record regarding the validity of such prior convictions.
(A) (1) If such person has not had a prior conviction, such person shall be guilty of a Class W violation, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked or impounded for a period of six months from the date ordered by the court. Such revocation or impoundment shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
(2) If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of 60 days from the date ordered by the court, unless otherwise authorized by an order issued pursuant to Neb. RS 60-6,211.05 and such order of probation or sentence suspension shall also include, as one of its conditions, the payment of a $400 fine.
(B) (1) Except as provided in division (D) below, if such person has had one prior conviction, such person shall be guilty of a Class W violation, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked for a period of one year from the date ordered by the court and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
(2) If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court, unless otherwise authorized by an order issued pursuant to Neb. RS 60-6,211.05 and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a $500 fine and either confinement in the city or county jail for five days or the imposition of not less than 240 hours of community service.
(C) (1) Except as provided in division (D) below, if such person has had two prior convictions, such person shall be guilty of a Class W violation, and the court shall, as part of the judgment of conviction, order that the operator’s license of such person be revoked for a period of 15 years from the date ordered by the court, and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person. Such orders shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked.
(2) If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of one year from the date ordered by the court, unless otherwise authorized by an order issued pursuant to Neb. RS 60-6,211.05, and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a $600 fine and either confinement in the city or county jail for ten days or the imposition of not less than 480 hours of community service.
(D) (1) If such person has had one or two prior convictions and, as part of the current violation, had a concentration of sixteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his or her blood or sixteen-hundredths of one gram or more by weight of alcohol per 210 liters of his or her breath, such person shall be guilty of a Class I misdemeanor, and the court shall, as part of the judgment of conviction, revoke the operator’s license of such person for any purpose for a period of at least one year but not more than 15 years from the date ordered by the court, and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person. Such revocation and order shall be administered upon sentencing, upon final judgment of any appeal or review, or upon the date that any probation is revoked. The court shall also sentence such person to serve at least 30 days’ imprisonment in the county jail.
(2) If the court places such person on probation or suspends the sentence for any reason, the court shall, as one of the conditions of probation or sentence suspension, order that the operator’s license of such person be revoked or impounded for a period of at least one year but not more than 15 years from the date ordered by the court, unless otherwise authorized by an order issued pursuant to Neb. RS 60-6,211.05, and shall issue an order pursuant to Neb. RS 60-6,197.01 with respect to all motor vehicles owned by such person, and such order of probation or sentence suspension shall also include, as conditions, the payment of a $1,000 fine and either confinement in the county jail for ten days or the imposition of not less than 480 hours of community service.
The peace officer who requires a chemical blood, breath or urine test, or tests pursuant to this article or to the state statutes may direct whether the test or tests shall be blood, breath, or urine. The person tested shall be permitted to have a physician of his or her choice evaluate his or her condition and perform or have performed whatever laboratory tests he or she deems appropriate, in addition to and following the test or tests administered at the direction of the officer. If the officer refuses to permit such additional test to be taken, then the original test or tests shall not be competent as evidence. Upon the request of the person tested, the results of the test or tests taken at the direction of the officer shall be made available to him or her.
(Ord. 3343, passed - -1994)
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