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DUI Process

A Nebraska DUI is a two-sided charge: criminal on one side and civil on the other side. Therefore, there are two separate proceedings that result from one dui arrest. Different government offices file each proceeding and they have different procedures, standards and penalties.

The Civil Side

The first thing is to deal with is the Administrative License Revocation (ALR). It’s the civil (non-criminal) side of a DUI. You must take action within 10 days of your arrest on the ALR or you will lose your right to contest it.

The State (DMV) will automatically revoke your license when you are arrested for DUI unless you can prove to that it should not be taken. Further, the Court may also revoke your license. (They may also fine or jail you, but more on that later.)

In a DUI arrest, the officer will order you to take a sample of your breath, blood or urine. If you fail (or refuse to take) any of these tests, the arresting officer will take your license and give you a yellow temporary license (Notice/Sworn Report/Temporary License). The officer gets to choose which test he wants. You are also entitled to a confirmatory blood test, at your own expense, after you submit to the officer’s test and he must facilitate this second test for you.

Assuming your license was valid, the temporary license will be valid for 15 days from the date of arrest. In a blood test, the officer will send the Notice/Sworn Report / Temporary License to the DMV to issue a temporary license by mail.

The State DMV website has this to say: If you believe you have been wrongly accused, you have 10 days from receipt of your temporary license to file a petition.

Whether or not to request an ALR hearing is a decision that must be made quickly. You give up your right to obtain an Ignition Interlock Permit if you request a hearing. Sometimes, we request a hearing, investigate and then withdraw the request before the hearing. In that case, the IIP is still available and nothing is lost. The officer no longer needs to appear in person at the hearing unless the Petitioner (you) subpoena him. If he is subpoenaed, the administrative hearings are lower in priority than Court appearance for an officer. There are often time conflicts between the two, which will prevent the officer from coming to your hearing.

When you (or I) send in the ARL Hearing Request and file a petition, the DMV sets a hearing. The arresting officer will appear to testify about the arrest if subpoenaed. A hearing officer will evaluate the evidence and make a recommendation to the Director of the DMV as to whether the revocation should go into effect or be dismissed.

Special warning: If you refused a blood, breath or urine test, you will automatically lose your license for one full year. Under the one year ALR suspension, there is no work permit or other provisional license available.

Is ALR different from court?

There are both civil and criminal sides to a DUI charge. The criminal penalty may involve fines or jail time, and it is handled by the court system. The ALR is a civil hearing, not in a courtroom, but in a small office. The people present would be you, your attorney, the DMV hearings officer, and the arresting officer(s). This is a critical hearing, as it will determine whether you will keep or lose your license from the civil side.

If I lose my license, can I get a work permit?

A work permit is not available if your license is revoked for 90 days under ALR. No work permit is available on a one year suspension due to a second or subsequent ALR suspension. However, you may be able to drive on an Ignition Interlock Permit by having a breath testing device installed in your vehicle. First, we will focus on winning the ALR hearing.

Can I do the ALR hearing alone or do I have the right to an attorney?

Yes, you can do the hearing alone but may be difficult. The burden of proof is on you to show you were 1. Not driving or in physical control of a motor vehicle; or 2. Were not operating a motor vehicle on a public road or on private property open to public access; or 3. That you did not refuse to submit to a test if the allegation is that you refused a test. The advantages and disadvantages should be discussed with an attorney. You do have the right to an attorney at the hearing, fighting on your behalf, however the attorney is at your own expense. An attorney will not be provided for you by the State.

What laws apply?

The ALR is governed by the Nebraska Administrative Code found at Title 247 NAC 1.

What is the purpose of the hearing?

You must show, by a preponderance of the evidence, why your license should be restored to you.

There are two issues to be addressed at the hearing.

If your license has been impounded because you refused to submit to a chemical test, these are the only issues that apply:

  1. Did the law enforcement officer have probable cause to believe you were operating or in physical control of a motor vehicle while you were under the influence of drugs or alcohol?
  2. Did you refuse to submit or fail to complete a test when directed to do so by a law enforcement officer?

If you submitted to a test and tested over .08 breath alcohol content, only these issues apply:

  1. Did the law enforcement officer have probable cause to believe that you were operating or in the actual physical control of a motor vehicle while under the influence of drugs or alcohol?
  2. Were you operating or in the actual physical control of a motor vehicle while you had an illegal concentration of alcohol in your system?

It is my job to go into this hearing, armed and ready to get your license back. As I stated before, many attorneys do not even believe in going to this hearing.

What is a Hearing Officer?

The Hearing Officer is a lawyer appointed by the DMV to conduct ALR hearings. The Hearing Officer will preside over the hearing, administer oaths, examine witnesses, take testimony, rule on preliminary motions and all matters raised at the hearing, and recommend a decision to the Director. The Director may accept or reject the recommendation, and will issue a final order.

Do I have to take the hearing date assigned to me or can I ask for a different date?

Yes, the Director may continue the hearing until a later date if there is a good reason. You would have my office move the date if it was not convenient for you. If granted, your temporary license will not be extended, even if the hearing takes place after it expires at the end of fifteen days.

How is the hearing conducted?

The hearing is tape recorded for an official record. The Hearing Officer will open the hearing, state the names of those present and explain the purpose of the hearing. He will introduce exhibits, typically as follows:

I will have the opportunity to review the exhibits and object to any on legal grounds. We may offer our own exhibits. The Hearing Officer will decide if they are relevant and material and rule on whether they may be entered.

The Hearing Officer will have the arresting officer testify about the arrest. I will then ask questions of each witness. After the department’s witnesses have testified, we present our side of the case.

What happens after the hearing?

The Hearing Officer will recommend a decision to the Director, who makes the final decision. The decision will be mailed to you and me by certified mail.

If the ruling is in our favor, your license will be included with the decision if it is in DMV’s possession.

If we lose the ALR hearing, either:

The Criminal Side

The second “case” if you will is that filed by the criminal courts. The police officer sends reports to the prosecutor’s office who file the actual criminal charges. The charges filed by prosecutors may be the same or entirely different from those written on the citation. There are several stages to a criminal proceeding, which I have outlined below.

  1. The Bond

    A bail bond is ordinarily the only means by which a defendant will be released before his/her trial date. Simply put, a bail bond is a sum of money that must be deposited with the court before a defendant will be released. That sum guarantees the defendant’s presence at following court dates. If the defendant fails to honor the conditions of his/her bail bond, the money deposited to the court will be forfeited. A defendant may also be released on what is known as a signature bond, where his/her signature guarantees that person’s return for hearings. This amount is refundable when the defendant complies with the requirements of his bail/bond, that is, attend court when he/she is summoned. Most juveniles are released to the custody of their parents. In all other offenses, the amount of bail/bonds varies widely.

    The purpose of a bail bond is twofold: (1) to insure that a defendant will appear in court, and (2) insure the safety of the defendant and the community. Thus, if a defendant is from out of state, one could expect a larger bail bond to insure his/her presence in court when their trial date arrives. The more serious the charge is, the more danger the defendant represents to the community; thus the higher the bail bond. If a commissioner initially denies a defendant bail bond, or if a defendant is unable to meet the commissioner’s initial bail/bond, and the defendant remains in custody for 24 hours after the commissioner has set the pre-trial release conditions, the defendant will be presented before the District Court the next time the court is in session to review the commissioner’s order.

  2. Arraignment:

    This is the date on your ticket, about 30 to 60 days after your arrest. If you have an attorney, he may be able to enter a not guilty plea by written waiver and you would not have to appear for this initial hearing. The purpose of arraignment is to advise you of your rights and of the possible penalties you face. If you have an attorney, he will have already advised you of the penalties and have developed a strategy for protecting your rights so you don’t need to hear it again in a mass court gathering. The Court will set a trial date and advise your attorney.

  3. Pre-Trial Motions:

    There are several pretrial motions that can be filed to assert certain rights. A partial list is as follows:
    Motion for Discovery- A motion filed to make the State produce certain documents such as police reports, calibration records for the breath testing machine, video tape, audio tape, or other documents.

    Motion to Produce – Nebraska law requires the State to produce evidence upon which scientific tests were run and which are intended to be offered as evidence against you. This usually applies to blood or urine in a dui case. The State must produce the evidence so that you may have independent tests run on the sample, if you chose. However, sometimes a sample is lost or not kept. If this is the case, the State may also not be able to use its test against you because it cannot be challenged.

    Motion to Suppress – The officer must have a valid, explainable reason to pull over your vehicle. In order to stop a person and invade his or her privacy, the law requires that the officer have a particular reason amounting to suspicion of an illegal activity. Further, it requires that he be able to explain his reasons and be tested on their validity by you. Many traffic stops are made without a proper reason. If the Court rules that the stop was unjustified, then all evidence obtained as a result of that stop cannot be used against you at trial.
    Each of these motions would be set for hearing by the Court prior to your trial date. The outcome of most dui cases are determined at these hearings.

  4. Trial:

    The trial is the proceeding familiar to most people. We have all seen trials by Perry Mason, Matlock and Law & Order. However, most of these television shows are very unrealistic as far as trial procedure and the rules of evidence. I have never personally seen a witness confess to murder under intense cross-examination by any lawyer. However, good cross-examination skills can make the difference in the outcome of your trial. A trial has several distinct phases as follows:

    Opening Statement: The State and then your lawyer are allowed several minutes to address the jury or judge and tell them what he or she expects the evidence to show.

    The State’s Case: The State then has to put on evidence that you committed a crime. Each witness is called and asked questions by the prosecutor. Then your attorney may cross-examine the witness. The State can ask redirect questions after your attorney is finished. Occasionally the judge may ask questions of the witness, especially if jury trial is waived.

    Half Time: After the State puts on all its evidence, they rest. The judge considers whether they put on enough evidence of each charge. If not, the charge is dismissed.

    Defense Evidence: The Defendant now has an opportunity to call witnesses and present evidence. The State has the right to ask your witnesses questions. At the end of your evidence, you rest.

    Closing Statements: Each side has the right to summarize what they think the evidence showed and how the evidence and law should be applied.
    After each stage of the trial, the jury or court renders its decision. If a guilty verdict is returned, we proceed to sentencing.
    The second possibility on trial day is a plea. This is usually the result of plea-bargaining between the state and the defense. The defendant agrees to plea to a charge or charges, in exchange for a lenient recommendation by the State during sentencing. Many cases in the State of Nebraska, in fact most cases, are resolved this way. An important note: a judge is not bound by the plea negotiations between the defense and the State. A judge will go along with the recommendation of the State nine times out of ten, but the judge is not required to. In some cases, the judge will allow the defendant to withdraw his//her guilty plea if the judge’s sentence far exceeds the recommendation by the State.

  5. Sentencing:

    The Court imposes a sentence after a conviction at trial. The possible penalties for a Nebraska DUI are as follows:
    First conviction
    Maximum — sixty days imprisonment, 6 month revocation and five hundred dollars fine
    Mandatory minimum — seven days imprisonment, 6 month revocation and five hundred dollars fine
    If probation is given, there is no minimum jail time, the Court imposes a 60 day revocation with ignition interlock, and a five hundred dollar fine.

    Second conviction
    Maximum — ninety days imprisonment, 1 year revocation and five hundred dollars fine
    Mandatory minimum — thirty days imprisonment, 1 year revocation and five hundred dollars fine.
    If probation is given the Court must impose 10 days in jail, a 1 year revocation with ignition interlock, and a five hundred dollar fine.

    Third conviction
    Maximum — one year imprisonment, 15 year revocation and one thousand dollars fine
    Mandatory minimum — ninety days imprisonment, 15 year revocation and one thousand dollars fine.
    If probation is given the Court must impose 30 days in jail, a 2 to 15 year revocation with ignition interlock, and a one thousand dollar fine.

    Click here for Aggravated DUI Offense Penalties.

    After the State has read the statement of fact, or put on their case and won, it is time for sentencing. The judge will ask the State if it has any recommendation. More likely that not, the judge will follow the State’s recommendation. This is one of the reasons why it is so important to be proactive about a case by attending in or out-patient alcohol or drug counseling, anger management classes, or other programs relevant to a case. The State’s recommendation will soften if the prosecutor sees that the defendant has taken steps to correct the problem on his/her own.

    A second scenario is a show cause jail sentence. A judge will sentence a defendant to a period of time, then delay serving that time until a certain date on which you must appear and show the judge why you should not have to serve time. This is like hanging a hammer above your head because you know if you do not comply with probation, the sentence will be imposed. The judge can impose the sentence after notifying the defendant of a hearing and on very little evidence. If the defendant violates his/her probation during the probationary period set by the judge, then the probation officer can recommend violating the defendant’s probation. Another court hearing is set in which the judge determines whether the defendant did indeed violate the terms and conditions of their probation. If the judge finds this to be the case, the defendant can be sentenced to anything he could have originally imposed. It cannot be stressed enough how important it is for a defendant to comply with all of the conditions of his/her probation.

    On occasion, a judge will sentence a defendant to house arrest. This option is becoming more popular as the prisoner population continues to grow. The jail places a monitoring bracelet on a wrist or ankle. Different conditions can be set, but a defendant is usually required to be within 100 feet of the house arrest receiver, placed within the home, between certain hours, i.e. 7 pm to 6 am.

    Some prisoners enjoy the privilege of work release. In this program, a defendant is allowed to work during the day outside of the jail, but is required to return at a specific time each night, and leave no earlier than a set hour in the morning. While a defendant can usually get permission to work six days a week, no one is granted seven days of work release. Thus, at least one full day is spent is jail per week.

    Finally, a judge can sentence a defendant to straight time. This is self explanatory; the defendant serves time in jail. The defendant is sent to the county jail to serve out his/her sentence. In light sentences, a judge can require a defendant to serve weekends instead of time during the week.

    A defendant is awarded a one days credit for each two days served as good time. Thus a 60 days sentence would work out to about 40 days.

  6. Post Sentencing

    A defendant has ten days to request a new trial, and thirty days to file an appeal. Appeals from County Court go to District Court and are heard relatively quickly. If the case was a felony, the appeal would be heard by the Court of Appeals.