Ten Commonly Asked Questions About DUI/DWI

1. What is DUI and drunk driving?

D.U.I. is an abbreviation for “driving under the influence.” A person is guilty of the offense if such person is driving or in actual physical control of a vehicle within the state and the person is under the influence of alcoholic beverages or any chemical or controlled substance set forth under the applicable statutes when affected to the extent that his or her normal faculties are impaired or when the person has a blood alcohol level of 0.08% or higher. “Drunk driving” is a common misnomer for the crime of driving under the influence. While all individuals who drive while drunk are D.U.I., you do not need to be “drunk” to be considered under the influence.

2. What is the best way to avoid getting a D.U.I.?

Designate a driver, call a cab, or walk; we encourage our clients to anticipate driving needs in advance so they do not again find themselves drinking and driving under the influence.  Driving under the influence of alcohol or other drugs (driving while intoxicated, drunk driving, drinking and driving), is the act of operating a car, or other motorized vehicle, after having consumed enough alcohol to impair your reflexes and/or judgment.

3. Are you presumed guilty of D.U.I. if you have a blood alcohol level of 0.08%?

In any criminal case, it is unconstitutional to hold a presumption of guilt against a defendant. This is due to the fact that our constitution requires the government to prove its case beyond and to the exclusion of every reasonable doubt.  However, the fact that the defendant had 0.08% or more by weight of alcohol in his or her blood is prima facie evidence that the defendant was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.

4. May I refuse to take a breath, blood, or urine test if requested to submit to one by a law enforcement officer?

By accepting the privilege of operating a motor vehicle, you are deemed to have given your consent to submit to an approved chemical test (breathalyzer, blood test, or urine test) during a DUI or DWI stop.  However, you may refuse to take such tests, but if you refuse, your driver’s license may be suspended for three to 12 months. Additionally, the refusal to submit to a test, upon the request of a law enforcement officer, is admissible in any criminal proceeding against you. This may lead the jury members to conclude that you refused because you were, in fact, intoxicated or under the influence of drugs. Please note, refusal will mostly result in an additional charge which may have harsher penalties under the law. 

5. How can the law permit suspension of a driver’s license before any kind of trial begins?  I thought criminal law required a hearing or trial before they could sentence you?

Receiving a DUI/DWI citation in Nebraska initiates two separate processes with two separate governing authorities. The first is criminal prosecution under the enacted DUI/DWI statutes and ordinances. Criminal penalties for DUI/DWI can include jail, a fine, probation, license revocation, or any combination of the four.  The second is a proceeding with the Nebraska Department of Motor Vehicles, whereby your license may be revoked for a period of time depending on the level of alcohol in your system, as well as your past driving history.  Because it is a privilege, the State of Nebraska may withdraw that privilege if it has lawful grounds to do so.  This suspension is subject to a hearing if one is requested by the driver or his/her attorney within ten (10) days of the date of the arrest.  Therefore, contact the Law Office of Justin T. Wayne, LLC immediately so we can timely request such a review hearing.

6.  What are the penalties for a commercial driver license (CDL)?

You can be disqualified for one (1) year for a first time conviction for DUI with a blood alcohol concentration of .04% or more, or refusing to take a blood alcohol test. If these violations were while transporting hazardous materials, the disqualification is increased to three (3) years.

7.  What is the maximum BAC for drivers under 21?

In Nebraska, the maximum blood alcohol content (BAC) for drivers who are under 21 (considered minors under some drinking and driving laws) is .02%.  If you are under 21 and had a BAC of .02-.079 there are no criminal penalties, but driving privileges can be suspended. If the BAC is between .02% and .79%, driving privileges may be suspended for 30 days on the first occurrence, and one year on any subsequent occurrence. If a driver has a BAC of .08% or above, driving privileges can be suspended for one year.
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8.  How long will prior DWI convictions remain relevant for sentencing purposes in Nebraska?

In Nebraska, prior DWI convictions stay on your record (and can be counted against you when you are being sentenced for another DUI/DWI offense) for 12 years.

9.  If I’m stopped for driving under the influence (DUI) or driving while intoxicated (DWI), can a police officer ask me questions without reading me my rights?

You do not have a right to speak to your attorney when you are initially stopped.  Whether a police officer has to read you your rights on a DUI or DWI stop depends on whether or not you are in police custody — that is, whether you are subject to the restraints common to a formal arrest. The U.S. Supreme Court has ruled that the police do not have to provide Miranda warnings during roadside questioning of a motorist detained pursuant to a traffic stop. Thus, roadside questioning about your drinking, drug-taking, or performance on field sobriety tests does not constitute “custodial interrogation.” However, once you are arrested — or restrained by the police in a manner consistent with arrest — you must be read your Miranda rights.

10. What does “In Actual Physical Control of a Vehicle” mean?

This term means that the individual has had the capability and power to dominate, direct, or regulate the vehicle, regardless of whether or not he or she was exercising that capability or power at the time of the alleged offense.  In other words, sitting behind the wheel with the keys in the ignition may qualify as being “in actual physical control” of a vehicle even though the vehicle is not moving.

Disclaimer: Reading information on this website does not constitute the formation of an attorney-client relationship with our firm. Nor does calling us, emailing us, chatting us, or otherwise contacting us. We only enter into attorney-client relationships with people who meet with our firm and sign a formal, written agreement with us. None of the information on this website is intended to be legal advice.