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When an officer can require a breath test in Nebraska

On Behalf of | Oct 28, 2019 | DUI |

With the holidays coming up and all the festivities that often involve alcohol, drivers in Nebraska may wonder whether a police officer has the right to pull them over and require a breath test if they happen to be driving home from a party. When does this violate a driver’s rights? Can a driver refuse to take the breath test?

A Nebraska police corporal explains in the Scottsbluff Star Herald that refusing to take a breath test results in immediate arrest, per Nebraska state law. An officer can require a driver to take a preliminary breath test if the driver violated a traffic law, the driver was involved in a motor vehicle crash or the officer has a reason to believe the driver has been drinking.

Reasonable suspicion requires more than a hunch that the driver has broken the law. However, the grounds are not as stringent as probable cause. For example, it may be reasonable to suspect that the driver has been drinking if he or she has bloodshot eyes or has slurred speech, or if the officer smells alcohol.

According to the Cornell University Law School’s Legal Information Institute, the Fourth Amendment requires that officers only arrest a driver if they have probable cause, which depends on what it is reasonable for them to believe when they make the arrest.

The outcome of the preliminary breath test is generally enough to allow them to do so, as is its refusal. However, if the officer did not have a reasonable suspicion to make the traffic stop or require the breath test, then the results of the breath test may not be admissible in court as evidence, after all.