Not DUI in Nebraska

[lindh]

My question involves criminal law for the state of: Nebraska

Hello
My Brother-in-law was recently stopped by a Nebraska hiway patrol officer at night. The only reason? - headlight out. After writing a "fixit ticket", the officer then proceeded to administer a breathalyzer test to him - several times, as the officer felt he was not blowing into the tube correctly. Then he was arrested, handcuffed and taken to a local hospital for blood tests. Following his arrest, he was booked and jailed, making bail the next morning. Yesterday, the results of the bloodtest came back and showed .05 BAC. In Nebraska, .08 is the limit.

To sum it up, this guy was arrested, booked and jailed for DUI, an offense he did not committ. However, the county attorney now has dropped the DUI charges and has entered an open container charge. Although there was an open container in the front seat, it was not visible and the officer did not have the operator's permission to search the vehicle.

The main question here is: Is a false arrest case possible under these circumstances, or what else?

Thanks

L

[BOR]

Yesterday, the results of the bloodtest came back and showed .05 BAC. In Nebraska, .08 is the limit.

To sum it up, this guy was arrested, booked and jailed for DUI, an offense he did not committ. However, the county attorney now has dropped the DUI charges and has entered an open container charge. Although there was an open container in the front seat, it was not visible and the officer did not have the operator's permission to search the vehicle.

The main question here is: Is a false arrest case possible under these circumstances, or what else?

Thanks

L

Here is NE's statute:

http://uniweb.legislature.ne.gov/QS/...ta=s6006196000

1. If he was arrested, there is no consent needed to search the car, as it is a search "incident to arrest".

2. .08 is a per se figure, it does not mean if they have a BAC lower they are not impaired.

3. The Prosecutor, after reviewing the facts, may believe he can not get a conviction beyond a reasonable doubt (?), this does not mean the arrest was unconstitutional.

4. Police enjoy what is known as Qualified Immunity. To overcome that burden for a successful false arrest suit, it would have to be proven to the satisfaction of the trier of fact, be it Judge or Jury, the officer's judgment of the detainee's impairment was so lax based on the totality of the circumstances, it did not rise to the level of probable cause.

Slurred speech, glassy eyes, failure to perform sobriety tests in an accepted satisfactory manner, etc., are all indications of possibly being under the influence, and we read in the law, it includes drugs, not just alcohol, or a combo.

If he believes it was a false arrest based on the "totality of the circumstances" he can consult with a Civil rights attorney.

[lindh]

Here is NE's statute:

http://uniweb.legislature.ne.gov/QS/...ta=s6006196000

1. If he was arrested, there is no consent needed to search the car, as it is a search "incident to arrest".

2. .08 is a per se figure, it does not mean if they have a BAC lower they are not impaired.

3. The Prosecutor, after reviewing the facts, may believe he can not get a conviction beyond a reasonable doubt (?), this does not mean the arrest was unconstitutional.

4. Police enjoy what is known as Qualified Immunity. To overcome that burden for a successful false arrest suit, it would have to be proven to the satisfaction of the trier of fact, be it Judge or Jury, the officer's judgment of the detainee's impairment was so lax based on the totality of the circumstances, it did not rise to the level of probable cause.

Slurred speech, glassy eyes, failure to perform sobriety tests in an accepted satisfactory manner, etc., are all indications of possibly being under the influence, and we read in the law, it includes drugs, not just alcohol, or a combo.

If he believes it was a false arrest based on the "totality of the circumstances" he can consult with a Civil rights attorney.

Thank you for your reply. I was unaware that one can be jailed for driving with less than .09 bl. As I read it, the law states that under the influence means "when" the bl condition (blood or breath) limit is reached and in NE that would be .09. The booking charges showed DUI but both blood and breath failed to meet the min.

I can understand the arrest being made, but being jailed?

thanks again

Bob

[BOR]

Thank you for your reply. I was unaware that one can be jailed for driving with less than .09 bl. As I read it, the law states that under the influence means "when" the bl condition (blood or breath) limit is reached and in NE that would be .09. The booking charges showed DUI but both blood and breath failed to meet the min.

I can understand the arrest being made, but being jailed?

thanks again

Bob

You are welcome, but that's .08.

An arrest MUST be based on probable cause, at times it may be weak/borderline, true.

Jail is procedural until bail is met or they sober up or are released on thier signature or a summons to appear.

Some jurisdictions permit a drunk to be taken into jail under what is known as "protective custody" and no charge filed, as they can not care for themsleves on the street.

[lindh]

You are welcome, but that's .08.

An arrest MUST be based on probable cause, at times it may be weak/borderline, true.

Jail is procedural until bail is met or they sober up or are released on thier signature or a summons to appear.

Some jurisdictions permit a drunk to be taken into jail under what is known as "protective custody" and no charge filed, as they can not care for themsleves on the street.

Yes, of course, .08; my error. In this instance I'd grade the arrest basis as weak - due to the fact that there was no evidence the driver was under the influence. No reckless behavior, no weaving or any driving activity that might draw suspicion other than a missing headlight. Initial breath tests showed well below the legal limit as did the proceeding bloodtest. I find it ususual that LE can jail a suspect with full knowledge that the individual is not legally intoxicated. It will be an interesting case. As I understand it, the arrestee today has hired an attorney to pursue the civil rights issue. But based on your assessment, I'd not want to bet much on a successful outcome for the plaintiff. Thanks again!

[BOR]

You are welcome, now it is a wait and see as you say.