Nebraska lawmaker takes aim at DUI loophole
Omaha World Herald (Nebraska)
January 11, 2007 Thursday

An increasing number of chronic drunk drivers are refusing to submit to chemical sobriety tests, using a legal loophole to avoid tough new penalties in state law, Omaha City Prosecutor Marty Conboy says.

By refusing the test, they are treated as if they had tested at Nebraska's legal limit of 0.08. That avoids the tougher penalties in state law prescribed for those with a blood alcohol content of 0.15 or higher, Conboy said.

State Sen. Lowen Kruse of Omaha, author of last year's law toughening penalties for repeat drunk drivers with high blood alcohol content, on Wednesday introduced legislation to close the loophole.

He proposes that refusing to submit to a sobriety test should carry the same heightened penalty as if the driver had taken the test and it showed a 0.15 blood alcohol content.

However, James Schaefer, an Omaha attorney who handles many drunken driving cases, said he questions the constitutionality of Kruse's bill. He said it, in effect, penalizes someone for an offense for which they haven't been convicted.

Kruse's bill was among several introduced Wednesday to toughen Nebraska alcohol laws.

Kruse also proposed eliminating an exemption that allows minors to drink alcohol at home or in church for bona fide religious rites.

State Sen. Steve Lathrop of Omaha introduced a bill that would impound driver's licenses for minors in possession of alcohol. Those convicted of minor in possession three times or more wouldn't be allowed to drive until they turned 21.

Simera Reynolds, executive director of Mothers Against Drunk Driving, lauded all three proposals.

She said that her group is working with State Sen. Pete Pirsch of Omaha to introduce another bill dealing with suspected drunk drivers who refuse to take blood alcohol tests.

Until recently, Nebraska had one of the lowest refusal rates in the country for suspected drunk drivers asked to submit to chemical sobriety tests, said Fred Zwonechek, administrator of the state Office of Highway Safety.

"One of the reasons is that, historically, our refusal penalty actually has been more than if you take the test (and fail). With our new law, it's swung back the other way, where the penalty is less for some of those high (blood alcohol content) offenders to refuse than it is to take the test," he said.

Conboy said refusals continue to be fairly unusual, occurring in 10 percent to 20 percent of cases. However, they're becoming far more common in the cases of multiple, serious drunk drivers.

"It's almost automatic now that chronic offenders will refuse to take the test," Conboy said. "Defense attorneys tell me they're advising their clients to refuse the test because the penalties are lower. That's ridiculous."

Schaefer said not taking the test is the difference between a felony and a misdemeanor for someone facing a third conviction. That person could be sent to jail for up to five years, instead of the maximum of one year with the lower blood alcohol level.