DUI Arrest in Nebraska Despite Negative Breath and Urine Tests

Attorney Answer

Negative tests do not automatically end the case, and they do not by themselves make the arrest unlawful — but they are the strongest fact you have on whether the State can prove the charge.

Neb. Rev. Stat. § 60-6,197 is Nebraska's implied consent provision. Any person who operates or is in actual physical control of a motor vehicle in the state is deemed to have consented to submit to a chemical test of blood, breath or urine, which a peace officer may require of a driver arrested on suspicion of impaired driving. The section also makes refusal a separate offense and provides for administrative licence revocation on refusal. You submitted, so that branch is not your problem — worth knowing, because in Nebraska refusing means a separate charge stacked on top of the DUI plus an administrative revocation of its own, which is generally the worse position, not the safer one.

A case that cuts against the obvious argument. In *State v. Petsch*, 300 Neb. 401, 914 N.W.2d 448 (2018), the Nebraska Supreme Court assessed probable cause to arrest for DUI under the totality of the circumstances rather than dissecting each factor technically. The absence of the familiar signs — no erratic driving beyond the stop, no admission of drinking, no watery or bloodshot eyes, no slurred speech, cooperative behaviour, a normal gait, and no completed field sobriety or preliminary breath test — did not defeat probable cause where other signs were present, and the court affirmed the denial of suppression and the conviction. The defendant lost. The practical lesson for you: a test result that does not support impairment does not by itself establish that the arrest was unlawful. It goes to whether the State can prove the charge, which is a different question and a better one for you.

What you can do

1. Check whether you were handed any notice of administrative licence revocation. With negative results there may be none — but if there is one, the window to request a hearing is measured in days, not weeks, and it runs separately from the criminal case. 2. Get discovery through a lawyer: the officer's report, which test was performed (the roadside preliminary screen is a different device and a different statute from the evidentiary test under § 60-6,197), and the actual laboratory report showing which panel was run on the urine and what it screens for. 3. Ask what the officer says he observed. *Petsch* means the arrest can stand on observations alone, so you need to know what those observations were before deciding how to approach the case. 4. Get the crash report for the accident the officer was there about, even though you were not cited for it. 5. Treat the reckless driving ticket as its own case. It does not depend on alcohol at all, and clearing the DUI does not automatically clear it.

⏱ Time limits apply — the licence side first. If any administrative revocation notice was issued out of this arrest, the request for a hearing is due within a very short window running from the arrest, and it will expire while you are waiting for a criminal court date. The licence case and the criminal case are two separate tracks, decided under different standards of proof, and they can reach opposite results on the same stop. Check your paperwork for a revocation notice today and confirm the deadline on it rather than estimating.