New DUI law could allow more drivers to stay behind the wheel

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January 3, 2012 - 6:00pm

Measuring blood alcohol content with a breathalyzer is a common occurrence during a DUI stop. A law enforcement officer typically administers the test.

"Make a tight seal with your lips, blow out like you are blowing up a balloon until I say stop, okay? Harder, harder, harder."



Photo by Perry Stoner, NET News

A breathalyzer


If a driver registers .08 or higher, an arrest for driving under the influence is likely. But a DUI arrest is a better result than what could happen if the driver continued down the road. Crashes involving alcohol get a lot of attention from Fred Zwonechek, the Nebraska Office of Highway Safety administrator. He said recent efforts to decrease alcohol-related deaths and injuries are working.

"Anytime we've done anything in the alcohol-impaired area, they've been pretty successful," he said. "We're the best we've ever been in terms of reducing alcohol-related crashes, the crash rate -- alcohol-related fatalities were the lowest ever recorded in the state's history since 1937."

Zwonechek says annually about 25 percent of those arrested for driving under the influence are multiple offenders. But he pointed out that even those arrested for DUI the first time have likely driven after drinking before.

"They've done it multiple times, that was just the first time they got caught; (but) we've improved in that area the last couple of decades," he said. "It wasn't that long ago you had about a 1-in-2,000 chance of being arrested - you had to do it 2000 times before being arrested. Now we're down somewhere in the state to 1 in 200 or 300 times. That's simply because we've got better-trained, better-equipped law enforcement, (and) we've got lots of community support for initiatives."

Zwonecheck said the challenge is to help those who drink and drive get help.

"The real issue is to get these people into treatment and rehabilitation," he said, "or they are just going to come out and begin to repeat the same behavior over again. We know that because we've got ten-time convicted offenders, over 100 of them."

A new law in Nebraska may actually allow more people arrested for drunk driving to remain behind the wheel, but state officials say a device installed in the vehicle will keep roads safer overall.

Statistics from Mothers Against Drunk Drivers say up to 75 percent of drivers whose licenses have been suspended for drunk driving continue to drive.

Now, after getting behind the wheel, an Interlock Ignition Device won't allow the vehicle to start if the driver's been drinking. Like blowing into a breathalyzer, the driver must blow into the I.I.D. before attempting to start the vehicle. State Sen. Mike Flood's legislation, passed last year, also limits where the driver can go, if the vehicle starts.

"What this law does today is allows the first-time offender, repeat offender to keep their job, to pick up their kids after school, to go to those things that they need to go to, to maintain compliance with probation and parole agencies. That allows us to potentially keep that person off the Medicaid rolls, provide for their family, hopefully they'll ... get the help that he or she needs following an arrest."

Until this year, before any possible court proceedings, those arrested for DUI often went through administrative license revocation with the Department of Motor Vehicles. Those hearings are costly to the state, in part because arresting officers often would be required to appear during off hours, costing the law enforcement entity overtime.

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There were more than 12,000 DUI arrests in Nebraska in 2010. With about an 85 percent conviction rate, most of the license revocation hearings seem unnecessary. Beverly Neth, director of the Nebraska Deptartment of Motor Vehicles hopes those arrested will waive the license revocation hearing and apply for the interlock device. She said if they do, her department will save money, too.

"We'll be able to ... reduce our ALR hearings dramatically because the choice we are giving individuals is keep your keys and keep driving but do it with limited driving privileges and do it in a fashion in that we, the rest of the driving public, know that you are doing it safely. I think we are on the road to closing all those issues that were apparent in our ALR program."

Criminal defense attorney Mark Rappl of Lincoln handles hundreds of DUI cases each year. He thinks the new law will have the effect the legislature intends.

"The courts have said that even though DMV has the authority to regulate people's licenses, people still have the right to due process, and that process can at least include a limited hearing to determine whether or not this revocation should take effect," he said. "Well, this new legislation is clearly trying to chill one's desire to challenge these hearings and have that due process, because to do so is going to result in them not being eligible for an interlock permit. Whereas if they waive their hearing and don't challenge the process, you can get a permit."

But since DMV hearings usually result in conviction anyway, he said, "we're not giving up a real strong chance of winning the hearing in the first place. But it's just real nice to have the ability under the current law to at least question the officer, why he did what he did, what observations did he make, what basis did he have to believe our clients were under the influence of alcohol."

Rappl is on the board of directors for the Nebraska Criminal Defense Attorney's Association. He said despite the lost opportunity to gather information, he isn't strongly opposed to the new law given the opportunity it provides for first-time offenders.

"I think it's going to depend on each individual case, but ... at least for first-offense DUI cases where the person has absolutely no prior DUI convictions or ALR revocations, I do believe I would encourage my clients in the majority of those cases to waive their hearing," he said. "We'll still have our day in court and can still fight that out and avoid the DUI conviction and can start driving during that period of time."

Sen. Flood, from Norfolk, says this is a better approach than Nebraska's past efforts to make roads safer.

"Right now, some of these folks may have an alcohol problem are driving there on a suspended license and it takes a while for those suspensions to rack up before you see real jail time, and so I don't think the penalties are there," he said, adding, "and when they are, they still drive because driving in rural Nebraska is how you get to work on a day-to-day basis. So I think this takes us to a place where Nebraska is ensuring public safety."

For Zwonechek , the use of the Interlock Ignition Device will help the state continue to improve Nebraska's record to keep drunk drivers from getting behind the wheel.

"We know we're moving in the right direction, but we know there's more to do when you are still arresting 13,000 to 14,000 people for DWI every year."

The Department of Motor Vehicles is beginning a public information campaign to inform Nebraska drivers of the new choice for dealing with a drunk driving arrest.

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