60-6,201. Driving under influence of alcoholic liquor or drugs; chemical test; violation of statute or ordinance; results; competent evidence; permit; fee.

(1) Any test made under section 60-6,197, if made in conformity with the requirements of this section, shall be competent evidence in any prosecution under a state statute or city or village ordinance involving operating a motor vehicle while under the influence of alcoholic liquor or drugs or involving driving or being in actual physical control of a motor vehicle when the concentration of alcohol in the blood or breath is in excess of allowable levels.

(2) Any test made under section 60-6,211.02, if made in conformity with the requirements of this section, shall be competent evidence in any prosecution involving operating or being in actual physical control of a motor vehicle in violation of section 60-6,211.01.

(3) To be considered valid, tests of blood, breath, or urine made under section 60-6,197 or tests of blood or breath made under section 60-6,211.02 shall be performed according to methods approved by the Department of Health and Human Services and by an individual possessing a valid permit issued by such department for such purpose, except that a physician, registered nurse, or other trained person employed by a licensed health care facility or health care service which is defined in the Health Care Facility Licensure Act or clinical laboratory certified pursuant to the federal Clinical Laboratories Improvement Act of 1967, as such act existed on September 1, 2001, or Title XVIII or XIX of the federal Social Security Act, as such act existed on September 1, 2001, to withdraw human blood for scientific or medical purposes, acting at the request of a peace officer, may withdraw blood for the purpose of a test to determine the alcohol concentration or the presence of drugs and no permit from the department shall be required for such person to withdraw blood pursuant to such an order. The department may approve satisfactory techniques or methods to perform such tests and may ascertain the qualifications and competence of individuals to perform such tests and issue permits which shall be subject to termination or revocation at the discretion of the department.

(4) A permit fee may be established by regulation by the department which shall not exceed the actual cost of processing the initial permit. Such fee shall be charged annually to each permitholder. The fees shall be used to defray the cost of processing and issuing the permits and other expenses incurred by the department in carrying out this section. The fee shall be remitted to the State Treasurer for credit to the Health and Human Services Cash Fund as a laboratory service fee.

(5) Relevant evidence shall not be excluded in any prosecution under a state statute or city or village ordinance involving operating a motor vehicle while under the influence of alcoholic liquor or drugs or involving driving or being in actual physical control of a motor vehicle when the concentration of alcohol in the blood or breath is in excess of allowable levels on the ground that the evidence existed or was obtained outside of this state.

Source

Cross References

Annotations

1. Admissibility of test results

2. Error or tolerance in testing

3. Effect of evidence

4. Effect of recodification

1. Admissibility of test results

Pursuant to subsection (3) of this section, a prerequisite to the validity of a breath test made under section 60-6,197(3), and consequently a prerequisite to the validity of an arrest, is that the test must be performed in accordance with the procedures approved by the Department of Health and Human Services Regulation and Licensure and "by an individual possessing a valid permit issued by such department for such purpose". McGuire v. Department of Motor Vehicles, 253 Neb. 92, 568 N.W.2d 471 (1997).

It is not necessary for the State to introduce into evidence the actual or a certified copy of an individual's state Department of Health permit to perform a blood, breath, or urine test of a suspect arrested for driving while under the influence of alcoholic liquor. State v. Obermier, 241 Neb. 802, 490 N.W.2d 693 (1992).

A test made in compliance with this section is sufficient to make a prima facie case on the issue of blood alcohol concentration. Matters of driving and testing are properly viewed as going to the weight of the breath test results, rather than to the admissibility of the evidence. A valid breath test given within a reasonable time after the accused was stopped is probative of a violation of section 39-669.07 (transferred to section 60-6,196). State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990).

Compliance with the requirements of this section in the administration of a breath test may affect the admissibility of the test results but does not go to the question of whether a person was justified in refusing to take the test. Raymond v. Department of Motor Vehicles, 219 Neb. 821, 366 N.W.2d 758 (1985).

The requirements of this section are foundational requirements that must be laid before the admission of the test result into evidence; once the court determines that the evidence is to be admitted, weight and credibility are for the jury. State v. West, 217 Neb. 389, 350 N.W.2d 512 (1984).

The results of a test made under the provisions of section 39-669.08 (transferred to section 60-6,197) may be received in evidence only if the requirements of section 39-669.11 (transferred to section 60-6,201) are met. In order to show that the requirements have been met it is necessary to show that the method of performing the test was approved by the Nebraska Department of Health and that the person administering the test was qualified and had a valid license from the Department of Health. State v. Kolar, 206 Neb. 619, 294 N.W.2d 350 (1980); State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980).

Results of chemical tests for alcohol content admissible as evidence under specified conditions. State v. Jablonski, 199 Neb. 341, 258 N.W.2d 918 (1977).

Result of test was competent evidence in prosecution for driving motor vehicle while under the influence of intoxicating liquor. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).

To be admissible in evidence, tests made must meet the requirements prescribed by statute. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).

Unlike section 60-6,210(1), subsection (1) of this section does not limit the use of chemical test results to prosecution under a specific statute; rather, it authorizes the use of results of the specified chemical test as competent evidence in "any" prosecution "under" a state statute "involving" operation of a motor vehicle while under the influence of alcoholic liquor or "involving" such operation with an excessive level of alcohol. State v. Guzman-Gomez, 13 Neb. App. 235, 690 N.W.2d 804 (2005).

2. Error or tolerance in testing

Evidence of breath or blood alcohol content over the statutory limit is not necessarily insufficient simply because the defendant's expert testimony as to the margin of error is not specifically rebutted by expert testimony from the State. State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).

In order to support a conviction for the offense of drunk driving based solely on a chemical test the result of the chemical test, when taken together with its tolerance for error, must equal or exceed the statutory percentage. State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978).

The Legislature having selected a particular percentage of alcohol to be a criminal offense if present in a person operating a motor vehicle, it is not unreasonable to require that a test, designed to show that percent, do so outside of any error or tolerance inherent in the testing process. State v. Bjornsen, 201 Neb. 709, 271 N.W.2d 839 (1978).

3. Effect of evidence

While the Legislature has the right to prescribe acceptable methods of testing for alcohol content in the body fluid, and perhaps the right to prescribe that such evidence is admissible in a court of law as competent evidence, it is a judicial function to determine whether the evidence, if believed, is sufficient to sustain a conviction. State v. Burling, 224 Neb. 725, 400 N.W.2d 872 (1987).

Evidence admitted pursuant to this section does not create a presumption of guilt but may be sufficient to make out a prima facie case on blood alcohol concentration issue. State v. Dush, 214 Neb. 51, 332 N.W.2d 679 (1983).

4. Effect of recodification

The substance of section 39-669.11, which requires that driving under the influence of alcohol breath tests be performed according to the Department of Health and Human Services rules, did not change in any material way when it was recodified in this section. State v. Engleman, 5 Neb. App. 485, 560 N.W.2d 851 (1997).