28-1385. Administrative license suspension for driving under the influence or for homicide or assault involving a motor vehicle; report; hearing; summary review; ignition interlock device requirement
A. A law enforcement officer shall forward to the department a certified report as prescribed in subsection B of this section, subject to the penalty for perjury prescribed by section 28-1561, if both of the following occur:
1. The officer arrests a person for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
2. The person submits to a test of the person's blood, breath, urine or other bodily substance that is permitted by section 28-1321 or any other law or a sample of blood is obtained pursuant to section 28-1388 and the results are either not available or the results indicate any of the following:
(a) 0.08 or more alcohol concentration in the person's blood or breath.
(b) 0.04 or more alcohol concentration in the person's blood or breath if the person was driving or in actual physical control of a commercial motor vehicle.
(c) Any drug defined in section 13-3401 or its metabolite is in the person's body except if the person possesses a valid prescription for the drug.
B. The officer shall make the certified report required by subsection A of this section on forms supplied or approved by the department. The report shall state information that is relevant to the enforcement action, including:
1. Information that adequately identifies the arrested person.
2. A statement of the officer's grounds for belief that the person was driving or in actual physical control of a motor vehicle in violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 or committed a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
3. A statement that the person was arrested for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
4. A report of the results of the blood or breath alcohol test that was administered, if the results are available.
C. If a breath test is administered, a law enforcement agency shall forward the certified report that is required by subsection A of this section to the department within thirty days after the arrest occurs. If a sample of blood, urine or other bodily substance is obtained, the law enforcement agency shall forward the certified report that is required by subsection A of this section to the department within thirty days after the date the report of the analysis is provided to the law enforcement agency. If a report is not forwarded to the department within the time limit prescribed by this subsection, the report is inadmissible in a hearing held pursuant to this section unless the violation listed in subsection A of this section resulted in a death or serious physical injury. For the purposes of this subsection " serious physical injury" has the same meaning prescribed in section 13-105.
D. The officer shall also serve an order of suspension on the person on behalf of the department. The order of suspension:
1. Is effective fifteen days after the date it is served.
2. Shall require the immediate surrender of any license or permit to drive that is issued by this state and that is in the possession or control of the person.
3. Shall contain information concerning the right to a summary review and hearing, including information concerning the hearing as required by section 28-1321, subsections G and H.
4. Shall be accompanied by printed forms that are ready to mail to the department, that the person may fill out and sign to indicate the person's desire for a hearing or summary review and that advise the person that the person may alternatively submit an online request for a hearing or summary review.
5. Shall be entered on the department's records on receipt of the report by the officer and a copy of the order of suspension.
6. Shall inform the person that the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege may be issued or reinstated following the period of suspension only if the person completes alcohol or other drug screening.
7. Shall contain information on alcohol or other drug education and treatment programs that are provided by a facility approved by the department of health services.
E. If the blood test result is unavailable at the time the test is administered, the result shall be forwarded to the department before the hearing held pursuant to this section in a form prescribed by the director.
F. If the license or permit is not surrendered pursuant to subsection D of this section, the officer shall state the reason for the nonsurrender. If a valid license or permit is surrendered, the officer shall issue a temporary driving permit that is valid for fifteen days. The officer shall forward a copy of the completed order of suspension and a copy of any completed temporary permit to the department within five days after the issuance of the order of suspension along with the report. The law enforcement agency may do either of the following with a valid license or permit that is surrendered pursuant to this section:
1. In compliance with sections 41-151.15 and 41-151.19, destroy the license or permit.
2. Forward the license or permit to the department within five days after the issuance of the notice of suspension.
G. The department shall suspend the affected person's license or permit to drive or right to apply for a license or permit or any nonresident operating privilege for not less than ninety consecutive days from that date. If the person is otherwise qualified, the department may reinstate the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the violator completes alcohol or other drug screening.
H. Notwithstanding subsections A, B, C, D, E, F and G of this section, the department shall suspend the driving privileges of the person described in subsection A of this section for at least thirty consecutive days and shall restrict the person's driving privileges as prescribed in section 28-144 for at least sixty consecutive additional days if the person:
1. Did not cause death or serious physical injury as defined in section 13-105 to another person during the course of conduct out of which the current action arose.
2. Has not been convicted of a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 within eighty-four months of the date of commission of the acts out of which the current action arose. The dates of commission of the acts are the determining factor in applying the eighty-four month provision.
3. Has not had the person's privilege to drive suspended pursuant to this section or section 28-1321 within eighty-four months of the date of commission of the acts out of which the current action arose.
4. Provides satisfactory evidence to the department of the person's completion of alcohol or other drug screening that is ordered by the department. If the person does not complete alcohol or other drug screening, the department may impose a ninety day suspension pursuant to this section.
I. If the officer does not serve an order of suspension pursuant to subsection D of this section and if the department does not receive the report of the results of the blood or breath alcohol test pursuant to subsection B, paragraph 4 of this section, but subsequently receives the results and the results indicate 0.08 or more alcohol concentration in the person's blood or breath, a blood or breath alcohol concentration of 0.04 or more and the person was driving or in actual physical control of a commercial motor vehicle or any drug defined in section 13-3401 or its metabolite in the person's body and the person does not possess a valid prescription for the drug, the department shall notify the person named in the report in writing sent by mail that fifteen days after the date of issuance of the notice the department will suspend the person's license or permit, driving privilege or nonresident driving privilege. The notice shall also state that the department will provide an opportunity for a hearing and summary review if the person requests a hearing or review in writing and the request is received by the department within fifteen days after the notice is sent.
J. A timely request for a hearing stays the suspension until a hearing is held, except that the department shall not return any surrendered license or permit to the person but may issue temporary permits to drive that expire no later than when the department has made its final decision. If the person is a resident without a license or permit or has an expired license or permit, the department may allow the person to apply for a restricted license or permit. If the department determines the person is otherwise entitled to the restricted license or permit, the department shall issue, but retain, the license or permit, subject to this section. All hearings requested under this section shall be conducted in the same manner and under the same conditions as provided in section 28-3306.
K. For the purposes of this section, the scope of the hearing shall include only the following issues:
1. Whether the officer had reasonable grounds to believe the person was driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.
2. Whether the person was placed under arrest for a violation of section 4-244, paragraph 34, section 28-1381, section 28-1382 or section 28-1383 or for a violation of title 13, chapter 11 or section 13-1201 or 13-1204 involving a motor vehicle.
3. Whether a test was taken, the results of which indicated any of the following:
(a) An alcohol concentration in the person's blood or breath at the time the test was administered of either:
(i) 0.08 or more.
(ii) 0.04 or more if the person was driving or in actual physical control of a commercial motor vehicle.
(b) Any drug defined in section 13-3401 or its metabolite in the person's body except if the person possesses a valid prescription for the drug.
4. Whether the testing method used was valid and reliable.
5. Whether the test results were accurately evaluated.
L. The results of the blood or breath alcohol test shall be admitted on establishing the requirements in section 28-1323 or 28-1326.
M. If the department determines at the hearing to suspend the affected person's privilege to operate a motor vehicle, the suspension provided in this section is effective fifteen days after giving written notice of the suspension, except that the department may issue or extend a temporary license that expires on the effective date of the suspension. If the person is a resident without a license or permit or has an expired license or permit to operate a motor vehicle in this state, the department shall deny the issuance of a license or permit to the person for not less than ninety consecutive days. The department may reinstate the person's driving privilege, license, permit, right to apply for a license or permit or nonresident operating privilege following the period of suspension only if the violator completes alcohol or other drug screening.
N. A person may request a summary review of an order issued pursuant to this section instead of a hearing at any time before the effective date of the order. A timely request for summary review stays the suspension until a decision is issued. The person shall submit the request in writing to the department together with any written explanation as to why the department should not suspend the driving privilege. The department shall review all reports submitted by the officer and any written explanation submitted by the person and shall determine if the order of suspension should be sustained or voided. The department shall not hold a hearing, and the review is not subject to title 41, chapter 6. The department shall notify the person of its decision.
O. If the suspension or determination that there should be a denial of issuance is not sustained after a hearing or review, the ruling is not admissible in and does not have any effect on any civil or criminal court proceeding.
P. If it has been determined under the procedures of this section that a nonresident's privilege to operate a motor vehicle in this state has been suspended, the department shall give information either in writing or by electronic means of the action taken to the motor vehicle administrator of the state of the person's residence and of any state in which the person has a license.