28-1321

28-1321. Implied consent; tests; refusal to
submit to test; order of suspension; hearing; review; temporary
permit; notification of suspension; special ignition interlock
restricted driver license

A. A person who operates a motor vehicle in this state gives consent, subject to
section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383, to a test or tests of
the person's blood, breath, urine or other bodily substance for the purpose of
determining alcohol concentration or drug content if the person is arrested for any
offense arising out of acts alleged to have been committed in violation of this chapter
or section 4-244, paragraph 34 while the person was driving or in actual physical control
of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or
tests chosen by the law enforcement agency shall be administered at the direction of a
law enforcement officer having reasonable grounds to believe that the person was driving
or in actual physical control of a motor vehicle in this state either:

1. While under the influence of intoxicating liquor or drugs.

2. If the person is under twenty-one years of age, with spirituous liquor in the
person's body.

B. After an arrest a violator shall be requested to submit to and successfully
complete any test or tests prescribed by subsection A of this section, and if the
violator refuses the violator shall be informed that the violator's license or permit to
drive will be suspended or denied for twelve months, or for two years for a second or
subsequent refusal within a period of eighty-four months, unless the violator expressly
agrees to submit to and successfully completes the test or tests. A failure to expressly
agree to the test or successfully complete the test is deemed a refusal. The violator
shall also be informed that:

1. If the test results show a blood or breath alcohol concentration of 0.08 or
more, or if the results show a blood or breath alcohol concentration of 0.04 or more and
the violator was driving or in actual physical control of a commercial motor vehicle, the
violator's license or permit to drive will be suspended or denied for not less than
ninety consecutive days.

2. The violator'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 violator completes alcohol or other drug screening.

C. A person who is dead, unconscious or otherwise in a condition rendering the
person incapable of refusal is deemed not to have withdrawn the consent provided by
subsection A of this section and the test or tests may be administered, subject to
section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383.

D. If a person under arrest refuses to submit to the test designated by the law
enforcement agency as provided in subsection A of this section:

1. The test shall not be given, except as provided in section 28-1388, subsection E
or pursuant to a search warrant.

2. The law enforcement officer directing the administration of the test shall:

(a) File a certified report of the refusal with the department.

(b) On behalf of the department, serve an order of suspension on the person that is
effective fifteen days after the date the order is served.

(c) 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.

(d) If the license or permit is not surrendered, state the reason why it is not
surrendered.

(e) If a valid license or permit is surrendered, issue a temporary driving permit
that is valid for fifteen days.

(f) Forward the certified report of refusal, a copy of the completed notice of
suspension, a copy of any completed temporary permit and any driver license or permit
taken into possession under this section to the department within five days after the
issuance of the notice of suspension.

E. The certified report is subject to the penalty for perjury as prescribed by
section 28-1561 and shall state all of the following:

1. The officer's reasonable grounds to believe that the arrested person was driving
or in actual physical control of a motor vehicle in this state either:

(a) While under the influence of intoxicating liquor or drugs.

(b) If the person is under twenty-one years of age, with spirituous liquor in the
person's body.

2. The manner in which the person refused to submit to the test or tests.

3. That the person was advised of the consequences of refusal.

F. On receipt of the certified report of refusal and a copy of the order of
suspension and on the effective date stated on the order, the department shall enter the
order of suspension on its records unless a written request for a hearing as provided in
this section has been filed by the accused person. If the department receives only the
certified report of refusal, the department shall notify the person named in the report
in writing sent by mail that:

1. 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.

2. The department will provide an opportunity for a hearing if the person requests
a hearing in writing and the request is received by the department within fifteen days
after the notice is sent.

G. The order of suspension issued by a law enforcement officer or the department
under this section shall notify the person that:

1. The person may submit a written request for a hearing.

2. The request for a hearing must be received by the department within fifteen days
after the date of the notice or the order of suspension will become final.

3. The affected person's license or permit to drive or right to apply for a license
or permit or any nonresident operating privilege will be suspended for twelve months from
that date or for two years from that date for a second or subsequent refusal within a
period of eighty-four months.

4. 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.

H. The order for suspension shall:

1. Be accompanied by printed forms that are ready to mail to the department and
that may be filled out and signed by the person to indicate the person's desire for a
hearing.

2. Advise the person that unless the person has surrendered any driver license or
permit issued by this state the person's hearing request will not be accepted, except
that the person may certify pursuant to section 28-3170 that the license or permit is
lost or destroyed.

I. On the receipt of a request for a hearing, the department shall set the hearing
within thirty days in the county in which the person named in the report resides unless
the law enforcement agency filing the certified report of refusal pursuant to subsection
D of this section requests at the time of its filing that the hearing be held in the
county where the refusal occurred.

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 license or permit, the department shall issue and retain a restricted
license or permit subject to this section.

K. Hearings requested under this section shall be conducted in the same manner and
under the same conditions as provided in section 28-3306. For the purposes of this
section, the scope of the hearing shall include only the issues of whether:

1. A law enforcement officer had reasonable grounds to believe that the person was
driving or was in actual physical control of a motor vehicle in this state either:

(a) While under the influence of intoxicating liquor or drugs.

(b) If the person is under twenty-one years of age, with spirituous liquor in the
person's body.

2. The person was placed under arrest.

3. The person refused to submit to the test.

4. The person was informed of the consequences of refusal.

L. 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 to
the person the issuance of a license or permit for a period of twelve months after the
order of suspension becomes effective or for a period of two years after the order of
suspension becomes effective for a second or subsequent refusal within a period of
eighty-four months, and 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 person completes alcohol or other drug screening.

M. If the suspension order is sustained after the hearing, a motion for rehearing
is not required. Within thirty days after a suspension order is sustained, the affected
person may file a petition in the superior court to review the final order of suspension
or denial by the department in the same manner provided in section 28-3317. The court
shall hear the review of the final order of suspension or denial on an expedited basis.

N. If the suspension or determination that there should be a denial of issuance is
not sustained, the ruling is not admissible in and has no effect on any administrative,
civil or criminal court proceeding.

O. 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.

P. After completing not less than ninety consecutive days of the period of
suspension required by this section and any alcohol or other drug screening that is
ordered by the department pursuant to this chapter, a person whose driving privilege is
suspended pursuant to this section may apply to the department for a special ignition
interlock restricted driver license pursuant to section 28-1401. Unless the certified
ignition interlock period is extended by the department pursuant to section 28-1461, a
person who is issued a special ignition interlock restricted driver license as provided
in this subsection shall maintain a functioning certified ignition interlock device in
compliance with this chapter during the remaining period of the suspension prescribed by
this section. This subsection does not apply to a person whose driving privilege is
suspended for a second or subsequent refusal within a period of eighty-four months or a
person who within a period of eighty-four months has been convicted of a second or
subsequent violation of article 3 of this chapter or section 4-244, paragraph 34 or an
act in another jurisdiction that if committed in this state would be a violation of
article 3 of this chapter or section 4-244, paragraph 34.