28-1385

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 blood or breath alcohol test 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 either 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.

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. 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 ready to mail to the department that the
person may fill out and sign to indicate the person's desire for a hearing.

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.

D. If the blood alcohol concentration 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.

E. If the license or permit is not surrendered pursuant to subsection C 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,
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 order of suspension along with the report.

F. 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.

G. Notwithstanding subsections A through F of this section, the department shall
suspend the driving privileges of the person described in subsection A of this section
for not less than thirty consecutive days and shall restrict the driving privileges of
the person for not less than sixty consecutive additional days to travel between the
person's place of employment and residence and during specified periods of time while at
employment, to travel between the person's place of residence and the person's secondary
or postsecondary school, according to the person's employment or educational schedule, to
travel between the person's place of residence and the office of the person's probation
officer for scheduled appointments or to travel between the person's place of residence
and a screening, education or treatment facility for scheduled appointments 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.

H. If the officer does not serve an order of suspension pursuant to subsection C 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, or 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, 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 administrative 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.

I. 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.

J. 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.

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 the alcohol
concentration in the person's blood or breath at the time the test was administered of
either:

(a) 0.08 or more.

(b) 0.04 or more if the person was driving or in actual physical control of a
commercial motor vehicle.

4. Whether the testing method used was valid and reliable.

5. Whether the test results were accurately evaluated.

K. The results of the blood or breath alcohol test shall be admitted on
establishing the requirements in section 28-1323 or 28-1326.

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 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.

M. A person may apply for 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. The
person shall submit the application in writing to any department driver license examining
office together with any written explanation as to why the department should not suspend
the driving privilege. The agent of the department receiving the notice shall issue to
the person an additional driving permit that expires twenty days from the date the
request is received. 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 cancelled. 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 before the temporary driving permit expires.

N. 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.

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.