28-1388. Blood and breath tests; violation;
classification; admissible evidence
A. If blood is drawn under section 28-1321, only a physician, a registered nurse or
another qualified person may withdraw blood for the purpose of determining the alcohol
concentration or drug content in the blood. The qualifications of the individual
withdrawing the blood and the method used to withdraw the blood are not foundational
prerequisites for the admissibility of a blood alcohol content determination made
pursuant to this subsection.
B. If a law enforcement officer administers a duplicate breath test and the person
tested is given a reasonable opportunity to arrange for an additional test pursuant to
subsection C of this section, a sample of the person's breath does not have to be
collected or preserved.
C. The person tested shall be given a reasonable opportunity to arrange for any
physician, registered nurse or other qualified person of the person's own choosing to
administer a test or tests in addition to any administered at the direction of a law
enforcement officer. The failure or inability to obtain an additional test by a person
does not preclude the admission of evidence relating to the test or tests taken at the
direction of a law enforcement officer.
D. If a person under arrest refuses to submit to a test or tests under section
28-1321, whether or not a sample was collected pursuant to subsection E of this section
or a search warrant, evidence of refusal is admissible in any civil or criminal action or
other proceeding. The issue of refusal is an issue of fact to be determined by the trier
of fact in all cases.
E. Notwithstanding any other law, if a law enforcement officer has probable cause
to believe that a person has violated section 28-1381 and a sample of blood, urine or
other bodily substance is taken from that person for any reason, a portion of that sample
sufficient for analysis shall be provided to a law enforcement officer if requested for
law enforcement purposes. A person who fails to comply with this subsection is guilty of
a class 1 misdemeanor.
F. A person who collects blood, urine or any other bodily substance under this
section or any hospital, laboratory or clinic employing or using the services of the
person does not incur any civil liability as a result of this activity if requested by a
law enforcement officer to collect blood, urine or other bodily substances unless the
person, while performing the activity, acts with gross negligence.
G. A statement by the defendant that the defendant was driving a vehicle that was
involved in an accident resulting in injury to or death of any person is admissible in
any criminal proceeding without further proof of corpus delicti if it is otherwise
admissible.
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