28-673. Traffic accidents; implied consent; tests

A. A person who operates a motor vehicle within this state gives consent to a test or tests of the person's blood, breath, urine or other bodily substance for the purposes of determining alcohol concentration or drug content if the person is involved in a traffic accident resulting in death or serious physical injury as defined in section 13-105 and a law enforcement officer has probable cause to believe that the person caused the accident or the person is issued a citation for a violation of any provision of this article, article 2, 3 or 5 through 15 of this chapter or chapter 4 of this title.

B. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer who has reasonable grounds to believe that the person was involved in a traffic accident resulting in death or serious physical injury as defined in section 13-105 and who has probable cause to believe that the person caused the accident or the person was issued a citation for a violation of any provision of this article, article 2, 3 or 5 through 15 of this chapter or chapter 4 of this title.

C. After a determination is made that a person was involved in a traffic accident resulting in death or serious physical injury as defined in section 13-105 and the officer has probable cause to believe that the person caused the accident or the person was issued a citation for a violation of any provision of this article, article 2, 3 or 5 through 15 of this chapter or chapter 4 of this title, the person may be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the person refuses, the person shall be informed that the person's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal in a period of eighty-four months, unless the person 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 person shall also be informed that 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 person was driving or in actual physical control of a commercial motor vehicle, the person's license or permit to drive will be suspended or denied for not less than ninety consecutive days.

D. If a person refuses to submit to the test designated by the law enforcement agency as provided in subsection B 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. Section 28-1321, subsections E through P apply to any test prescribed by this section and to any person who refuses to submit to a test prescribed by this section, except that:

1. The certified report shall state the law enforcement officer's reasonable grounds to believe that the person was involved in a traffic accident resulting in death or serious physical injury as defined in section 13-105 and the law enforcement officer's probable cause to believe that the person caused the accident or the person was issued a citation for a violation of any provision of this article, article 2, 3 or 5 through 15 of this chapter or chapter 4 of this title.

2. The certified report shall be filed pursuant to subsection D of this section.

3. The scope of the hearing shall include the law enforcement officer's probable cause to believe that the person was involved in a traffic accident resulting in death or serious physical injury as defined in section 13-105 and the law enforcement officer's probable cause to believe that the person caused the accident or the person was issued a citation for a violation of any provision of this article, article 2, 3 or 5 through 15 of this chapter or chapter 4 of this title.

F. 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 shall be administered.