60-6,199. Driving under influence of alcoholic liquor or drugs; test; additional test; refusal to permit; effect; results of test; available upon request.

The peace officer who requires a chemical blood, breath, or urine test or tests pursuant to section 60-6,197 may direct whether the test or tests shall be of blood, breath, or urine. The person tested shall be permitted to have a physician of his or her choice evaluate his or her condition and perform or have performed whatever laboratory tests he or she deems appropriate in addition to and following the test or tests administered at the direction of the officer. If the officer refuses to permit such additional test to be taken, then the original test or tests shall not be competent as evidence. Upon the request of the person tested, the results of the test or tests taken at the direction of the officer shall be made available to him or her.

Source

Annotations

1. Required test

2. Refusal to take test

3. Additional test

4. Miscellaneous

1. Required test

An individual required to take a breath test does not have the option of requesting a blood or urine test. State v. Morse, 211 Neb. 448, 318 N.W.2d 893 (1982).

This section which provides that if an officer directs that a test shall be of the person's blood or urine such person may choose whether the test shall be of blood or of urine, does not require the officer to notify the person of his option and if the person takes one or the other of these tests then he has waived his right to insist that the test to be made by the state be one of his choice. State v. Sommers, 201 Neb. 809, 272 N.W.2d 367 (1978).

An arrest or the taking into custody on a driving offense required before test is administered. State v. Baker, 184 Neb. 724, 171 N.W.2d 798 (1969).

Blood test was properly given and made. State v. Berg, 177 Neb. 419, 129 N.W.2d 117 (1964).

To render blood test admissible in evidence, there must be a compliance with this section. Pierce v. State, 173 Neb. 319, 113 N.W.2d 333 (1962).

Person taken into custody may choose what test shall be given. Purcha v. Department of Motor Vehicles, 172 Neb. 415, 110 N.W.2d 75 (1961).

2. Refusal to take test

If an arrested motorist has refused a chemical test to determine the motorist's blood-alcohol level in accordance with section 39-699.08(4), (transferred to section 60-6,197) the motorist has no right to a physician's evaluation of the motorist's condition or chemical tests in addition to that directed by the law enforcement officer. State v. Clark, 229 Neb. 103, 425 N.W.2d 347 (1988).

An operator has refused to submit to a test when he conducts himself in a way which would justify a reasonable person in believing that he understood he had been asked to take the test and manifested an unwillingness to take it. Bauer v. Peterson, 212 Neb. 174, 322 N.W.2d 389 (1982).

Silence in the face of a direct inquiry as to which test should be administered was equivalent to an express refusal to submit to any test. Johnson v. Dennis, 187 Neb. 95, 187 N.W.2d 605 (1971).

3. Additional test

The defendant, arrested for driving under the influence, was not deprived by police of his statutory right to an independent blood test where, after requesting an opportunity to undergo an independent blood test, the defendant was provided telephone access to make necessary arrangements, but failed to use such access to arrange for a timely independent blood test at jail. State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).

Permitting a requested independent chemical test is foundational to the admission in evidence of the result of the breath test performed by the State. Under this section, the police cannot hamper a motorist's reasonable efforts to obtain independent chemical testing; however, the police have no statutory duty to transport a licensee for the purpose of obtaining such testing. State v. Dake, 247 Neb. 579, 529 N.W.2d 46 (1995).

Statute does not require officer to inform person of his or her privilege to request an independent test. Heusman v. Jensen, 226 Neb. 666, 414 N.W.2d 247 (1987).

An officer is not required to inform the person to be tested of his privilege to request an independent test. State v. Klingelhoefer, 222 Neb. 219, 382 N.W.2d 366 (1986).

Statute does not require the officer to inform the person to be tested of his privilege to request an independent test. State v. Miller, 213 Neb. 274, 328 N.W.2d 769 (1983).

Lab results of state's blood or urine tests are inadmissible if defendant objects after denial of requests for private physician and tests. State v. Wahrman, 199 Neb. 337, 258 N.W.2d 818 (1977).

Failure of officer to advise motorist he could obtain additional test following one directed by officer is not excuse for motorist's failure to submit to test. Zadina v. Weedlun, 187 Neb. 361, 190 N.W.2d 857 (1971).

4. Miscellaneous

Because there is no statutory or constitutional requirement that a defendant be advised of his or her rights under this section, there is no constitutional requirement that an advisement must be given in a language the defendant understands. State v. Wang, 291 Neb. 632, 867 N.W.2d 564 (2015).

Result of test should be made available to the defendant but request should be made prior to trial. State v. Fox, 177 Neb. 238, 128 N.W.2d 576 (1964).

Registered nurse may withdraw blood for a test only if acting under the direction of a physician. Otte v. State, 172 Neb. 110, 108 N.W.2d 737 (1961).