Have A Question? Search This Site:
Many drivers in Nebraska assume that if their blood alcohol content (BAC) is below the legal limit, they’re automatically safe from DUI charges. But in reality, the law is more complex. While the legal BAC limit for most drivers is 0.08%, that number isn’t a hard cutoff for all DUI enforcement. In Nebraska, it’s possible to be arrested and convicted of driving under the influence even if your BAC is below the legal limit.
This confusion stems from a misunderstanding of how DUI laws work. BAC levels are one method of measuring impairment, but they are not the only standard used by law enforcement and the courts. Officers in Nebraska are allowed to assess impairment based on driving behavior, physical symptoms, and field sobriety test results—even if the BAC is under 0.08%.
This blog post explains how Nebraska DUI laws apply to drivers with BACs under the legal limit. We’ll cover the difference between “per se” DUI and impairment-based DUI, how officers assess intoxication, what penalties may still apply, and how BAC interacts with other enforcement tools. If you’re wondering whether you can still be charged with a DUI in Nebraska below 0.08%, the answer is yes—and here’s why.
Nebraska Has Two Ways to Charge DUI: BAC Level and Observed Impairment
In Nebraska, DUI charges can be based on two independent legal standards:
- Per Se DUI – If your BAC is 0.08% or higher, you are presumed to be impaired under the law. No further evidence is needed.
- Impairment-Based DUI – If your BAC is below 0.08%, but your behavior indicates impairment, you can still be charged.
The second standard is where most confusion arises. Many drivers think the 0.08% threshold is the only metric that matters. In truth, Nebraska law allows officers to arrest drivers at any BAC level if they believe alcohol or other substances have impaired the person’s ability to operate a vehicle safely.
This means that even a BAC of 0.04% or 0.06% could result in a DUI arrest—particularly if the driver shows signs of reduced coordination, confusion, or erratic behavior behind the wheel.
How Officers Determine Impairment Below the Legal Limit
When a driver is pulled over, law enforcement officers in Nebraska don’t rely on BAC alone. They observe the full context of the situation to determine if the driver is impaired. The process typically includes:
- Field sobriety tests (such as the walk-and-turn, one-leg stand, and horizontal gaze nystagmus test)
- Observations of driving behavior prior to the stop (weaving, speeding, sudden stops)
- Physical signs of impairment, such as slurred speech, glassy eyes, or the smell of alcohol
- Driver responses during questioning, which may show confusion or lack of coordination
If these observations suggest that alcohol is impairing your driving—even if your BAC is below 0.08%—you can be arrested and charged with DUI under the impairment standard.
Officers are trained to recognize signs of intoxication beyond just breathalyzer results, and Nebraska courts allow these observations to serve as evidence in a DUI case.
Legal Basis: Nebraska DUI Law Does Not Require 0.08% BAC
Nebraska Revised Statute § 60-6,196 outlines the conditions under which someone may be charged with DUI. It clearly states that a person is guilty of DUI if they:
“Operate or have actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug.”
The key phrase here is “under the influence”, not “only when BAC is over 0.08%.” This language gives prosecutors the ability to charge individuals even if their BAC is below the per se threshold—as long as there is evidence the person was impaired by alcohol or drugs.
The 0.08% limit is a bright-line rule, but the law also provides room for enforcement based on a totality of circumstances, which includes behavior, appearance, and performance on sobriety tests.
Can You Be Convicted with a BAC Under 0.08%?
Yes. In Nebraska, if the prosecution can show that your ability to drive was impaired—even slightly—by alcohol or other substances, you can be convicted of DUI even if your BAC is below 0.08%.
For example:
- A driver with a BAC of 0.06% who fails multiple field sobriety tests and is seen swerving between lanes could be convicted of DUI.
- A driver under the influence of alcohol and prescription drugs, even with a low BAC, might still be found impaired.
- In rare cases, an arrest could occur at 0.03% or 0.04% if clear signs of intoxication are present.
In court, the chemical test result is only one piece of evidence. If the officer’s observations and field tests support a claim of impaired driving, those facts may be enough to prove the case under Nebraska law.
BAC Below Legal Limit Still Carries Penalties
Even if your BAC is below 0.08% and you are not charged with DUI, you could still face other alcohol-related penalties in Nebraska, especially if:
- You are under 21, where the legal limit is 0.02% under the Zero Tolerance Law.
- You hold a commercial driver’s license (CDL) and your BAC is 0.04% or higher while driving a commercial vehicle.
- You are involved in a traffic accident or show unsafe behavior behind the wheel.
In these cases, drivers may face administrative license suspensions, fines, or restrictions on driving privileges, even if no criminal conviction follows.
Prescription Drugs and Combination Impairment
Nebraska law also covers impairment caused by drugs or the combined effect of drugs and alcohol. If you are taking prescription medication that causes drowsiness or impairs motor function, and you consume alcohol—even a small amount—the combined effect could lead to a DUI charge.
This is especially true when the driver exhibits:
- Slow reaction times
- Drowsy or inattentive driving
- Failure to respond to traffic signals or officer commands
Many medications warn users not to operate machinery or vehicles. If you’re pulled over and admit to taking medication—even legally—and alcohol is also detected in your system, officers may interpret your condition as impaired driving.
Field Sobriety Tests vs. Chemical BAC Tests
Field sobriety tests (FSTs) play a critical role in impairment-based DUI cases. Unlike chemical tests that provide numerical BAC readings, FSTs assess your physical and mental coordination in real time.
In Nebraska, the three standardized FSTs used by officers are:
- Walk-and-Turn (WAT): Evaluates balance and ability to follow instructions
- One-Leg Stand (OLS): Tests stability and concentration
- Horizontal Gaze Nystagmus (HGN): Observes eye movements for signs of alcohol impairment
Even if your BAC is 0.05%, failing these tests can give officers the probable cause needed for arrest. The results of field tests are admissible in court and often carry weight with judges and juries.
Why You Shouldn’t Rely on “Staying Below 0.08%”
Some drivers believe they can avoid DUI charges by carefully pacing drinks or using apps and calculators to estimate BAC. However, this approach is risky for several reasons:
- BAC calculators are not accurate for everyone. Factors like body weight, metabolism, food intake, and alcohol type affect results.
- You can still be impaired below 0.08%, especially in situations involving fatigue, medication, or low tolerance.
- Law enforcement uses multiple tools to determine impairment, not just a breath test.
- You could still be charged or arrested based on driving behavior and field sobriety performance.
The only truly safe BAC while driving is 0.00%, and even then, other substances or medications can create impairment risks.
FAQ: DUI Below the Legal Limit in Nebraska
Can I be arrested for DUI with a BAC under 0.08% in Nebraska?
Yes. If an officer believes your driving is impaired by alcohol or drugs, you can be charged regardless of BAC level.
What is considered impairment under Nebraska law?
Any degree of mental or physical impairment that affects your ability to drive safely—even if your BAC is below 0.08%.
Will a DUI charge still stick in court if my BAC is below 0.08%?
It can. Prosecutors can present evidence of impairment beyond BAC, including officer observations and field sobriety test results.
What happens if I refuse a BAC test but show signs of impairment?
Refusing a test triggers administrative penalties like license suspension. You may still be charged with DUI based on other evidence.
Is it safer to just stay below 0.08%?
Legally, the safest choice is to avoid alcohol entirely when driving. Staying under 0.08% does not guarantee you won’t be arrested or charged.
Do field sobriety tests matter if I pass a breath test?
Yes. Field sobriety tests can still provide enough evidence for DUI charges even if your BAC is under the legal limit.
Are CDL drivers held to a lower BAC standard?
Yes. For commercial drivers, the legal BAC limit in Nebraska is 0.04%, and impairment-based charges can apply even below that.
Conclusion
In Nebraska, the legal BAC limit of 0.08% is not a guaranteed protection against DUI charges. If a law enforcement officer believes you are impaired—even slightly—you can be charged and possibly convicted, even with a BAC below the legal threshold. Nebraska DUI laws are written to prioritize safety, allowing officers and courts to use a range of evidence beyond chemical tests to determine impairment.
If you drive after drinking—even small amounts—you may face serious consequences regardless of your BAC level. Understanding that DUI laws don’t begin and end at 0.08% is essential for all Nebraska drivers.
For more detail on legal limits and how BAC works under state DUI laws, visit the Blood Alcohol Content And Legal Limits page.
To explore the definition and role of BAC in more depth, read the full What Blood Alcohol Content (BAC) Means Under DUI Laws guide.