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Many people believe that failing a breath test is the only way to be arrested for driving under the influence (DUI) in Nebraska. While breath test results often serve as key evidence in DUI cases, they are not required for an arrest to occur. Nebraska law allows law enforcement officers to arrest drivers for DUI based on observed behavior, physical indicators, and other forms of evidence—even if a breath test is passed or not administered.
This blog post explains how a DUI arrest can happen in Nebraska without a failed breath test. It covers what officers look for, the legal standards they follow, and the different types of evidence they can rely on when deciding whether to make an arrest. Understanding these rules helps clarify how DUI enforcement works and what drivers should be aware of on the road.
Let’s look at the role of breath tests, alternative types of evidence, and how DUI arrests can happen even when the numbers don’t seem to add up.
What Role Does a Breath Test Play in a DUI Arrest?
Breath tests are a common tool used by Nebraska law enforcement to estimate a driver’s blood alcohol concentration (BAC). These tests typically occur after a driver is stopped and suspected of being under the influence. If the test result shows a BAC of 0.08% or higher, the officer has clear legal grounds for a DUI arrest.
However, failing a breath test is not required for an arrest. Officers are trained to evaluate drivers using a range of indicators, including physical appearance, behavior, and field sobriety tests. If they believe a driver is impaired—regardless of breath test results—they can proceed with an arrest.
In some cases, drivers may pass a breath test but still show strong signs of drug impairment, fatigue, or other behavior that raises safety concerns. In those cases, Nebraska law allows the officer to arrest the driver based on probable cause, even without a high BAC reading.
Observational Evidence Used Instead of Breath Tests
Law enforcement in Nebraska is permitted to rely on observational evidence to support a DUI arrest. This means that the officer’s own observations can carry legal weight when determining impairment.
Common signs include:
- Slurred speech or confused answers
- Bloodshot or glassy eyes
- Odor of alcohol or drugs
- Difficulty handling basic tasks (e.g., retrieving license and registration)
- Trouble maintaining balance or following directions
These indicators, combined with poor performance on field sobriety tests, can lead an officer to conclude that a driver is impaired—even without a breath test or with a BAC under the legal limit.
In some DUI cases, officers may also record dashcam footage or bodycam video to document their observations. While this is not required, it can provide additional support for an arrest decision later.
DUI Arrests for Suspected Drug Impairment
Breath tests are designed to measure alcohol, not drugs. If a driver is impaired by prescription medication, over-the-counter drugs, or illegal substances, a breath test may show little or no alcohol. However, the driver may still be under the influence, according to Nebraska law.
In these cases, officers may bring in a Drug Recognition Expert (DRE)—a specially trained officer who evaluates physical and behavioral signs of drug use. These evaluations can include:
- Checking pupil size and reaction
- Taking pulse and blood pressure
- Assessing balance and coordination
- Questioning about substance use
Based on this evaluation, and if impairment is suspected, a DUI arrest may follow even if no breath test was failed.
A chemical test such as a blood or urine sample may be used later to confirm the presence of drugs. However, the arrest itself is based on observed signs of impairment, not a failed alcohol test.
Can You Refuse a Breath Test in Nebraska?
Nebraska’s implied consent law requires drivers to submit to a chemical test—usually a breath, blood, or urine test—if they are arrested for DUI. However, the law treats preliminary breath tests (PBTs) differently.
A PBT is the small handheld breath test used before an arrest to help determine if there’s probable cause. This test is voluntary, though refusing it may influence the officer’s decision to arrest.
After an arrest, refusing a formal chemical test leads to automatic penalties:
- Immediate license revocation
- Possible ignition interlock requirements
- Loss of eligibility for some diversion or probation programs
Refusing the test does not stop the arrest. Officers can still use their observations and any field test results to justify taking a driver into custody.
What Happens If BAC Is Below 0.08%?
A BAC below the legal limit of 0.08% does not guarantee immunity from a DUI arrest in Nebraska. Several situations may still lead to arrest:
- Visible signs of impairment despite low BAC
- Drug impairment with no alcohol involved
- Combination of alcohol and other substances that causes impairment
- Zero tolerance law violations for drivers under 21 with BAC over 0.02%
In all these scenarios, officers may determine that the driver is unable to operate a vehicle safely, which is enough to support a DUI arrest.
The key point is that impairment, not a specific number, is the deciding factor in many Nebraska DUI cases. The law focuses on whether a driver’s ability to control the vehicle is compromised.
Does the Arrest Always Lead to a Conviction?
No. Being arrested for DUI in Nebraska does not automatically mean a person will be convicted. In cases where no failed breath test is present, the outcome often depends on:
- The strength of the officer’s observations
- Field sobriety test results
- Chemical test results (blood or urine, if applicable)
- Dashcam or bodycam footage
- Testimony from a Drug Recognition Expert (if used)
These cases may be more complex to prove in court, especially if chemical tests come back negative. However, the arrest itself can still result in license suspension, fees, or other administrative penalties, regardless of whether a conviction follows.
FAQ: Nebraska DUI Arrests Without Failing a Breath Test
Q: Can I be arrested in Nebraska if I pass a breath test?
A: Yes. If officers observe signs of impairment or suspect drug use, they can still make a DUI arrest.
Q: What if I refuse the breath test?
A: Post-arrest refusals lead to automatic license suspension and other penalties under Nebraska’s implied consent law.
Q: Is drug use treated the same as alcohol under Nebraska DUI law?
A: Yes. Driving under the influence of drugs—prescription or illegal—can result in a DUI arrest, even if no alcohol is detected.
Q: Do officers need a failed breath test to charge me with DUI?
A: No. They can use field sobriety tests, behavioral observations, and drug evaluations to support an arrest.
Q: Will I lose my license even if I’m not convicted?
A: Possibly. Administrative penalties, like license suspension, can be applied independently of a criminal conviction.
Conclusion
In Nebraska, a failed breath test is not required for a DUI arrest. Officers are trained to recognize signs of impairment through behavior, field tests, and physical indicators. If they believe a driver is not in a condition to operate a vehicle safely, they can proceed with an arrest—even if the breath test is passed or not administered at all. This flexible enforcement approach ensures that DUI laws cover a wide range of impairment types, not just alcohol.
To understand more about how DUI laws function beyond testing devices, visit our How DUI Laws Work overview. For deeper insight into the specific cues that lead to DUI arrests during traffic stops, explore What Triggers a DUI Arrest During a Traffic Stop.