Aggravated First DUI (BAC Over .15) in Nebraska: What Changes in Sentencing

Not all first-time DUIs are treated equally in Nebraska. If you are arrested and the chemical test shows a Blood Alcohol Concentration (BAC) of .15 or higher-nearly double the legal limit of .08-the state prosecutors will treat your case much more aggressively. This is known as an 'Aggravated DUI.' The Nebraska legislature designed these laws to strictly punish drivers who are significantly intoxicated, meaning the leniency usually shown to first-time offenders is heavily restricted.

Facing an aggravated DUI charge requires a strong, proactive defense strategy. We advise you to search our directory to find an experienced Nebraska DUI attorney who knows how to challenge high breathalyzer results and negotiate for reduced charges.

Understanding the Aggravated First DUI Penalties

Under Neb. Rev. Stat. § 60-6,197.03(2), an aggravated first offense is still classified as a Class W misdemeanor, but the statutory penalties jump significantly compared to a standard DUI.

Mandatory Jail Time for High BAC

The most drastic change involves mandatory jail time. If you are convicted of an aggravated DUI and the judge refuses to give you probation, you will serve a mandatory minimum of seven days in jail, with a maximum possible sentence of 60 days. However, even if your lawyer successfully negotiates for probation, the law still requires you to serve a mandatory minimum of two days in jail, or complete 120 hours of community service. You will also be required to pay a $500 fine and complete a state-approved substance abuse evaluation.

Extended IID Requirements and License Loss

Your ability to drive is severely impacted by a .15 or higher BAC. Instead of a six-month revocation, an aggravated first DUI triggers a mandatory one-year driver's license revocation. If you are granted probation, the judge will require you to install an Ignition Interlock Device (IID) in your vehicle for the entire year if you wish to drive for any reason. You must apply for an Ignition Interlock Permit through the Nebraska Department of Motor Vehicles, Lincoln before you can legally get behind the wheel.

How Defense Lawyers Challenge .15+ Breathalyzer Results

Because the penalties change drastically at the .15 mark, defeating the chemical test is often the primary goal of your defense. Your attorney will meticulously examine the evidence to find flaws in how the state gathered your BAC reading.

• Machine Calibration: Breathalyzer machines, like the DataMaster DMT used by the Nebraska State Patrol, Lincoln, must be strictly calibrated and maintained according to Department of Health and Human Services regulations. If the machine's maintenance logs show it was out of compliance, your lawyer can file a motion to suppress the results.
• Rising Blood Alcohol: It takes time for alcohol to absorb into your bloodstream. If you had a few drinks right before driving, your BAC might have been under .08 while you were actually driving, but rose to .15 by the time you were tested an hour later at the station.
• Improper Administration: Officers must observe you for a mandatory 15-minute waiting period before administering the breath test to ensure you do not burp, vomit, or ingest anything that could cause a falsely high reading from 'mouth alcohol.' If dashcam footage shows the officer failed to watch you continuously, the test can be challenged, as supported by precedents like State v. Baue, 258 Neb. 968 (NE Supreme Court 2000).

Will I Still Qualify for Pretrial Diversion?

Diversion programs allow you to keep a conviction off your record, but an aggravated BAC makes getting into these programs much harder. Many county prosecutors, such as those operating out of the Sarpy County Court, Papillion, have strict internal policies that automatically disqualify drivers with a BAC over .15 or .20 from entering diversion. However, an aggressive defense attorney can sometimes negotiate a plea deal that reduces the charge to a standard DUI, which may then allow you to qualify for a leniency program.

The Administrative Hearing Deadline

Do not forget the DMV. Just like a standard DUI, you only have 10 days to petition to save your license from an automatic suspension under Neb. Rev. Stat. § 60-498.01(6)(a). You must submit a Form Petition for Administrative Hearing, Nebraska, Department of Motor Vehicles, Petition for Administrative Hearing immediately. If the ALR revocation takes effect for failing the chemical test on a first offense, it lasts for 180 days under Neb. Rev. Stat. § 60-498.02(1)(a), whereas the separate criminal court-ordered revocation for a .15+ conviction lasts for a full year under Neb. Rev. Stat. § 60-6,197.03(2).

Frequently Asked Questions (FAQ)