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Breath Test and Blood Test Statutes

28-1324. Breath test rules

The director of the department of public safety shall adopt rules prescribing methods and procedures for the administration of breath tests to determine alcohol concentration. The rules shall include:

1. The approval of quantitative breath testing devices.

2. Procedures for ensuring the accuracy of results obtained from approved breath testing devices.

3. Qualifications for persons who conduct breath tests.

4. Qualifications for persons who instruct others in the operation of breath testing devices.

28-1325. Breath test operator permits

A. The director of the department of public safety shall issue permits to operators who have received approved instruction and who have demonstrated their ability to accurately operate an approved breath testing device.

B. The director of the department of public safety may revoke the permit of a person who fails to operate a breath testing device according to the rules adopted by the director of the department of public safety.

28-1326. Blood test; rules; permits

A. The director of the department of public safety shall adopt rules prescribing the approval of methods for the analysis of blood or other bodily substances to determine blood alcohol concentration.

B. The director of the department of public safety shall issue a permit to an analyst who has demonstrated the ability to accurately analyze blood or other bodily substances for alcohol concentration.

C. The director of the department of public safety may revoke the permit of an analyst who either:

1. Has demonstrated an inability to accurately analyze blood or other bodily substances for alcohol concentration.

2. Fails to analyze blood or other bodily substances for alcohol concentration according to rules adopted by the director of the department of health services.

28-1388. Blood and breath tests; violation; classification; admissible evidence

A. If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.

B. If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an additional test pursuant to subsection C of this section, a sample of the person’s breath does not have to be collected or preserved.

C. The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person’s own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person does not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.

D. If a person under arrest refuses to submit to a test or tests under section 28-1321, whether or not a sample was collected pursuant to subsection E of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an issue of fact to be determined by the trier of fact in all cases.

E. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated section 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.

F. A person who collects blood, urine or any other bodily substance under this section or any hospital, laboratory or clinic employing or using the services of the person does not incur any civil liability as a result of this activity if requested by a law enforcement officer to collect blood, urine or other bodily substances unless the person, while performing the activity, acts with gross negligence.

G. A statement by the defendant that the defendant was driving a vehicle that was involved in an accident resulting in injury to or death of any person is admissible in any criminal proceeding without further proof of corpus delicti if it is otherwise admissible.


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