- Associated Press - Tuesday, December 9, 2014

OMAHA, Neb. (AP) - A Kearney man with two drunken driving convictions who had hoped to reduce his probation sentence for refusing to submit to a blood test during a traffic stop last year now faces an additional $1,000 fine following a ruling Tuesday on his appeal.

Police say a breath test taken during a May 31, 2013, traffic stop in Kearney indicated Aaron Brooks’ blood alcohol level was more than twice the legal limit for driving. Brooks then declined a blood test and was charged with refusal to submit to the test, driving while his license was revoked and having no proof of insurance.

Brooks pleaded no contest to the refusal to submit charge, and prosecutors agreed to drop the other counts. Brooks reserved the right to contest prosecutors’ use of his prior DUI convictions in 2001 and 2003 to enhance his sentence.

In February, Brooks was sentenced to four years’ probation based on a probation officer’s recommendation, even though the judge said he would generally send someone with Brooks’ history and background to prison for at least two years. Brooks was also sentenced to 90 days in jail and had his driver’s license revoked for five years. He could, however, obtain a permit after 45 days that allowed him to drive with an ignition interlock system that won’t allow the car to start if it detects alcohol on the driver’s breath.

Brooks appealed, saying his sentence was excessive and that because 10 years had passed since his last DUI conviction, those convictions should not have been used to enhance his refusal-to-submit conviction.

The Nebraska Court of Appeals on Tuesday upheld the 36-year-old man’s conviction. But because the judge’s sentence failed to impose a mandatory $1,000 fine, the appeals court vacated Brooks’ sentence and ordered him to be resentenced to include the fine.

Neither the Buffalo County prosecutor nor Brooks’ public defender immediately returned phone messages left Tuesday seeking comment.

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