- Associated Press - Friday, February 24, 2017

OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday threw out the conviction of a Wayne man for refusing to submit to a blood test following his arrest on suspicion of drunken driving, citing a U.S. Supreme Court decision last year that places limits on such state laws.

But Friday’s ruling did not strike down the Nebraska law, which makes it a crime for a person to refuse to submit to a blood test, even without a warrant. That flies in the face of the U.S. Supreme Court ruling, defense attorney George Babcock of Omaha said. His client is now considering appealing the ruling to the U.S. Supreme Court in an attempt to have the state law declared unconstitutional.

The case stems from the 2013 arrest of 55-year-old Ricky McCumber, who was arrested on suspicion of DUI after he refused to submit to a preliminary breath test outside his vehicle. He later refused a blood test at a hospital to determine his blood alcohol content. He was eventually convicted of refusal to submit to a chemical test, refusal to submit to a preliminary breath test and driving without a valid license.

In his appeal, McCumber argued that the state law criminalizing both his refusal of a preliminary breath test and the blood test, when officials had no warrant, violated the Constitution’s ban on unreasonable searches and seizures.

In its ruling Friday, the Nebraska Supreme Court found that the Nebraska law was unconstitutional as applied to McCumber’s challenge in refusing the blood test. But the court stopped short of finding the law unconstitutional on its face, saying there could be circumstances under which a warrantless blood draw could be necessary or under a situation in which a person refused to submit to a blood test even when facing a valid warrant.



Babcock objected to those exceptions, saying that the U.S. Supreme Court ruling “made it pretty clear” that a warrantless blood test is not constitutional.

“But the Nebraska statute doesn’t require that you have a warrant, nor does it require that there be exigent circumstances,” Babcock said. “Under those exceptions, there’s no statute that could ever be found unconstitutional under the Fourth Amendment.”

Babcock said he believes McCumber’s is the first blood test challenge that’s been mounted in Nebraska since last year’s U.S. Supreme Court ruling.

Even if Friday’s ruling doesn’t strike down the Nebraska law, it will no doubt be cited in other challenges, Babcock said.

“Instead of making it a clear-cut rule that everybody knows, so that the cops and perps alike know what’s going on, this makes it piecemeal,” Babcock said. “I think it would have been far more clear for them to just rule that it’s not facially valid.”

The Nebraska Attorney General’s Office did not immediately respond to questions about whether it’s concerned that more challenges to the Nebraska law are forthcoming or whether it plans to take any action, such as instructing law enforcement agencies to make efforts to obtain a warrant for chemical blood tests or seeking legislation to tweak the law’s language.

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