A Change in Nebraska DUI Law Could Be on the Way

shutterstock_251600878-thumb-500x332-66952-thumb-300x199-66960Recently, we filled you in on Nebraska DUI laws and myths in Part I and Part II of our DUI Myths Debunked series. Now, a big change in Nebraska DUI law could be on the way thanks to the United States Supreme Court.

Warrants? We Don’t Need No Stinking Warrants.

In Nebraska today, if you refuse a blood, breath or urine test when pulled over by law enforcement, you could face criminal charges – even if police don’t have a warrant.

The law currently allows for what is called a warrantless search. Taking your blood, breath or urine and examining it for evidence is a search, just like searching your home would be. And, typically, searches require warrants. But Nebraska law allows the search to happen without a judge first finding that law enforcement has shown there is probable cause for the search and then signing a warrant to allow the search based on that finding.

(As a refresher – if you think you can’t be charged with a crime for refusing the test, think again. The law in Nebraska says that, by operating a motor vehicle, your consent is implied to determine if you’re driving under the influence of alcohol or drugs. If you refuse those tests you can be charged with a separate crime for refusing.)

Well, Maybe We Will…

The US Supreme Court has agreed to hear three cases dealing with warrantless chemical testing in DUI cases, which could significantly change DUI law in Nebraska and the other states that currently allow warrantless searches.

The defense attorneys who asked the Supreme Court to review the issue say warrantless blood, breath and urine tests violate a person’s constitutional rights. The petition with the Supreme Court presents some compelling arguments about why there are no exceptions that would make the constitutional violations legal.

The lawyers also note states disagree about the issue. The laws of 37 states don’t allow for such warrantless searches, but the laws of 13 states (Nebraska included) do.

Don’t Go It Alone

DUI law – like many areas of the law – is ever changing. Hightower Reff knows DUI law and keeps up with the changes. If you or a friend needs help, call us. A DUI can be devastating and you shouldn’t go it alone.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

DUI Myths Debunked Part II

shutterstock_172246274-thumb-500x334-65730-thumb-500x334-65731-thumb-600x400-65779-thumb-600x400-65732Booze isn’t the Only Thing That’ll Land you on the Judge’s Naughty List this Holiday Season

There are a lot of urban legends, tall tales and misinformation going around about DUI laws in Nebraska; it’s a timely issue during the holidays. While it’s never a good idea to drink or take drugs and drive, it can be helpful to have an understanding of what the law really says on the topic.

In this two part series, Hightower Reff Partner Attorney and criminal law guru Susan Reff debunks some popular DUI myths. This installment focuses on something other than alcohol that has a lot of people buzzing this holiday season. “Drunk” driving isn’t the only thing that’s on the naughty list.Many people will be pulled over during the next few weeks after drinking at a holiday party. But drinking isn’t the only thing that may leave you in a jail cell feeling less than festive. Drugged driving can also land you in trouble with the law – or worse. Nebraska law prohibits not only driving under the influence of alcohol, but also under the influence of any drug – “drugged driving.” Some people think that police can’t tell if you are on drugs. If you get pulled over high, you’ll quickly learn otherwise.

A prescription isn’t a free pass.  

Illegal street drugs or a legitimate prescription from your doc can both land you a DUI if they impair “to any appreciable degree” your ability to operate a motor vehicle “in a prudent and cautious manner.” So that prescription is far from a get out of jail free card.

The breathalyzer isn’t the only trick in a police officer’s bag.

The police usually start with breathalyzer if they suspect you are under the influence of something that is impairing your ability to drive. If that is negative, or if they suspect you are under the influence of something other than alcohol, they will start a testing process that is recognized by the courts, using one of Nebraska’s specially trained drug recognition expert (DRE) law enforcement officers.If the officer who pulls you over isn’t a DRE, he or she can call one to the scene.

The DRE drill.

The nationally recognized DRE process identifies seven categories of drugs.Drug Recognition Experts are specially trained to recognize the physical signs and behaviors that indicate someone is under the influence of any of these seven categories of drugs – and even what kind of drug they are likely on.The specially trained DRE officer will take you through a step by step procedure to find out what drugs you might have used. The system involves the officer making thee determinations:

  1. That you are impaired and that the impairment is not consistent with alcohol intoxication;
  2. Whether there are medical causes that could account for your signs and symptoms;
  3. What type of drug is responsible for your impairment

The DRE will use a breathalyzer along with an interview and physical exam to form his or her opinion. The final step is to use toxicology to determine the presence of drugs in your system.

Don’t Go It Alone

Hightower Reff knows DUI law. If you or a friend needs help, call us. A DUI can be devastating and you shouldn’t go it alone.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone. This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Domestic Violence – It isn’t Always Who You Think

shutterstock_244576954-thumb-400x267-65301-thumb-400x267-65302-thumb-400x267-65289For many, domestic violence brings to mind images of a woman with bruises and black eyes. While this is certainly one face of domestic violence, there are others. Some of them – more than you may think – are men.

More than 1 in 4 men will be victims of intimate partner abuse during their lifetimes, according to a Centers for Disease Control survey.

Getting help in a domestic violence situation can be frightening and it can be humiliating. As an attorney who has worked in this specialized field of law for nearly a decade, I’ve found that embarrassment can be especially intense for male survivors.

If you’re a man experiencing intimate partner abuse, know that there are attorneys who are sensitive to your circumstances and will listen to you. Additionally, the law is here to protect ALL survivors of domestic violence – male and female alike.

Nebraska Criminal Domestic Assault Statutes are Gender Neutral.

Nebraska law recognizes domestic assault as a separate crime from other forms of assault. Additionally, the language of the statute does not require that there be an actual physical injury for a domestic assault to have happened. In certain situations, threats can be enough.

This law is drafted the way it is in recognition of the fact that domestic abuse takes many different forms – from threats and intimidation to physical assault with weapons or dangerous instruments that causes bodily injury.

Nebraska Family Law Statues Recognize the Issue of Domestic Abuse for Men and Women Alike.

Nebraska Family Law Statues include the Protection from Domestic Abuse Act. The Act protects all victims of domestic violence and is intended to provide services to lessen and reduce the trauma of domestic abuse for victims and perpetrators.

As its name indicates, the Protection from Domestic Abuse Act also provides protection from domestic abuse in the form of protection orders and penalties for violating them.

Domestic abuse protection orders can prohibit an abuser from threatening, restraining, assaulting, molesting, attacking or otherwise disturbing the peace of his or her victim. The orders can also forbid phone calls and all forms of contact, remove an abuser from the place where the victim lives and provide for temporary custody of children among other things.

You May be Able to Get an Emergency Protection Order. 

A traditional protection order requires that the alleged perpetrator of the acts against which the victim needs protection be given notice and the opportunity to appear at a hearing to defend themselves against the proposed order. However, the Protection from Domestic Abuse Act allows for emergency protection orders where the victim can show they are in immediate danger of abuse before the matter can be heard after notice to the alleged abuser.

These emergency hearings, during which only one party is present, are called “ex-parte” hearings. If the court refuses to issue a temporary, ex-parte emergency protection order, it will schedule a hearing where evidence will be presented. If the alleged abuser doesn’t show up for that hearing or shows up and fails to convince the court, the court will issue the protection order.

If the court agrees to enter a temporary protection order, the order will remain in effect while the court gives the alleged abuser time to be served with the order and to appear and defend themselves against the protection order continuing.

Once the alleged abuser is served with the ex-parte protection order, it can go several ways:

  • If the alleged abuser is served with the protection order, but doesn’t contact the court to request a hearing within 5 days of being served, the temporary order becomes a final order for one year.
  • If the alleged abuser does request a hearing within 5 days of being served, but  doesn’t show up for the hearing, the order also becomes final for one year.
  • If the alleged abuser requests the hearing within the required time period, and then shows up for the hearing, the court will hear evidence from both sides and decide if the protection order should stand.

When Children are Involved in Domestic Violence.

Along with recognizing that men are sometimes the victims of domestic violence, Nebraska law also recognizes that children exposed to that domestic violence are affected – regardless of who is the victim and who is the abuser. The law says that both parents are responsible for protecting children from the physicaland psychological trauma of domestic violence. This means getting the children out

Parents who fail to keep their children out of harm’s way when it comes to domestic violence may have the children removed from their custody. This could mean the children are placed in foster care – with strangers or with a relative. Whether you are mom or dad, if you are a victim of domestic violence and your kids are exposed to it, you are putting your children and your parental rights at risk.

Protecting the Children When you Leave.

Regardless of your gender, you need to take steps to protect your children when you leave a domestic violence situation. That means getting protective orders and custody orders in place. An attorney who knows the ins and outs of the legal and safety issues involved is an important support.

The Nebraska Parenting Act has special provisions for developing Parenting Plans in custody cases involving domestic violence. In all custody cases, specially trained mediators are required to screen for domestic violence. If they determine that domestic violence is an issue, they may find that mediation isn’t appropriate, or that another form of specialized dispute resolution is advisable during which a parenting plan with appropriate protections can be developed and agreed upon by both parties.

If mediation is not an option, or not successful, and the court is required to develop a parenting plan in a domestic abuse case, it will include provisions designed to protect the children or the child’s parent from harm.

Don’t Go It Alone.

Hightower Reff has a team of attorneys experienced in the specialized issues and procedures that come with domestic abuse cases. From the criminal end to protection orders and family law and custody issues, we can help. One of our lawyers would be glad to meet with you to talk about how we can help with your case.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part V – To Appeal or Not to Appeal

shutterstock_285195986-thumb-400x267-65299A felony warrant turns your world upside down. Not only are your freedom and your future on the line, if it’s your first arrest, you’ll have no idea what to expect. This criminal law blog series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In this installment, we cover the decision to appeal (or not) a ruling in your case. In a felony case, you may have received a stiff sentence that will affect your life for many years, so it’s important to weigh your appellate options early and thoroughly. You have a lot to lose if you don’t.

Can you even appeal it?

The first thing to figure out is if you even have grounds for an appeal. One of the biggest misunderstandings people generally have about the appeals process is the idea that you can appeal a ruling in your case because you don’t like it. This isn’t true. There has to be a legal reason for the appeal. Legal reasons include violation of Due Process, insufficiency of the evidence, technical issues of law (jury instructions, evidence admissibility, experts), and excessive sentence.

Figuring out whether there are appealable issues in your case can be complicated. It’s good to have the advice of a trusted attorney to guide you in this part of the decision before you waste a lot of time and money on an appeal the court may see as frivolous — and ultimately will dismiss.

It’s Not a Do-Over

Another common misunderstanding comes from a belief that an appeal is an opportunity for a new trial or sentencing hearing. Not so. During an appeal, the appellate court reviews the information the trial court had in front of it when it made its ruling. You won’t get a chance to present new evidence.

In an appeal, the appellate court will only consider the record of the trial court and the appellate briefs submitted by the parties. Both the appellant (formerly called the defendant) and the prosecuting attorney will have the opportunity to file briefs. The appeals court may also allow oral argument, which it would also consider in its decision.

How Pleas Affect Your Right to Appeal

Entering a plea doesn’t necessarily mean you give up the ability to appeal. You may still be able to appeal certain constitutional and statutory claims like ineffective assistance of counsel, excessive sentence and sentencing based on race.

This list isn’t exhaustive, there may be other issues you can appeal as well. Like many other aspects of appeals, this part can be complicated. Your best bet is to have a lawyer guide you.

Time Is Not on Your Side

As soon as your sentence is pronounced, the clock starts ticking on filing your notice of appeal. If you don’t file within the time limit imposed by law, you will not be able to appeal, so it’s important that you don’t wait and that you quickly get legal advice from a criminal law attorney experienced in appeals.

The limited time you have to file your appeal may not even be your biggest reason to make your decision quickly. Appeals are not speedy. They can take months, or even years and, depending on your case, you may sit in jail the entire time your appeal is pending. The faster you get it filed and move forward, the faster you will have a resolution.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part IV – Criminal Sentencing – It’s About More Than Just Time

shutterstock_218715781-thumb-400x267-65269-thumb-500x333-65270A felony warrant turns your world upside down. Not only are your freedom and your future on the line, if it’s your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In part one of this criminal law series on felonies, we laid out your options once you learn of the warrant and what happens once you’re arrested. Part two covered the nitty gritty of plea bargains. In the third installment, we discussed the trial.

Now, in Part four, we cover the sentencing process.

The Sentence: No Rabbit Out of a Hat

On TV legal dramas it seems like the judge just pulls a sentence out of a hat. In the real world, that’s not how it works.

The court does have some discretion when sentencing for felonies, but the parameters are governed by Nebraska Sentencing Guidelines. The guidelines govern things like the minimum and maximum sentences for certain felonies and where the sentence is to be served.

Sentencing Guidelines Don’t Stop a Bitch

Don’t make the mistake of thinking that the Nebraska Sentencing Guidelines are going to save you from a bitch (slang for habitual criminal sentence). The Guidelines make it clear that they do not impact the habitual criminal sentencing laws.

PSI: Nebraska

Along with the Nebraska Sentencing Guidelines, the judge relies on a pre-sentence investigation (PSI) report when deciding a felon’s sentence. The PSI contains:

  • an analysis of the circumstances surrounding the crime
  • the offender’s history of delinquency or criminality
  • the offender’s physical and mental condition, family situation and background, economic status, education, occupation, personal habits and any other matters that the probation officer deems relevant or the court directs to be included

The PSI can also include any written statements a victim submits to the county attorney or probation officer.

The court can order you to undergo psychiatric observation and evaluation as part of the PSI procedure. Your attorney can add to the PSI with character letters from your friends, family or co-workers as well as other positive things like good employment records and information about your community involvement.

The Hearing

The court will sentence you at a sentencing hearing. You’ll have the opportunity to address the court — and victims may as well. Depending on the circumstances, it may or may not be helpful for you to address the court, so you’ll need to make that decision with your attorney, just one of the many reasons having a good attorney to guide you throughout the PSI process is important.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

Next Time…

Watch for Part V of our felony arrest series: To Appeal or Not to Appeal, That is the Question.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part III: What to Expect When You’re Expecting… to Go to Trial

shutterstock_170949320-thumb-400x266-65277A felony warrant turns your world upside down. Not only are your freedom and your future on the line – if it’s your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In Part I , we covered your options once you learn of the warrant and what happens once you’re arrested. Part II covered the nitty gritty of plea bargains.

Now, in Part III, we shed some light on what happens between your arrest and trial.

The Waiting is the Hardest Part

If you don’t reach a plea, be prepared to wait a while for you trial. Because of busy courts and legal wrangling, it can take a year or more for a felony case to reach trial in Douglas County, Nebraska.

A lot of preparation needs to happen before a felony trial, which also adds to the wait. Most of the work on your case, in fact, is done before your trial even starts. Some of the work occurs right at the start of the case, so your attorney can try to get your case dismissed or pled down right off the bat. Attorneys for both sides want to know the facts of your case inside and out and put together a game plan both before and during your trial.

To avoid surprises, lawyers on both sides ask questions of witnesses and get documents, physical objects and photos that the other side plans to introduce to the court to support their side of the case.  Your lawyer may conduct an independent investigation by talking to experts, interviewing witnesses, subpoenaing documents and even visiting the scene of the alleged crime. While much of this is done at the very beginning of the case, the work continues to the day of trial; and can take months.

Lawyers also make sure they know the current law that applies to your case before trial starts. Unlike T.V. lawyers, real attorneys don’t carry a catalog of statutes and cases in their heads to recite on demand. Most know the most important ones but the law is huge and changes frequently. That means a lot of pre-trial research and studying so the lawyers know their stuff before they walk into the courtroom.

Magic Evidence: Now You See It; Now the Jury Doesn’t

What evidence the jury sees during the trial and the instructions the judge gives them are crucial to your case. Your lawyer will try to find good reasons under the law to keep the evidence that hurts your case out of the trial through procedural motions.

Additionally, your lawyer will try to convince the judge to use jury instructions that are most favorable to you, while the prosecuting attorney will try to get the judge to use those that are most favorable to a conviction.

Settling On the Courthouse Steps 

All the months of preparation and hard work don’t always end in trial. Sometimes you reach a plea agreement on the day of trial — known as settling “on the courthouse steps.” If that happens, your lawyer’s preparation (and your legal expense) was not wasted. The clarity both sides gained through that preparation and legal wrangling most likely led to the prosecutor’s decision to offer a plea and your decision to accept it.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

Next Time…

Watch for Part IV of our felony arrest series: Criminal Sentencing – Determining the Time You’ll do.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Got a Felony Warrant? Here’s What to Expect – Part I, Lawyering up and Your Arrest

shutterstock_256858591-thumb-400x261-65250Finding out there’s a felony warrant for your arrest turns your world upside down. Not only are your freedom and your future on the line – if it is your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a felony criminal charge in Nebraska. 

In Part I, you’ll learn your options once you learn of the warrant and what to expect once you are arrested.

(Don’t) Take it on the Run, Baby

You will be taken into police custody – usually by walking into the police station. If you hire us, we will take you in and be with you through the booking process. 

Whether you have a preliminary hearing will be up to you and your attorney, and will depend upon your case. During the preliminary hearing, the prosecutor has to show probable cause for every element of the crimes with which you are charged to show the court that they have enough evidence to go forward with the case against you. 

It’s a catchy sounding song lyric “take it on the run,” but not a good idea if you find out there’s a felony warrant out for your arrest. No attorney worth their salt would ever tell you to do it. Neither will Hightower Reff Law. What you should do – call us BEFORE you talk to the police or turn yourself in. 

We can contact the police for you and arrange for your peaceful, quiet surrender, and make sure your rights are protected from the beginning of the case.

We will talk to the police for you in most cases. What you say to them can be used against you, but what we say to them can’t.  Also, it’s perfectly legal for police to trick you into saying things –  but we know all the tricks. 

The Arrest

A police officer will advise you of your rights and the charges against you before or after booking. During the booking process, you will be finger printed, photographed, and your personal belongings will be inventoried and taken for safekeeping. For this reason, we advise clients to leave all watches, money, and jewelry at home when they turn themselves in. 

Depending on the charge, you may be held in jail pending a hearing to set your bond. In most felony cases, you will go to jail when you surrender. 

Shut it, shut it, shut it

You have the right to shut it. So, shut it. You have the right to remain silent – that means to NOT speak to the police. In most cases, that is exactly what we will advise you to do. Despite what you may have seen on your favorite crime drama show, people almost never talk the police out of arresting them. Usually, they just add nails to their coffins instead. 

First Court Appearance

After your arrest, you will have a hearing in county court called an Arraignment and Bond Setting Hearing (unless you are charged with a felony and the prosecutor has taken special steps. Then, you may have this hearing in district court). 

You will appear in court, the judge will advise you of the charges against you and possible penalties, and you will enter a plea. Your attorney will talk about plea options with you before the hearing. 

In felony cases, you usually can’t enter a guilty plea in at the initial appearance, even if you could, we recommend our clients enter a not guilty plea while we do the ground work on the case that’s necessary to do a full evaluation of your best options. 

You will also tell the court whether you want to exercise your right to a preliminary hearing. 

Preliminary Hearing – Maybe yes, Maybe no

If you waive the preliminary hearing at the initial appearance, the judge will send your felony case to district court. 

If you have a preliminary hearing and the prosecutor is able to provide the required probable cause – your case will be also sent to district court or, “bound over.” 

Next Time in the Series

Watch for Part II of our felony FAQ series – To Plea or Not to Plea.  

In the meantime, if you or a loved one needs help with a criminal case, Hightower Reff can help. Contact us online, or call us at 402-932-9550

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.