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LEGISLATIVE BILL 271
Approved by the Governor May 24, 2021
Introduced by Morfeld, 46; Hansen, M., 26.
A BILL FOR AN ACT relating to driving under the influence; to amend sections
29-901, 60-480, 60-498.01, 60-4,115, 60-6,197.05, 60-6,197.06,
60-6,211.11, and 60-1513, Revised Statutes Cumulative Supplement, 2020; to adopt the 24/7 Sobriety Program Act; to authorize a 24/7 sobriety program permit for operating a motor vehicle as prescribed; to provide a penalty;
to change provisions relating to a fund; to harmonize provisions; to provide an operative date; and to repeal the original sections.
Be it enacted by the people of the State of Nebraska,
Section 1. Sections 1 to 6 of this act shall be known and may be cited as
the 24/7 Sobriety Program Act.
Sec. 2. (1) The Legislature finds and declares that there are many different approaches to assist individuals who struggle with substance abuse.
Alternatives to incarceration should be considered in order to reduce the cost to the taxpayers, successfully rehabilitate offenders, ensure public safety,
and minimize risk to society. Ignition interlock devices, which are required to
be installed for those who are charged with or have been convicted of certain offenses, while effective, may be a financial burden to those who cannot afford the costs of installation or maintenance of such devices. In this state,
ignition interlock devices have been proven to be an effective means of
preventing drivers from operating motor vehicles while under the influence of
alcohol. Other states have implemented 24/7 sobriety programs. States that implement 24/7 sobriety programs have seen success with such programs in that participants have higher rates of maintaining sobriety, have lower rates of
recidivism, are more likely to become productive members of society, and are less likely to be a continued public risk. Therefore, it is in the best interests of the State of Nebraska to establish 24/7 sobriety programs.
(2) A 24/7 sobriety program shall coordinate efforts among various state and local governmental agencies for finding and implementing alternatives to
incarceration for offenses that involve operating a motor vehicle under the influence of alcohol or other drugs.
Sec. 3. For purposes of the 24/7 Sobriety Program Act:
(1) 24/7 sobriety program means a program that, as a condition of bail as
ordered by a court, requires an individual who was arrested to:
(a) Totally abstain from alcohol and drugs for a specified period of time;
(b) Be subject to at least twice daily testing for alcohol according to
best practice standards; and
(c) Be subject to drug testing if indicated by best practices;
(2) Department means the Department of Motor Vehicles;
(3) Director means the Director of Motor Vehicles; and
(4) Testing means a method to determine the presence of alcohol or drugs.
Sec. 4. (1) Each county, through its county sheriff, may participate in a
24/7 sobriety program. If a sheriff is unwilling or unable to participate in a
24/7 sobriety program, the sheriff may designate an entity willing to provide the service.
(2) A 24/7 sobriety program shall meet at least the following minimum program requirements:
(a) Testing shall occur twice a day every day at a testing location or
locations established by the county sheriff or a designated entity or
continuously with a continuous alcohol monitoring device or similar technology;
(b) Participants shall enter into a participation agreement with the sheriff or designated entity; and
(c) Participants shall not consume alcohol or any drug not prescribed by a physician.
(3) If a test reveals a violation of the 24/7 sobriety program, sanctions imposed shall be immediate and certain and in accordance with best practices,
as set forth in the participation agreement. A sixth sanction against a participant charged with an alcohol-related offense shall be removal from the
24/7 sobriety program and the participant shall be ineligible for further participation in the program for that case. Sanctions for new drug use may be
more severe and shall be outlined in the participation agreement.
(4) The sheriff or designated entity shall establish a reasonable fee to
cover the setup and operation of a 24/7 sobriety program for all participants.
Reasonable program and testing fees may be charged. Testing costs may vary by
participant depending on the technology employed. Testing costs may be higher if the participant is involved in the program due to a non-alcohol, drug-
related offense. All fees and costs charged pursuant to this subsection shall be set forth in the participation agreement. Such costs and fees may be waived by the court if the participant has made a showing to the court of an inability to pay.
(5) Each sheriff or designated entity shall separately account for all fees and costs collected by a 24/7 sobriety program.
(6) Nothing in the 24/7 Sobriety Program Act shall be construed to limit
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the ability of a court to utilize any form of technology to (a) detect the use or presence of alcohol or drugs or (b) comply with other forms of supervision deemed appropriate by the court.
Sec. 5. (1) If an individual has been arrested for a violation of section
60-6,196 or 60-6,197 or a city or village ordinance enacted in conformance with such sections and is participating in a 24/7 sobriety program, such individual may petition the court for an order allowing the individual to apply for a 24/7
sobriety program permit as set forth in section 6 of this act. A 24/7 sobriety program permit shall only be issued if the individual's operator's license has been revoked pursuant to section 60-498.01 for the pending offense.
(2) The court shall only issue an order under subsection (1) of this section if the court has sufficient proof the individual is enrolled in a 24/7
sobriety program and has gone at least thirty consecutive days without any sanctions being imposed.
(3) If, after the issuance of an order allowing an individual to apply for
a 24/7 sobriety program permit, the individual withdraws or is terminated from the 24/7 sobriety program, the court shall immediately issue an order revoking the 24/7 sobriety program permit and cause a copy of the order to be sent to
the director.
(4) The holder of a commercial driver's license under the Motor Vehicle Operator's License Act is not eligible for a 24/7 sobriety program permit.
(5) A person shall be eligible to be issued a 24/7 sobriety program permit allowing operation of a motor vehicle if he or she is not subject to any other suspension, cancellation, required no-driving period, or period of revocation and has successfully completed the application for a 24/7 sobriety program permit.
Sec. 6. (1) Upon receipt by the director of (a) a certified copy of a court order issued under subsection (1) of section 5 of this act, (b)
sufficient evidence that the individual has surrendered the individual's operator's license to the department, and (c) payment of the fee provided in
section 60-4,115, such individual may apply for a 24/7 sobriety program permit.
All permits issued pursuant to this section shall indicate that the permit is
not valid for the operation of a commercial motor vehicle.
(2) A 24/7 sobriety program permit shall only be available to a holder of
a Class M or O operator's license.
(3) The director shall revoke a 24/7 sobriety program permit issued under this section upon receipt of an (a) abstract of conviction indicating that the individual's operating privileges have been revoked or (b) order from a court revoking the individual's 24/7 sobriety program permit.
Sec. 7. Section 29-901, Revised Statutes Cumulative Supplement, 2020, is amended to read:
29-901 (1) Except as provided in subsection (2) of this section, any bailable defendant shall be ordered released from custody pending judgment on
his or her personal recognizance unless the judge determines in the exercise of
his or her discretion that such a release will not reasonably assure the appearance of the defendant as required or that such a release could jeopardize the safety and maintenance of evidence or the safety of victims, witnesses, or other persons in the community.
(2)(a) This subsection applies to any bailable defendant who is charged with one or more Class IIIA, IV, or V misdemeanors or violations of city or
county ordinances, except when:
(i) The victim is an intimate partner as defined in section 28-323; or
(ii) The defendant is charged with one or more violations of section
60-6,196 or 60-6,197 or city or village ordinances enacted in conformance with section 60-6,196 or 60-6,197.
(b) Any bailable defendant described in this subsection shall be ordered released from custody pending judgment on his or her personal recognizance or
under other conditions of release, other than payment of a bond, unless:
(i) The defendant has previously failed to appear in the instant case or
any other case in the previous six months;
(ii) The judge determines in the exercise of his or her discretion that such a release will not reasonably assure the appearance of the defendant as
required or that such a release could jeopardize the safety and maintenance of
evidence or the safety of the defendant, victims, witnesses, or other persons;
and
(iii) The defendant was arrested pursuant to a warrant.
(3) The court shall consider all methods of bond and conditions of release to avoid pretrial incarceration. If the judge determines that the defendant shall not be released on his or her personal recognizance, the judge shall consider the defendant's financial ability to pay a bond and shall impose the least onerous of the following conditions that will reasonably assure the defendant's appearance or that will eliminate or minimize the risk of harm to
others or the public at large:
(a) Place the defendant in the custody of a designated person or
organization agreeing to supervise the defendant;
(b) Place restrictions on the travel, association, or place of abode of
the defendant during the period of such release; or
(c) Require, at the option of any bailable defendant, either of the following:
(i) The execution of an appearance bond in a specified amount and the deposit with the clerk of the court in cash of a sum not to exceed ten percent of the amount of the bond, ninety percent of such deposit to be returned to the defendant upon the performance of the appearance or appearances and ten percent
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to be retained by the clerk as appearance bond costs, except that when no
charge is subsequently filed against the defendant or if the charge or charges which are filed are dropped before the appearance of the defendant which the bond was to assure, the entire deposit shall be returned to the defendant. If the bond is subsequently reduced by the court after the original bond has been posted, no additional appearance bond costs shall be retained by the clerk. The difference in the appearance bond costs between the original bond and the reduced bond shall be returned to the defendant. In no event shall the deposit be less than twenty-five dollars. Whenever jurisdiction is transferred from a court requiring an appearance bond under this subdivision to another state court, the transferring court shall transfer the ninety percent of the deposit remaining after the appearance bond costs have been retained. No further costs shall be levied or collected by the court acquiring jurisdiction; or
(ii) The execution of a bail bond with such surety or sureties as shall seem proper to the judge or, in lieu of such surety or sureties, at the option of such person, a cash deposit of such sum so fixed, conditioned for his or her appearance before the proper court, to answer the offense with which he or she may be charged and to appear at such times thereafter as may be ordered by the proper court. The cash deposit shall be returned to the defendant upon the performance of all appearances.
(4) If the court requires the defendant to execute an appearance bond requiring the defendant to post money or requires the defendant to execute a bail bond, the court shall appoint counsel for the defendant if the court finds the defendant is financially unable to pay the amount required and is indigent.
(5) If the amount of bail is deemed insufficient by the court before which the offense is pending, the court may order an increase of such bail and the defendant shall provide the additional undertaking, written or cash, to secure his or her release. All recognizances in criminal cases shall be in writing and be continuous from term to term until final judgment of the court in such cases and shall also extend, when the court has suspended execution of sentence for a limited time, as provided in section 29-2202, or, when the court has suspended execution of sentence to enable the defendant to apply for a writ of error to
the Supreme Court or Court of Appeals, as provided in section 29-2301, until the period of suspension has expired. When two or more indictments or
informations are returned against the same person at the same term of court,
the recognizance given may be made to include all offenses charged therein.
Each surety on such recognizance shall be required to justify under oath in a sum twice the amount of such recognizance and give the description of real estate owned by him or her of a value above encumbrance equal to the amount of
such justification and shall name all other cases pending in which he or she is
a surety. No one shall be accepted as surety on recognizance aggregating a sum in excess of his or her equity in the real estate, but such recognizance shall not constitute a lien on the real estate described therein until judgment is
entered thereon against such surety.
(6) In order to assure compliance with the conditions of release referred to in subsection (3) of this section, the court may order a defendant to be supervised by a person, an organization, or a pretrial services program approved by the county board. A court shall waive any fees or costs associated with the conditions of release or supervision if the court finds the defendant is unable to pay for such costs. Eligibility for release or supervision by such pretrial release program shall under no circumstances be conditioned upon the defendant's ability to pay. While under supervision of an approved entity, and in addition to the conditions of release referred to in subsection (3) of this section, the court may impose the following conditions:
(a) Periodic telephone contact by the defendant with the organization or
pretrial services program;
(b) Periodic office visits by the defendant to the organization or
pretrial services program;
(c) Periodic visits to the defendant's home by the organization or
pretrial services program;
(d) Mental health or substance abuse treatment for the defendant,
including residential treatment, if the defendant consents or agrees to the treatment;
(e) Periodic alcohol or drug testing of the defendant;
(f) Domestic violence counseling for the defendant, if the defendant consents or agrees to the counseling;
(g) Electronic or global-positioning monitoring of the defendant; and
(h) Participation in a 24/7 sobriety program under the 24/7 Sobriety Program Act; and
(i) (h) Any other supervision techniques shown by research to increase court appearance and public safety rates for defendants released on bond.
(7) The incriminating results of any drug or alcohol test or any information learned by a representative of an organization or program shall not be admissible in any proceeding, except for a proceeding relating to revocation or amendment of conditions of bond release.
Sec. 8. Section 60-480, Revised Statutes Cumulative Supplement, 2020, is amended to read:
60-480 (1) Operators' licenses issued by the department pursuant to the Motor Vehicle Operator's License Act shall be classified as follows:
(a) Class O license. The operator's license which authorizes the person to
whom it is issued to operate on highways any motor vehicle except a commercial motor vehicle or motorcycle;
(b) Class M license. The operator's license or endorsement on a Class O
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license, provisional operator's permit, learner's permit, school permit, or commercial driver's license which authorizes the person to whom it is issued to
operate a motorcycle on highways;
(c) CDL-commercial driver's license. The operator's license which authorizes the person to whom it is issued to operate a class of commercial motor vehicle or any motor vehicle, except a motorcycle, on highways;
(d) CLP-commercial learner's permit. A permit which when carried with a Class O license authorizes an individual to operate a class of commercial motor vehicle when accompanied by a holder of a valid commercial driver's license for purposes of behind-the-wheel training. When issued to a commercial driver's license holder, a CLP-commercial learner's permit serves as authorization for accompanied behind-the-wheel training in a commercial motor vehicle for which the holder's current commercial driver's license is not valid;
(e) RCDL-restricted commercial driver's license. The class of commercial driver's license which, when held with an annual seasonal permit, authorizes a seasonal commercial motor vehicle operator as defined in section 60-4,146.01 to operate any Class B Heavy Straight Vehicle or Class C Small Vehicle commercial motor vehicle for purposes of a farm-related or ranch-related service industry as defined in such section within one hundred fifty miles of the employer's place of business or the farm or ranch currently being served as provided in
such section or any other motor vehicle, except a motorcycle, on highways;
(f) POP-provisional operator's permit. A motor vehicle operating permit with restrictions issued pursuant to section 60-4,120.01 to a person who is at least sixteen years of age but less than eighteen years of age which authorizes the person to operate any motor v