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LINCOLN — Nebraska's high court has given quick guidance to trial courts being asked to decide whether blood draws taken from DUI suspects by police without warrants still can be used at trial following a U.S. Supreme decision last year.

In a decision Friday, the Nebraska Supreme Court said they can. But Jared Hoerle's attorney said Tuesday he intends to ask the nation's highest court to review the case.

The Nebraska justices found that a Lancaster County District judge had been right to deny a new trial to the Chambers man stopped in Lincoln on April 11, 2015.

One day after a jury found him guilty of felony DUI, the U.S. Supreme Court ruled in Birchfield v. North Dakota, a case raising the issue of whether drivers could face a criminal charge for refusing to give a sample of their blood without a warrant.

In it, the court's majority said the Fourth Amendment didn't allow a DUI suspect's blood sample to be taken without a warrant as part of an arrest, and that motorists couldn't consent to a blood test if they are threatened with a criminal charge if they don't.

The ruling provided guidance to law enforcement going forward. But it also raised questions for those like Hoerle, who had pending cases on June 23, 2016, the day the decision came out. Hoerle had yet to be sentenced.

Justices heard oral arguments in the Nebraska case late last month.

In Friday's opinion, Justice William Cassel wrote that they had concluded that the Birchfield decision didn't make warrantless blood draws categorically invalid.

"Rather, a court must consider the totality of the circumstances to determine whether a driver's consent to a blood test was freely and voluntarily given," he said.

But, Cassel said, Hoerle's case came down to whether the so-called good-faith exception, meant for cases where police were operating reasonably at the time, should apply.

Following the Birchfield decision, he said, state appellate courts have not been uniform about whether the exception should apply.

So far at least two (Kansas and Tennessee) have found that it should, and at least two others (Arizona and Wisconsin) have found it shouldn't for different reasons.

The Arizona Supreme Court said an officer should have known getting a blood draw from a DUI suspect without a warrant "was either impermissible or at least constitutionally suspect."

But, Cassel said, "it seems to us that law enforcement officers are generally tasked with enforcing the law as written, and it would be unwise to expect them to make their own judgment calls as to the constitutionality of such statutes."

The Wisconsin Supreme Court feared officers would continue to operate the same way if the evidence wasn't suppressed. Though, the dissent countered that if they did, they couldn't rely on the good-faith exception going forward.

Cassel said Nebraska justices found the dissent in Wisconsin more persuasive.

He said because the officer here "acted in objectively reasonable reliance on a statute that had not been found unconstitutional at the time," evidence of Hoerle's blood test shouldn't have been excluded from trial.

Mark Rappl, Hoerle's attorney, said he will file a petition asking the U.S. Supreme Court to review the case and hopes the court sees it as an opportunity to settle uncertainty and confusion among the states that followed Birchfield.

He said it's a longshot, but the case was one of the more landmark cases involving DUIs to come down in a while.

"It's now sending ripples across the country," Rappl said.

In the meantime, Hoerle's sentence of three years of probation, 60 days in jail and a $1,000 fine is likely to stand. His license also will be revoked for five years.


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