I wouldn't assume he's right. There's a reason DUI defense attorneys tell you not to take the breathalyzer test.
Anyhow, refusing to take the test isn't a crime. However, since the privilege of having a valid driver's license requires that you consent to such tests, your license will be administratively suspended (i.e. no need for any court proceedings) for the refusal. But that's not even close to the same thing as a crime.
For the record, this is not close to correct. It is a crime in Nebraska, as pretty much everywhere, to refuse a breathalyzer test. Not just a charge. And not just evidence. It's a separate actual crime, for which you can be punished with the same punishments as DUI. It is not DUI. It's separate from DUI, but it's a crime. The prosecutor need not even charge, let alone attempt to prove, DUI in order to have you convicted for refusal to take a breathalyzer. He can charge and try to prove both. But he doesn't have to.
You guys are confusing two separate but related concepts -- implied consent and a "crime." The point of implied consent is that once you agree to get your license and get behind the wheel, an officer no longer needs separate consent from you to test you. So, any constitutional arguments you might have had -- like your right not to incriminate yourself -- are out the window, since consent negates the constitutional protection. It's much like the consent you give when you try to cross the border. While typically you cannot be searched without a warrant or probable cause under the constitution, when you voluntarily attempt to cross the border, you are giving implied consent to be searched. Same with military bases.
In some of these contexts, you can actually be forced to submit to a search -- that is, you can be forceably restrained and searched. Most states do not go this far on DUI, because testing for DUI is more invasive than a pat down. Indeed, blood tests are extremely invasive, both because they involve needles and because a person's blood reveals all sorts of stuff about them. Accordingly, under the law of most states, you have a right to refuse to be tested. But the refusal comes with a very heavy cost -- the refusal is, indeed, itself a separate crime. All the prosecutor needs to show to prove you guilty of the crime of refusal to be tested is that (1) you gave implied consent (e.g., you applied for a license and were behind the wheel, and (2) you refused testing. Some states like Nebraska also require the prosecutor to show a third element -- that you were warned that refusal to participate is a crime.
In addition, you can also be charged with DUI separately which would be a second count. In this case, since you weren't tested, they can't use test results against you, but can prove intoxication by other methods just like any crime. Also, the fact that you refused to be tested is admissible in most states to prove the separate crime of DUI.
Anyway, here's the Nebraska statute that makes it a crime to refuse to submit to testing -- it's subsection (3).
Nebraska Legislature
