If you are arrested for drunk driving in Nevada, the state’s “implied consent” law requires you to take an evidentiary breath test (EBT) or blood test to measure your blood alcohol content (BAC). Driving with a BAC of 0.08% or higher is an automatic DUI, even if you were not impaired.
Here are four key things to know:
- False BAC results can be caused by certain medical conditions or by the breathalyzer being defective or mishandled.
- If the police suspect you ingested drugs, you must take the blood test because breathalyzers detect only alcohol.
- If you refuse to take the EBT or blood test, you will be subject to a one-year driver’s license revocation and a forced blood draw.
- You can contest your license suspension at a DMV hearing.
The following chart compares evidentiary breath tests and blood tests in DUI cases.
| DUI Blood Tests | DUI Breath Tests | |
| Accuracy | Generally more accurate | Less accurate, can be affected by acid reflux, GERD, mouth alcohol, and more |
| Invasiveness | Invasive, requires blood draw | Non-invasive, requires breathing into a device |
| Time to results | Longer, typically weeks | Immediate results |
| Administration | Requires medical professional | Can be administered by law enforcement |
| How it measures alcohol | Direct measurement of blood alcohol content (BAC) | Estimates BAC based on breath alcohol content |
| Detects drugs? | Yes | No |
| Retention of sample | Sample can be retained for future testing | No sample retention |
| Refusal consequences | Driver’s license suspension | Driver’s license suspension |
In this article, our Las Vegas DUI attorneys discuss:
- 1. How can BAC results be challenged in court?
- 2. Can I be charged with DUI with no breathalyzer?
- 3. What if I refuse the breath test?
- 4. What happens to my license?
- 5. Preliminary Breath Tests v. Evidentiary Breath Tests
- Additional Reading
1. How can BAC results be challenged in court?
Depending on the facts of your case, we will explore the following defenses when fighting your Nevada DUI charge:
| Defenses | |
| Procedural defenses |
|
| Environmental or mechanical defenses |
|
| Physiological defenses |
|
If we can cast doubt on the accuracy of the breath test, then the court might exclude it as evidence. Once the BAC results are excluded, the prosecution should be more willing
- to reduce the drunk driving charge to reckless driving or
- to throw it out completely.1
2. Can I be charged with DUI with no breathalyzer?
Yes, you can be charged with DUI in Nevada based on blood test results rather than breath test results.
Even if the blood results show a legal BAC level, you could still be convicted if you were impaired. However, it is much harder for prosecutors to prove DUI without a failing breath- or blood test.
Nevada police use the Intoxilyzer 8000 to administer EBTs.
3. What if I refuse the breath test?
Under Nevada law, you give “implied consent” to submit to an EBT (or blood test) after you are arrested for DUI. Nevada law imposes various consequences for refusing to take an EBT (or blood test):
- The police must get a telephonic warrant to administer an evidentiary blood test. Then the officer may use “reasonable force” to accomplish the blood draw.
- The DMV will revoke your driving privileges for one year. (The revocation period increases to three years if you already had a license revocation in the previous seven years for refusing to take an evidentiary test.) The DMV will impose this revocation even if you ultimately pass the blood test and the DUI charge gets dismissed.
- If the case goes to trial, the prosecution may introduce as evidence that you refused the EBT.
Some DUI suspects make a good faith effort to provide a lung sample but cannot sustain an exhale forceful enough or long enough for the breathalyzer to operate. When this happens, police call it a:
- machine refusal or
- technical refusal.
Despite what the police say, your inability to provide an adequate lung sample is not an indication of guilt. Therefore, should your case go to trial, we would ask the court to suppress as evidence any mention the police made that you refused.2
4. What happens to my license?
Getting your license revoked is a standard DUI penalty in Nevada no matter whether you take the breath or blood test:
- A DUI first triggers a 185-day license revocation.
- A DUI second triggers a 1-year license revocation.
- A DUI third triggers a 3-year license revocation.
Note it may be possible to continue driving during the revocation period with an ignition interlock device in your vehicle.
(Remember from section 3 that refusing to take a breath- or blood test triggers a one-year license suspension even if your DUI case is dropped.)
Contesting your license revocation
If you take a breath test following your DUI arrest – or if you refuse to take a test at all – the police will give you a temporary license good for seven days. In order to contest the license suspension at a DMV hearing, we must request the hearing within those seven days.
Once we request the hearing, you can continue driving on the temporary license until the DMV hearing occurs (which will likely be a month down the line). If the seven days pass without requesting a hearing, the year-long license suspension will begin on the eighth day.
DMV hearings are like mini-trials held at a DMV administrative office, and they are difficult to win because the state’s burden of proof is so low. Still, a DMV hearing is worth doing because it serves as a valuable dry-run for your criminal case (which is completely separate and independent from the DMV case).3
Preliminary Breath Tests v. Evidentiary Breath Tests
When you are initially pulled over for a traffic stop, the police will ask you to take a preliminary breath test (PBT) to help them determine whether you may be under the influence. Here are the differences between PBTs and EBTs:
|
NEVADA DUI LAW |
Preliminary Breath Test |
Evidentiary Breath Test |
| When is it administered? | When police have reasonable suspicion you may be intoxicated | After you have been arrested for DUI |
| Is it mandatory? | Yes | Yes, unless you take a blood test instead |
| Can results be used in court to show I was intoxicated? | No | Yes |
| What if I refuse? | Police will arrest you for DUI if “reasonable grounds” exist. | You lose your license for one year, even if your DUI charge gets dismissed |
Additional Reading
For more information about Nevada DUI laws, refer to our related articles:
- Nevada DUI: Should I choose a breath test or a blood test? – a side-by-side comparison of the pros and cons of each chemical test
- The court process in Nevada DUI cases – a step-by-step look at how drunk/drugged driving cases proceed through criminal court
- Top 20 defenses to a Las Vegas Nevada DUI charge – overview of the most common ways to fight DUI charges
- I was suffering from hypoglycemia when I was arrested for DUI in Nevada. Can I use this to fight the charges? – a deep dive into how diabetes can affect breath test results
- Do I have to admit that I’ve been drinking if I’m pulled over for DUI in Nevada? – a discussion of how you should be polite to police but not answer any questions
Legal References
- NAC 484C.100–.120; NRS 484C.200; see Nevada DUI Prosecution Manual (2014).
- NRS 484C.150; NRS 484C.160; NRS 484C.240. NRS 484C.160. If you are arrested for drunk driving in Nevada, you can usually elect to take a blood test instead of a breath test. Since taking blood samples is a more complicated procedure than using a breathalyzer, you must pay for all associated costs if a working breathalyzer was readily available, and you are ultimately convicted of DUI. Note that if police believe you are under the influence of drugs, you must take a chemical test for blood because breathalyzers cannot detect drugs. Then if your results come back positive for DUI, the Nevada Department of Motor Vehicles will mail you a letter notifying you that they will revoke your license. Note that you can elect to have your blood independently taken and tested at your own expense. NRS 484C.180.
- NRS 484C.220. NRS 484C.210. Note that if you voluntarily choose to take the blood test rather than the breath test following your DUI arrest, the police will not confiscate your license right away because it will take several weeks to get your blood results back. Instead, you can continue driving on your license until if/when the DMV mails you a notice of revocation and a seven-day temporary license. At that point, you must request a DMV hearing before the temporary license expires if you wish to contest your license revocation.