In Nevada DUI cases, blood tests are a common way to measure whether your BAC is 0.08% or higher. You generally get to choose between taking a blood test or a breathalyzer test. Though if you are suspected of DUI of drugs, then the police can make you take a blood test.

Driving with a BAC of 0.08% or higher is “per se” illegal, even if you are sober and unimpaired. If you refuse to take a chemical test, police can physically force you to submit to a blood draw. Refusing also triggers a driver’s license revocation for at least one year.

The following chart compares evidentiary breath tests and blood tests in DUI cases.

In this article, our Las Vegas DUI and criminal defense attorneys discuss:

• 1. Is it mandatory?
• 2. Can I keep my license?
• 3. Failing Results
• 4. Getting Arrested with Passing Results
• 5. What if I refuse?
• 6. Refusals and License Suspensions
• 7. When are blood tests taken?
• 8. Independent Testing
• 9. Are blood tests more expensive?
• 10. Can I contest the results?
• Additional Reading

1. Is it mandatory?

You must submit to an evidentiary blood test if the police officers arrest you for “drugged driving.” This is because breath tests detect only alcohol, not controlled substances.

If you are suspected of “drunk driving,” you can elect to take either:

• an evidentiary breath test or
• a blood test.

Though if you are unconscious (such as after a car accident), the arresting officer will order that a blood sample be taken.

Note that if you are on anticoagulants or have hemophilia, you are exempt from taking evidentiary blood tests. Instead, the police can order you to take a breath test or urine test.¹

First-time DUI convictions are misdemeanors that carry a 185-day license suspension of driving privileges.

2. Can I keep my license?

If you elect to take the blood test, you can keep your license for a few weeks until if/when the blood test results come back as 0.08% or higher. If this happens, the Nevada Department of Motor Vehicles will mail you a notice of revocation.

You then have seven days to request a DMV hearing to contest the license revocation. Meanwhile, you can continue driving pending the results of the DMV hearing, which may be another month or two away. Your defense attorney can appear at this hearing on your behalf.

Note the DMV hearing is an administrative proceeding that is completely separate from the criminal case. You can win the DMV hearing and lose the criminal case, and vice versa. The only way to avoid a license revocation is to win both the DMV hearing and the criminal case.²

3. Failing Results

Nevada law prohibits driving with a blood alcohol content (BAC) of 0.08%. Even if you were driving safely and seemed sober, you can still be convicted of DUI for having a BAC of 0.08% or higher.

Note that drivers under 21 are held to a stricter standard: They can be convicted of DUI for driving with a BAC of 0.02% or higher. (Learn more about underage DUI.)³

4. Getting Arrested with Passing Results

Even if you have lawful levels of drugs or alcohol in your system, you can be convicted of DUI as long as you were driving impaired.⁴ However, prosecutors have a much more difficult time proving guilt in these cases.

Oftentimes, the D.A. will drop DUI cases where your BAC was below 0.08%.

5. What if I refuse?

If you refuse to submit to a chemical breath- or blood test following a DUI arrest, the police will immediately confiscate your driver’s license and apply for a warrant or court order to administer the blood test. Then once the warrant or court order is issued, police can then use necessary “reasonable force” on you to carry out a forced blood draw.⁵

In addition, refusing to submit to a blood test when required carries a one-year license revocation – even if the DUI charges get dropped. This license revocation increases to three years if you previously refused to take a DUI blood test in the last seven years.⁶

If your DUI case goes to trial, the prosecution can admit evidence that you refused the test.⁷

6. Refusals and License Suspensions

A first-time refusal to take a DUI blood test carries a one-year driver’s license revocation in Nevada. If it is your second refusal in a seven-year period, then the revocation lasts three years.⁸

7. When are blood tests taken?

Nevada police can order up to three blood draws within five hours of the DUI arrest. The longer the police wait to administer the tests, the less evidentiary value the results carry.  ⁹

There are many possible ways to contest the results of a DUI blood test.

8. Independent Testing

In Nevada, you can have your DUI blood samples independently tested. This is sometimes called a “blood split.”

Getting an independent test is highly recommended because it can potentially show that the blood test results reported by law enforcement were unreliable, mishandled, or inaccurate.

9. Are blood tests more expensive?

If you get convicted of DUI, you will be responsible for paying all blood test costs. This includes fees for any witnesses at the criminal trial or DMV hearing who are necessary because of the blood test.

Witnesses cost at least:

• $100 an hour plus
• $50 an hour for traveling.¹⁰

10. Can I contest the results?

Just like California does with Title 17, Nevada law mandates rigid regulations that police and chemical testers must adhere to when conducting an evidentiary blood test and determining the results. If we can show the state may have faltered in just one of these many areas, your whole DUI case might get dismissed.

The following are just eight defenses we may use to challenge the validity of Nevada DUI blood test results:

1. The blood testing equipment was broken, not maintained properly, or otherwise faulty.
2. The phlebotomist, registered nurse, or other technician who administered the blood test or tested the blood was not properly certified.
3. The blood test was taken too long after the initial arrest to determine whether you were under the influence.
4. There was a break in the chain-of-custody in the blood, and someone may have switched the samples or contaminated it.
5. You had “rising blood alcohol,” so the blood test result did not accurately reflect your BAC at the time you were operating the car.
6. The blood fermented after it was collected, which means that it can actually create its own alcohol and yield falsely high results.
7. The phlebotomist sterilized the blood draw site with an alcohol-based product, which could have caused an inaccurately high BAC reading.
8. The blood was stored improperly, or there were inadequate levels of anticoagulants and preservatives in the vial.

If we can show prosecutors that the state’s evidence is too weak to prevail at trial, prosecutors may agree to reduce the criminal charges or even dismiss the case outright.¹¹

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Delays in DUI blood testing: Impact on cannabis DUI assessments – Traffic Injury Prevention.
• Variability of the Blood/Breath Alcohol Ratio in Drinking Drivers – ASTM Journal of Forensic Sciences.
• Breath and Blood Alcohol Concentration Measurement in DUI Cases – Forensic Metrology.
• Drunk Driving, Blood, and Breath: The Impact of Birchfield v. North Dakota – Cornell Journal of Law & Public Policy.
• Drunk Drivers and Vampire Cops: The Gold Standard – New England Journal on Criminal and Civil Confinement.

See our related articles, Can police do a forced blood draw in a Nevada DUI arrest?, field sobriety tests and sealing criminal records for DUI offenses.

Legal References