Nevada DUI laws make it a crime to drive with a .08% or higher BAC, which is short for "blood alcohol content." But sometimes police miscalculate BACs and wrongly arrest people for driving under the influence. In this article our Las Vegas DUI defense attorneys answer frequently-asked-questions about BAC in Nevada DUI cases.
- What is BAC in Nevada DUI law?
- How is BAC measured in Nevada DUI law?
- How accurate are BAC results in Nevada DUI law?
- How long does it take to get BAC results after a Nevada DUI arrest?
- Does a BAC of .08% or higher mean a person is drunk in Nevada DUI cases?
- Does having a BAC below .08% mean that the driver is not guilty of DUI?
- If I am arrested for DUI in Nevada, should I take the breath test or blood test?
- What if a driver is under the influence of drugs instead of alcohol in Nevada?
- Can I refuse to get my BAC tested after a Nevada DUI arrest?
BAC stands for blood alcohol content. "BAC" also goes by "blood alcohol concentration" or "blood alcohol level." In short, BAC is the quantity of alcohol in the driver's blood. Therefore, a person's BAC increases the more alcohol he/she drinks.
Specifically, a BAC is the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath. BACs are expressed as a percentage. In Nevada, it is a DUI to drive with a BAC of .08% or higher. (Note that drivers under 21 commit DUI if their BAC is .02% or higher. Learn more about Nevada underage DUI laws.)1
Nevada DUI blood tests
Blood tests are the most reliable method for determining BAC because they involve actually testing the blood itself. Like it sounds, DUI blood tests requires a phlebotomist drawing a blood sample from the driver's vein (usually in the arm) and sending it to a lab. In Nevada, it takes several weeks to get the BAC results.
Nevada DUI breath tests
Breath tests are the most convenient method of measuring BAC because they are quick and non-invasive. The suspect simply breathes into a small machine called a Breathalyzer, that analyzes the person's alveolar (deep lung) air. Breath testing machines in Nevada calculate BAC numbers immediately.
It depends on the situation, but there are many reasons why BAC results may be plain wrong in Nevada DUI cases.
False Nevada DUI blood tests
Many factors can cause DUI blood tests to return inaccurate results, including:
- improper procedures for taking the blood,
- improper procedures for storing the blood,
- contamination of the blood,
- insufficient amounts of anticoagulant and preservatives in the blood vial, or
- procuring the blood sample too long after the alleged DUI incident
Even such factors as the phlebotomist having an expired license can cast doubt on the accuracy of the BAC results in Nevada DUI cases. North Las Vegas criminal defense attorney Michael Becker illustrates this concept:
Example: Ben chooses to take a blood test after getting arrested for DUI in Las Vegas. The BAC result is .15%. While Ben's defense attorney is investigating the case, he discovers that the phlebotomist who took the blood let his license lapse a year ago. He informs the Clark County District Attorney, who then agrees to reduce the DUI charge to the Nevada crime of reckless driving.
In the above example, it is likely that the BAC was in fact .15% despite the tester's lapsed license. And if the case went to trial, it is possible that Ben could still be found guilty of driving while inebriated based on other evidence. However, the defense attorney was able to use the phlebotomist's mistake to Ben's advantage by negotiating a favorable solution that resulted in lessened charges without the uncertainty, time, and expense of going to trial.
False Nevada DUI breath tests
BAC numbers calculated from breathalyzers are already less reliable than blood test results. Other situations that can cause inaccurate breath test BACs include:
- mouth alcohol taking the place of deep lung air,
- inconsistent breathing pattern,
- outside interference from RFI (radio frequency interference), temperatures, or other causes that hinder the breathalyzer's circuitry and utility,
- various medications, or
- various medical conditions such as GERD or diabetes (read more about diabetes as a Nevada DUI defense)
Even burping prior to a breath test can cause inaccurate BAC results in Nevada DUI cases.
Breath test results are available immediately. Blood test results often take weeks to come back.
No. Many drivers hold their alcohol well and can drive safely with high BACs. However, Nevada law makes it a crime to drive with a BAC of .08% or higher even if the person is not impaired by the alcohol.
Note that blood alcohol level is influenced by such variables as:
- whether the person has eaten or has an empty stomach,
- whether the person is ill or on certain medications,
- how long the person was drinking, and
- the type of alcohol consumed
Consequently, different people who drink the same amount of alcohol may show two totally different BAC results.
Also, note that the way a person's liver metabolizes alcohol may cause a person's BAC to rise for up to two hours even if he/she has stopped drinking. This is called "rising blood alcohol," and it can cause a breath or blood test result to be higher than the person's actual BAC at the time he/she was driving. Therefore, a BAC test result of .08% or higher does not necessarily mean that the person did not have lower, legal BAC level when he/she was behind the wheel.
No. Driving under the influence of alcohol is always a crime no matter what the BAC is. So a person may be convicted of DUI for driving while impaired by alcohol even if his/her BAC is lower than .08%. These cases often involve people who are not used to drinking or who have a very slight physical frame. North Las Vegas criminal defense attorney Neil Shouse gives an example:
Example: Addalee is driving home from a charity luncheon at the Venetian, where she had a glass of champagne. Addalee never drinks and weighs only 100 pounds, so she gets intoxicated quicker than her friends. A Las Vegas Metropolitan Police Department cop notices her car failing to maintain a lane and pulls her over. After Addalee fails the Nevada field sobriety tests, the cop arrests her and books her at the Clark County Detention Center. There the cop administers a breath test, which returns a BAC of only .06%.
In the above example, Addalee can still be convicted of DUI in Nevada because the champagne compromised her ability to drive safely. Driving under the influence is still against the law even with a BAC of less than .08%.
Each test has its pros and cons...
- Breath tests are painless and non-invasive, whereas blood tests are painful and invasive;
- Breath tests are quick, whereas blood tests take several minutes, especially if the phlebotomist has trouble finding a workable vein;
- Breath tests return immediate results, whereas blood test results take several weeks;
- Breath tests results are not as accurate as blood tests results; and
- Breath tests cannot be retested by an independent lab, whereas a defense attorney can request that blood be retested.
Another difference concerns driver license suspension, which is a penalty of getting arrested for DUI. When a DUI arrestee takes a breath test, the police officer will immediately confiscate the person's driver's license. But when a DUI arrestee instead takes a blood test, the suspension does not begin until the blood results come back positive for DUI.
Note that when a driver gets her/his license suspended, they are given a temporary seven-day license and the opportunity to contest the suspension at a Nevada DMV hearing. Also note that the length of the driver license suspension depends on the driver's prior DUI history:
- a first-time Nevada DUI carries a 3 month suspension,
- a second-time Nevada DUI carries a 1 year suspension, and
- a third-time Nevada DUI carries a 3 year suspension
When a cop suspects that a driver is under the influence of a controlled substance or other drugs, the driver is obligated to submit to a blood test (the driver may request a warrant first). And this blood test will test for various narcotics and drugs instead of BAC. Learn more about the Nevada crime of drugged driving.
If the driver refuses to submit to a breath or blood test, the police officer can ask a judge for a warrant to force the driver to submit to a blood test. The Nevada DMV will also revoke the person's license for at least one (1) year. (Note the revocation will last three (3) years if the person already had his/her license revoked due to refusing an evidentiary test in the last seven years.) The prosecutor can also use the refusal as evidence if the DUI case goes to trial. Learn more about chemical test refusals in Nevada DUI cases.
Arrested for DUI in Nevada? We are here for you...
If you or loved one has been charged with a "DUI" in Las Vegas, throughout Clark County, or elsewhere in Nevada, call our Las Vegas criminal defense attorneys at 702-DEFENSE (702-333-3673). We can provide a free consultation in office or over the phone. Depending on the case, we may be able to get the DUI charge reduced or even dismissed so your record stays clean.
For information about California BAC laws, read our article on California BAC laws.
1 NRS 484C.020 “Concentration of alcohol of 0.08 or more in his or her blood or breath” defined. “Concentration of alcohol of 0.08 or more in his or her blood or breath” means 0.08 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his or her breath.
2 NRS 484C.210 Revocation of license, permit or privilege to drive when test shows concentration of alcohol of 0.08 or more in blood or breath; periods of ineligibility to run consecutively.
1. If a person fails to submit to an evidentiary test as requested by a police officer pursuant to NRS 484C.160, the license, permit or privilege to drive of the person must be revoked as provided in NRS 484C.220, and the person is not eligible for a license, permit or privilege to drive for a period of: (a) One year; or (b) Three years, if the license, permit or privilege to drive of the person has been revoked during the immediately preceding 7 years for failure to submit to an evidentiary test.
2. If the result of a test given under NRS 484C.150 or 484C.160 shows that a person had a concentration of alcohol of 0.08 or more in his or her blood or breath or a detectable amount of a controlled substance or prohibited substance in his or her blood or urine for which he or she did not have a valid prescription, as defined in NRS 453.128, or hold a valid registry identification card, as defined in NRS 453A.140, at the time of the test, the license, permit or privilege of the person to drive must be revoked as provided in NRS 484C.220 and the person is not eligible for a license, permit or privilege for a period of 90 days.
3. If a revocation of a person's license, permit or privilege to drive under NRS 62E.640 or 483.460 follows a revocation under subsection 2 which was based on the person having a concentration of alcohol of 0.08 or more in his or her blood or breath, the Department shall cancel the revocation under that subsection and give the person credit for any period during which the person was not eligible for a license, permit or privilege.
4. Periods of ineligibility for a license, permit or privilege to drive which are imposed pursuant to this section must run consecutively.