Nevada DUI law requires everyone stopped for drunk driving to submit to a chemical BAC test. Refusing the test subjects you to a driver's license suspension of at least one year, harsher penalties in court, and the possibility that the cops may strap you down and do a "forced blood draw." On this page, our Las Vegas criminal defense lawyers explain the consequences for refusing to submit to a DUI breath, blood or urine test, and how we may be able to get around them. (Nevada no longer accepts urine tests to test for marijuana in the suspect's system.)
Are chemical tests mandatory in Nevada DUI cases?
Yes. Anyone driving in Nevada is presumed to have granted their "implied consent" to submit to a chemical test whenever a cop pulls them over and suspects them of driving under the influence. Refusing to submit to a chemical test carries steep consequences, including a drivers license suspension of at least one year . . .
The preliminary breath test (NRS 484C.150)
When you are first pulled over in Nevada and an officer believes you may be under the influence, you will be asked to take a preliminary breath test (PBT). This is means to help the cop determine whether you really are intoxicated and should be arrested for DUI. If you refuse to take the PBT in Las Vegas, then the officer will immediately seize your license as part of a ninety-day suspension and arrest you for DUI anyway.
Evidentiary breath test (NRS 484C.160)
If the police arrest you for DUI in Nevada, you will then be required to submit to an evidentiary chemical test usually of your breath, blood or urine. Refusing to submit to the appropriate test in Las Vegas will cause your license to be suspended, and the length of the suspension depends on your DUI history:
- If in the last seven (7) years you have not refused a chemical test, then the license will be suspended for one (1) year.
- But if you have refused a chemical test within the last seven (7) years and had your license suspended because of it, then the suspension will span three (3) years.
If you refuse to submit to (or to complete) one of the evidentiary tests, law enforcement is authorized to use "reasonable force" such as constraining you in order to administer a blood test. And if your DUI case goes to trial in Las Vegas, the prosecution may present evidence that you refused the test which a judge or jury might then construe as a tacit admission of guilt. (NRS 484C.240)
Can I refuse one type of evidentiary test if I agree to take another?
Sometimes. It depends on whether the officer believes you are drunk or high and on the resources available at the time. But recall that refusing to take any chemical test will cause you to lose your license for one (1) year . . . . .
When the officer believes you are intoxicated from alcohol and not drugs, you can usually choose between submitting to either a breath test or a blood test. However, if you choose to take a blood test when breath-testing equipment is readily available, you will then be charged all the extra costs associated with the blood test...if you are subsequently convicted of DUI in Nevada.
The officer can require that you take a blood test rather than a breath test only when:
- The alleged Nevada DUI caused death or serious bodily harm to another person.
- Within the last seven (7) years you have been convicted of driving under the influence or boating under the influence, or if within the last (7) years you have been convicted of any other similar offense that caused death or bodily injury.
As long as the officer is not trying to determine whether you have drugs other than alcohol in your system, you do not have to submit to a urine test as well.
When the officer believes you are driving under the influence of drugs in Nevada, he or she may require that you take a blood test, a urine test, or both, as well as a breath test! Even if you refuse to take one evidentiary test but submit to the others, evidence of the refusal may be admitted at trial and could be used against you.
What if I refuse to take a chemical test at first, but then agree to take it later?
Nevada law is extremely unfair in this regard. If you initially refuse to submit to a chemical test but then change your mind before the police can force you to take it, you are still considered to have "refused" the test and face the same license suspension penalties described above. (State, Dept. of Motor Vehicles and Public Safety v. Root, 113 Nev. 942, 948, 944 P.2d 784, 788 (1997))
Can I refuse to take a chemical test if I am under eighteen?
No. Las Vegas Nevada underage DUI law subjects drivers to the same penalties for chemical test refusals. However, the police officer must make a reasonable attempt to notify the underage driver's parent, guardian or custodian before administering the chemical test.
Can I refuse to take a chemical test if I am sick?
In most cases, no. Nevada chemical test refusal laws may exempt drivers from taking a blood test only if they have hemophilia or a heart condition requiring the use of an anticoagulant. But even those drivers may be required to submit to a breath or urine test.
Can I demand to see or talk to my attorney before taking a preliminary breath test or evidentiary test?
No. You do not have the right to consult with a Nevada DUI attorney prior to submitting to any chemical test.
What are defenses to refusing to take a chemical test in Nevada?
If you allegedly refused to take a chemical test following a Las Vegas DUI arrest, your attorney may still be able to save your driver's license and/or to keep your refusal from being used against you if the matter goes to trial.
If your attorney can show that the law enforcement in your case failed to "substantially comply" with testing procedures, then the criminal law judge may be inclined to exclude your refusal from evidence, and the administrative judge in a Nevada DMV hearing may reinstate your driving privileges.
This is why it is of vital importance that you tell your attorney everything that you said or did and that you observed the officer say or do when you were arrested: Perhaps you never actually refused to take a chemical test and the officer misconstrued your actions. Or perhaps the officer failed to offer you the choice between a breath and blood test when you were entitled to the choice. Whatever your case, your Las Vegas DUI attorney may be able to show that you were in the right and therefore should not be punished.
We are here to help if you have been arrested for DUI . . . .
Whether or not you refused to submit to an evidentiary test, our Las Vegas drunk driving defense lawyers may be able to resolve your DUI case so you keep your driver's license and stay out of jail. We have decades of experience in successfully getting charges for "driving under the influence" reduced to a minor offense or dismissed outright. Call us at 702-DEFENSE (702-333-3673) for a free consultation.
To learn about California DUI chemical test refusals, go to our informational article on California DUI chemical test refusals.