Refusing a DUI breath or blood test
Motorists arrested for DUI in Nevada are required to submit to a "chemical test," which is an evidentiary breath test or an evidentiary blood test. Refusing a chemical test carries harsh consequences:
- a driver's license revocation for at least 1 year,
- (in some instances) a forced blood draw, and
- prosecutors may use the refusal as evidence against the defendant in a DUI trial and a DMV hearing
Defendants face these penalties even if they agree to take the chemical tests after having refused at first.
Refusing a preliminary breath test
Nevada motorists are also legally required to submit to a preliminary breath test (PBT) whenever police initially suspect them of DUI. Refusing a PBT carries harsh consequences as well:
- the officer will most likely arrest the suspect for DUI,
- the officer will confiscate the suspect's driver's license,
- prosecutors may use the refusal as evidence against the defendant in a DUI trial and DMV hearing
But the police can not force suspects to take a PBT.
Defenses to DUI breath or blood test refusals
Nevada DUI defendants can contest their driver's license revocation at a DMV hearing. Possible arguments that could get their licenses reinstated include:
- The defendant was willing to take a breath test,
- The defendant was incapacitated, and/or
- The police officer failed to inform the defendant that his/her license would be revoked for refusing to take a chemical test
In this article, our Las Vegas DUI defense lawyers discuss:
- 1. Can I refuse to give my breath or blood in NV DUI cases?
- 2. Will I lose my license for refusing?
- 3. Can I choose one test over another?
- 4. Can police force me to take the test?
- 5. What if I tried to give a breath sample but could not?
- 6. How will refusing affect my criminal DUI case?
- 7. Can I fight allegations that I refused?
- 8. What if I refuse at first but agree later?
- 9. Can I refuse if I am under 18 or sick?
- 10. Can I demand an attorney before the tests?
Not legally. Nevada drivers are presumed to have given their "implied consent" to submit to a preliminary breath test whenever police suspect them of driving under the influence. And if the police then place them under arrest, the suspects are presumed to have given their "implied consent" to submit to an evidentiary breath or blood test.
When Nevada DUI arrestees refuse to submit to an evidentiary breath or blood test, they face serious consequences including:
- The defendant's driver's license will be revoked for 1 or 3 years;
- The police can take the defendant's blood against his/her will; and/or
- The defendant's refusal can be used as evidence against the defendant in a criminal trial or DMV hearing1
These consequences are meant to deter DUI suspects and arrestees from refusing to submit to the tests.2
When a Nevada police officer pulls over or approaches DUI suspects on the road, the officer may ask them to submit to a preliminary breath test (PBT, a.k.a. preliminary alcohol screening or PAS). The purpose of the PBT is to help the cop determine whether the suspect may be drunk.
When DUI suspects refuse to take the PBT, the officer will immediately seize their driver's license and arrest them for DUI. Note that the officer cannot physically force the suspect to take the PBT.3
Once Nevada DUI suspects are arrested and placed in custody, the officer will give them a choice of taking an evidentiary breath test or blood test. The only exception is for arrestees suspected of taking drugs: They are required to take a blood test since breath tests do not detect drugs.
Whereas the purpose of the PBT is to help officers decide whether to arrest a DUI suspect, the purpose of evidentiary breath and blood tests is to:
- help prosecutors determine whether to prosecute the defendant for DUI, and
- help the Nevada DMV determine whether to revoke the person's license for DUI.
Police officers are required to inform DUI arrestees that their license will be revoked if they refuse to take the evidentiary breath or blood test. The revocation typically lasts for one (1) year. But the revocation will last for three (3) years if the arrestee had a previous license revocation for a chemical test refusal in the last seven (7) years.
When DUI arrestees refuse to submit to or complete an evidentiary chemical test, the next step is clear: Law enforcement will get a judicial warrant authorizing the police to take a blood sample against the arrestees' will. Then the police may use "reasonable force" including constraints to "pierce their skin" and administer the blood draw.4
1.2.1. Officer's admonition to DUI arrestees about refusing evidentiary tests
Following a DUI arrest, police officers are required to inform the arrestee that refusing to take a breath or blood test will result in a license revocation. Typically, officers deliver this "implied consent" admonition right after delivering Miranda warnings (where arrestees are informed they have the right to remain silent and get a lawyer, etc.).
After the officer tells the arrestee that refusing the chemical tests will result in a license revocation, the arrestee must indicate that they understand the warning. Note that the police officers do not have to specify that the license revocation may last for one or three years. They simply have to say that a revocation is a consequence of a chemical test refusal.5
1.2.2. Independent evidentiary testing
People arrested for DUI in Nevada are allowed to have a qualified person of their own choosing administer an evidentiary breath or blood test. Defendants are responsible for all costs associated with this extra testing.
But independent tests results cannot take the place of police-administered test results. And if the defendants refused to submit to evidentiary tests administered by the police, they still face a license revocation despite having pursued independent testing.5
Note that prosecutors may use DUI defendants' chemical test refusals as evidence against them if they have a criminal trial and/or DMV hearing. The judges may construe the refusal as a sign that the defendants were trying to hide being under the influence.6
Yes. Refusing to take the preliminary breath test will cause the police officer to confiscate the DUI suspect's license. And refusing to submit to an evidentiary breath or blood test will result in a license revocation of one (1) or three (3) years:
|Type of test that the Nevada DUI suspect refused||Nevada driver's license revocation periods|
Preliminary breath test (PBT)
Evidentiary breath test
Evidentiary blood test
Note that a license revocation for refusing to take a chemical test is a separate penalty from a license revocation for driving under the influence. These two revocations run consecutively. Laughlin criminal defense attorney Michael Becker gives an example:
Example: Josh gets arrested for a first-time DUI, which carries a 90-day driver's license revocation. Josh refuses to submit to any tests, so the police administer a forced blood draw. A few weeks later the blood test results come back positive for DUI. So Josh faces a license revocation of one year plus 90 days: The one year is for refusing the tests, and the 90 days is for driving under the influence.7
When Nevada residents' driver's licenses are revoked, they may request a DMV hearing to contest the revocation. A DMV hearing is an administrative proceeding that is completely separate from any criminal DUI charges. However, DMV hearings are tougher to win than criminal trials because the state's burden of proof is very low...
A DMV judge may find against the defendant with very little evidence. And the judge can weigh a DUI defendant's refusal to take a breath or blood test against him/her. Still, defendants should always request a DMV hearing since they have nothing to lose and everything to gain--getting their driver's license back.
Note that the DMV will impose a license revocation as a penalty for refusing a chemical test even if:
- the defendant ultimately passes the blood test, and/or
- any DUI criminal charges get dismissed.
To the DMV, refusing an evidentiary test is a separate transgression from driving under the influence.8
Out-of-state drivers who refuse to take a chemical test in Nevada may still face a license suspension or revocation from their home-state DMV. This is because most states follow the Interstate Driver's License Compact: The member DMVs share information and penalize their license-holders as if an out-of-state traffic offense occurred in their own state.9
All out-of-state residents who refused a DUI chemical test in Nevada should seek legal counsel in their home state to discuss the consequences for their driver's license. Read our article on help for out-of-state DUI defendants in Nevada.
Yes, if the police believe the arrestee is under the influence of alcohol and not drugs. DUI arrestees suspected of driving under the influence of drugs must take an evidentiary blood test. This is because breath tests cannot detect drugs, just alcohol.10
Note that when police officers at the scene of the alleged DUI ask the suspect to take a preliminary breath test (PBT), the suspect does not have the choice to take a blood test instead. If the suspect refuses the PBT, the officer will confiscate the suspect's license and arrest him/her.11
3.1. Drunk Driving
When the officer believes a DUI arrestee is intoxicated from alcohol and not drugs, the arrestee can choose between submitting to either a breath test or a blood test. But if arrestees choose to take a blood test when breath-testing equipment is readily available, they will be charged fees if they are ultimately convicted of DUI...
These costs include payments for witnesses called to testify about the blood test. The amount is at least:
- $50 an hour for travel to and from the place of the proceeding; and
- $100 an hour for giving or waiting to give testimony.
The expenses are the same no matter whether the witness is testifying at criminal court or an administrative DMV hearing.12
3.2. Drugged Driving
When Nevada police arrest someone for allegedly driving under the influence of drugs (DUID), the police may require the arrestee to take a blood test, a urine test, or both. Some of the most common types of DUID are:
- driving under the influence of marijuana (only blood and not urine tests are permitted to detect DUI of marijuana)13
- driving under the influence of prescription drugs
- driving under the influence of painkillers
When police require DUID arrestees to submit to both a blood test and urine test, refusing one and not the other is still considered a refusal. The refusal results in a one (1) year license revocation at least. And evidence of the refusal may be used against the defendant in a criminal trial and DMV hearing.14
Police may force DUI arrestees to take an evidentiary blood test if they refuse to consent to an evidentiary breath or blood test. Suspects cannot be forced to take a breath test.
(Recall that arrestees suspected of driving under the influence of drugs do not have the option to take an evidentiary breath test, just the blood test.)
Note that police are required to get a warrant first before administering a forced blood draw. Once they secure the warrant, police may use "reasonable force" like strapping the defendant down to carry out the blood test.15
Also note that police cannot force DUI suspects to take a preliminary breath test (PBT). When DUI suspects refuse to take the PBT, the police will then confiscate their driver's license and arrest them.16
|Type of DUI test||Can test be administered against the subject's will?|
Preliminary breath test
Evidentiary breath test
Evidentiary blood test
Yes, as long as the police get a warrant first
It depends whether the breath sample for was a preliminary breath test (PBT) or evidentiary breath test (EBT):
5.1. Trouble taking the preliminary breath test
When DUI suspects try to take a preliminary breath test (PBT) but cannot provide an adequate sample, it is up to the officer's discretion as to how to proceed.
If the officer believes the suspect is deliberately trying to withhold his/her breath, the officer will consider it a refusal. The officer will then confiscate the suspect's license and arrest him/her. This refusal can also be used against the suspect in his/her criminal DUI trial and DMV hearing.17
Some suspects sincerely try to give a good breath sample but physically cannot. In these cases, the officer may try to make a determination about their intoxication levels through other means such as standardized field sobriety tests.
5.2. Trouble taking the evidentiary breath test
DUI arrestees who try to take an evidentiary breath test (EBT) but cannot provide an adequate breath sample will be asked to submit to a blood test. If they then refuse the blood test, Nevada law will consider this a "refusal."
Therefore, these defendants then face a license revocation. And the refusal can be used against them in their criminal DUI trial and DMV hearing.18
The breathalyzer that Las Vegas police use is the Intoxilzyer 8000.19 Note that breathalyzer machines are not always easy to operate. They require the subject to provide a strong, sustained exhale. People who are very nervous, tired, or with certain respiratory conditions such as asthma may find that they are unable to complete a breathalyzer test.
Breath or blood test refusals can be used as evidence against Nevada defendants if they are charged criminally with DUI:
Prosecutors may be less likely to extend a favorable plea deal to defendants who refused the breath or blood tests. And if the DUI case goes to trial, the prosecutor can argue that the defendant refused the tests to hide that he/she was drunk or high.
Note that a chemical test refusal is insufficient by itself to prove that the defendant was guilty of DUI. If the blood results come back as negative for illegal quantities of drugs or alcohol, the prosecutor will probably drop the DUI charges despite the refusal.
Also note that a DUI defendant's criminal case is entirely separate from the DMV case. Even if the criminal charges get reduced or dismissed, the defendant's driver's license will remain revoked for having refused the evidentiary blood test. The only way to contest a license revocation is through an administrative DMV hearing.20
Sometimes police wrongly claim that DUI suspects refused a chemical test. Depending on the case, Nevada defense attorneys may be able to use the following arguments to show that the defendants in fact consented:
- The defendant was willing to take an evidentiary breath test,
- The defendant was incapable of refusing a chemical test, and/or
- The police officer failed to inform the defendant that refusing will result in a license revocation
Defense attorneys may be able to use these arguments in DMV hearings to try to save the defendant's driver's license. Defendants may also be able to use these arguments in criminal court in an effort to exclude the state's evidence that the defendant refused the chemical tests.
7.1. The defendant was willing to take an evidentiary breathalyzer test
In most cases, drunk driving suspects who have been arrested may elect to take an evidentiary breath test or an evidentiary blood test.
Even if the defendant refused to take the evidentiary blood test, the defendant should not be penalized as long as the defense attorney can show that:
- the police had no reason to suspect the defendant had ingested drugs, and
- the defendant was willing to take the evidentiary breath test, and
- a working breathalyzer machine was reasonably available.
Note that this defense is available only to defendants suspected of DUI of alcohol, not of drugs. This is because drugged driving suspects are required to submit to a blood test and may not take a breath test instead.21
7.2. The defendant was incapable of refusing
Following serious vehicle crashes, DUI suspects may be knocked unconscious or sedated by medics. Police may administer blood draws from unconscious DUI suspects as long as they get a warrant...
In these cases, the police cannot claim the suspects refused to take a chemical test; this is because unconscious suspects are not capable of refusing or consenting. Even if the suspect wakes up following the blood draw and protests the procedure, the suspect still did not "refuse" the test because it already occurred.22
Note that the Nevada Supreme Court has ruled that DUI suspects who were voluntarily drunk or high are capable of consenting or refusing the chemical test. These suspects cannot later argue that their refusal does not count because they were too incapacitated to think it through.23
7.3. The police officer failed to inform the defendant that refusing will result in a license revocation
Nevada law requires officers to tell DUI arrestee that their license will be revoked if they refuse to take an evidentiary test. So if the police neglected this duty, then the suspect's subsequent refusal may be invalid.24 Henderson criminal defense attorney Michael Becker gives an example:
Example: A police officer arrests Eric for DUI of alcohol in Las Vegas. The officer never tells him that refusing to take a breath or blood test will cause him to lose his license. Eric refuses to take any tests. Consequently, Eric's license gets revoked for a year.
At the DMV hearing, Eric's attorney argues that his refusal was invalid because the police failed to inform Eric of the consequence of refusing the tests. The DMV judge then decides to reinstate Eric's license because Eric might have taken the test had the police done his duty and told Eric that refusing results in revocation.
Note that other types of police misconduct can also cause a DMV judge to reinstate a defendant's license:
Perhaps the defendant never actually refused to take a chemical test and the officer misconstrued his/her actions. Or perhaps the officer failed to offer the defendant the choice between a breath and blood test when he/she was entitled to the choice...
In such cases, a Las Vegas DUI attorney may be able to show that that license revocation was improper and that the "refusal" should not be used against the defendant in criminal court.
It is still considered a refusal...
Suspects may not "cure" their initial refusal by later consenting to a breath or blood test. It makes no difference if they change their mind prior to the forced blood draw. Hence, suspects who initially refuse but then consent to chemical tests will still have their driver's license revoked for at least one (1) year.25
Note that when police ask DUI suspects to submit to a chemical test and they do not answer, police may construe their silence as a refusal. Even an ambiguous answer to police such as "do what you have to do" may constitute a refusal under Nevada law.26
Being a minor does not exempt Nevada DUI suspects from chemical test requirements. Hemophiliacs and people with certain heart problems are not required to take blood tests. But otherwise chemical tests are mandatory for ailing DUI suspects.
Nevada law presumes that minor DUI suspects give the same "implied consent" to submit to chemical tests as adults do. Under-18 drivers also face the same consequences as adults for refusing to take the tests.
However, the police officer must make a reasonable attempt to notify the underage driver's parent, guardian or custodian before administering the evidentiary breath or blood test.27
Learn more about underage DUI laws in Nevada.
Most illnesses and disabilities do not exempt DUI suspects from their implied consent to take breath or blood tests. But suspects cannot be forced to take a blood test if they have either:
- hemophilia, or
- a heart condition requiring the use of an anticoagulant
However, DUI suspects with either of those conditions may then be required to submit to a breath or urine test.28
Note that police are allowed to administer breath tests on DUI defendants who have asthma.29 However, their defense attorney can later try to invalidate the results by claiming the defendants were unable to provide an adequate breath sample. Learn more about how medical conditions can cause false breathalyzer results in Nevada.
Note that anyone who died from a car crash will have their blood drawn by a coroner within eight (8) hours of the accident. It makes no difference whether the dead person was driving or whether the police suspected that DUI caused the death. These blood test results are public record.30
No. DUI suspects do not have the right to consult with a Nevada attorney prior to submitting to the preliminary breath test or to the evidentiary breath or blood tests.31
DUI suspects are advised to behave politely to the police and to say as little as possible. Anything they say can be used against them in court later.32
Arrested for DUI? Call us...
Whether or not you refused to submit to a chemical test, our Las Vegas criminal defense attorneys 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 reckless driving or dismissed outright. Call us at 702-DEFENSE (702-333-3673) for a free consultation.
Arrested in California? Go to our informational article on California DUI chemical test refusals.
Arrested in Colorado? Go to our informational article on Colorado DUI chemical test refusals.
- See NRS 484C.150; NRS 484C.160.
- State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989)("[T]he law recognizes the driver's right to refuse his consent, but penalizes him for exercising that right by revoking his license...The fact of his refusal can be introduced against him in an administrative or criminal proceeding..."By striking this balance, the statute motivates drivers to take the test, but does so without resorting to physical compulsion." State v. Hitchens, 294 N.W.2d 686, 688 (Iowa 1980).").
- NRS 484C.150; see also State v. Sample, 134 Nev., Advance Opinion 25 (2018)(In this case, the police arrested the suspect prior to administering the PBT: "Because the PBT was not administered pursuant to a warrant or an exception to the warrant requirement, we conclude that the district court properly suppressed the PBT evidence as an unconstitutional search.").
- NRS 484C.160.
- Id.; Department of Motor Vehicles & Pub. Safety v. Dunn, 109 Nev. 572, 854 P.2d 858(1993)("No statute, however, requires a police officer to explain the possible durations of a license revocation.")
- NRS 484C.180; NRS 484C.160; NRS 484C.150; NRS 484C.240.
- NRS 484C.210; NRS 483.460.
- NRS 484C.230; NRS 484C.240.
- Nevada is not technically a member of the Interstate Driver License Compact, but it behaves as it is. See Nevada Center for Interstate Compacts and Non-resident Violator Compact.
- NRS 484C.160.
- NRS 484C.150.
- NRS 484C.160.
- Nevada Assembly Bill 135 (2017).
- NRS 484C.160; NRS 484C.240.
- NRS 484C.160; Missouri v. McNeely, 569 U.S. 141, 133 S. Ct. 1552 (2013).
- NRS 484C.150.
- See, e.g. Department of Motor Vehicles & Pub. Safety v. Pida, 106 Nev. 897, 227 (1990)("[The defendant] initially blew into the breathalyzer, but failed to continue...After the third failure to complete the test, the officers decided to revoke [the defendant's] driving privileges for failure to submit to an evidentiary test."); NRS 484C.240.
- See Notice of Public Meeting (NRS 241), Nevada Department of Public Safety (April 13, 2015).
- NRS 484C.160; NRS 484C.240.
- NRS 484C.160.
- See, e.g. Higgins v. State, Dep't of Motor Vehicles, 101 Nev. 531, 706 P.2d 506 (1985)("Considering the objective factors, namely, the circumstances of the accident, appellant's multiple serious injuries, sedated condition, and general incoherency, along with uncontradicted medical testimony, we conclude that she was incapable of refusing to submit to the required evidentiary test.").
State, Dep't of Motor Vehicles & Pub. Safety v. Brown, 104 Nev. 524, 762 P.2d 882 (1988)(" We must conclude...that voluntary intoxication, even when grossly excessive, cannot fairly be included in the same semantic category with unconsciousness and death...We believe that to allow a driver's culpability to decrease as his state of intoxication increases offends not only the legislative policy behind Nevada's implied consent statute but common sense as well...we join the numerous jurisdictions that have interpreted statutory provisions...to preclude voluntary intoxication, by itself, as a condition rendering a driver incapable of refusal."); Department of Motor Vehicles & Pub. Safety v. Becksted, 107 Nev. 456, 813 P.2d 995 (1991)("Voluntary intoxication, by itself, may not render an individual incapable of refusing to take an evidentiary test.").
- NRS 484C.160.
- NRS 484C.160; State, Dept. of Motor Vehicles and Public Safety v. Root, 113 Nev. 942, 948, 944 P.2d 784, 788 (1997)("An initial refusal to take such a chemical sobriety test is final; the suspect cannot "cure" this refusal by making a subsequent request to take a test."); Schroeder v. State, Dep't of Motor Vehicles & Pub. Safety, 105 Nev. 179, 772 P.2d 1278 (1989)("Other states hold that an initial refusal to take a chemical sobriety test is final, and thus, the accused has no right to "cure" the original refusal...We cannot reasonably expect the arresting officer to consider a refusal as conditional, one that could be withdrawn at any time, and compel him to remain near the arrested person for an extended period of time."); State, Dep't of Motor Vehicles & Pub. Safety v. Dunn, 109 Nev. 572, 854 P.2d 858 (1993)("Assuming, without deciding, that a police officer's misleading or confusing explanation of the implied consent law may excuse a person's refusal to submit to an evidentiary test for the purpose of license revocation, we nevertheless conclude that the district court erred in reversing the hearing officer's decision.").
- Department of Motor Vehicles & Pub. Safety v. Brough, 106 Nev. 492, 796 P.2d 1089 (1990)("'Whether the declination is accomplished by verbally saying, "I refuse," or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make a difference.'" Beck v. Cox, 597 P.2d 1335, 1338 (Ut. 1979).); Department of Motor Vehicles & Pub. Safety v. Becksted, 107 Nev. 456, 813 P.2d 995 (1991)("The present ambiguity stems from the meaning of respondent's statement: "Well do what you have to do." Such a statement could mean "do the blood test" or it could mean "take away my license." The administrative officer was in the best position to determine what respondent meant by that statement. The administrative officer determined that respondent did not consent to an evidentiary test, and we conclude that his decision was supported by substantial evidence.")
- NRS 484C.160.
- See Bruce W. Nelson, DUI Prosecutors Manual, p. 63 (2017).
- NRS 484C.170.
- See Sixth Amendment.; McCharles v. State, Dep't of Motor Vehicles, 99 Nev. 831, 673 P.2d 488 (1983)("[S]ince the driver has already impliedly consented to submit to the test by driving in Nevada, an attorney could not properly have advised the driver that he has the right to refuse."); Schroeder v. State, Dep't of Motor Vehicles & Pub. Safety, 105 Nev. 179, 772 P.2d 1278 (1989)("Because the right to counsel does not attach in implied consent situations, any response conditioned upon obtaining the advice of an attorney amounts to a refusal to take the test.").
- See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).