In Nevada, the two-hour rule means you can be convicted of driving under the influence of alcohol if your blood alcohol concentration (BAC) reaches or exceeds 0.08% at any time in the two hours after you stop driving.
Can “late” BAC results still be evidence in DUI trials?
If police arrest you for DUI in Nevada but fail to test you within two hours of your driving, your “delayed BAC results” can still come in as evidence.2 However, these results will carry far less evidentiary weight than they would if they were timely.
In these types of cases, I would inform the court about the biological phenomenon of rising blood alcohol: This is simply that your BAC may continue to rise long after you stop drinking because it takes your body time to metabolize the alcohol. Therefore, I would argue that the court should disregard the BAC results because:
- not only were the tests administered after the two-hour window and therefore less relevant, but also
- your BAC may very well have been within legal limits during the entire two-hour window, and “rising blood alcohol” may have caused your BAC to rise after the window closed.
In my experience, this reasoning may be sufficient to raise a “reasonable doubt” as to your guilt and could persuade the D.A. to drop the entire case.
What happens if I refuse to take the breath or blood test?
Refusing to take an evidentiary test will also trigger a one-year driver’s license revocation even if your DUI charge eventually gets dismissed. Plus if your DUI case goes to trial, the D.A. may argue that you refused the test because you knew you were intoxicated and were trying to hide it.3
So in my opinion, you may as well submit to the breath- or blood test since the state will test your BAC anyway, and refusing will leave you without a license.
Can I be convicted of DUI with a legal BAC?
Even if your BAC level never reached 0.08% during the 2-hour rule window, Nevada courts can convict you of drunk driving if the D.A. can prove beyond a reasonable doubt that alcohol was impairing your driving.4 Common indicators of impairment include:
- you were swerving before the police pulled you over
- you smelled of alcohol
- your eyes were bloodshot
- you slurred your speech
- you failed the field sobriety tests
Though from what I have seen, it is very difficult for the D.A. to prove that you were DUI if your BAC was legal. This is because there are many non-alcohol-related reasons that could cause bloodshot eyes, slurred speech, bad driving, etc, such as:
- extreme fatigue,
- seizures, or
- a diabetic coma
As long as I can raise a reasonable doubt that alcohol caused your impairment, then no criminal charges can stand.
Can I win my DUI case with an illegal BAC?
Here at Las Vegas Defense Group, I have represented literally thousands of DUI clients who had illegal BACs. Even if the police tested you within the 2-hour window, it still may be possible to get the D.A. to reduce your drunk driving charge to reckless driving or to dismiss it completely.
Five defenses I have found to be very persuasive with prosecutors, judges, and juries are:
- The police did not have reasonable suspicion to pull you over. For example, perhaps the officers racially profiled you.
- The police did not have probable cause to arrest you. For example, perhaps you passed the roadside breathalyzer test and field sobriety tests.
- The breathalyzer was defective. Or even if the breathalyzer worked, I have been able to persuade judges to throw out the results if I can show that the last person who calibrated the breathalyzer let their certification lapse.
- You burped or coughed before providing a breath sample. If we can show the police failed to observe you for 15 minutes prior to the breath test to ensure that you did not regurgitate anything that could skew the test results, then we may be able to convince the judge to suppress the test results as evidence.
- You had a medical condition that inflated your BAC. For example, GERD or auto-brewery syndrome may trick the breathalyzer into returning an illegal BAC even if you are sober.
Ultimately, your BAC test results and the 2-hour rule are only a small part of your DUI case. I investigate every aspect of what happened in search for each instance of police misconduct. If I can show prosecutors that their evidence has too many holes, they may agree to drop your charges.
Does the 2-hour rule apply to DUI of drugs?
No. The 2-hour rule only applies to cases of drunk driving. If police suspect you are driving under the influence of marijuana or other controlled substances, the D.A. has the burden to prove that drugs were impairing you – or that you had illegal drug levels in your blood – at the time you were driving.
Note that when police arrest you for driving under the influence of drugs, you must take the blood test. This is because the breath test does not detect drugs.
See our related articles on Nevada DUI laws:
- Is “mouth alcohol” a defense to Nevada DUI charges?
- Is “hypoglycemia” a defense to Nevada DUI charges?
- Should I do a breath test or a blood test?
- How do I reinstate a revoked license?
- How long does a DUI stay on my record?
- NRS 484C.110. See, for example, Fuentes v. State (Nev.App. 2019) 135 Nev. 644.
- State v. Eighth Judicial District Court of Nevada (Nev. 2021) 479 P.3d 1004.
- NRS 484C.240.
- See note 1.