“Blood splits” and Nevada DUI Law
Most people who are arrested for driving under the influence in Nevada elect to take a DUI breath test rather than a blood test. A breath test is quick and non-invasive and the results are immediately available.
However, under Nevada law, if you take (or are required to take) a blood test, you can have your blood independently retested by a laboratory of your choice. This is one reason why some lawyers recommend a DUI blood test instead of a DUI breath test.
Below our Las Vegas DUI lawyers discuss:
- 1. Nevada’s law on DUI blood sample retesting
- 2. Do I have to take a blood test?
- 3. Should I choose a breath or blood test?
- 4. Who pays for my blood test?
1. Nevada’s law on DUI blood sample retesting
When you take a DUI breath test, the results are available immediately. As a result, none of your breath samples is saved.
But when you take a DUI blood test, by law the police must save a portion of your blood and make it available to you for independent testing. (In California, this is known as a “blood split.”)
The police are not obligated to inform you of this right when they arrest you.1 Nevertheless, you have it.
And if the results of law enforcement’s lab tests show that you had more alcohol or drugs in your system than legally allowed, we recommend that you exercise this right. Often, an independent lab will come to different conclusions. And when they do, a skilled attorney can often get the prosecutor to drop or reduce the charges – or create the reasonable doubt that will get a jury to return a “not guilty” verdict.
Your Nevada DUI attorney can make the arrangements to get your blood retested on your behalf if you so desire.
2. Do I have to take a blood test?
You do not have to take a blood test following an arrest for DUI unless the officer reasonably suspects that you were DUI of drugs (DUID) or a dangerous chemical. In such a case, you may be required to take a blood test, a urine test, or both.
But in all other cases, you have the right to request a DUI breath test.
Note that you are not given a choice if you are asked to take a preliminary alcohol screening (PAS) breath test (“PBT”) on a handheld device before you are placed under arrest. The PBT exists only as a tool to help a law enforcement officer determine whether to arrest you. It cannot be used as evidence against you in court.2
Once you have actually been arrested, however, a test for DUI is no longer preliminary – it is evidentiary. This means it can be used as evidence against you in court.
And absent a good reason (as discussed below), you must be given the choice of taking a DUI breath test or a blood test.
3. Should I choose a breath or blood test?
Some lawyers recommend that when offered a choice you select a blood test because of the ability to have the sample independently tested. Others recommend you select the breath test because there are more variables to challenge.
Ultimately the choice is up to you: the convenience and immediacy of a breath test, or the greater accuracy and ability for independent testing that comes with a blood test.
Note that you will be required to take a blood and/or urine test if the officer suspects drug use. You also will not be given a choice if the facilities for the test you prefer are not reasonably available.3 In Las Vegas, Reno or other urban areas, however, this will seldom be the case.
If you are unconscious at the time of your arrest (for example, following an accident) and, therefore, unable to complete a breath test, the police may take a blood sample without your consent.4
You cannot be required to take a blood test under any circumstances, however, if you have hemophilia or a heart condition requiring the use of an anticoagulant.5
4. Who pays for my blood test?
If you choose a DUI blood test and are ultimately convicted of DUI, you will be required to pay for the cost of the blood test. This includes the fees and expenses of witnesses whose testimony is necessary because of the use of the blood test. The expenses of any such witness may be assessed at a rate of not less than:
- $50 per hour for travel to and from the place of the proceeding; and
- $100 per hour for giving or waiting to give testimony.6
So this is a factor to consider when choosing. You will also be required to assume the costs of having your blood independently tested if you choose to do so.
Notwithstanding the expense, if you did take a blood test, we recommended that you exercise your right to have it independently tested. Law enforcement lab results are often inaccurate for reasons that can include:
- Collection or testing by improperly trained individuals;
- Contamination of the blood after it is collected;
- Switched, intermingled or mislabeled samples;
- Fermentation that causes the blood sample to produce its own alcohol inside the vial;
- Inadequate amounts of preservative in the blood vial;
- Improper refrigeration; or
- Failure to comply with any of Nevada’s strict requirements for the calibration of blood testing equipment.7
Arrested for DUI in Las Vegas or Reno? Call us for help…
If you or someone you know was charged with DUI in Nevada, we invite you to contact us for a consultation.
Whether you took a DUI blood test or DUI breath test, our caring Nevada DUI defense lawyers will review the results and find out where the police may have gotten it wrong.
To schedule your consultation, call us or complete the form on this page. One of our experienced Reno or Las Vegas DUI lawyers will get back to you promptly to listen to your side of the story and help lay out the best defense to your DUI charges.
In California? See our article on Blood Split Motions in California DUI Cases.
- Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993), overruled on other grounds by Krauss v. State, 116 Nev. 307, 998 P.2d 163 (2000).
- NRS 484C.150.
- NRS 484C.160(5)(a).
- NRS 484C.160(3).
- NRS 484C.160(4).
- NRS 484C.160(5)(b).
- NRS 484C.640.