Nevada's BAC Limit - Some Rules May Surprise You

The BAC limit for Nevada DUI law is

.08% for regular adult drivers,
.04% for commercial drivers, and
.02% for drivers under 21 years of age.

But you can be charged with DUI even below these limits, if there is evidence that you are under the influence of alcohol and/or drugs.

Drivers in Nevada	Legal BAC threshold*
Non-commercial drivers age 21 and older	Under .08%
Commercial drivers	Under .04%
Drivers under 21 years old	Under .02%
*Driving while impaired by alcohol is illegal even if the driver’s BAC is within legal limits.

Drivers arrested for DUI can elect to take a breath test or a blood test to measure their BAC. If the driver refuses both, the cop can get a warrant to forcibly administer a blood test.

Sometimes police wrongly arrest people for driving under the influence and miscalculate their blood alcohol content. Many factors can falsely influence test results, including:

rising blood alcohol,
medical conditions, and/or
faulty testing equipment

In this article, our Las Vegas DUI attorneys answer frequently-asked-questions about BAC and Nevada DUI law, including testing methods, the consequences for refusing a chemical test, and drugged driving:

motorist taking a roadside breath test to measure BAC - the Nevada alcohol limit is .08%

Driving with a BAC of .08% is illegal in Nevada.

1. What is the Nevada alcohol limit in DUI cases?

BAC stands for blood alcohol content. This 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 level increases the more alcohol they drink.

Specifically, a BAC is the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath. These are expressed as a percentage. The Nevada DUI limit is a BAC of .08% or higher.

Note that commercial drivers commit DUI if their BAC is .04% or higher. Learn more about commercial DUI laws. Also, note that drivers under 21 commit DUI if their BAC is .02% or higher. Learn more about underage DUI laws.¹

2. How is blood alcohol content measured?

Blood tests or breath tests. Drivers arrested for driving under the influence of alcohol in Nevada may choose which test to take:

2.1. 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 require 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 test results.

2.2. 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 these numbers immediately.²

3. How accurate are DUI blood and breath tests?

It depends on the situation, but there are many reasons why BAC results may be plain wrong in Nevada DUI cases.

3.1. 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

A DUI blood test being administered - the Nevada DUI limit can be measured by blood or breath alcohol content

Blood tests render more accurate BAC results than breath tests in DUI cases.

Even such factors as the phlebotomist having an expired license can cast doubt on the accuracy of the test results in Nevada DUI cases.

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 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; he negotiated a favorable solution that resulted in lessened charges without the uncertainty, time, and expense of going to trial.

Note that it may be possible to get blood draws independently tested in Nevada DUI cases.

3.2. 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 tests 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 DUI defense)

Even burping prior to a breath test can cause inaccurate BAC results in Nevada DUI cases.

4. How long does it take to get test results after a DUI arrest?

Breath test results are available immediately. Blood test results often take weeks to come back.

5. Does the Nevada DUI limit of .08% necessarily mean a person is intoxicated?

No. Many drivers hold their alcohol well and can still drive safely even with high blood alcohol levels. However, DUI law makes it a crime to drive with a BAC of .08% or higher even if the person is not impaired by the alcohol.³

Note that blood alcohol level is influenced by such variables as:

weight,
gender,
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 results.

Also, note that the way a person’s liver metabolizes alcohol may cause a person’s BAC to rise for up to two (2) hours even if they have 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 level at the time they were driving.

Therefore, a BAC test result of .08% or higher does not necessarily mean that the person did not have a lower and legal BAC level when they were actually behind the wheel.

6. Does having a BAC below .08% mean that the driver is not guilty of DUI?

No. Driving under the influence of alcohol is always a crime no matter what the blood alcohol content is. So a person may be convicted of DUI for driving while impaired by alcohol even if their level is lower than .08%. These cases often involve people who are not used to drinking or who have a very slight physical frame.

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 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 level of less than .08%.

7. If I am arrested for DUI, should I take the breath test or blood test?

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.

BAC numbers measure only alcohol, not drugs.

Another difference concerns driver’s license suspension, which is a penalty for 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 (7) 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 DUI carries a 185-day suspension (though it may be possible to continue driving with an ignition interlock device),
a second-time DUI carries a one (1) year suspension, and
a third-time DUI carries a three (3) year suspension

Learn more about DUI penalties.⁴

8. What if a driver is under the influence of drugs instead of alcohol?

When an officer 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. (If the driver refuses, the cop can get a warrant to take the blood test.) And this blood test will test for various narcotics and drugs instead of BAC.

9. Can I refuse to take a test if I get stopped for DUI?

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 this revocation is extended to three (3) years if the person already had their license revoked due to refusing an evidentiary test in the last seven (7) years.

Finally, the prosecutor can also use the refusal as evidence against the defendant if the DUI case goes to trial.

Arrested for DUI in Nevada? We are here for you…

Call our Las Vegas DUI defense attorneys if you or a loved one has been charged with a “DUI” in Las Vegas, throughout Clark County, or elsewhere in Nevada. We can provide a consultation in the 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.

In California? See our article on California BAC laws.

Legal References:

NRS 484C.010. See also Wright v. State DMV (2005) 121 Nev. 122; State v. Hiatt (1996) 112 Nev. 868.
Id.
Id.
See Sereika v. State, (1998) 114 Nev. 142.
NRS 484C.210.

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