The BAC limit here in Nevada is .08% for regular adult drivers, .04% for commercial drivers, and .02% for drivers under 21. That said, you can still 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 (including Uber & Lyft) | Under .04% |
| Drivers under 21 years old | Under .02% |
| *Driving while impaired by alcohol is illegal, even if your BAC is within legal limits.1 | |
If you are arrested for DUI, you can elect to take a breath test or a blood test to measure your BAC. If you refuse both, the officer can get a warrant to administer a blood test forcibly.
In this article, our Las Vegas DUI attorneys address the following BAC topics:
- 1. “BAC” Defined
- 2. Testing BAC
- 3. Blood v. Breath Tests
- 4. Two-hour Rule
- 5. Sober With An Illegal BAC
- 6. Drunk With A Legal BAC
- 7. Which Test To Take
- 8. DUI Of Drugs
- 9. The Lead-up To The Test
- 10. Refusing The Test
- 11. Penalties
1. “BAC” Defined
BAC stands for blood alcohol content. This also goes by
- “blood alcohol concentration” or
- “blood alcohol level.”
Specifically, a BAC is the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath, expressed as a percentage.
In short, BAC is the quantity of alcohol in your blood. Therefore, your level increases the more alcohol you drink.
Having a BAC of .08% while driving – or within two hours after driving – is illegal in Nevada.
2. Testing BAC
Following a Nevada DUI arrest, you are required to submit to a blood test or breath test to measure your BAC. You can choose which test to take.
Blood tests are the most reliable method for determining BAC because they involve testing your blood itself. In Nevada, the test results take several weeks to get.
Breath tests are the most convenient method of measuring BAC because they are quick and non-invasive. You simply breathe into a small machine called a breathalyzer that analyzes your alveolar (deep lung) air, and the results are immediate.2
3. Blood v. Breath Tests
Both breath- and blood tests are imperfect, and there are many reasons why BAC results may be plain wrong in Nevada DUI cases:
Numerous factors can lead to false results on blood or breath tests in DUI cases.
Even such factors as the phlebotomist having an expired license can cast doubt on the accuracy of blood 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 reckless driving.
In the above example, the BAC was likely .15% despite the tester’s lapsed license. 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.
It may be possible to get blood draws independently tested in Nevada DUI cases.
Blood tests render more accurate BAC results than breath tests in DUI cases.
4. Two-hour Rule
In Nevada, you can be convicted of drunk driving for having a BAC of .08% or higher at any time within the two hours after you stop driving. The two-hour rule comes from NRS 484C.110:
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; or
(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his or her blood or breath
to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.
So even if your BAC is legal for all but one minute of the two hours after you stopped driving, you can still face DUI charges if the police happen to test you during that one minute your BAC is illegal.
Even if you drive home safely and no longer pose a threat to anyone on the road, you can still face DUI charges if your BAC measures .08% or higher within two hours of exiting your vehicle.
Example: At 10pm, a police officer sees Jack swerving down a residential street before he parks in front of his home and goes in. The officer knocks on Jack’s door and smells alcohol when Jack appears. Jack then fails the preliminary breath test and field sobriety tests, which gives the officer probable cause to arrest Jack for DUI. The officer books Jack, and at midnight he provides breathalyzer samples of .08%. Here, the D.A. can charge Jack with DUI because his BAC came back as illegal within two hours of him driving.
Police usually administer the breath or blood test within two hours of a DUI traffic stop. If they fail to administer the test in this two-hour window, you can argue that the results should be inadmissible as evidence. In some cases, courts still admit “delayed results” into evidence anyway, but these “delayed results” usually carry less weight.3
5. Sober With An Illegal BAC
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 you are not impaired by alcohol.4
Note that blood alcohol level is influenced by such variables as:
- weight,
- gender,
- whether you have eaten or have an empty stomach,
- if you are dehydrated,
- whether you are ill or on certain medications,
- how long you were drinking, and
- the type of alcohol consumed.
Consequently, different people who drink the same amount of alcohol may show two totally different results. Furthermore, some “drinks” contain high alcohol levels and, therefore, raise your BAC faster:
| Type of Drink | Alcohol Content |
| Wine | 12% to 20% |
| Liquor (80 proof) | 40% |
| Beer | 4.5% to 7.5% |
In general, drivers with a BAC of .05% begin to display impaired vision, judgment, and coordination that may manifest as
- abrupt lane corrections,
- swerving, and
- compromised control over the vehicle.
Anytime you suspect you may have had too much to drink, you are encouraged to rely on a designated driver or public transportation: You can always retrieve your car the next day. Plus, in a city like Las Vegas or Reno, you can always get a room to sleep it off.
Just be sure not to sleep in your car if you are intoxicated: That could subject you to a sleeping DUI.
Even burping prior to a breath test can cause inaccurate BAC results in Nevada DUI cases.
6. Drunk With A Legal BAC
Driving under the influence of alcohol is always a crime, no matter what your blood alcohol content is. So, you may be convicted of DUI for driving while impaired by alcohol even if your 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 officer notices her car failing to maintain a lane and pulls her over. After Addalee fails the field sobriety tests, the officer arrests her and books her at the Clark County Detention Center. There the officer 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. Her BAC is irrelevant.5
7. Which Test To Take
Breath tests and blood tests each have their pros and cons.
| DUI Breath Tests | DUI Blood Tests | |
| Comfort level | Painless and non-invasive | Painful and invasive |
| Speed of test | A few seconds | Several minutes |
| Speed of results | Immediate | Several weeks |
| Accuracy | Not as accurate as blood | Mostly accurate |
| Independent retesting | No | Yes |
Another difference is that when you take a breath test, the police officer will immediately confiscate your driver’s license. However, if you take a blood test, you may continue driving until the blood results come back positive for DUI.
Note that when you get your license suspended, you 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 your driver’s license suspension depends on your prior DUI history:
| Nevada DUI offense | License suspension |
| First-time DUI | 185 days |
| Second-time DUI | 1 year |
| Third-time DUI | 3 years |
Even if your license gets suspended, it may be possible to continue driving with an ignition interlock device. Learn more about DUI penalties.6
8. DUI Of Drugs
When an officer suspects that you are driving under the influence of a controlled substance like marijuana or other drugs, you are obligated to submit to a blood test. If you refuse, the officer can get a warrant to take the blood test by force.
9. The Lead-up To The Test
A lot has to happen before you can take an evidentiary breath- or blood test in Nevada:
- The police pull you over because they have a reasonable suspicion you are violating traffic laws (such as by swerving or falling asleep at the wheel). Alternatively, the police arrive at the scene following an accident.
- The police ask you for your license, insurance, and registration. They also ask if you have been drinking.
- Meanwhile, the police are looking for signs of impairment: Bloodshot and glassy eyes, slurred speech, and the smell of alcohol and/or marijuana.
- If the police believe you might be intoxicated, they will ask you to submit to a preliminary breath test with a roadside breathalyzer. The results cannot be used in the court; the police use them only to determine whether you may be under the influence.
- The police will then ask you to perform three field sobriety tests: The Walk-and-Turn, the One-Legged Stand, and the Horizontal Gaze Nystagmus test (eye test).
If, at this point, the police have “probable cause” to believe you have committed DUI, they will arrest you and administer an evidentiary breath or blood test within two hours of you having driven.
If police fail to follow proper protocol and procedures, then it may be possible to get your BAC test results excluded as evidence. This could force the D.A. to reduce or dismiss your DUI charge for lack of proof.
Note that police do not have to read you your Miranda rights following your arrest unless they interrogate you. Most of the time, police ask you all their questions before arresting you so they can get out of reading your Miranda rights.
10. Refusing The Test
If you refuse to submit to a breath or blood test, the police officer can ask a judge for a warrant to force you to submit to a blood test.
The Nevada DMV will also revoke your license for at least one (1) year. Note this revocation is extended to three (3) years if you already had your license revoked due to refusing an evidentiary test in the last seven (7) years.
Finally, if the DUI case goes to trial, the prosecutor can also use the refusal as evidence against you.
BAC numbers measure only alcohol, not drugs.
11. Penalties
Getting a DUI with a BAC of .18% or higher will trigger the following additional penalties for a first-time DUI:
- an alcohol/drug dependency evaluation,
- rehab, and
- driving with an ignition interlock device (IID) for one to three years.
Otherwise, DUI penalties increase with each successive conviction, not by BAC level:
| Nevada DUI Offense | Nevada DUI Penalties |
| DUI 1st (in 7 years) | Misdemeanor:
The criminal record can be sealed 7 years after the conviction. |
| DUI 2nd (in 7 years) | Misdemeanor:
The criminal record can be sealed 7 years after the conviction. |
| DUI 3rd (in 7 years) | Category B felony:
The criminal record cannot ever be sealed. |
| DUI causing injury or death – NRS 484C.430 | Category B felony:
The criminal record cannot ever be sealed. |
Legal References:
- NRS 484C.010. See also Wright v. State DMV (2005) 121 Nev. 122; State v. Hiatt (1996) .
- Id.
- Id. State v. Eighth Judicial Dist. Court of Nev. (Nev. 2021) 479 P.3d 1004 (“[T]he district court erroneously ruled that the delayed BAC results were categorically inadmissible. Thus, we…instruct the district court to appropriately consider the probative value and potential prejudicial effect of the evidence in the first instance to the charges the State has brought under NRS 484C.430(1)(a) and (b).“).
- Id.
- See Sereika v. State, (1998) 114 Nev. 142.
- NRS 484C.210.