Nevada drunk driving law and the preliminary breath test
During a traffic stop or DUI roadblock, a Nevada police officer may try to determine whether you are driving under the influence of alcohol and/or drugs. To do this the officer will often ask you to:
- Answer some simple questions (such as “Have you had anything to drink tonight?”);
- Take field sobriety tests (FSTs) such as the one-legged stand; or
- Blow into a handheld roadside device for a preliminary breath test (PBT) for DUI.
The PBT is sometimes referred to as a roadside breath test or preliminary alcohol screening (PAS). And the results of the PAS can mean the difference between an officer letting you go or placing you under arrest for a Nevada DUI.
To help you better understand the law on Nevada’s preliminary breath tests, our Las Vegas DUI lawyers explain the following, below:
- 1. What is a preliminary alcohol screening (PAS) test?
- 2. The difference between a PAS and a post-arrest breath test
- 3. Should I ever refuse a Nevada preliminary breath test?
1. What is a preliminary alcohol screening (PAS) test?
In Nevada you drive under the influence when:
- You are unable to safely operate a vehicle due to your consumption of alcohol and/or drugs; or
- Your blood alcohol concentration (BAC) is over Nevada’s “legal limit” — 08% or higher for an adult;1 or
- You have more than a certain amount of prohibited drugs in your blood.2
If you are pulled over at a traffic stop or DUI roadblock, an officer from the Nevada Highway Patrol, the Las Vegas Metropolitan Police or another law enforcement agency may ask you to blow into a handheld device such as a “breathalyzer.”
A breathalyzer is a portable DUI breath testing device that measures the amount of alcohol in your breath. The device then uses a mathematical formula to convert this to an equivalent BAC.
An officer does not need a “positive” result on a preliminary alcohol screening in order to arrest you for DUI. But assuming the traffic stop was legal, a PAS result of .08 or higher is usually enough to establish probable cause for an arrest.
2. The difference between a PAS and a post-arrest breath test
A preliminary breath test is different than the evidentiary breath test or blood test you take if you are actually arrested for DUI. Unlike an evidentiary chemical test or a PBT cannot be used to prove you were driving drunk.3 It is – as its name suggests – merely a tool to help an officer decide whether to arrest you.
However, unlike in neighboring states, such as California, A Nevada preliminary test is not optional. Under Nevada’s implied consent laws, when you drive in Nevada you give your implied consent to taking a preliminary breath test for alcohol in two scenarios:
- At the request of a police officer at the scene of a vehicle crash, or
- During a traffic stop, if the officer has reasonable grounds to believe that you were:
- Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or
- Driving with more alcohol or drugs in your system than Nevada law allows.4
If you fail to submit to the PAS test, the officer will:
- Seize your Nevada driver’s license or permit, and
- If reasonable grounds otherwise exist, arrest you and take you somewhere for an evidentiary breath, blood or urine test.5
If you refuse to take an evidentiary DUI test, you face automatic revocation of your driver’s license for at least one year. The defendant will also have to install an ignition interlock device in any cars he/she operates.
While your implied consent exists only if the officer has reasonable grounds to believe you were DUI, we recommend you assume such reasonable grounds exist and act accordingly. We can challenge the legality of the traffic stop and/or arrest later. Challenging the legality of a traffic stop is just of the many available defenses to DUI.
3. Should I ever refuse a Nevada preliminary breath test?
Since Nevada preliminary DUI breath tests are not optional, there is not much advantage to refusing to take one. Even if you believe you will test high because of residual mouth alcohol from a recently consumed drink, the PBT can’t be used to convict you in court. By the time the evidentiary test is done, the mouth alcohol will have dissipated. And in the interim, the test refusal might have cost you your license.
However, this doesn’t mean you can’t politely suggest to the officer (assuming that your statements are truthful) that your apparent symptoms of DUI were caused by something other than drinking, such as:
- A cold,
- A chronic medical condition that can cause a falsely high BAC reading (such as GERD or diabetes),
- Crying, or
- Lack of sleep.
Don’t be surprised, however, if the officer doesn’t take your statement at face value. And remember that refusing to take a preliminary breath test or an evidentiary breath, blood or urine test has consequences. And that your statements can be used against you if you are ultimately charged.
When in doubt, follow the officer’s instructions and say as little as possible. But call us as soon as you are able.6
Arrested for DUI in Las Vegas? Call us for help…
The cops do their best – but they are only human. So they rely on Nevada PBTS to help them get it right. However, Nevada DUI breath testing equipment is prone to errors. And when the breath test is wrong, so are the cops.
If you were charged with DUI based on a Nevada breath test, we invite you to contact us for a consultation. Our caring Las Vegas and Reno know how to find police errors. We understand how Clark County prosecutors put their DUI cases together.
Don’t wait until you’ve lost your license to get legal help. We’ll fight to get your driving privilege back. And we’ll work proactively to keep you out of jail and the DUI off your record.
To schedule your consultation, call us or fill out the form on this page. One of our experienced DUI lawyers will get back to you promptly to discuss your case and the best defense against your Nevada DUI charges.
In California? See our page on Preliminary Alcohol Screening (PAS) Breath Tests in California.
- NRS 484C.110.
- NRS 484C.120.
- NRS 484C.150.
- NRS 484C.150(1).
- NRS 484C.150 (2) and 160.
- State v. Sample, 134 Nev., Advance Opinion 25 (2018) (“Because the PBT was not administered pursuant to a warrant or an exception to the warrant requirement [following arrest], we conclude that the district court properly suppressed the PBT evidence as an unconstitutional search.”).