The “Preliminary Breath Test” – also sometimes called the “Preliminary Alcohol Screening” or PAS test – is a handheld breath testing device that police use during a roadside DUI investigation. The purpose of the test is to determine whether the motorist is intoxicated and should be arrested for DUI.
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). 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 necessarily need a “positive” result on a preliminary alcohol screening 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:
- Allergies,
- 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
Legal references:
- 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.”).