Las Vegas visitors and residents need to understand the Nevada implied consent laws that apply to DUI breath and blood tests. If you're pulled over for suspected DUI or arrested on a charge, refusing to take the tests can make your circumstances even more complicated.
There are two different types of tests, and two different stages where they are administered. Different rules apply to each one.
If you are stopped on suspicion of DUI or DUID, you likely will be asked to submit to a preliminary breath test, sometimes referred to as a PBT. The purpose of the PBT is to help the officer decide whether there is probable cause to arrest you for DUI. Nevada law requires motorists to submit to the preliminary test.
The officer cannot force you to take the test. However, if you refuse your driver's license will be confiscated, and you probably will be arrested for DUI.
The implied consent law states that by driving in Nevada, you give your consent to testing if stopped or arrested for DUI or DUID. Under the law, after you are arrested in custody, you are required to submit to an evidentiary breath or blood test.
Initially, you will have a choice of taking a breath or blood test for a DUI charge. For a DUID charge, you are required to take a blood or urine test. You are not entitled to consult with an attorney before submitting to an evidentiary breath or blood test in either case.
Anyone who has hemophilia or a heart condition that requires taking an anticoagulant is exempt from the blood test requirement. Those individuals are required to submit to breath or urine tests.
Police officers are required to advise you that your driver's license will be revoked if you refuse to take the evidentiary breath or blood test. If you refuse, your license will be revoked for one (1) year, if it's your first refusal, or three (3) years, if you have a previous revocation within seven (7) years due to a test refusal. Even if you change your mind about taking the test after initially refusing, your license will still be revoked based on the refusal.
You may be asked to take as many as four (4) tests to get consistent results. If this happens, the fourth test must be a blood test. If you refuse to take any of the tests, your license can be revoked.
Following your refusal, the police officer will get a judicial warrant authorizing the police to take a blood sample against your will. Law enforcement may use reasonable force, including restraints, to administer the blood test.
If you are arrested, you are allowed to have a qualified person of your own choosing administer an evidentiary breath or blood test. You must pay for the test yourself. An independent test does not replace the police-administered test. Your license will still be revoked if you refuse the police test, even if you have your own test administered.
In addition to having your license revoked for refusal to take the evidentiary test, prosecutors may use your refusal as evidence in a DUI trial and as evidence in a DMV hearing on your license revocation. In either case, your refusal can be considered as an indication that you were trying to conceal being under the influence.
The license revocation for your test refusal is completely separate from a license revocation imposed as a penalty on a DUI or DUID charge. If you receive two license revocations, they will run consecutively, rather than concurrently.
If your license is revoked for refusing to take an evidentiary test, you may request a DMV hearing to challenge the revocation. DMV hearings are administrative proceedings that are difficult to win.
Your refusal to take the evidentiary test can be used against you in the DMV hearing. The administrative judge may impose the license revocation even if your DUI charges were eventually dismissed or your blood test results confirmed that you were not under the influence of alcohol or drugs. The DMV treats test refusal as an offense separate from DUI. License revocation is the penalty for refusing to take the test, not for the DUI charge.
Even if you reside out of state and are only visiting Nevada, you are subject to the state's implied consent laws. If you refuse to take an evidentiary test in Nevada after you are arrested for DUI, you may face license revocation or suspension in your state of residence. Most states follow an agreement called the Interstate Driver's License Compact, under which states penalize drivers for out-of-state offenses as if the offense occurred in the driver's home state.
The implied consent laws apply to all drivers, including minors. In the case of a minor driver arrested for DUI, the police officer is required to make a reasonable attempt to notify the minor's parent, guardian, or custodian before administering an evidentiary test.
If you’re stopped or arrested for DUI or DUID, refusing to take the test may seem like a way to avoid being charged — but the refusal can make your situation even worse. Your license will be revoked for the refusal, even if you successfully defend against the DUI or DUID charge.
Not only will your driver's license be revoked, but the refusal can be used against you in court on the DUI charge and also in a DMV hearing on the refusal. Just as importantly, your refusal may affect the prosecutor's approach to your case and hamper your attorney's ability to negotiate a favorable plea agreement for you. That could result in a having a drunk driving conviction on your record, which can negatively impact your life in a number of different ways.
If you’re stopped and arrested for DUI or DUID, an experienced DUI/DUID attorney can aggressively defend you against the charges. Even if you refused to take an evidentiary test, there may be defenses that your attorney can assert. Your best chance of minimizing the impact of any DUI or DUID charge is to have a skilled criminal defense attorney represent you.
If you are facing DUI or DUID charge in Las Vegas, Henderson, or elsewhere in Clark County, Las Vegas DUI attorney Joseph Gersten will discuss and evaluate your case based on his extensive criminal defense, investigative, and analytical experience. Your initial consultation is free-of-charge. Call 702.857.8777 or complete our online form to schedule an appointment.