A blood test is one of the most common ways to measure the blood alcohol concentration of suspected drivers in DUI cases. It allows the police to assess whether the driver was driving with an illegal blood alcohol concentration (BAC) of 0.08% or more.
Individuals arrested for drunk driving are given a choice of whether to go for a breath or blood test.
This only applies to alcohol suspicion, however, if a driver is suspected of driving under the influence of drugs, then they are required by law to take a blood test.
Driving with a blood alcohol concentration of 0.08% or more is illegal, even if a driver appears to be sober or unimpaired.
If a driver refuses to take a breath or blood test following an arrest, officers can, with a warrant, force a driver to take a blood test.
If a driver refuses the blood or breath test, their license will likely be revoked for at least one year.
In this post, our criminal and DUI defense attorneys in let you know all about blood testing in Nevada in case of a DUI arrest. Are Blood Tests Following a DUI Arrest Mandatory in Nevada?
All drivers pulled over for suspicion of drunk or drugged driving are required to submit to an evidentiary blood test.
Even if a driver has taken a breath test when stopped, they must undergo a blood test. This is because the breath test can only detect alcohol in the body, and not drugs. If a driver is pulled over on suspicion of drunk or impaired driving, they are offered the choice of a breath or blood test. Hence, these tests are known as evidentiary tests. However, if a suspected driver is unconscious and are unable to explicitly state their choice (for instance, if they are involved in a car accident), the arresting officer can draw a blood sample without the driver’s consent.
If a driver suffers from a blood clotting disorder or is using anticoagulant medications, they are exempted from taking the blood test. In those cases, law enforcement can order the driver to take a urine test, a breath test, or both.
Can a Driver Keep Their Driver’s License If They Agree to Take a Blood Test?
If a driver submits to a blood test, they can keep their license until they get the blood test results. If their blood alcohol concentration is 0.08% or higher, the Nevada Department of Motor Vehicles will send them a notification of license revocation.
After receiving the notice from Nevada DMV, a driver gets a seven-day window to request a DMV hearing and contest revocation. During this time, a driver can continue to drive until they get the results from the DMV hearing). The hearings typically take one to two months to resolve.
Drivers are required to be present at the hearing if they wish to contest, either through counsel, or by themselves. DMV hearings and the criminal court proceedings are separate from each other.
A DMV hearing is an administrative proceeding conducted by the hearing officer, whereas the criminal court proceedings are handled by the judge, jury, prosecutor, and defense attorney.
It is possible for one suspected of DUI to lose the DMV hearing and win the criminal case or vice versa. However, to avoid license revocation, it’s necessary to win both the criminal case and the DMV hearing.
Understanding Failing Blood Test Results
Drivers in Nevada are prohibited from driving with a blood alcohol concentration of 0.08% or more, even if the driver is driving safely and appears sober.
However, for underage drivers the law is stricter. Drivers under the age of 21 can be convicted of DUI when driving with a blood alcohol concentration of 0.02% or more.
Can A Driver Pass the Blood Test and Still Be Convicted of a DUI?
Yes. This happens when there are legally acceptable levels of alcohol or drugs in the system, but the driver appears to be impaired.
Note that it’s relatively challenging for prosecutors to prove the driver is guilty of a DUI if the blood test suggests otherwise. Hence, in most cases like this, the prosecutor dismisses the case when the driver’s blood alcohol concentration is less than 0.08%.
What Happens When the Arrested Driver Refuses to Take a DUI Blood Test?
If a driver refuses to take an evidentiary blood or breath test, an officer will likely confiscate their driver’s license. In addition, they can apply for a court order or warrant to administer the blood test.
Once the court issues the order or warrant, the officer is permitted to use necessary force to obtain the blood sample.
A refusal to submit to a chemical test likely will result in a license revocation for one year, even if the DUI charges are dismissed in court.
If a driver has refused a DUI blood test in the last seven years, the license revocation will increase to three years.
Furthermore, if the DUI case goes to trial, the prosecutor can use the refusal to a blood test as to prove the driver was under the influence.
When are DUI Evidentiary Blood Tests Taken?
Officers in Nevada can order up to three blood tests within the first five hours following a DUI arrest.
Can the Driver Get the Blood Sample Tested Independently?
Nevada law allows DUI suspects to have their blood samples tested independently, known in other states as a blood split. It is highly recommended that the blood sample is tested independently.
This can be used to challenge the prosecution’s result, if they’re different. Are DUI Blood Tests Costly for Defendants?
Those accused of DUI are required to pay all the costs associated with blood tests. The total cost of a DUI blood test includes the cost of the test and witness fees for those involved in testing the sample.
These witness costs include:
- Witness fees at the DMV hearing or criminal trial, a minimum of $100 per hour.
An additional $50 per hour for travel to and from the court/hearing facility. Contesting DUI Blood Tests in Nevada
Nevada law includes stringent regulations that law enforcement officers and chemical test administrators must stick to when administering the blood test and determining its results.
If the defense attorney can prove that the law enforcement officers have failed to comply with these regulations, the DUI charge is more likely to be dismissed.
DUI defense attorneys use various defenses to challenge the validity of blood tests. These include:
- If the facility used faulty, inappropriately maintained, or broken equipment for blood testing.
- If the individuals involved in administering the test, including the registered nurse, technician, and phlebotomist, were not certified.
- If the officer administered the blood test significantly later than the arrest.
- If the sample was contaminated or was switched as a result of changes in custody and control.
- If a driver had rising blood alcohol levels, so the test didn’t accurately reflect the blood alcohol concentration when the driver was operating the vehicle.
- If the blood sample fermented after it was collected, resulting in the production of alcohol that led to falsely high BAC results.
- If the test administrators used alcohol-based sterilizing products
- If the testers improperly stored the blood sample, or there were inadequate levels of preservatives and anticoagulants in the vial.
.
If any of these factors are proven to be present, the state’s evidence may be too weak to prove DUI. This can lead to better negotiation for lesser charges or even dismissal.
Connect Today For Legal Assistance
Have you or someone you know been arrested for driving under the influence of alcohol or drugs in Nevada? Connect today with our DUI defense attorneys in Las Vegas.
Our DUI defense attorneys in Nevada serve clients throughout Washoe County, Clark County, Nye County, and other parts of the state.