Breath tests are administered in Nevada to assess a driver’s blood alcohol concentration (BAC). The test shows whether a drunk driver has a BAC of 0.08% or more.
Initially, the driver is required to take a preliminary breath test (PBT) when suspected of drunk driving. In case the driver fails the initial breath test and is arrested, they are required to an evidentiary, breath, blood, or other bodily substance test.
The results of the evidentiary tests (not the preliminary) can be used as evidence in court.
DUI Cases in Nevada – Refusal to Breath Test
When a driver refuses a preliminary breath test, if reasonable grounds exist, the officer can arrest the driver and take them to administer an evidentiary test.
However, in case of a refusal to take the evidentiary breath test, the driver will experience a 1-year driver’s license revocation. Moreover, a warrant or court order can force the driver to take an evidentiary blood test.
Challenging Breathalyzer Results – Defenses Against the Evidentiary Breath Test
Some of the common defenses that can be used to challenge breath test results in court include the following.
- A defective breath testing machine,
- Driver’s medical condition that led to an inflated blood alcohol concentration result, and/or
- A procedural error by the law enforcement officer that led to an error.
An experienced DUI defense attorney in Nevada may be able to suppress the evidence based on these defenses.
In what follows, our expert Las Vegas DUI attorneys share insight into breathalyzers in Nevada DUI cases and how their results can be challenged in court. Let’s learn more about breathalyzers in this post.
DUI Cases in Nevada – Understanding Breathalyzers
Breathalyzers are automatic devices that are used to measure blood alcohol content using a breath sample. Law enforcement agencies like Highway Patrol and Las Vegas Metropolitan Police use breathalyzers on individuals suspected of drunk driving. It is illegal to drive with a blood alcohol concentration of 0.08% or more.
The equipment is designed using fuel cell technology and/or infrared spectroscopy, which converts the concentration of alcohol in your breath into the concentration of alcohol in your blood. The conversion can lead to inaccurate results and compromised readings.
Unlike the other DUI evidentiary test (blood test), breath tests are non-invasive, painless and only require the suspect to blow air into the equipment. The breathalyzer then uses an internal water-based ethanol solution to analyze the breath sample and assess the blood alcohol concentration.
Unlike blood tests, breathalyzers cannot detect drugs and can only be used to detect the presence of alcohol in the system.
How Do Breathalyzers Work?
Las Vegas law enforcement officers rely on a specific type of breathalyzer known as Intoxilyzer 8000, which is a mobile alcohol assessment instrument manufactured in Owensboro, Kentucky, by CMI, Inc. The instrument is approved for use in Nevada for testing intoxication by the Nevada Committee for Intoxication Testing.
The equipment relies on the use of an infrared spectrometer which helps detect the presence of alcohol vapors in a breath sample. While it takes around 20 minutes for the equipment to get ready for use, it typically has a standby mode that allows it to run continuously without exhausting its testing solution.
Unlike the previous Intoxilyzer models, which included a pressure switch, the Intoxilyzer 8000 relies on a flow sensor. However, a few conditions must be met for the flow sensor to work appropriately. The four conditions include the following.
- Blowing at least 1.1 liters of air into the tube,
- Blowing continuously for at least one second,
- The alcohol concentration slope starts to elevate, and
- The pressure reaches around 50 PSI.
Once these conditions are met, the blood alcohol level results are available and printed on paper.
Breathalyzers like Intoxilyzer are typically kept at detention facilities and/or police stations. However, since they are mobile equipment, the police can bring them to the crime scene in case of a suspected DUI case.
Technical Information About Intoxilyzer 8000
The breath testing equipment is designed to conduct breath tests using the “Dry Gas Standard.” The appropriate gas concentration is 0.08 g/210L which can vary along the acceptable range between 0.075 and 0.085 g/210L.
If the result is outside the acceptable range, the equipment shows a message stating, “Control Outside Tolerance.”
DUI Cases in Nevada – Understanding the Difference Between Evidentiary and Preliminary Breath Tests
If a driver is suspected of DUI in Nevada, law enforcement officers may ask the driver to take two types of breath tests.
- A preliminary breath test (PBT), which is administered on the road immediately after the police have pulled over the driver, and
- An evidentiary breath test (EBT), which takes place at the police station after the driver has been arrested based on the PBT results.
Each test is different and serves distinct purposes.
Understanding Preliminary Breath Testing in Nevada
When a driver is pulled over in Nevada as a DUI suspect or when law enforcement officers arrive at a suspected DUI accident scene, the police often ask the driver for the following.
- driver’s license and registration,
- to undertake a field sobriety test (FST),
- to submit a preliminary breath test (PBT).
The preliminary breath test is also known as preliminary alcohol screening or a roadside breath test. The test provides an initial idea to the police officer about whether the driver is driving under the influence of alcohol.
If the DUI case goes to trial, the preliminary breath test results can be used as evidence to show the court that the police had “reasonable grounds” for arresting the driver. But while the result provides reasonable grounds for the arrest, it doesn’t show that the driver was actually “driving” under the influence.
If a driver is suspected of DUI in Nevada, they must legally submit a preliminary breath test. In case the driver refuses to submit a breath test, the law enforcement officer can confiscate the driver’s license and arrest the driver for DUI.
Understanding Evidentiary Breath Testing in Nevada
As per the “implied consent law” in Nevada, any motorist arrested for DUI is legally required to submit an evidentiary blood or breath test.
In case of drug intoxication, the arrested driver will be required to take a blood test (as a breath test cannot measure the blood concentration of drugs or other illegal substances.
The Nevada laws outline stringent rules that the police must adhere to when administering an evidentiary breath test and assessing its results. According to the regulations, the police adhere to the following protocol.
- The police officer must administer the test within two hours of when the driver was last driving the vehicle,
- The police officer is required to observe the driver for at least fifteen minutes before administering the test (to ensure that the driver doesn’t regurgitate, burp, or vomit, which can modify the test results),
- The police officer must administer the test twice (one after another), and the two test results should deviate by more than 0.02.
- The breath testing equipment must be properly calibrated and maintained, and
- The law enforcement officer administering the test must be certified to administer a breath test.
Unlike the preliminary breath test results, evidentiary blood test results can be used against the driver as evidence in court of DUI.
DUI Cases in Nevada – Is A Driver Legally Required to Take Breath Tests
Legally, an arrested driver who is a DUI suspect is required to take an evidentiary test. This can consist of a breath, blood, urine, or other bodily substance test. Moreover, in case of refusal to take the test, there are dire consequences for the driver.
If a driver is suspected of driving under the influence of alcohol or drugs in Nevada, the driver is considered to have “implied consent” to take a preliminary breath test. In addition, in the case of an arrest, the driver is considered to have implied consent to take an evidentiary test.
In the case the police suspect a driver is driving under the influence of drugs, the driver is required to take an evidentiary blood test, as a breath test doesn’t detect the presence of drugs or other illegal substances in the system.
The law in Nevada imposes several consequences for drivers who refuse to take an evidentiary or preliminary breath test. The consequences are highlighted below.
| Type of Breath Testing | Consequences for Refusal to Take the Test |
| Preliminary Breath Testing | The law enforcement officer confiscates the driver’s license. The law enforcement officer arrests the driver. If the case goes to court, the prosecutor can use a refusal to test as evidence against the defendant. |
| Evidentiary Breath Testing | The police officer can use reasonable force to administer the blood test after receiving a warrant. The Department of Motor Vehicles revokes the driving privilege for one year. The revocation can increase to three years if the driver has previously refused to take an evidentiary test in the last 7 years. The revocation will still be imposed if the driver passes the evidentiary test, and the DUI charges are dismissed. If the case goes to court, the prosecutor can use a refusal of evidentiary testing as evidence against the defendant. |
Blood Test
If a driver is arrested for drunk driving in Nevada, the driver can request to take a blood test instead of a breath test. However, opting for a blood test is more complicated than taking a breath test. Hence, the driver is required to pay for the blood testing costs in the following instances.
- The breath testing machine was reasonably available and,
- The driver was convicted of DUI.
Note that if the law enforcement officer believes that the driver is under the influence of drugs, they are required to take a chemical blood test instead of a breath test. If the blood test results are positive, the Department of Motor Vehicles in Nevada will notify the driver to revoke their license.
Assessing the Accuracy of Breathalyzers Used By Nevada Police
The breathalyzers used to determine the blood alcohol concentration of arrested DUI drivers isn’t a very accurate measure as several factors (which are unrelated to alcohol use) can lead to false positive results (these factors are discussed in the next section).
One of the potential problems with breathalyzers arises from the manufacturer’s refusal to share the source code for Intoxilyzer 8000. According to the manufacturer, the source code is a trade secret. However, the inability to access the source code prevents researchers from assessing the efficacy of the breath-testing equipment.
In the last few years, the judges in various states, including Oklahoma, Florida, and even in Canada have shared reservations about trusting the results of Intoxilyzer 8000.
Therefore, it is critical to work closely with a DUI defense attorney who can help uncover all evidence which may suggest that the breath testing equipment was unreliable, defective, or mishandled.
DUI Cases in Nevada – Challenging Breathalyzer Results
Based on the case facts, a DUI defense lawyer may develop various defenses when fighting a DUI charge.
Some of these defenses include the following.
| DUI Defense | Possible Strategies to Execute Defense |
| Procedural Defenses | The breath-analyzing equipment wasn’t properly calibrated or maintained, The officer administering the breath test wasn’t properly trained or certified, The police officer administered the test after 2-hours following the arrest, The police officer didn’t observe the suspect during the 15-minute window prior to the test. |
| Mechanical Defenses | Interference (due to radiofrequency) falsely altered the breathalyzer results, The breathalyzer wasn’t functioning appropriately or was completely non-functional. |
| Physiological Defenses | The driver suffered from health conditions that falsely elevated the BAC results, The driver had residual mouth alcohol, which led to a false positive result, The driver was experiencing rising blood alcohol which the breathalyzer was unable to register, and The driver consumes a high-protein diet that can falsely elevate blood alcohol concentration. |
Several factors can result in falsely high breathalyzer readings. Hence, it is critical that the DUI suspect shares all possible details with the DUI defense attorney, which includes:
- The suspect’s medical history and health conditions,
- Diet,
- Intake of food and drink on the day of the incident.
Even the details which may seem trivial or irrelevant can turn out to be significant when fighting a DUI charge. If the DUI defense attorney can prove the inaccuracy of the breath test, the court might exclude it as evidence that can help accomplish the following outcomes:
- Reduce the drunk driving charge to a lesser reckless driving charge, or
- Dismiss the case completely
DUI Cases in Nevada – Can A Driver Be Charged for DUI Without Breathalyzer?
Yes. A driver can be charged for DUI without a breath test solely based on the blood test results.
Moreover, if the blood test results show a legal blood alcohol concentration of less than 0.08%, a driver can still be convicted if impaired. However, proving DUI in such instances (without an incriminating blood or breath test) is relatively challenging for the prosecutor.
We Are Here to Assist
A DUI arrest doesn’t always mean a DUI conviction. If you or someone you know has been arrested for DUI in Nevada, our expert lawyers invite you to contact them for a telephone consultation.
Whether you opted for a blood or breath test, our DUI defense attorneys are experienced and skilled to use evidence in your favor to help reduce or even dismiss a DUI charge. We serve clients throughout Nevada.