Refusal to take an evidentiary blood or breath test following a Nevada DUI arrest will result in a one-year revocation of your driver’s license.
The implications are the same even if the criminal charges are ultimately dropped. Moreover, the police can also forcibly draw blood from the suspect, and the refusal to take the test can be used as evidence of guilt by the prosecutor during the DMV hearing and the trial.
The suspect will experience these consequences even if they eventually agree to take the test after initially refusing it.
Drivers in Nevada suspected of DUI have “implied consent” to submit a preliminary breath test (PBT). Refusing a preliminary breath test can results in severe consequences, including the possible arrest of the DUI suspect by the police officer. However, the law enforcement officer cannot force the suspect to take a preliminary breath test.
Once arrested, an evidentiary test is taken by the officer. A refusal to take the evidentiary test as requested will result in a revocation of your drivers license for a period of 1 year, or 3 years if you have had your license revoked in the past 7 years for failure to submit to an evidentiary test.
DUI defendants in Nevada can challenge their driver’s license revocation at a DMV hearing. Some of the possible arguments which the defendants can use to reinstate their license include the following.
- The defendant was willing to take a breath test,
- The defendant wasn’t conscious, and/or
- The law enforcement officer failed to inform the defendant about the potential consequences of refusal to take the preliminary or chemical test.
In this post, the DUI lawyers in Las Vegas discuss the implications of evidentiary test refusal.
Can a Driver Refuse to Take an Evidentiary Breath or Blood Test for a DUI Case in Nevada?
Legally, a DUI suspect cannot refuse to take a preliminary or evidentiary test. All drivers in Nevada are deemed to have given implied consent to submit to a preliminary or evidentiary test if a police officer has reasonable grounds to suspect them of DUI. Moreover, if the police arrest the suspect, the suspect is required to submit to an evidentiary DUI test.
If a DUI arrestee in Nevada refuses to submit to an evidentiary test, they face the following implications.
- Revocation of the arrestee’s driver’s license for 1 or 3 years,
- The police can forcibly draw the defendant’s blood for DUI testing against their will and/or
- The defendant’s refusal to take the test can be used against them by the prosecutor at a DMV hearing or criminal trial.
These consequences can help deter DUI suspects from refusing to take the preliminary or evidentiary tests.
Preliminary Breath Test
When a police officer in Nevada pulls over a driver for suspected DUI or approaches them on the road, they may ask the suspect to submit to a preliminary breath test (also known as preliminary alcohol screening). This preliminary screening aims to help the police decide whether the suspect is driving under the influence, and they have reasonable grounds to make an arrest. A blood alcohol concentration of 0.08% indicates that the driver is driving above the legally approved alcohol concentration limit.
If the DUI suspect refuses to take the preliminary alcohol screen, the officer can immediately arrest the driver and take them to have an evidentiary test administered. However, at this point, law enforcement officers cannot force the suspect to take a preliminary breath test.
Evidentiary Chemical Test
Once a DUI suspect in Nevada is arrested and is in custody, the police officer will request them to submit to an evidentiary test. Usually this is a breath test, but upon request, (and at the driver’s expense if later convicted) they can ask for a blood test. The only exception is when the driver is suspected of driving under the influence of drugs or any other illegal substance. In that case, the suspect is required to take a blood test, as a breath test cannot detect drugs or other illegal substances in the system.
While the goal of the preliminary breath test is to assist law enforcement officers in deciding whether to arrest a DUI suspect, the evidentiary screening has the following objectives:
- To assist prosecutors in deciding whether to prosecute the defendant for DUI.
- To assist DMV in Nevada in deciding whether to suspend the driver’s license for DUI
A refusal to submit to the evidentiary test results in a driver’s license suspension typically lasts for one year. However, it can last for up to three years if the defendant has a previous license suspension (due to refusal to a evidentiary test) in the last seven years.
In case the DUI arrestee refuses to take an evidentiary test, the police will get a warrant from the court, which allows them to use reasonable force to administer the evidentiary blood test. The police can then draw the blood sample against the arrestee’s will.
Police Officer’s Duty to Share Implications of Evidentiary Test Refusal With DUI Arrestees
After a DUI arrest, police officers must share the implications of chemical test refusal with the DUI arrestees, which includes license revocation. Typically, the police officer will share this information after sharing details of the Miranda warnings, where arrestees have a few rights, including the right to get a lawyer or remain silent.
However, once the officer shares the implications of chemical test refusal, the arrestee must indicate that they have understood the warning.
Here it is important to note that the law enforcement officers aren’t legally bound to inform the arrestee about the exact duration of license revocation. They only have to share that the arrestee’s license will be revoked if they fail to submit to the test.
The Right to Independent Evidentiary Testing
Individuals arrested for DUI in Nevada are given the right to independent evidentiary testing. However, the arrestee will be responsible for paying all the costs associated with independent testing.
Independent chemical tests cannot be used as a replacement for the chemical test administered by the police. In case the arrestee refuses to submit to evidentiary tests administered by the law enforcement officer; they will still face the consequences of license revocation despite getting an independent chemical test.
Note that the prosecutor can use the defendant’s evidentiary test refusal as evidence against them at the DMV hearing and criminal trial. The evidentiary test refusal can be considered as evidence that the person was driving under the influence or engaging in other prohibited conduct.
Does the Driver Lose Their Driver’s License Due to Evidentiary Test Refusal?
Yes.
A refusal to take the evidentiary test will result in confiscation of the driver’s license of the DUI suspect. Moreover, a chemical test refusal will result in license confiscation for one or three years.
License Revocation Duration
| Type of Test | License Revocation Period in Nevada |
| Preliminary Breath Test | No revocation but immediate arrest |
| Evidentiary Breath Test | Driver’s license suspension for 1 year (if the defendant doesn’t have any prior refusal in the last seven years) Driver’s license suspension for 3 years (if the defendant has a prior refusal to take an evidentiary chemical test in the last seven years). |
| Evidentiary Blood Test | Driver’s license suspension for 1 year (if the defendant doesn’t have any prior refusal in the last seven years) Driver’s license suspension for 3 years (if the defendant has a prior refusal to take an evidentiary chemical test in the last seven years). |
| Evidentiary Urine Test | Driver’s license suspension for 1 year (if the defendant doesn’t have any prior refusal in the last seven years) Driver’s license suspension for 3 years (if the defendant has a prior refusal to take an evidentiary chemical test in the last seven years). |
Note that the penalty of chemical test refusal (license revocation) is separate from the penalty of license suspension when proven guilty of driving under the influence. However, both these penalties run consecutively.
For example: Jonah gets arrested for DUI for the first time, which results in a driver’s license revocation for 185 days. However, Jonah refused to take an evidentiary test following the arrest. Hence, the police administered reasonable force to draw a blood sample.
A few weeks later, Jonah got positive DUI test results.
Jonah’s penalty for license revocation is now one year and 185 days. The one-year penalty is a result of refusal to take a chemical test, and the 185 days license revocation penalty is for the first-time DUI offense in Nevada.
Department of Motor Vehicle’s Hearings in Nevada
In the case of a driver’s license revocation of a state resident, the law allows them to request a DMV hearing. Nevada residents are allowed to contest their license revocation at the DMV hearing.
The Department of Motor Vehicle’s hearing is an administrative proceeding that is separate from the criminal proceedings for any DUI charge. However, it is more challenging to win DMV hearings as the state’s burden of proof is low.
A DMV hearing officer does not require as much against the defendant in order to rule against them. The only exception is chemical test refusal which often goes against the defendant. Still, it is always a good idea to request a DMV hearing in Nevada as there’s a chance of getting back a driver’s license.
Note that the license revocation penalty for an evidentiary test refusal will still be imposed even if
- the defendant’s blood test is negative and/or
- any DUI criminal charges are dismissed in the court.
The DMV considers chemical test refusal as a separate charge from driving under the influence.
Out-Of-State Driver’s Refusal to Chemical Testing
Drivers from other states driving in Nevada who refuse to take a chemical test may still face the penalty of license revocation or suspension from the DMV in their home state.
It is because most U.S. states observe the Interstate Driver’s License Compact.
According to this interstate compact, the DMVs of member states share information about the penalized license holders in case of an out-of-state traffic offense.
Hence, it’s critical for out-of-state drivers who refuse a DUI chemical test in Nevada to seek legal assistance in their home state to understand the implications of an evidentiary test refusal.
Can a Driver Choose Between Breath or Blood Test?
If the law enforcement officer believes that the suspect is driving under the influence of alcohol and not drugs, then the driver will usually be offered a breath test but can request a blood test. If the driver requests a blood test and is later convicted, they will have to pay the costs associated with conducting the blood test.
However, if the arrestee is suspected of driving under the influence of drugs, they will be required to take an evidentiary blood test. This is because a breath test cannot detect the presence of drugs in the system and can only be used to measure blood alcohol concentration.
Note that all DUI suspects are required to take a preliminary breath test. At that time, they do not get to opt for a blood test instead. In case of refusal to take the preliminary breath test, the police officer will immediately arrest the suspect.
Driving Under the Influence of Alcohol
When the police officer has reasonable grounds to believe that a DUI suspect is driving under the influence of alcohol (and not drugs), the suspect can choose between taking a blood or breath test. However, if the suspect chooses to take a blood test in a case where breath testing equipment is available, and they are later convicted, the suspect will have to bear the testing charges in case of a DUI conviction.
The total cost of the blood test includes the payments for witnesses to provide evidence for the blood test. The amount expenses of witnesses includes at least:
- $50 per hour for commute to and from the location of the proceeding, and
- $100 per hour for giving or waiting to give testimony
The expenses for witnesses are similar for testifying both at the administrative DMV hearing and criminal court.
Driving Under the Influence of Drugs
When the police officers in Nevada arrest a suspect for driving under the influence of drugs, they will require the arrestee to take a urine test or blood test. In some cases, they may require the arrestee to take both blood and urine tests.
Some of the most common types of driving under the influence of drugs include:
- Driving under the influence of marijuana (the arrestee is required to take a blood test to detect the presence of marijuana in the system),
- Driving under the influence of medications (prescription drugs) and
- Driving under the influence of pain medications.
When the police require an arrestee to submit to both a blood test or urine test, an arrestee’s refusal to take one test and not the other is still considered a refusal to take a chemical test.
The refusal to chemical testing results in at least one year of license revocation. Moreover, the chemical test refusal by the suspect may be used as evidence against them at both the DMV hearing and the criminal trial.
Can Police Force the Driver to Take an Evidentiary Test?
Law enforcement officers can force DUI suspects to take an evidentiary blood test in case of refusal to test. However, police officers cannot force the suspect to take a breath test.
Note that an arrestee suspected of DUI of drugs or controlled substances does not get the choice to opt between evidentiary breath or blood test. Instead, the arrestee is required to take either the blood test, urine test, or both.
Police require a warrant before using reasonable force to draw blood. Reasonable force refers to taking measures like restraining the arrestee to draw the blood sample.
Moreover, note that the law enforcement officer cannot force a DUI suspect to take a preliminary alcohol screening. In case of a suspect’s refusal to take the preliminary test, the officer immediately arrests them.
| DUI Test | Can Police Force the Arrestee to Take the Test? |
| Preliminary Breath Test/Preliminary Alcohol Screening | No |
| Evidentiary Breath Test | No |
| Evidentiary Blood Test | Yes (with a valid warrant) |
What if the Driver Tries to Give a Breath Sample but Failed?
The consequences of a driver’s failure to give a breath sample depends on the type of DUI testing.
Failure to Provide Breath Sample for a Preliminary Breath Test
When a DUI suspect attempts to take a preliminary breath test but is unable to provide an adequate sample, the police officer decides on how to proceed.
If the police officer has sufficient reasons to believe that the suspect is deliberately providing an inadequate sample, the act will be considered as a refusal to take the preliminary breath test. In such a case, the officer arrests the suspect.
However, it is possible for a suspect to be unable to provide an adequate breath sample despite sincere efforts. In such instances, the police officer may determine intoxication levels using other measures, such as a standardized field sobriety test.
Failure to Provide Breath Sample for an Evidentiary Breath Test
DUI arrestees who attempt to take an evidentiary breath test but are unable to provide an adequate breath sample will be told to submit to an evidentiary blood test. In case the arrestee refuses to take the blood test, it will be considered as an evidentiary test refusal.
As a result, the arrestee will experience a license revocation by DMV. Moreover, the refusal can be admitted as evidence against the defendant at the DMV hearing and DUI trial.
Note that Nevada police uses Intoxilzyer 8000 for analyzing breath samples, and operation isn’t always easy as it requires the subject to provide a strong and sustained exhale. Individuals who are anxious, tired, or are struggling with respiratory conditions like asthma may not be able to complete the breath test using this breathalyzer.
How Does an Evidentiary Test Refusal Affect a Driver’s Criminal Charges?
Refusal to submit to an evidentiary breath or blood test can be used as evidence for the defendant if they are criminally charged with DUI.
As a result, the prosecutor is unlikely to offer a reasonable plea bargain to defendants who refused an after-arrest evidentiary test. If the DUI case goes to trial, the prosecutor can present the defendant’s refusal to test as evidence of driving under the influence.
Note that evidentiary test refusal, when used as evidence against the defendant, is insufficient to prove the defendant’s DUI guilt. If the blood test results turn out to be negative, the prosecutor will drop the DUI charge despite the evidentiary test refusal.
Also, note that the DUI criminal case in the court is separate from the DMV hearing. Even if the criminal charges are dismissed or reduced, the defendant’s driver’s license will remain revoked by the DMV due to evidentiary test refusal. The only way to challenge license revocation is through a DMV hearing.
Can a Defendant Fight False Chemical Test Refusal Allegations?
It is possible for the police to wrongly claim a DUI suspect’s refusal to take a chemical test. Depending on the case, the defense attorneys at Bourassa Law Group may be able to use the following arguments to show that the defendant was falsely accused of evidentiary test refusal.
- The defendant was ready to take the evidentiary breath test,
- The defendant was unable to refuse a chemical test due to physical or mental incapability and/or
- The police officer did not comply with their duty of informing the defendant about the consequences of chemical test refusal.
Attorneys at Bourassa Law Group may use these defenses in DMV hearings to save the defendant’s driver’s license revocation. Attorneys can also use these arguments in court against the state’s evidence which shows that the defendant refused to take the chemical tests.
The Defendant Was Ready to Take the Evidentiary Breath Test
In most DUI cases, the arrestees are given a breath test but have the choice to opt for a blood test.
Even if the arrestee was accused of evidentiary test refusal, he/she cannot be penalized if the defense attorney can successfully prove that:
- the police didn’t have any reason to suspect an arrestee’s use of drugs
- the defendant was ready to take the evidentiary breath test instead of a blood test
- a functional breathalyzer was readily available
Note that the defense attorney can only use these defenses if the defendant is suspected of driving under the influence of alcohol and not drugs. It is because DUI suspects are required to take a blood test only and do not get a choice to opt for a breath test alternatively.
The Defendant Was Unable to Refuse an Evidentiary Test
In the case of serious motor vehicle accidents, DUI suspects are often unconscious or sedated by medications. In such instances, the police officers can administer the blood test if they have a warrant.
In such instances, the police cannot claim a suspect’s refusal to take a chemical test as the suspect was unable to give consent or refuse the test administration. Even if the suspect protests the test after waking up or gaining consciousness, the action will still not be considered a chemical test refusal.
Note that a drunk or high DUI suspect’s refusal to a chemical test will still be considered a valid refusal as per the Nevada Supreme Court’s rules.
The Police Officer Did Not Inform the Defendant About the Consequences of an Evidentiary Test Refusal
Police officers in Nevada are legally required to inform DUI arrestees about the consequences of chemical test refusal. In case the police neglected their duty and didn’t inform the suspect, the suspect’s subsequent evidentiary test refusal may be invalid.
For example, A police officer arrests Ryker, a DUI suspect in Las Vegas. The officer didn’t tell Ryker that a refusal to take an evidentiary breath or blood test would result in license revocation. Ryker refuses to take any tests, and hence his license is revoked for a year.
Upon requesting a DMV hearing, Ryker’s attorney debates that his refusal should be considered invalid as the police didn’t inform him about the consequences of the evidentiary test refusal. The DMV judge will then reinstate his license because the suspect might have taken the test if he knew about the consequences.
Note that other types of misconduct by law enforcement officers may also cause reinstatement of the defendant’s license by the DMV judge.
There’s a possibility that the defendant never refused to submit to an evidentiary blood or breath test, and the officer misinterpreted their actions.
In such instances, an attorney may be able to claim that the license revocation was inappropriate, and that the defendant shouldn’t be penalized for chemical test refusal. Moreover, they can also argue that the refusal shouldn’t be used as evidence against the defendant in criminal court.
What if an Arrestee Changes His/Her Mind After an Evidentiary Test Refusal?
If an arrestee initially refuses a chemical test and later changes his/her mind and wants to take the test, it will still be considered a refusal.
Suspects cannot defend their initial refusal by sharing consent for a chemical test later, even if they changed their mind prior to a forced blood draw.
Hence, the suspect who initially refused to submit a chemical test but later consented will still have to face driver’s license revocation for at least one year.
Can a Sick or Underage DUI Suspect Refuse a Chemical Test?
As per Nevada laws, an underage DUI suspect shall not be exempted from evidentiary test requirements. Individuals with certain medical conditions are not required to take blood tests. Otherwise, all DUI suspects are required to submit to chemical tests.
Defendant’s Age
As per laws in Nevada, an underage DUI suspect gives the same “implied consent” to submit to chemical tests as adults do. Moreover, a DUI suspect below the age of 18 also experiences the same consequences as an adult does for a chemical test refusal.
However, it is critical that law enforcement officers make reasonable efforts to notify the underage driver’s parent, guardian, or custodian prior to evidentiary test administration.
Health Conditions
Most health conditions do not exempt a DUI suspect from implied consent law to submit to evidentiary blood or breath tests. However, the officer cannot force the suspect to take a blood test if they have the following health conditions:
- Hemophilia
- Heart conditions which require the use of anticoagulant medications
However, having these conditions doesn’t completely exempt a suspect from taking evidentiary tests as they must submit a urine or breath test.
Note that law enforcement officers are allowed to administer breath tests for DUI suspects who have asthma. However, their defense attorney can claim the defendant’s inability to provide an adequate breath sample cannot be used against them.
Death During a Car Crash
In case of a deadly vehicle accident, a blood test will be conducted for the individual who died during the crash, regardless of whether the individual driving the vehicle was a DUI suspect.
A coroner draws blood within 8 hours of the accident, and the test results are made a public record.
Can A DUI Suspect Consult an Attorney Before the Tests?
The DUI laws in Nevada do not allow a DUI suspect to consult an attorney prior to submitting to preliminary or evidentiary tests.
It is recommended that suspects behave politely with law enforcement officers and speak as little as possible, as anything said in the presence of the police officers can be used as evidence against them in court.
Seek Legal Assistance for a DUI Charge Today
Were you or someone you know penalized for evidentiary test refusal in Nevada? Let our attorneys at Bourassa Law Group take care of your case so you can avoid license revocation and other penalties like time in jail.
Our DUI defense lawyers possess years of experience, which can help you reduce your DUI charges to a lesser charge or dismiss them outright. Call us today for a free legal consultation.
We deal with clients throughout Nevada and Clark County.