Nevada DUI Implied Consent Laws: The Consequences of Refusing a Blood, Breath, or Urine Test

In Nevada, if you get pulled over for a DUI and the officer asks you to take a blood, breath or urine test, do you have to take one? What happens if you refuse?

Implied Consent

Nevada law requires you to take a blood, breath or urine test if you are arrested for a DUI. Nevada’s "implied consent" law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken within two hours from when you were last driving.

You could be arrested for a DUI even if you are not driving. If you have actual, physical control of the vehicle while under the influence, then that can be enough for an officer to arrest you and ask you to take a chemical test. Generally, actual physical control means you are in the vehicle and could make it move, but in Nevada, a court will look at several factors to decide whether a driver has actual physical control. It matters where the keys are, if the engine is running, and if the driver were asleep when the officer found him, among other things. To read more about these factors, see the case Barnier v. State, 67 P.3d 320 (2003).

Additionally, Nevada’s implied consent law says that you consent to taking a preliminary breath test, even if you have not been arrested. This works like a field sobriety test. The officer will use the results to establish probable cause that you were driving under the influence. If you refuse to take this test, then the officer will take your license, arrest you, and take you to the police station, hospital, or another reasonable place for a chemical test of your blood, breath, or urine.

You can read Nevada’s implied consent law in the Nevada Revised Statutes 484C.150 and 160.

Refusing to Take the Test

 

1st Offense

2d Offense

3rd Offense

Refusal to take test

The officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.

The officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.

The officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested.

Once you are arrested, an officer may ask you to take more than one test. For example, it is possible for the breath test to show different results of your BAC. To make sure the results are accurate, an officer can ask you to take up to four tests – the first three could be breath tests but the fourth must be a blood test – to get two results where the difference in BAC is .02 percent or less. If you refuse to take any of these tests, then the officer can use reasonable force to make you.

There are some limits, however, on which tests an officer can force you to take. People who take anticoagulants for a heart condition or who have hemophilia don’t have to take the blood test. Also, you could refuse a blood test if a breath test is reasonably available. On the other hand, you could request a blood test. The officer should honor this request, but if this officer asked for a breath test first and later you are convicted of a DUI, then you would have to pay for the cost of that blood test.

In Nevada, the state will revoke your license immediately for 90 days if your test results show a BAC of .08% or more. There is no specific, additional penalty for refusing a chemical test because an officer can use reasonable force to make you take one. Evidence of your refusal may be used against you in court, however.

You can read more about the tests and reasonable force in Nevada Revised Statute 484C-200. Information on license revocation and how you can request a hearing to challenge that revocation is found in Nevada Revised Statutes 484-210 and 220.

Should You Refuse to Take a Mandatory DUI Test in Nevada?

In Nevada, it does not help you to refuse to take a blood, breath, or urine test when you are arrested for a DUI because an officer can use reasonable force to make you take one. Even if you could refuse a test, there would be no guarantee that you would avoid conviction. You can still be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

Get Help With Your DUI

If you have been arrested on a DUI charge in Nevada or any other state, get help from an experienced DUI attorney.  Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who knowledgeable about your state’s laws and about how the system works in your county’s court.

Talk to a Lawyer

Want to talk to an attorney? Start here.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Connect with local attorneys
NOLO-web1:DRU1.6.12.2.20161011.41205