In Nevada, Can I Refuse to Take a Blood, Breath, or Urine Test if Arrested for DUI?

Nevada’s implied consent law and the consequences of refusing DUI chemical testing.

When you’re arrested for DUI, the investigation doesn’t usually end there. The officer will typically ask that you submit to a blood, breath, urine, or other bodily substance test to find out your blood alcohol content (BAC) (or the amount of a controlled substance in your system). This article discusses the consequences you’ll face if unlawfully refuse the test.

Implied Consent Law

Nevada’s implied consent law allows the Department of Motor Vehicles (DMV) to revoke your license when you’ve refused to take a DUI chemical test. The gist of this law is that you consent to BAC testing by merely driving on Nevada public roads. And if you withdraw your consent after a lawful DUI arrest, the DMV will revoke your license.

I was unconscious at the time they took my blood. Is that allowed?

Perhaps. If you are unconscious and an officer has reasonable grounds to suspect DUI, the officer can have samples of your blood taken while you are unconscious. But without reasonable grounds, an officer cannot lawfully order a blood draw without your permission.

I Refused the Test: What happens next?

If you refuse a BAC test, the officer will typically arrest you, seize your license, and transport you to a location to test your breath or blood. The officer might also apply for a warrant authorizing a forcible blood draw.

Generally, you have the right to opt for a breath test—provided a breathalyzer is reasonably available—instead of a blood test. Or if you prefer, you can request the blood test. But if you convicted for the DUI, the court will require you to pay for the cost of the blood test, including the costs of bringing in an expert witness to testify regarding the blood test results.

The revocation period is one year for a first refusal and three years for a second or subsequent refusal within seven years. Also, your refusal can be used as evidence of guilt against you at your criminal trial.

Can I Challenge the Revocation?

You can challenge an administrative suspension by requesting a hearing. One of the benefits of requesting is you can request a temporary license that allows you to drive while the DMV considers your challenge.

At the hearing, the officer must show up (in person or by telephone) and testify before the hearing officer about the grounds for your DUI arrest. The officer must prove certain factors, or the hearing officer is supposed to overturn the revocation. You can also beat the suspension if the officer doesn’t show up.

Reasonable grounds to believe you were DUI. To uphold the suspension, the DMV hearing officer must find the officer had reasonable grounds to believe that you were driving or were in actual physical control of a car while under the influence.

Proof of refusal. At the hearing, the officer also needs to prove that you refused the test. Typically, proving refusal just involves the officer explaining the driver would not agree to take the test after being asked to do so and warned of the refusal consequences. Failing to blow hard enough in a breath test can also be considered a refusal.

Required warnings. If you refuse to take the test, the officer is required to inform you that your license will be revoked for one year (or for three years for a second refusal within seven years) unless you agree to submit to and successfully complete the tests. If you can prove at the hearing that the officer failed to give this warning, the hearing officer is supposed to overturn your suspension.

Required notices. At the time of your arrest, the officer is required to notify you of your right to request a hearing. If you can prove at the hearing that the officer failed to notify you of your right to a hearing, , you may be able to beat the suspension.

If the hearing officer upholds the suspension, you are required to install an ignition interlock device in any car you drive.

Judicial Review

If the hearing officer upholds the suspension, you can appeal the decision to the district court. When you request such a review, your revocation is put on hold and you are issued another temporary license that is good for the time it takes the court to consider your appeal.

License Reinstatement

When the DMV revokes your license for a refusal, you’ll have to wait the one year (or three years for a second or subsequent refusal within seven years) before applying for reinstatement. You’ll also have to provide proof that you completed an alcohol or drug screening before the DMV can reinstate your license.

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