If you’re taken into police custody because a law enforcement officer believes that you are driving under the influence (DUI), you must speak immediately with a Las Vegas DUI lawyer about your legal rights and options.
Typically, if a driver who is suspected of DUI is stopped by the police in Nevada, the officer may ask the driver to submit to a breathalyzer examination. Can drivers decline a breathalyzer test in Nevada? What happens when a driver refuses to take the breathalyzer test?
Keep reading this short discussion of DUI, breathalyzers, and the law in Nevada, and you’ll learn the answers to these questions, but if you are charged with DUI – or if you face a penalty for declining a breathalyzer exam – you’ll also need the services of a Las Vegas DUI attorney.
What is Implied Consent?
“Implied consent” means that simply by driving in Nevada, you have legally implied your consent to take a breathalyzer examination if a Nevada law enforcement officer asks you to do so. You may refuse to blow into the breathalyzer device, but if you refuse:
- The police officer will confiscate your driver’s license.
- Your driving privilege will be suspended – immediately – for one to three years.
- If the officer has other evidence that you are intoxicated, you will be arrested for DUI.
- Your refusal to test may be used as evidence against you in a DUI trial.
A preliminary, roadside breath test may provide an officer with probable cause to arrest you, but that test result itself cannot be used as evidence in a DUI case. After an arrest, a DUI suspect is given the choice of taking a second “evidentiary” breathalyzer test or providing a blood sample.
However, if the police suspect that the driver is impaired by drugs other than alcohol, a blood sample will be required (as breathalyzers do not detect other drugs).
What is Required of Police Officers?
While the roadside or preliminary test helps an officer decide if an arrest should be made, an evidentiary breathalyzer test is used by a prosecutor to determine if a DUI charge should be filed and by the Department of Motor Vehicles (DMV) to determine if the driver’s license should be revoked.
After making an arrest for driving under the influence, police officers in Nevada are required to tell a DUI suspect that his or her driver’s license will be revoked if that suspect refuses to take the evidentiary breathalyzer test or to provide a blood sample.
The license revocation is for one year unless the suspect has a prior revocation within the last seven years for a refusal to test, in which case the revocation is for three years. A revocation for a refusal to test is a separate penalty from a revocation ordered as a penalty for a DUI conviction.
Can the Police Force You to Be Tested?
In Nevada, the police may use force to take a blood sample from a driving under the influence suspect, but only if the suspect refuses to take a breathalyzer exam or voluntarily provide a blood sample, and only after the police obtain a warrant.
When these conditions are met, if necessary, the police may apply reasonable force (such as strapping down a suspect) to obtain a blood sample. A DUI suspect cannot be forced to blow into a breathalyzer device for either a preliminary breath test or for an evidentiary breath test.
Will Refusing to Be Tested Have an Effect on Your DUI Case?
By itself, the refusal to take a breathalyzer test or to provide a blood sample is not enough to convict someone of DUI in Nevada. However, a prosecutor is unlikely to offer an acceptable plea bargain to a defendant who refused to test or to provide a blood sample.
Taking the evidentiary breathalyzer test provides evidence that may be used to convict you, but you can also be convicted of DUI without a breath or blood test result, and the prosecution may claim you would not cooperate because you knew that you were guilty of DUI.
However, if a defendant’s DUI charge is reduced or dropped entirely, or if a defendant is acquitted at trial, the driver’s license will remain revoked by the Nevada DMV for the defendant’s refusal to take a breath test or to provide an evidentiary blood sample.
Can You Challenge an Administrative License Suspension?
An administrative driver’s license revocation by the Department of Motor Vehicles may be contested at an administrative DMV hearing. Your Las Vegas DUI lawyer will request that hearing, represent you there, and advocate on your behalf by making one of these claims or a similar claim in your defense:
- You consented to the evidentiary breath test, and the claim by the police that you refused is incorrect.
- You were incapable of refusing a breath test because you were injured and unconscious – or knocked out by medication – after a traffic collision.
- The police failed to inform you that refusing to take an evidentiary breath test or provide a blood sample would result in the revocation of your driver’s license.
What Else Should You Know About DUI in Nevada?
Unless there are aggravating circumstances, a first DUI offense in Nevada is a misdemeanor. A conviction may be penalized with jail or community service, a costly fine, a requirement to attend a Victim Impact Panel, and a requirement to attend and complete online DUI school.
An additional standard penalty for a first DUI conviction is a 185-day driver’s license suspension that is entirely separate from any administrative license suspension imposed by the DMV. But by installing an ignition interlock device in their vehicles, offenders qualify for a restricted license.
Subsequent DUI convictions and DUI cases that involve injuries, death, or property destruction entail harsher penalties.
Is It Time to Call a DUI Lawyer?
If you’re charged with DUI in or near the Las Vegas area, you must schedule a consultation to discuss your rights and options with a Las Vegas DUI attorney – immediately. Your lawyer may contest the breathalyzer exam result or challenge the reason the police stopped you in traffic.
Your DUI lawyer will fight aggressively to have the charge dropped or dismissed or to have a jury find you not guilty, and your lawyer will bring your case to its best possible resolution.
This can’t be emphasized strongly enough: If you have been charged with DUI in the Las Vegas area, or if you face a DUI charge in the future, arrange at once to meet with a Las Vegas DUI defense lawyer.