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Right to Refuse DUI Testing

Like every other state in the nation, Nevada has an implied consent law under which motorists are deemed to have agreed to submit to chemical testing when suspected of driving under the influence (DUI). Unlike most other states, motorists in the Silver State did not have the right to refuse this testing until recent changes were enacted.

Law enforcement in Nevada must now obtain a warrant or court order to obtain blood samples with reasonable force if a person refuses or fails to provide a sample as requested. Any refusal triggers an automatic suspension of the offender’s driver’s license.

Lawyer Discusses Right to Refuse DUI Testing in Las Vegas, NV

If your driver’s license has been suspended because you refused to submit to DUI testing in Nevada, you only have seven days to request a hearing with the Nevada Department of Motor Vehicles Office of Administrative Hearings. The Law Offices of Jeffrey Jaeger helps clients all over Las Vegas and surrounding areas in Clark County.

Jeffrey Jaeger is a criminal defense attorney in Las Vegas who has helped many other lawyers effectively present evidence in criminal cases during his time as Director of Litigation Support for the Clark County Public Defender's Office. Call (702) 816-3888 or fill out an online contact form right now to take advantage of a free initial consultation.

Overview of DUI Testing Procedures in Clark County

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Implied Consent to DUI Testing in Las Vegas

Under Nevada Revised Statute 484C.150, anyone who drives or is in actual physical control of a vehicle on public roads in Nevada is deemed to have given their consent to preliminary tests of their breath to determine their blood alcohol concentration (BAC). The tests are administered at the requests of police officers who have reasonable grounds to believe that alleged offenders are under the influence of alcohol or a controlled substance.

If a person refuse to submit to a requested test, officers will seize their licenses or permits and immediately serve an order of revocation of the license, permit or privilege to drive. Nevada Revised Statute 484C.210 now states that a person who fails to submit to an evidentiary tests as requested by a police officer will have their licenses, permits, or privileges to drive revoked and be ineligible for a license, permit, or privilege for a period of:

  • One year; or
  • Three years, if the license, permit, or privilege to drive of the person has been revoked during the immediately preceding seven years for failure to submit to an evidentiary test.

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Changes to Nevada DUI Testing Laws

Nevada Revised Statute 484C.160 once authorized police officers to direct “that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested” when an alleged offender refuses or fails to submit a requested sample. This statute now requires officers to apply for a warrant or court order directing that such reasonable force be used. Many law enforcement agencies in Nevada will have judges on call 24 hours a day, seven days a week specifically, for the purpose of authorizing these warrants.

Police officers can still direct that samples of blood be tested if the alleged offenders are dead or unconscious. People who are exempt from required blood tests include those afflicted with hemophilia or heart conditions requiring the use of an anticoagulant, but they are still required to submit to breath or urine tests.

State law limits the number of blood or breath samples taken from an alleged offender to three during the five-hour period immediately following the time of an initial arrest. The person also has the right to refuse to submit to a blood test if means are reasonably available to perform a breath test or request a blood test instead of a breath test—although the person may be responsible for the costs of the blood test (including the fees and expenses of any witnesses whose testimony in court or an administrative hearing necessary because of the use of the blood test) if convicted.

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Nevada Resources for DUI Testing

Missouri v. McNeely — In October 2010, Tyler McNeely was stopped by a Missouri highway patrol officer for speeding and crossing the centerline. After McNeely failed field-sobriety tests, he refused to submit to the officer’s handheld breathalyzer and breath tests at the police station. The officer drove McNeely to a hospital where—without a warrant—the officer instructed a lab technician to draw a specimen of blood from McNeely without his consent. While the blood test showed a BAC of 0.154 percent and McNeely was charged with driving while intoxicated (DWI), the trial court, the Missouri Supreme Court, and the United States Supreme Court all ruled that the officer’s actions violated McNeely’s Fourth Amendment rights against unreasonable searches and seizures. In its 5-4 ruling, the majority for the United States Supreme Court ruled that “the uncontested destruction of evidence due to metabolization of alcohol” did not create a per se (by itself) justification of a warrantless blood draw. The Court left open the possibility that the “exigent circumstances exception” may still apply “when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.”

Byars v. State — In 2012, Michael Byars was pulled over by a Nevada Highway Patrol Trooper for speeding. The trooper smelled marijuana and performed sobriety tests on Byars before arresting him on the belief that he was under the influence of a controlled substance. Byars refused a blood test, but officers used force to obtain a blood sample as permitted under Nevada Revised Statute 484C.160. The blood draw showed THC in Byars’ bloodstream, and evidence discovered in his automobile led to him being charged with five felony offenses. Following the United States Supreme Court’s ruling in Missouri v. McNeely, the Nevada Supreme Court ruled that the state’s implied consent law was unconstitutional and the forced blood draw violated Byars’ Fourth Amendment rights.

Nevada Assembly Bill 67 — In 2015, the Nevada Legislature passed, and the governor approved, this bill which made various changes relating to driving, operating, or being in actual physical control of a vehicle or vessel while under the influence of alcohol or a controlled substance. The amended statutes include Nevada Revised Statutes 202.257, 484C.010, 484C.150, 484C.160, 484C.200, 484C.210, 484C.220, 484C.230, 484C.240, and 484C.250.

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Find a Lawyer for DUI Testing in Las Vegas, Nevada

Has your license been revoked for refusing to submit to a blood or breath test when you were arrested for DUI in Nevada? The Law Offices of Jeffrey Jaeger can help you explore all of your DUI defense options.

Las Vegas criminal defense attorney Jeffrey Jaeger is the co-author of Westlaw's Courtroom Handbook of Nevada Evidence, the guide that Nevada judges and lawyers use in courtrooms throughout the Silver State. Jeffrey will provide an honest and thorough evaluation of your case as soon as you call (702) 816-3888 or submit an online contact form to schedule a free, confidential consultation.

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