Nevada law defines the crime of driving under the influence (DUI) as operating a motor vehicle:
A person is considered “under the influence” if their driving is impaired because of alcohol or drugs to the degree that they cannot drive safely. Drugs can be over-the-counter, prescription, or illegal controlled substances. It is per se DUI if a person operates a motor vehicle with a BAC of .08% or higher. This means that if a chemical test of a person’s blood, breath, or urine shows that their BAC was .08% or higher, it can be assumed that they were intoxicated and their degree of intoxication impaired their driving. If a person’s BAC is lower than .08%, other evidence of impaired driving might be required to prove their guilt.
The BAC limit is lower for commercial drivers and drivers who are under the age of 21. Commercial drivers are assumed to be impaired if they have a BAC of .04% or more. Drivers under 21 are assumed to be impaired if they drive with a BAC of .02% or more.
How Will Police Determine If I Am Over the Legal Limit?
First of all, the police usually have to stop a person while they are driving first, and this stop leads to BAC testing. The police stop a motor vehicle because the person’s driving exhibits some problem which gives the police probable cause to stop the vehicle. Often the police test a person’s blood alcohol content because the person is involved in a traffic accident. In 2020, 11,654 people were killed in motor vehicle crashes that involved alcohol-impaired drivers. This means about 30% of all traffic-related deaths in the U.S. involve drunk drivers.
The first thing an officer does after stopping a driver is administered the field sobriety tests (FTSs). There are tests that the police use to determine if a driver is impaired. The tasks assess balance, coordination, and the ability of the driver to attend to more than one task.
In Nevada, taking the FSTs is not mandatory, although the police may claim they are. So, a person can decline to take them when an officer asks. If a person does this, the prosecution would have less evidence to prove that a person is guilty of DUI.
On the negative side, not taking the FSTs makes it more likely that the police officer will arrest a driver. The police interpret the refusal as evidence of guilt and would be more interested in administering a chemical test of a person’s BAC.
Of course, a person would not administer FSTs on DUI suspects who are too incapacitated or injured to participate in the testing because, for example, they have been injured in an accident or there is no safe and appropriate space in which to perform them.
The Standard FTS comprises the following:
- The Horizontal Gaze Nystagmus (HGN): Horizontal gaze nystagmus is an involuntary “jerking” of the eyeball which happens to everyone under certain conditions. However, if a person is intoxicated, this movement becomes more exaggerated, and HGN shows other signs of intoxication. An officer asks the driver to track a moving object, such as a pen or flashlight, as it moves slowly from one side of the person’s face to the other. This can reveal signs of intoxication. The National Highway Traffic Safety Administration (NHTSA) research shows this test to be accurate in 77% of test subjects;
- The Walk-and-turn Test: For the walk-and-turn test, the officer asks the driver to take nine steps, placing their feet heel-to-toe in a straight line. Then the driver must turn on one foot and return nine steps in the same manner in the opposite direction. While the driver is performing this feat, the officer looks for seven signs of impairment;
- The One-leg Stand Test: For the one-leg stand test, the officer asks the driver to stand with one foot about six inches off the ground and count from 1,001 to zero until the officer tells them that they can put their foot down. During the one-leg stand, the officer looks for four signs of impairment.
Some experts assert that the reliability of these tests may be as low as 65%. Others say that if a trained officer administers them, the reliability can be as high as 90%. So, a person must decide whether to take it or not. If a person passes the field sobriety tests, the police usually release them at the scene. The officer may issue a citation, e.g., for speeding, depending on the reason for the stop.
If the officer who administers the test feels that the driver has failed it, they are likely to administer a breathalyzer test at the scene of the stop.
The police usually then administer a chemical test to determine a person’s BAC by conducting one of the following chemical tests:
- Breath test;
- Blood test;
- Urine test.
They may administer the second test at the police station or other location that is not the scene of the stop.
Can I Refuse Any of the Tests Used to Determine If Am Drunk?
A driver in Nevada can always refuse to consent to any DUI tests. However, the implied consent law in Nevada allows the Department of Motor Vehicles (DMV) to revoke a person’s license when they refuse to take a DUI chemical test. A driver’s license is revoked for one year for the first refusal of a DUI test—a second results in a revocation of three years, and a third results in a seven-year revocation.
An additional important consequence of refusing a chemical BAC test is that the refusal can be used as evidence that a person was guilty of DUI at their trial on that charge.
What Is an Implied Consent Law?
An implied consent law is a law that gives police the legal right to test a person’s BAC to determine if they are over the legal limit for alcohol or drugs while driving. A person’s consent to be tested is implied by the fact that they are driving a motor vehicle in Nevada. The act of driving expresses the driver’s consent to be subject to a test every time a person operates a motor vehicle in the state.
What Happens If I Refuse to Take a DUI Test?
Just because Nevada has an implied consent law does not mean that a person has to take a specific DUI test as soon as the police request that they take it. If a person refuses a first DUI test, police must give the person the option of choosing the DUI test they want. A second DUI refusal would allow the police to choose the DUI test a person will take.
If a person refuses a BAC test at the scene of the stop, the officer will typically arrest the person, seize their driver’s license, and transport them to a location where their breath or blood can be tested. The officer might seek a warrant authorizing the police to conduct a forcible blood draw.
Generally, a person has the right to opt for a breath test instead of a blood test, provided that the equipment, a breathalyzer, is available. Or a person can request the blood test if they prefer.
However, a person should remember that if they are later convicted of a DUI, the court will require the person to pay for the cost of the blood test. In addition, the court would include the cost of bringing in an expert witness to testify about the blood test results at a person’s trial. Of course, the person’s driver’s license is also revoked for refusing a chemical test.
Can the Police Force Me Take a DUI Test in Nevada?
Police in Nevada can use reasonable force to administer a DUI test. The police can physically constrain a person to get a blood sample by force. The police need a search warrant first so the blood test results can be used as evidence in a trial.
Do I Need Legal Representation for My DUI Charge?
Legal representation is critical if you are facing a DUI charge in Nevada. Contact a Nevada DUI/DWI attorney immediately to understand your legal rights regarding implied consent and your DUI charge. Your attorney can provide advice and representation for your case.