You're driving home after a night out when you see flashing lights in your rearview mirror. The officer suspects you've been drinking and asks you to take a breathalyzer test. What do you do?
Many people think refusing a test is a clever way to avoid a DUI — after all, no one wants to make a situation worse for themselves. But in Nevada, the consequences of this decision might surprise you.
Implied Consent and Preliminary Tests
Nevada operates under a principle known as implied consent. This means that when you get your driver’s license, you’re implicitly agreeing to certain conditions.
One of these conditions is that if a police officer suspects you of driving under the influence (DUI), you’ve already given permission to take a breathalyzer test. As such, if you refuse, you’re technically breaking an agreement you made the moment you hit the road.
What many people don’t realize, however, is that there are two types of tests involved in DUI stops: preliminary tests and evidentiary tests.
Officers will usually conduct a preliminary breath test on the roadside and use the results to justify an arrest if they believe you’re driving under the influence. You can refuse this test, and there’s no automatic license suspension for doing so.
That said, if the officer already has reason to believe that you’re impaired, like erratic driving or the smell of alcohol, they can still arrest you without administering this test.
Evidentiary Tests
The real trouble starts when you decline the evidentiary test. This is the official test conducted at the police station. It could be a breath, blood, or urine test.
Refusing this test comes with harsher penalties under Nevada law. If it’s your first time refusing, you could have your license suspended for a year (in addition to the 185 days for the DUI itself). If you’ve opted out of an evidentiary test before in the past seven years, that suspension could automatically extend to three years.
And that’s not the worst of it. Prosecutors can also use your refusal against you in court. They might argue that you refused because you knew you’d fail, which can make
defending yourself in court even tougher. (I have never seen a prosecutor argue this, but I would object that it is speculative, and the question would probably get sustained by the Judge)
It’s also worth noting that even if you refuse, the police aren't out of options. An officer can obtain a warrant from a judge to perform a blood test, and they’re allowed to use reasonable force to collect the sample if necessary. So, while you might think that refusing a breathalyzer gives you an advantage, it might only delay the inevitable.
To Blow or Not to Blow
Nevada takes drunk driving seriously, and for good reason. Between 2016 and 2020, alcohol-related crashes led to 687 fatalities in the Silver State. It's a sobering statistic that reminds us why law enforcement is so vigilant on the roads.
Even so, the system isn't perfect. Here are just a few potential issues associated with breathalyzer tests:
They can yield false positives
They can be challenged in court
Officers sometimes overstep and make procedural errors
The device itself may be improperly calibrated
Medical conditions like acid reflux or diabetes, or even the use of certain mouthwashes, can potentially impact the results
But here's the catch: refusing a test makes it harder to argue these points later.
Without a breathalyzer or blood test result to challenge, prosecutors might focus on other evidence, like field sobriety tests or the officer's observations. And if there's dashcam or bodycam footage of you swerving, having difficulty following instructions, or stumbling, it could be just as damning as a failed breathalyzer.
Your Rights: Know Them, Use Them
While it’s generally a good idea to comply with testing, you do have certain rights. For instance:
You can refuse the preliminary field sobriety test without penalty
You can politely decline to answer questions beyond identifying yourself
If arrested, you'll be given a seven-day temporary license and can request an administrative hearing (for a breath test only)
You have the right to contact an attorney after an arrest
An experienced DUI attorney can scrutinize every aspect of your arrest and test administration. They might find grounds to have the results thrown out entirely.
What to Do if You Refuse to Take a Breathalyzer Test in Nevada
The best defense against a DUI is simple: don't drink and drive.
However, we're all human, and mistakes happen. If you find yourself facing a breathalyzer dilemma or dealing with the aftermath of a refusal, keep in mind that you have rights and options.
The key is to stay calm, be respectful, and consult an experienced DUI defense attorney who understands Nevada’s DUI laws and the possible ramifications of your actions. While the consequences of refusal are serious, they're not insurmountable.
The next time you're planning a night out, remember that the best plan is always to have a designated driver or use a ride-share service. If you find yourself in a sticky situation, contact the DUI Doctor to get help fighting your charges.
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