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May 14, 2015

Can I Refuse a Breathalyzer?

cop holding breathalyzer machine

*actor portrayal

There are severe consequences associated with a conviction for driving while intoxicated in Clark County, Nevada. Substantial fines, loss of driving privileges, mandatory substance abuse counseling, and jail or imprisonment are just a few of the penalties associated with a DUI or DWI.

While it is important to understand your rights and obligations when stopped by police on suspicion of driving under the influence, it is no substitute for the legal advice and defense strategies that a Henderson criminal defense law firm may offer. People fail to realize that the defense of a DUI case begins on the side of the road when the police officer asks a motorist to submit to a preliminary breathalyzer test.

Breathalyzer Tests and Proving DUI in Nevada

It is a crime to operate a vehicle while under the influence of alcohol or of a controlled substance on a public road. Police may prove that a person was under the influence through the officer’s observations of the driver’s actions, demeanor, speech, coordination, ability to walk and stand, and other factors that might convince a judge or a jury that an individual was under the influence. State law offers police and prosecutors an easier method of proving that someone was under the influence.

A motorist whose blood alcohol concentration level is 0.08 percent or greater is considered to be above the legal limit for intoxication. The results of a breathalyzer test are sufficient at trial to establish that a motorist was intoxicated. The legal limit for Clark County drivers under 21 years of age is 0.02 percent, and it is just 0.04 percent for drivers with a commercial license.

Types of Breathalyzer Tests

There are two types of breathalyzer tests that a Nevada motorist might be asked to take:

  • Preliminary tests
  • Evidentiary tests

A preliminary test is usually given before the motorist is placed under arrest. The purpose of the test is to assist the police officer in establishing that reasonable grounds exist to place the individual under arrest for DUI. The results of a preliminary test are not, however, admissible at trial to prove that someone was driving under the influence.

An evidentiary test is usually administered after a driver has been arrested for DUI. As its name implies, the results of an evidentiary test may be offered as evidence in court to prove the blood alcohol concentration level of the individual.

Refusing To Take a Breathalyzer Test and the Implied Consent Law

Refusing to submit to breath, blood or urine testing in Nevada could result in the loss of driving privileges independent of and in addition to the penalties associated with a DUI or DWI conviction.

Implied consent laws impose on each motorist the obligation to submit to a test to measure blood alcohol concentration levels when asked to do so by a police officer. Refusing to take a breathalyzer subjects a person to the suspension of his or her driver’s license. The implied consent law in Nevada applies to both preliminary  and evidentiary tests.

What Happens When You Refuse to Take a Breathalyzer

Refusal to take a preliminary test has an immediate consequence. Police are required to seize the driver’s license of any motorist who refuses to take a preliminary test. This begins a 90-day suspension period. Another consequence of refusing to take a preliminary test is that it gives the police officer the right to arrest the motorist for DUI.

Under state law, after taking the refusing motorist into custody, police may transport the person to a location for administration of evidentiary testing. The consequences of refusing to take an evidentiary test are even more severe. A test refusal can lead to a one-year suspension of a person’s driving privileges. If a motorist has refused to take a test on another occasion within the past seven years, the suspension period increases to three years.

Other Consequences of a Breathalyzer Test Refusal

Refusing to submit to a breathalyzer test after an arrest might not deny prosecutors evidence of blood alcohol concentration levels. The law gives police officers the right to use reasonable force to compel a motorist to submit to an evidentiary test to measure BAC. A person who consents to a breath test after first refusing might not avoid a license suspension. Once the refusal is noted by the police, it becomes part of the arrest record and cannot be eliminated by subsequently consenting to take the test.

How a Henderson Criminal Defense Attorney Might Help

A lawyer will represent you in court and may attempt to get your charges minimized or dismissed depending on the circumstance. The attorneys at John F. Marchiano Law Corp. know that police must follow strict procedures and guidelines when administering breath tests to motorists. Failure to do so might offer the defense the opportunity to challenge the admissibility of the evidence supporting the charges or to attack the imposition of license suspensions related to the refusal.

If you have been charged with a DUI or DWI in Nevada, contact John F. Marchiano Law Corp. at (702) 565-0473 to speak to an attorney for answers to your questions and concerns.