Nevada DUI Evidence: Blood and breath testing in NV drunk driving cases

Upon a lawful arrest for a Nevada DUI, the police may request an offender to submit to blood, breath, or urine testing to detect the presence of drugs and/or alcohol. Refusal to submit to chemical testing will result in the suspension of the offender's driver's license (see the Nevada Driving tab). The rules applicable to chemical testing in Nevada are explained below. Consult with an experienced Nevada DUI attorney in your area for more information.

Which chemical test will be requested depends on the facts of your case and whether impairment by drugs and/or alcohol is suspected. If the concentration of alcohol in the blood or breath (BAC) is in issue, a person may refuse to submit to a blood test if means are reasonably available to perform a breath test. A person may also request a blood test, but if means are reasonably available to perform a breath test when the blood test is requested, and the person is subsequently convicted, he must pay for the cost of the blood test including the fees and expenses of witnesses in court. On the other hand, if DUI Drug impairment is suspected, the police may direct submission to a blood or urine test, or both, in addition to a breath test.

An overview of chemical testing in Nevada DUI cases

FORCIBLE BLOOD DRAW - A police officer may direct the person to submit to a blood test if the officer has reasonable grounds to believe that the person was DUI and caused death or substantial bodily harm to another person, or that the person has a previous DUI conviction within the last 7 years. Additionally, if a person to be tested refuses to submit to a required test and the officer has reasonable grounds to believe that the person to be tested was DUI, the officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the concentration of alcohol or presence of a controlled substance or another prohibited substance in his blood.

BREATH TESTING - Nevada uses preliminary breath testing (PBT) as well as evidentiary breath testing. PBT analysis is done at the scene prior to arrest on a handheld breath testing device. A person may not refuse to submit to a PBT without facing license suspension penalties. PBT results are not admissible in court. Their purpose is limited to use on scene to help aid the officer with the determination of whether there is sufficient probable cause to make an arrest. Evidentiary breath testing is done at the station subsequent to a person's arrest. Two samples of the person's breath must be obtained after a 20 minute observation period.

BLOOD TESTING - Blood tested may only be withdrawn by a person, other than an arresting officer, who is a physician, licensed physician assistant, registered nurse, licensed practical nurse, emergency medical technician or a phlebotomist, technician, technologist or assistant employed in a medical laboratory, or has special knowledge, skill, experience, training and education in withdrawing blood in a medically acceptable manner, including a person qualified as an expert on that subject in a court of competent jurisdiction or a person who has completed a course of instruction.

RIGHT TO INDEPENDENT TESTING - If a Nevada DUI suspect requests a reasonable opportunity to have a qualified person of his own choosing administer a chemical test or tests to determine BAC or the presence of a controlled substance, chemical, poison, organic solvent or another prohibited substance in his blood or urine, the police must permit such additional testing at the offender's expense.

Nevada DUI chemical testing statutes

NRS 484.386  Requirements for evidentiary test of breath to determine concentration of alcohol in breath; use of reasonable force to obtain sample or conduct test.

1.  Except as otherwise provided in subsection 2, an evidentiary test of breath to determine the concentration of alcohol in a personís breath may be used to establish that concentration only if two consecutive samples of the personís breath are taken and:

(a) The difference between the concentration of alcohol in the personís breath indicated by the two samples is less than or equal to 0.02;

(b) If the provisions of paragraph (a) do not apply, a third evidentiary test of breath is administered and the difference between the concentration of alcohol in the personís breath indicated by the third sample and one of the first two samples is less than or equal to 0.02; or

(c) If the provisions of paragraphs (a) and (b) do not apply, a fourth evidentiary test is administered. Except as otherwise provided in NRS 484.383, the fourth evidentiary test must be a blood test.

2.  If the person fails to provide the second or third consecutive sample, or to submit to the fourth evidentiary test, the results of the first test may be used alone as evidence of the concentration of alcohol in the personís breath. If for some other reason a second, third or fourth sample is not obtained, the results of the first test may be used with all other evidence presented to establish the concentration.

3.  If a person refuses or otherwise fails to provide a second or third consecutive sample or submit to a fourth evidentiary test, a police officer may direct that reasonable force be used to obtain a sample or conduct a test pursuant to NRS 484.383.

(Added to NRS by 1985, 1226; A 1991, 957; 1993, 2074; 1995, 1886; 1999, 2457)

NRS 484.389  Admissibility of evidence of refusal to submit to evidentiary test and results of test; availability of results of test.

1.  If a person refuses to submit to a required chemical test provided for in NRS 484.382 or 484.383, evidence of that refusal is admissible in any criminal or administrative action arising out of acts alleged to have been committed while the person was:

(a) Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or

(b) Engaging in any other conduct prohibited by NRS 484.379, 484.3795, 484.37955 or 484.379778.

2.  Except as otherwise provided in subsection 3 of NRS 484.382, a court or hearing officer may not exclude evidence of a required test or failure to submit to such a test if the police officer or other person substantially complied with the provisions of NRS 484.382 to 484.393, inclusive.

3.  If a person submits to a chemical test provided for in NRS 484.382 or 484.383, full information concerning that test must be made available, upon his request, to him or his attorney.

4.  Evidence of a required test is not admissible in a criminal or administrative proceeding unless it is shown by documentary or other evidence that the law enforcement agency calibrated the breath-testing device and otherwise maintained it as required by the regulations of the Committee on Testing for Intoxication.

(Added to NRS by 1969, 594; A 1973, 1504; 1983, 1078, 1914; 1993, 2076; 1995, 1888; 1999, 3428; 2005, 150; 2007, 2804)

NRS 484.391  Opportunity of arrested person to choose qualified person to administer test; substitution of test prohibited.

1.  A person who is arrested for driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or for engaging in any other conduct prohibited by NRS 484.379, 484.3795, 484.37955 or 484.379778 must be permitted, upon his request and at his expense, reasonable opportunity to have a qualified person of his own choosing administer a chemical test or tests to determine:

(a) The concentration of alcohol in his blood or breath; or

(b) Whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present in his blood or urine.

2.  The failure or inability to obtain such a test or tests by such a person does not preclude the admission of evidence relating to the refusal to submit to a test or relating to a test taken upon the request of a police officer.

3.  A test obtained under the provisions of this section may not be substituted for or stand in lieu of the test required by NRS 484.383.

(Added to NRS by 1969, 594; A 1973, 1504; 1999, 2459, 3428; 2001, 172; 2005, 151; 2007, 2804)

NRS 484.393  Admissibility of results of blood test in hearing or criminal action; immunity from liability for person administering blood test in certain circumstances.

1.  The results of any blood test administered under the provisions of NRS 484.383 or 484.391 are not admissible in any hearing or criminal action arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or who was engaging in any other conduct prohibited by NRS 484.379, 484.3795, 484.37955 or 484.379778 unless:

(a) The blood tested was withdrawn by a person, other than an arresting officer, who:

(1) Is a physician, physician assistant licensed pursuant to chapter 630 or 633 of NRS, registered nurse, licensed practical nurse, emergency medical technician or a phlebotomist, technician, technologist or assistant employed in a medical laboratory; or

(2) Has special knowledge, skill, experience, training and education in withdrawing blood in a medically acceptable manner, including, without limitation, a person qualified as an expert on that subject in a court of competent jurisdiction or a person who has completed a course of instruction described in subsection 2 of NRS 652.127; and

(b) The test was performed on whole blood, except if the sample was clotted when it was received by the laboratory, the test may be performed on blood serum or plasma.

2.  The limitation contained in paragraph (a) of subsection 1 does not apply to the taking of a chemical test of the urine, breath or other bodily substance.

3.  No person listed in paragraph (a) of subsection 1 incurs any civil or criminal liability as a result of the administering of a blood test when requested by a police officer or the person to be tested to administer the test.

(Added to NRS by 1969, 595; A 1973, 1505; 1981, 1362; 1983, 1078, 1914; 1987, 1154; 1999, 3429; 2001, 791; 2005, 151, 2041; 2007, 1868, 2804).