I passed the field sobriety tests. Why did they ask for a breath test?

While the idea behind field sobriety testing is that test is a determiner of impairment, the reality is actually quite different. In practical terms, the field sobriety tests are used to give a police officer probable cause that a person is driving under the influence. Many times a person may feel they did well, or “passed” the field sobriety tests when in fact they are marked as a failure by law enforcement. One of the next steps in many, but not all, DUI arrests is the officer requesting the driver to submit to a preliminary breath test. A preliminary breath test, of “PBT” for short, is a handheld device that the officer (or trooper) can ask a driver to breathe into at a roadside stop. This first breath test, not to be confused with an actual forensic breath sample that can be introduced in Court, provides a reading to the officer, which is not even admissible in court. However, it provides a police officer with a measurement of how much alcohol there may be in a person's system. Following the results of the preliminary breath test, the police officer may ask the driver to submit to an evidentiary chemical test, like a breath test or blood test. These results will likely provide a sample reading which would be admissible in Court.

Do I have to participate in field sobriety tests?

Field sobriety tests are optional and a person does not have to participate in them. When stopped by law enforcement and suspected of driving under the influence in Nevada, it is common that the officer may ask you to perform field sobriety tests. While most drivers do not realize it, these tests can be refused and in most cases it is in the best interest of the driver to politely refuse to perform any standardized field sobriety testing. Despite the terminology, these field sobriety “tests” are not tests at all. These so-called “tests” tend to be more of an exercise in the performance of physical agility and the ability to effectively divide the participants attention between an officer and a test requirement. The results are admittedly very subjective by their nature and undeniably designed to invoke failure. Any person who is asked to participate in a field sobriety test will likely have difficulty performing these tests, whether they have consumed any drugs or alcohol or not.

Why was I asked to blow into the breath testing machine multiple times?

This is a question that is asked by many individuals who have been arrested for DUI. What most people do not realize is that there are actually different kinds of breath testing devices used in traffic stops in Nevada. Individuals may be asked to blow into a small, handheld device at the scene. This is called a preliminary breath test. The preliminary test cannot be used against you as evidence of intoxication in a Trial for your DUI related charges. It can however, be used to build “probable cause” for the officer to arrest you or investigate further. The second, and more important type of breath test, an evidentiary test of a person's breath sample, can be introduced in Court to show evidence of intoxication, more specifically, the person's breath alcohol concentration to show that a person is in excess of the legal driving limit of .08%. The results of a breath test are in real time and the person taking the test will know within minutes if they are losing their Nevada driving privileges. If a forensic breath test returns a result in excess of .08%, department of motor vehicles will be notified. If you had an evidentiary breath test, it is important to contact an experienced DUI attorney right away or risk losing your license in as little as one (1) week. Contact attorney Josh Tomsheck here to discuss your breath test and the defense of your case.

Why was I given a breath test and not a blood test?

In most cases in Nevada, a person who is suspected of DUI has the option of electing between an evidentiary breath test and an evidentiary blood test. In some cases, a suspected DUI driver will not be able to consent to a breath test and blood testing is the only viable option. In other cases, such as that of a repeat offender or in an accident situation, the police may request consent only for a blood test. In such a circumstance, the driver has the option of consenting to a blood test or refusing, after which the arresting officer will likely apply for a telephonic search warrant allowing the blood draw. If the options of Nevada's implied consent laws and the proper protocols are not followed, you may have a legitimate defense to your DUI charges. It is important to contact an experienced Las Vegas DUI Attorney as soon as possible to ensure your rights are protected and your defenses preserved. Contact Josh Tomsheck here.

What happens if I refused the breath test?

If you refuse a breath test, you still have the option of completing a voluntary blood test. If, however, you refuse both a breath test and a blood test, there are repercussions under recent changes in Nevada law. After enacting Assembly Bill 67 in 2015, law enforcement is required to request that the driver volunteer for testing and if refused, the person's driving privileges are automatically revoked administratively by the DMV for a period of one (1) calendar year, regardless of whether the person is criminally convicted in Court. (See  NRS 484C.150, 484C.160, 484C.200, 2015 AB 67). In the event both blood and breath testing are refused, police officers are able to apply for a search warrant to forcefully draw blood for testing. In most Nevada jurisdictions, judges are routinely assigned the duty of answering calls for search warrants during a specified period of time. These “signing judges” will be on call and available to answer warrant requests from members of law enforcement on this very issue.

Why did they get a warrant for my blood?

In years past, Nevada law did not require a warrant for the withdrawal of a whole blood sample for testing purposes. Since the landmark United States Supreme Court case of Missouri v. McNeely in 2013, the law has changed. In order to obtain a blood sample from a driver who refused to submit to voluntary evidentiary testing, police officers must obtain a warrant before they can draw blood. If a person does not consent to testing and police officers do not obtain a warrant prior to a blood draw, the results are a violation of a person's Fourth Amendment right against illegal search and seizure and should be suppressed. If you have questions about illegal searches and seizures and believe there are suppression issues in your DUI arrest, you should contact Las Vegas DUI lawyer Josh Tomsheck right away do discuss your options.

Are the breath tests accurate?

As with any testing, there are many issues associated with breath testing devices and results. There are requirements related to administration, calibration, certification and maintenance that can come into play. In addition, there are a number of external factors related to contamination, medical condition and environment which can render unreliable testing and false results. Breath testing will not be the best defense to every case, but in many cases a skilled DUI defense lawyer can find issues related to breath testing that make your case winnable. This can be the difference between being convicted for a DUI and having your charges be dismissed or reduced.

Should I have requested to have a blood test?

In Nevada, a driver is given the option between an evidentiary blood test and an evidentiary breath test. If a police officer did not explain this to you, or did not explain the consequences of a refusal with you, it is important to contact an experienced Las Vegas DUI attorney as soon as possible. This can lead to the development of a defense to both the criminal allegations of DUI and to the administrative revocation you may face from the Nevada DMV. To set up your appointment with Mr. Tomsheck, please click here.

Can I have an independent test of my blood, breath, or urine done?

A person arrested for DUI in Nevada, is required by law to be permitted to have a qualified person of their own choosing administer a chemical test of blood or breath to determine the amount of drugs or alcohol in that persons system. Pursuant to NRS 484C.180, a breath, blood (or far less commonly, urine) test can be independently retested by a laboratory of an individual's choice, or the choice of the individual's attorney. This testing is done at the expense of the person requesting independent testing. In some cases, a person may have reason to believe their testing is not consistent with their perceived consumption of drugs or alcohol. In those cases, it may be worth the time and expense to request independent testing. This is just one reason to discuss your case with veteran Las Vegas DUI Attorney Josh Tomsheck right away.

The police drew my blood even though I refused. Is this legal?

It is an illegal search in violation of your rights to draw your blood absent a lawful search warrant. However, if the police officer obtained a valid warrant for your blood, the withdrawal to test for your blood alcohol content is likely legal. This does not mean that you do not have a defense. There are many issues that can arise with a blood draw based on a search warrant. These can oftentimes lead to the suppression of evidence and a positive result in your case. In the hands of an experienced Las Vegas DUI Attorney the circumstances related to your blood draw, with or without a warrant, may provide for an effective defense to your unique case.

Can I take back my refusal to submit to testing?

In most cases the answer is no. While an individual may not be certain about whether or not to refuse or consent to testing, in most cases once the answer is deemed a refusal, law enforcement will proceed as if it is a refusal and initiate the warrant process. 


LVNVDUI.COM and the law firm of Hofland & Tomsheck handles cases and represents individuals, both residents and visitors, charged with DUI and Drunk Driving offenses.

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If you are arrested or charged with a DUI in Las Vegas or surrounding areas, finding the best lawyer to fight for you should be your top priority. Just because you have been arrested does NOT mean you will be convicted. Attorney Josh Tomsheck of the law firm of Hofland & Tomsheck find the best defense to your Nevada DUI charge - - Fighting for Justice - - Fighting for you!