In Nevada, field sobriety tests, such as the horizontal gaze nystagmus test, the walk and turn test and the one legged stand test, are not mandatory. Certainly the police would like you to believe that they are. However, some individuals may politely elect not take field sobriety tests and preliminary breath tests. In some cases, a driver may elect to refuse an evidentiary breath test or evidentiary blood tests. In actuality, even sober people have a substantial likelihood of failing field sobriety tests. If an individual refuses to take a field sobriety test, the government has less evidence to prove its case against the suspect. The prosecutor must prove a case “beyond a reasonable doubt.” Without field sobriety test results, it makes the prosecutor's job more difficult to do.
The field sobriety test is one thing that can give a police officer “probable cause” that an individual was driving under the influence. After an individual fails a field sobriety test, it often leads a police officer to then ask the driver blow into a small, handheld, breath testing device there at the scene of the traffic stop. This is called a preliminary breath test. The preliminary breath test is used to estimate an individual's breath alcohol concentration to determine if they are over legal limit for driving. In Nevada, the legal limit is a blood alcohol concentration, or breath alcohol concentration, of 0.08%. What most people don't realize is that the results of the preliminary breath test cannot be used against an individual in a court of law. This test is so inherently unreliable that it cannot be introduced into evidence at a Trial. However, there is certainly a benefit to law enforcement to convince a suspected DUI driver to take the test. Even though it is not admissible in Court, the results of the preliminary breath test may be used to articulate probable cause for the arrest of a driver so that the officer can get an admissible evidentiary blood or breath sample.
Evidentiary breath or blood tests can be refused as well, but there are certainly repercussions to a refusal and the police may be able to legally obtain a blood sample (with a warrant) even if the driver refuses. Depending on the results of the field sobriety tests and preliminary breath testing, a police officer may ask a driver to submit to an evidentiary breath test or an evidentiary blood test. The results of the evidentiary breath test, or the evidentiary blood test, are what can be used against the driver in court to prove that the driver is per se impaired and over the 0.08% legal limit. The evidentiary breath test, or evidentiary blood test, results are transmitted to the prosecuting agency as well as the Department of Motor Vehicles. The results of an evidentiary breath test are instantaneous, but the results of an evidentiary blood test take longer for the government agencies to receive.
If an individual refuses to take an evidentiary breath test or an evidentiary blood test, recent Nevada law changes require that the driver will automatically have their driver's license revoked for a one (1) year period. If a police officer can articulate sufficient probable cause for the issuance of a search and seizure warrant, a blood sample can be taken legally. The police officer will have to obtain a warrant, approved and signed by a judge, in order to retrieve the driver's blood for testing.
Although there are consequences to a refusal, an experienced Las Vegas DUI Attorney can work with you on the individual facts of your case to fight the allegations, not only in a Court of law in but in a contested DMV Hearing related to your driving privileges. There are many possible defenses, such as the defendant was too incapacitated to refuse, or accept, the Defendant was willing to take a breath test, or that the police officer failed to inform the Defendant that refusing to take a chemical test would result in a driver's license revocation.
If you or a loved one is accused of refusing a chemical test for a DUI, are charged with a DUI or have fears that you will be convicted or lose your driver's license, it is important to remember that hiring an experienced Las Vegas DUI attorney will benefit you exponentially. If you hire Attorney Josh Tomsheck in the early stages of your case, it may be possible to stop the revocation period, and allow your driving privileges to be reinstated. Mr. Tomsheck has handled hundreds, if not thousands, of misdemeanor DUI cases and felony DUI cases. Contact him here for a free consultation.