Refusal of DUI Tests: Consequences and Penalties

You are here: DUI > Refusal of Tests

Getting stopped for drunk driving can be a terrifying experience – even if you feel like you’re sober, or just had one drink too many. Unfortunately, it could result in an official DUI charge against you.

Instead of submitting to the preliminary breath test or PBT, you make a bold choice and decide not to comply.

Note, however, in Nevada, by having a driver’s license you have given the police “implied consent” to submit to the breath or blood test. Refusing to submit to the evidentiary breath or blood test can have severe consequences including:

  • Your driver’s license will be revoked for 1 to 3 years
  • The police can force you to take a blood test against your will
  • The refusal to take the test can be used against the defendant in a criminal trial or a DMV hearing for DUI charges.

To discourage DUI suspects from refusing to submit to the tests, the punishments for refusal are severe.

The Preliminary Breath Test

When you are initially pulled over and suspected of DUI police officers will ask you to take two tests:

  • The Field Sobriety Tests (FSTs)
  • The preliminary breath test (PBT)

The field sobriety test is where you may walk in a straight line, or follow the officer’s flashlight, etc. We wrote more about field sobriety tests here.

The preliminary breath is a breathalyzer test where you blow into a handheld machine and gives a reading. Any reading at .08% BAC (blood alcohol content) or above is illegal and considered to be drunk driving in the state of Nevada.

Refusing to take the preliminary breath test (PBT) will result in the police immediately taking your driver’s license and arresting the defendant under suspicion of DUI.

You cannot be forced to submit to a PBT.

The Evidentiary Breath or Blood Test

This is a second test that is given to suspects who have been arrested for suspicion of DUI. Once in custody, the police will offer two types of tests:

  1. Evidentiary breath tests or
  2. Blood tests

If a suspect is accused of taking controlled substances, then a blood test will be issued since a breath test does not detect illegal drugs.

The purpose of the PBT or preliminary breath test is to determine if a suspect should be arrested for DUI. The evidentiary breath or blood test, on the other hand, is to:

  • Determine whether or not to prosecute the defendant for DUI and
  • Determine whether or not the Nevada DMV will revoke your license for DUI

If you are in custody for suspected DUI, the police will notify you that your license will be revoked if you refuse to take the evidentiary breath or blood test.

If refusing to take the test, your license will be suspended or revoked for 1 year but up to 3 years if you have refused within the last seven years or your license has been suspended for refusal in the last 7 years.

You can refuse both the preliminary breath test (PBT) and the Evidentiary Breath or Blood Test (EBTs) just know that a refusal will involve law enforcement getting a warrant, like a search warrant to take blood from you.

The police will use reasonable force to get the blood tests.

This may take some time and leave you in jail longer than you need to be.

What Happens When I’m Arrested and Refuse to Take the Evidentiary Tests

Once you are arrested on suspicion of DUI, the police are required to notify you that refusing to take the chemical test can result in license revocation. Once the police issue your Miranda Rights they will usually issue the “implied consent” admonition.

Once the defendant is notified of the potential license revocation the defendant must acknowledge that they understand about the license revocation.

The police do not have to notify the arrestee of how long the revocation will be.

Independent Evidentiary Testing

In a DUI case, you can get independent evidentiary testing by a qualified expert to administer blood or breath tests.

The defendant is required to pay all costs and tests cannot take the place of the police-administered test results.

Even if you pursue independent testing your license will still be revoked for failure to take the police-administered tests.

Prosecutors will use the refusal to take the chemical tests against the defendant in criminal court or a DMV hearing for DUI.

Basically refusing to take a DUI chemical test is considered trying to hide that you were legally drunk when pulled over.

Will I Lose My Driver’s License for Refusing

Yes. Refusing the PBT preliminary breath test will result in the officer confiscating the suspected DUI defendant’s license.

Failing to take the evidentiary breath or blood test will result in the loss of license for 1 to 3 years.

License Revocation Periods

Failing to take the (PBT) Preliminary Breath Test

The officer will confiscate the license until further tests are performed or a DMV hearing determines the case.

Failing to take the evidentiary breath or blood test

  • 1 year license suspension if the defendant has no prior revocations in the last 7 years due to failure to agree to the tests.
  • 3 years driver’s license revocation if the defendant has refused a DUI evidentiary test in the past 7 years and has a previous revocation.

The license suspension for refusing to take a breath or blood test is a separate penalty from having your license suspended for DUI.

These two penalties are to run consecutively, meaning if you are eventually convicted of refusal to take the test and first offense DUI, the minimum your license will be suspended will be 18 months. One year for the refusal and 6 months for the DUI.

DMV Hearings

Anytime your license is revoked in Nevada a resident of the state can and should request a DMV hearing to contest the revocation. This must take place within seven days of the citation or arrest.

DMV hearings are administrative hearings that are completely separate from criminal charges including DUI. They are much harder to win than criminal cases because the burden of proof is much lower than a criminal case.

A judge at a DMV hearing may rule against the defendant with very little evidence.

In the DMV hearing, the judge can use a refusal to take a breath or blood test as evidence against them.

You should always request a DMV hearing even if they are hard to win.

The DMV will impose the license revocation for a refusal even if:

  1. The defendant eventually passes the blood test and/or
  2. And DUI charges get dismissed

The DMV considers DUI and refusal of test two separate transgressions.

Can I Choose What Test I Take

Yes, as long as you are being charged with DUI for alcohol.

If you are suspected of being under the influence of drugs you will be given a blood test only because only a blood test can detect drugs.

If you’re suspected of DUI for alcohol you will have a choice between a blood or breath test.

When you are first pulled over and a preliminary breath test is administered there is no choice at the scene.

How Will Refusing Affect My Criminal Charges

Breath or blood test refusals can be used against you as evidence in a DUI criminal case.

If your attorney was trying to plead down your case to reckless driving they might not extend the offer because of your refusal.

If your DUI case goes to trial the prosecutor can argue that the defendant was refusing to test to hide the fact that they were in fact drunk or on drugs.

Refusal to take the blood or breath test is not an admission of guilt or evidence that you were actually drunk and cannot be the sole proof of DUI. If your tests come back negative then the DUI should be dropped and most likely the refusal but not always.

The DMV will still revoke your license for a refusal even if your DUI charges are dropped.

The Defenders Nevada’s DUI Defense Lawyers

If you have been suspected and charged with a DUI or have refused to take the evidentiary blood or breath test you’ll need a good lawyer immediately. Our team is here to help you during the entire process.

We will investigate your arrest and make sure the police administered all tests properly. We will try and get your charges reduced to reckless driving or have the charges against you dropped.

We will get the penalties reduced to the minimum possible even if you’re convicted of DUI.

Call The Defenders today if you have been suspected of DUI charges or have refused to take the chemical tests during a DUI arrest.

Practice Areas