DUI Refusal in Las Vegas, Nevada
If you were accused of refusing to submit to the preliminary breath test (PBT) at the roadside or the evidentiary testing at the station, then contact an experienced criminal defense attorney at Gallo Law Office.
In many of these cases, the prosecutor will seek to admit evidence about the "refusal" at trial under 484C.240 to show that the person refused because he or she was conscience of guilt. In other words, the person refused to submit because he or she thought that the test would show the presence of drugs or an alcohol concentration over .08. Of course, other reasons exist for not wanting to be subjected to invasive chemical testing.
Attorney James C. Gallo is experienced in fighting DUI refusal cases to help his clients obtain the best possible results. Find out what you need to do to fight both the administrative suspension at the DMV. Also, get more information about fighting the criminal charges in the courtroom throughout the City of Las Vegas, the City of North Las Vegas, the City of Henderson and the Clark County Township. Call (702) 385-3131 to discuss your case.
Nevada’s Implied Consent Statute
Nevada's implied consent statute, NRS 484C.160(1), provides that through the act of driving a vehicle, the person “shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath” if there is reasonable grounds to believe that the person was driving while intoxicated.
One exception to this general rule is contained in NRS 484C.160(4)(a) which provides that if an evidentiary test is to be conducted the person may refuse to submit to a blood test if means are reasonably available to perform a DUI breath test.
Additionally, you can request a blood draw instead of taking the breathalyzer, but the law enforcement officer is allowed to charge you for the blood test if a breath test is available. You are also allowed to request that a qualified chemical tester of your choosing administer an independent test of your blood. The independent chemical test can be used to show problems with the accuracy of the other tests. See NRS 484C.180.
The implied consent rules apply to both the preliminary breath test (PBT) and the evidentiary breath test (breathalyzer). Under certain circumstances, if you refuse to take the breath test, the officer can get a warrant and use “reasonable force” to pierce your skin and take your blood. See NRS 484C.160).
Consequences of a DUI Refusal under Nevada law
Under Nevada law, serious consequences attach to the decision not to take a chemical test when requested. NRS 484C.160(7). In some cases, the person will initially refuse and then change his mind and demand a test. Courts have found that a person cannot “undo” the refusal by making a subsequent request to take a test. Schroeder v. State, Dep't of Motor Vehicles, 105 Nev. 179, 182, 772 P.2d 1278, 1280 (1989).
An officer can find that a refusal occurred both from the defendant's statement or even the defendant's action. In some cases, the defendant will argue that he was unable to take the test and that the refusal was not intentional. In many of those cases, the refusal was based upon some physical factor such as the inability to urinate or a diminished lung capacity.
In some cases, if the person refuses to take a breath or blood test, Nevada Revised Statute Section NRS 484C.160(7) generally permits the law enforcement officer to use "reasonable force" to obtain a blood sample from the defendant. The statute does not address taking breath by force because obtaining a breath sample by force is basically impossible.
The statute does not define the term "reasonable force" for a blood draw but it may include the force necessary to obtain the sample when the subject resists such as using restraints or holding down the person. Many recent decisions show that a warrant is required before a forced blood draw under Nevada law and the United States Constitution.
Nevada's Definition of Under the Influence (UDI)
Even without a breath, blood or urine test, the prosecutor can still attempt to prove DUI under NRS 484C.110(a). This form of DUI prohibits driving “under the influence of intoxicating liquor.” The term "under the influence" is not defined under NRS 484C.110.
The judicial opinions that have addressed the meaning of this term have provided little guidance. In Sheriff, Clark County v. Burcham, 124 Nev. 1247, 1256, 198 P.3d 326, 332 (2008), the court found the meaning of UTI as a finding that the alcohol affected the defendant "to a degree that renders them incapable of safely driving or exercising actual physical control of the vehicle.” In turn, the phrase “incapable of safely driving” was not defined.
In an unpublished decision, City v. Rhymer, No. 30730 (June 23, 1998), the court defined "Incapable of safely driving" as requiring a showing that the driver's "mental or physiological functions are diminished so that the risk of an accident is unreasonably increased."
The DUI Refusal as "Conscientiousness of Guilt"
Additionally, the prosecutor is allowed to present testimony about the refusal to submit to chemical testing at trial. The refusal is deemed to be relevant as evidence that the person refused because they were conscious of their guilt. In other words, the prosecutor gets to argue that the evidence of the refusal shows that the person refused to take the test because he believed it would show he was over the legal limit.
Additionally, the refusal will lead to an administrative suspension of your license. If convicted in court, the refusal could also lead to a court-ordered suspension of your driver’s license.
Find a Refusal DUI Attorney in Las Vegas, Nevada
If you were arrested for DUI and allegedly refused either the preliminary breath test (PBT) at the roadside, or the evidentiary breath or blood test, then contact an experienced DUI attorney in Las Vegas, NV. For a DUI refusal case in the City of Las Vegas, the City of North Las Vegas, the City of Henderson or the Clark County Township, call James C. Gallo to discuss your case.
At Gallo Law Office the attorney has experience in fighting DUI refusal cases. Although the prosecutor might argue that the refusal was evidence of a guilty conscience, the defense attorney can show other reasons that an innocent person might refuse invasive testing.
Article last updated on Friday, June 19, 2015.