If you were accused of refusing to submit to a blood or breath test, then contact an experienced criminal defense attorney at Gallo Law Office.
Attorney James C. Gallo is experienced in fighting DUI refusal cases to help his clients obtain the best possible results. 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.
Under certain circumstances, if you refuse to consent to take a blood or 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 an Implied Consent Refusal under Nevada law
If the allegation of refusing to take a blood or breath test is withheld, the DMV will revoke the individuals driving privileges for one full year.
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 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 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.
Find a Refusal DUI Attorney in Las Vegas, Nevada
If you were arrested for DUI and allegedly refused 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.