Updated September 1, 2026

Refusing a breathalyzer test during a Nevada DUI investigation can have serious consequences, but what happens next depends on which breath test you refuse.

Nevada law distinguishes between a preliminary breath test that an officer may request during a roadside DUI investigation and an evidentiary chemical test requested after an arrest. Refusing a preliminary roadside test can lead to arrest if the officer otherwise has reasonable grounds, while refusing a required evidentiary test can result in a driver's license revocation and may be used as evidence in a criminal or administrative proceeding.

Understanding this distinction is important if you have been arrested for DUI after refusing chemical testing in Nevada.

Preliminary vs. Evidentiary Breath Tests in Nevada

The term "breathalyzer" is commonly used to describe different types of breath testing, but Nevada law treats preliminary and evidentiary testing differently.

Preliminary Breath Test

Under NRS 484C.150, a driver is deemed to have consented to a preliminary breath test when an officer has reasonable grounds to believe the person was driving or in actual physical control of a vehicle while under the influence or engaging in other conduct prohibited by Nevada's DUI laws.

This test is typically used during the roadside investigation.

If a driver fails to submit to the preliminary test and the officer otherwise has reasonable grounds, the officer may arrest the driver and take the person to a location where a reasonably available evidentiary test can be administered.

Importantly, the result of the preliminary breath test generally cannot be used in a criminal action except to establish that the officer had reasonable grounds to make the arrest.

Evidentiary Chemical Test

NRS 484C.160 addresses evidentiary chemical testing.

A person who drives or is in actual physical control of a vehicle on a Nevada highway or premises to which the public has access is generally deemed to have consented to an evidentiary test when a police officer has the required reasonable grounds.

Depending on the circumstances, the test may involve breath, blood, urine, or another bodily substance.

Refusing this required evidentiary test carries more significant driver's license consequences.

Nevada's Implied Consent Law

Nevada's implied consent law means that operating or being in actual physical control of a vehicle under the circumstances covered by NRS 484C.160 carries legal consequences if a driver refuses a properly requested evidentiary chemical test.

Before requesting the evidentiary test, the police officer must inform the person that their driver's license, permit, or privilege to drive will be revoked if they fail to submit.

This does not mean that officers can administer any test under any circumstances. Nevada law establishes requirements concerning when testing may be requested, what types of tests may be used, and what happens following a refusal.

What Happens If You Refuse a Roadside Breath Test?

Refusing a preliminary roadside breath test does not produce exactly the same consequences as refusing an evidentiary chemical test.

Under NRS 484C.150, if you fail to submit to the preliminary test and the officer otherwise has reasonable grounds to believe you were driving under the influence or engaging in other prohibited conduct, the officer can arrest you and take you to a location for an evidentiary test.

In other words, refusing the roadside breath test does not necessarily prevent law enforcement from obtaining chemical evidence later.

The officer may continue the DUI investigation based on other evidence, including driving behavior, physical observations, statements, field sobriety testing, and other circumstances surrounding the stop.

What Happens If You Refuse an Evidentiary Breath Test?

Refusing a required evidentiary test under NRS 484C.160 can trigger an administrative driver's license revocation.

Under NRS 484C.210, a person who fails to submit to the required evidentiary test is generally ineligible for a driver's license, permit, or driving privilege for:

• One year for a refusal; or
• Three years if the person's driving privilege was revoked during the immediately preceding seven years for a previous failure to submit to an evidentiary test.

These administrative consequences are separate from the criminal DUI case.

That means a person can face a license revocation for refusing an evidentiary test even if the DUI charge is later reduced, dismissed, or otherwise resolved separately.

Can Police Force a Blood Draw After You Refuse?

In certain circumstances, police may seek judicial authorization to obtain a blood sample after a person refuses a required evidentiary test.

Under NRS 484C.160, if a person fails to submit to a required test and the officer has the necessary reasonable grounds, the officer may apply for a warrant or court order authorizing reasonable force to obtain blood samples.

A refusal therefore does not necessarily prevent law enforcement from obtaining chemical evidence.

Whether a blood draw was lawfully obtained can become an important issue in a DUI case. A defense attorney may examine whether the officer had sufficient grounds, whether a valid warrant or court order was obtained when required, and whether the blood sample was collected and handled according to applicable procedures.

Can Your Refusal Be Used Against You?

Yes. Nevada law specifically allows evidence of refusal to submit to a required chemical test to be admitted in certain criminal and administrative proceedings.

Under NRS 484C.240, evidence that a person refused a required chemical test may be admissible in proceedings arising from alleged DUI-related conduct.

However, it is better to say that the refusal itself may be admitted as evidence rather than automatically characterizing it as proof that the driver knew they were intoxicated.

The prosecution may argue about the significance of the refusal, while the defense may challenge the circumstances surrounding the request, the warnings given by the officer, and other aspects of the testing process.

Does Refusing a Breathalyzer Automatically Mean You Are Guilty of DUI?

No.

Refusing a breath test does not automatically establish that a person was driving under the influence. The prosecution still must establish the elements of the DUI offense.

At the same time, refusing testing does not prevent a DUI prosecution.

Law enforcement and prosecutors may rely on other evidence, such as:

• The officer's observations of the driver's behavior and appearance
• Driving patterns before the traffic stop
• Statements made by the driver
• Field sobriety test performance
• Witness statements
• Video evidence
• Chemical testing obtained through another lawful method

The strength of a DUI case therefore depends on the totality of the available evidence rather than the refusal alone.

Can You Challenge a License Revocation After Refusing a Test?

A driver's license revocation following a refusal is an administrative matter that is separate from the criminal DUI prosecution.

Nevada drivers generally can challenge certain DMV revocations through the Nevada Department of Motor Vehicles' Office of Administrative Hearings.

An administrative hearing can address whether the legal requirements supporting the revocation were satisfied.

Because the DMV process is separate from the criminal case, successfully defending one proceeding does not necessarily determine the outcome of the other.

Drivers facing a refusal-related revocation should pay careful attention to the instructions and deadlines contained in their DMV notices rather than assuming that the criminal court will automatically resolve the driver's license issue.

Can You Get a Restricted License After a Refusal?

Nevada law provides an ignition interlock option in connection with certain DUI-related revocations.

The Nevada DMV currently states that early reinstatement may be available before the full revocation period ends when the driver installs an approved ignition interlock device and satisfies the applicable reinstatement requirements.

Eligibility and requirements can depend on the specific revocation and the person's circumstances.

Drivers should confirm their eligibility with the Nevada DMV before driving because operating a vehicle while a license is revoked can lead to additional serious consequences.

What Happens After a DUI Arrest Involving a Refusal?

A DUI arrest involving refusal can lead to two separate proceedings.

Criminal DUI Case

The criminal case determines whether the prosecution can prove the DUI charge and what criminal penalties, if any, apply.

A defense attorney may examine issues such as:

• Whether the traffic stop was lawful
• Whether the officer had reasonable grounds for the arrest and testing request
• Whether field sobriety tests were administered appropriately
• Whether chemical testing procedures were followed
• Whether a warrant or court order for a blood draw was legally sufficient
• Whether breath-testing equipment was properly calibrated and maintained
• Whether other evidence supports or contradicts the prosecution's allegations

DMV Administrative Case

The Nevada DMV proceeding concerns the person's driving privileges.

A refusal-related driver's license revocation can occur independently of the outcome of the criminal DUI prosecution. The issues and procedures involved in an administrative hearing differ from those involved in criminal court.

Can You Request Your Own Chemical Test?

Yes.

Under NRS 484C.180, a person arrested for DUI must, upon request and at their own expense, be given a reasonable opportunity to have a qualified person of their choosing administer an independent chemical test.

However, an independent test does not replace the evidentiary test required by Nevada's implied consent law.

This can be an important distinction for someone who wants independent evidence concerning their blood alcohol concentration or the presence of another substance.

Do You Have the Right to Speak to an Attorney Before Taking the Test?

A DUI investigation can move quickly, and drivers should not assume that requesting an attorney automatically delays the evidentiary testing process.

Nevada's implied consent statutes impose specific requirements concerning evidentiary testing and refusal. A driver who has already been arrested should seek legal advice as soon as reasonably possible, particularly if a refusal has resulted in a license revocation or DUI charge.

Penalties for a DUI Conviction in Nevada

The consequences of refusing an evidentiary test are separate from the penalties that may result from a DUI conviction.

Depending on the driver's prior DUI history and the circumstances of the case, a Nevada DUI conviction may involve consequences such as:

• Jail or other court-ordered confinement
• Fines and assessments
• DUI education or treatment
• Victim impact requirements
• Driver's license revocation
• Ignition interlock requirements
• Additional penalties for repeat offenses or cases involving serious injury or death

The exact penalties depend on the offense and the person's history.

For example, Nevada DMV information currently lists a minimum 185-day license revocation for a first DUI, a one-year revocation for a second DUI within seven years, and a three-year revocation for a third DUI within seven years.

These DUI conviction consequences should not be confused with the separate one-year or three-year administrative revocation that can result from refusing an evidentiary chemical test.

Frequently Asked Questions

Is refusing a breathalyzer a crime in Nevada?

Refusing a breath test should not automatically be described as a separate criminal offense. However, refusing a required evidentiary chemical test can result in driver's license revocation, and evidence of the refusal may be admissible in a DUI-related criminal or administrative proceeding.

Can I refuse a roadside breath test in Nevada?

If you fail to submit to a preliminary breath test and the officer otherwise has reasonable grounds to believe you were driving under the influence or engaging in other prohibited conduct, NRS 484C.150 allows the officer to arrest you and take you for a reasonably available evidentiary test.

How long will I lose my license for refusing an evidentiary test?

A refusal generally results in one year of ineligibility for a driver's license or driving privilege. If you had a refusal-related revocation during the immediately preceding seven years, the period is generally three years.

Is refusing a breath test the same as refusing a blood test?

The rules depend on which evidentiary test is requested and why. Nevada law has specific provisions governing when police may request breath, blood, urine, or other bodily-substance tests. In certain circumstances, a person may refuse a blood test when a breath test is reasonably available.

Can police get my blood after I refuse?

Potentially. When the statutory requirements are met, an officer may apply for a warrant or court order authorizing reasonable force to obtain blood samples after a person fails to submit to a required test.

Can my refusal be used against me in court?

Yes. NRS 484C.240 provides that evidence of refusal to submit to a required chemical test may be admissible in criminal or administrative proceedings arising from certain DUI-related conduct.

Does refusing a breathalyzer prevent a DUI conviction?

No. Prosecutors may rely on other evidence to establish DUI, including officer observations, driving behavior, statements, field sobriety testing, witness testimony, video evidence, and lawfully obtained chemical evidence.

Can I challenge the DMV revocation?

Nevada DMV provides an administrative hearing process through which drivers can challenge qualifying driver's license revocations. The administrative proceeding is separate from the criminal DUI case.

Can I get my license back before the refusal revocation ends?

Early reinstatement may be available in certain DUI-related revocation cases through installation of an approved ignition interlock device and satisfaction of Nevada DMV requirements. Eligibility depends on the particular circumstances.

Can I request my own blood or breath test after being arrested?

Yes. Under NRS 484C.180, an arrested person may request, at their own expense, a reasonable opportunity to have a qualified person of their choosing administer an independent chemical test. The independent test does not substitute for the evidentiary test required under Nevada law.

Facing a DUI Charge After Refusing a Breath Test?

Refusing a breathalyzer in Nevada does not make a DUI case disappear. Depending on whether the test was preliminary or evidentiary, a refusal can lead to arrest, a separate driver's license revocation, admissible evidence in the DUI case, and potentially a court-authorized blood draw.

Because the criminal DUI case and the DMV driver's license proceeding involve different issues, it is important to understand how both may affect your situation.

If you were arrested for DUI after refusing a breath or other chemical test, Gallo Criminal Defense Las Vegas can review the traffic stop, testing request, refusal, chemical evidence, and driver's license consequences involved in your case.

Contact Gallo Criminal Defense Las Vegas today for a free consultation about your Nevada DUI case.