Under Nevada law, people can be convicted of DUI for driving with a BAC (blood alcohol content) of at least 0.08%. Commercial drivers have a lower BAC limit of at least 0.04%. Even if you are operating the vehicle safely, driving with an illegal BAC is DUI per se.
Meanwhile, drivers with BACs below these 0.08% and 0.04% limits can still be convicted of DUI. Prosecutors would just have to prove they were under the influence of alcohol.
Underage motorists are subject to Nevada’s separate zero-tolerance rule: Drivers under 21 with a BAC of at least 0.02% but less than 0.08% face a 90-day driver’s license suspension, even if they are never criminally convicted of DUI.1
| Defendant | Nevada BAC Threshold |
| Most drivers | 0.08% – Per se DUI threshold |
| Commercial drivers | 0.04% – Per se commercial DUI threshold |
| Drivers under 21 | 0.02% to under 0.08% – 90-day administrative driver’s license suspension |
| All drivers | No BAC threshold – Drivers face a DUI conviction if evidence proves they were under the influence |
If you are arrested for DUI, you can elect to take a breath test or a blood test to measure your BAC. If you refuse both, the officer can get a warrant to administer a blood test forcibly.
In our experience handling Nevada DUI cases, the BAC number is only the starting point. We look closely at how and when the breath or blood sample was taken, whether the testing procedures were followed, whether the equipment and records support the reported result, and what the other evidence shows about the driver’s condition. Often the BAC does not tell the whole story.
In this article, our Las Vegas DUI attorneys address the following BAC topics:
- 1. “BAC” Defined
- 2. Breath & Blood Tests
- 3. False Results
- 4. Two-Hour Rule
- 5. Sober With An Illegal BAC
- 6. Drunk With A Legal BAC
- 7. Lead-Up to the Tests
- 8. Refusing the Tests
- 9. DUI Penalties
- Frequently Asked Questions
- Additional Resources
1. “BAC” Defined
BAC stands for blood alcohol content. This also goes by
- “blood alcohol concentration” or
- “blood alcohol level.”
Specifically, a BAC is the number of grams of alcohol per 100 milliliters of blood or 210 liters of breath, expressed as a percentage.
In short, BAC is the quantity of alcohol in your blood. Therefore, your level increases the more alcohol you drink.2
2. Breath & Blood Tests
Under Nevada’s implied consent laws, you are required after a DUI arrest to submit to an evidentiary (“chemical”) breath test or blood test to measure your BAC.
You can choose which test to take unless the police suspect drugged driving from marijuana or other controlled substances: In that case, you must take the blood test since breath tests do not detect drugs.3
Breath tests and blood tests each have their pros and cons, as the following table shows:
| DUI Breath Tests | DUI Blood Tests | |
| Comfort level | Painless and non-invasive | Painful and invasive |
| Difficulty level | Can be challenging to exhale hard enough for the machine to read your alveolar deep lung air | Effortless since the phlebotomist does all the work |
| Speed of test | A few seconds | A few minutes |
| Speed of results | Immediate | Several weeks |
| Accuracy | Not as accurate as blood | Mostly accurate |
| Option for independent retesting | No | Yes (called “blood splits”) |
| Driver’s license confiscation | Immediately after the test | Not until the results come back |
Note that when your BAC results come back as 0.08% or higher, you are given a temporary seven-day driver’s license and the opportunity to contest your driver’s license revocation at a Nevada DMV hearing. If you do not request a hearing within those seven days, your license is automatically suspended for the statutory time period:
| Nevada DUI Offense (within 7 years) | License Revocation |
| First-time DUI | 185 days |
| Second-time DUI | 1 year |
| Third-time DUI | 3 years |
3. False Results
Evidentiary breath and blood tests following a Nevada DUI arrest can return false results. Potential issues may include:
- improper calibration or maintenance of a breath-testing device,
- failure to follow required breath-testing procedures,
- mouth alcohol or other medical circumstances (such as acid reflux) affecting a breath sample,
- problems with the collection of a blood sample,
- improper labeling, storage, or handling of blood evidence,
- chain-of-custody problems,
- laboratory testing errors, and
- questions concerning the qualifications or procedures of the person who collected or analyzed the sample.
Our job is to investigate the testing records and procedures instead of assuming the reported BAC number is automatically correct. Depending on the circumstances, we can challenge improperly obtained or unreliable evidence through a motion to suppress evidence or other pretrial litigation.
Example: Ben chooses to take a blood test after getting arrested for DUI in Las Vegas. The BAC result is .15%. While Ben’s defense attorney is investigating the case, he discovers that the phlebotomist who took the blood let his license lapse a year ago. He informs the Clark County District Attorney, who then agrees to reduce the DUI charge to reckless driving.
4. Two-Hour Rule
In Nevada, you can be convicted of drunk driving for having a BAC of .08% or higher at any time within the two hours after you stop driving. The two-hour rule comes from NRS 484C.110:
1. It is unlawful for any person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath; or
(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his or her blood or breath
to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.
So even if your BAC is legal for all but one minute of the two hours after you stopped driving, you can still face DUI charges if the police happen to test you during that one minute your BAC is illegal.
Example: At 10pm, a police officer sees Jack swerving down a residential street before he parks in front of his home and goes in. The officer knocks on Jack’s door and smells alcohol when Jack appears. Jack then fails the preliminary breath test and field sobriety tests, which gives the officer probable cause to arrest Jack for DUI. The officer books Jack, and at midnight he provides breathalyzer samples of .08%. Here, the D.A. can charge Jack with DUI because his BAC came back as illegal within two hours of him driving.
If police fail to administer an evidentiary test within the two-hour window, prosecutors can still use the results as evidence in a DUI trial. However, these “delayed results” may carry less weight than they would otherwise.4
5. Sober With An Illegal BAC
Many drivers hold their alcohol well and can still drive safely even with high blood alcohol levels. However, DUI law makes it a crime to drive with a BAC of .08% or higher, even if you are not impaired by alcohol.4
Many of our DUI clients fall into this category. They were driving safely but get pulled over for an unrelated traffic violation, such as a broken taillight. Then once the police officer smells alcohol, a DUI arrest is practically a given.
Note that blood alcohol level is influenced by such variables as:
- weight,
- gender,
- whether you have eaten or have an empty stomach,
- if you are dehydrated,
- whether you are ill or on certain medications,
- how long you were drinking, and
- the type of alcohol consumed.
Consequently, different people who drink the same amount of alcohol may show two completely different results. Furthermore, some “drinks” contain high alcohol levels and, therefore, raise your BAC faster:
| Type of Drink | Alcohol Content |
| Wine | 12% to 20% |
| Liquor (80 proof) | 40% |
| Beer | 4.5% to 7.5% |
In general, drivers with a BAC of .05% begin to display impaired vision, judgment, and coordination that may manifest as
- abrupt lane corrections,
- swerving, and
- compromised control over the vehicle.
If you suspect you’ve had too much to drink, consider using a designated driver or public transportation. You can always retrieve your car the next day. Plus, in a city like Las Vegas or Reno, you can always get a room to sleep it off.
Just be sure not to sleep in your car if you are intoxicated: That could subject you to a sleeping DUI.5
6. Drunk With A Legal BAC
Driving under the influence of alcohol is always a crime, no matter what your blood alcohol content is. So, you may be convicted of DUI for driving while impaired by alcohol even if your level is lower than .08%. These cases often involve people who are not used to drinking or who have a very slight physical frame.6
Example: Addalee is driving home from the Venetian, where she had a glass of champagne. Addalee never drinks and weighs only 100 pounds, so she gets intoxicated quicker than her friends. A LVMPD officer notices her car failing to maintain a lane and pulls her over. After Addalee fails the field sobriety tests, the officer arrests her and books her at the CCDC. There the officer administers a breath test, which returns a BAC of only .06%. She can still be convicted of DUI because the champagne compromised her ability to drive.
Our clients who fall into this category are typically “lightweights” who rarely drink and are reacting strongly to one or two glasses of wine at dinner.
7. Lead-Up to the Tests
A lot has to happen before you can take an evidentiary breath- or blood test in Nevada:
- The police pull you over because they have a reasonable suspicion you are violating traffic laws (such as by swerving or falling asleep at the wheel). Alternatively, the police arrive at the scene following an accident.
- The police ask you for your license, insurance, and registration. They also ask if you have been drinking.
- Meanwhile, the police are looking for signs of impairment: Bloodshot and glassy eyes, slurred speech, and the smell of alcohol and/or marijuana.
- If the police believe you might be intoxicated, they will ask you to submit to a mandatory preliminary breath test (PBT) with a roadside breathalyzer. Unlike evidentiary tests, PBT results cannot be used in court; the police use them only to determine whether you may be under the influence. If you refuse the PBT, the police will likely arrest you.
- The police will then ask you to perform three field sobriety tests: The Walk-and-Turn, the One-Legged Stand, and the Horizontal Gaze Nystagmus test (eye test).
If, at this point, the police have “probable cause” to believe you have committed DUI, they will arrest you and administer an evidentiary breath or blood test within two hours of your having driven.
If police fail to follow proper protocol and procedures, then it may be possible to get your BAC test results excluded as evidence. This could force the D.A. to reduce or dismiss your DUI charge for lack of proof.
Note that police do not have to read you your Miranda rights following your arrest unless they interrogate you. Most of the time, police ask you all their questions before arresting you so they can avoid reading your Miranda rights.
8. Refusing the Test
If you refuse to submit to an evidentiary breath or blood test following a Nevada DUI arrest, the police officer can ask a judge for a warrant to force you to submit to a blood test.
Next, the police will confiscate your license immediately. Then the Nevada DMV will revoke your license for one year. This revocation is extended to three years if you already had your license revoked due to refusing an evidentiary test in the last seven years.
Finally, if the DUI case goes to trial, the prosecutor can also use the refusal as evidence against you.7
Considering all the consequences of refusing an evidentiary test, it is best for DUI arrestees just to submit. The police will force a blood draw anyway.
9. DUI Penalties
Getting a DUI with a BAC of .16% or higher will trigger the following additional penalties for a first-time DUI:
- an alcohol/drug dependency evaluation,
- possibly treatment, and
- driving with an ignition interlock device (IID) for one to three years.
Otherwise, DUI penalties increase with each successive conviction, not by BAC level:
| Nevada DUI Offense | Nevada DUI Penalties |
| DUI 1st (in 7 years) | Misdemeanor:
The criminal record can be sealed 7 years after the conviction. |
| DUI 2nd (in 7 years) | Misdemeanor:
The criminal record can be sealed 7 years after the conviction. |
| DUI 3rd (in 7 years) | Category B felony:
The criminal record cannot ever be sealed. |
| DUI causing injury or death – NRS 484C.430 | Category B felony: Causing substantial bodily harm:
Causing death if you have no prior DUIs:
Causing death if you have one or two prior DUIs:
The criminal record cannot ever be sealed. |
Even if your license gets suspended, it may be possible to continue driving with an ignition interlock device. Learn more about DUI penalties.8
Frequently Asked Questions
Is 0.08% the legal limit in Nevada?
0.08% is Nevada’s per se BAC threshold for most drivers. However, calling it simply the “legal limit” can be misleading because you may still commit DUI with a BAC below 0.08% if you are under the influence of alcohol.
Clients arrested with a BAC of 0.08% have a higher chance of getting their charged reduced to reckless driving or dismissed than clients with a BAC of 0.10% or higher. This is because 0.08% is just “on the cusp” of what is illegal.
Can you get a DUI at 0.07% BAC in Nevada?
Yes. A BAC of 0.07% is below the general per se threshold, but Nevada separately prohibits driving while under the influence of intoxicating liquor. Other evidence of impairment can therefore support a DUI case even when your BAC is 0.07% or lower.
The majority of our clients have BACs that are 0.08% or higher. The truth is that most people with lower BACs drive unimpaired and therefore go undetected by the police.
Is a BAC of 0.08% automatically a DUI in Nevada?
Driving with a 0.08% or higher BAC is DUI per se in Nevada. However, criminal defense attorneys can still challenge the BAC results and raise non-BAC-related defenses such as:
- the police lacked reasonable suspicion to conduct the traffic stop;
- the police lacked probable cause to make an arrest; or
- the police gave incorrect field sobriety test instructions.
We tell clients never to assume their case is hopeless if they have an illegal BAC. There are many ways we can fight the charge in pursuit of a reduction or dismissal.
What is the BAC limit for a CDL driver in Nevada?
Under NRS 484C.120, Nevada’s per se BAC threshold for driving a commercial vehicle is 0.04%. A first “commercial DUI” carries a one-year CLD suspension (or three years if hazardous materials were being transported). A second “commercial DUI” carries a lifetime CLD suspension.
We understand that a commercial DUI can have devastating effects on our clients’ livelihoods. We make every effort to fight the charges so our clients can keep their CDL and their jobs.
What is Nevada’s BAC limit for someone under 21?
Under NRS 483.461, a driver under 21 who tests at 0.02% or higher but below 0.08% is subject to a 90-day administrative driver’s license suspension. The Nevada DMV can impose this suspension even if the underage driver is never criminally charged with DUI.
When a driver under 21 has a BAC of 0.08% or higher, they are prosecuted the same way as 21-plus adults are. That means a first-time DUI carries a license revocation of not 90 days but rather 185 days.
What happens if a 19-year-old has a 0.03% BAC in Nevada?
A 19-year-old driver with a BAC of 0.03% falls within Nevada’s under-21 administrative range of 0.02% or more but less than 0.08%. Under NRS 483.461, that can trigger a 90-day driver’s license suspension.
If the 19-year-old displayed signs of impairment while driving, they could face criminal DUI charges as well. Though this would be rare since a 0.03% BAC rarely impairs driving ability.
Does Nevada use blood BAC or breath BAC?
Nevada’s DUI statutes recognize alcohol concentrations measured through either blood or breath. The statutory 0.08% threshold refers to 0.08 gram or more of alcohol per 100 milliliters of blood or per 210 liters of breath.
In some cases of alleged driving under the influence of drugs (DUID), suspects may have to take a urine test if blood test equipment is unavailable, though this is rare.
Does a Nevada BAC test have to happen within two hours?
Nevada’s per se DUI statute specifically covers a BAC of 0.08% or higher that is measured within two hours after driving or being in actual physical control of a vehicle. A test obtained outside that period is not inadmissible, but its timing can affect how the evidence is used and evaluated.
In our experience, an evidentiary test that occurs outside the two-hour window is a very strong bargaining chip for getting a DUI charge reduced to reckless driving or even dismissed.
Can I be convicted if I drank alcohol only after I stopped driving?
Drivers who start drinking only after they stop driving but before they get tested can raise this as a defense to the two-hour rule. After all, they were never drunk driving.
In practice, we rarely have the opportunity to raise this defense. Once you get pulled over, the police are watching you closely and will not let you drink.
Can a Nevada DUI lawyer challenge a breath or blood test?
Yes. Depending on the evidence, a defense attorney may investigate the testing device, calibration and maintenance records, blood collection, laboratory procedures, chain of custody, timing of the test, and whether law enforcement followed required procedures. A reported BAC number does not prevent the defense from examining how that number was obtained.
Additional Resources
For more information, refer to the following:
- Alcoholics Anonymous – 12-step program for overcoming alcoholism.
- Drunk Driving Overview – NHTSA page on drunk driving statistics and prevention.
- Impaired Driving: Get the Facts – CDC fact sheet on impaired driving.
- DUI Laws – Nevada DMV page on driver license suspension for DUIs.
- MADD – Non-profit organization devoted to stopping drunk driving.
Legal References:
- NRS 484C.110. NRS 484C.120. NRS 483.461. See also Wright v. State DMV (2005) 121 Nev. 122; State v. Hiatt (1996) .
- Id.
- Id.
- Id. State v. Eighth Judicial Dist. Court of Nev. (Nev. 2021) 479 P.3d 1004 (“[T]he district court erroneously ruled that the delayed BAC results were categorically inadmissible. Thus, we…instruct the district court to appropriately consider the probative value and potential prejudicial effect of the evidence in the first instance to the charges the State has brought under NRS 484C.430(1)(a) and (b).“).
- See note 1.
- Id. See also Sereika v. State (1998) 114 Nev. 142.
- NRS 484C.160; NRS 484C.200; NRS 484C.210; NRS 484C.220; NRS 484C.240.
- NRS 484C.400; NRS 484C.410; NRS 484C.420; NRS 484C.430; NRS 484C.440; NRS 483.460.
