What if I refuse a blood or breath test in a Nevada DUI?

Refusing to take a breath or blood test after a Nevada DUI arrest may seem like a smart move, but it just makes your case more difficult to defend.

Consequences of Refusing

Warrant: The police will get a warrant for a forced blood draw and use “reasonable force” to restrain you.
Driver’s License Revocation: A refusal triggers a one-year driver’s license revocation whether or not your DUI charge is eventually dropped.
Proof of Guilt: At your DMV hearing and trial, prosecutors can use your refusal as evidence that you drove drunk or high.

Even if you agree to take a breath or blood test after initially refusing, the law still considers it a refusal.

Defenses to Refusals

No Refusal: You never refused to take a chemical test, and the police misconstrued your words or actions.
Incapacity: You were unconscious and therefore unable to refuse.
You Agreed to a Breath Test: As long as there was no suspected drug use, you can choose the breath test over the blood test.

In our experience handling Nevada DUI cases, chemical-test refusals are rarely as simple as an officer writing “refused” in a report. We have seen cases where drivers tried to cooperate but could not provide an adequate breath sample, where an officer misinterpreted a driver’s words or conduct as a refusal, or where questions arose about whether police properly explained the consequences of refusing.

That is why we examine the body-camera footage, police reports, testing procedures, and circumstances surrounding the alleged refusal rather than simply accepting the officer’s characterization of what happened.

In this article, our Las Vegas drunk driving lawyers will address the following key issues regarding chemical test refusals in Nevada DUI cases:

1. No Right To Refuse

Nevada law presumes you have given your “implied consent” to submit to breath or blood tests whenever police suspect you of driving under the influence. Though if police suspect you of driving under the influence of drugs, you must take the blood test since the breathalyzer (an Intoxilzyer 8000) detects only alcohol.

Police must inform you that your license will be revoked if you refuse to take the evidentiary breath or blood test. If you still refuse, the police will get a warrant authorizing them to constrain you and take a blood sample against your will.

Note that you are allowed to pay to have a qualified person of your own choosing administer an evidentiary breath or blood test in addition to the police-administered tests.¹

preliminary breath test being administered by police officer to a dejected DUI suspect — Refusing an evidentiary blood test in Nevada carries a 1-year revocation of your driver’s license.

2. License Revocations

Even if your DUI criminal charges get dropped in Nevada, your driver’s license remains revoked because you refused the test. The length of the revocation depends on whether you have past refusals:

First-time refusals (in a 7-year period) trigger a 1-year license revocation; and
Subsequent refusals (in a 7-year period) trigger a 3-year license revocation.

When the police confiscate your license after your alleged refusal, they give you a temporary license valid for only seven days. Before those seven days are up, we must request a DMV hearing to contest your license suspension.

Once we request the hearing, you can continue driving on the temporary license pending the hearing results. If no hearing is requested, the revocation takes hold after the seventh day.

A DMV hearing is an administrative proceeding that is entirely separate from any criminal DUI charges. DMV hearings are tougher to win than criminal trials because the state’s burden of proof is very low. Plus, the judge can weigh your refusal to take a breath or blood test against you.

Note that a license revocation for refusing to take a chemical test is a separate penalty from a license revocation for driving under the influence. Therefore, these two revocations run consecutively (one after the other).

Example: Josh gets arrested for a first-time DUI, which carries a 185-day driver’s license revocation. Josh refuses to submit to any tests, which carries a one-year revocation. So Josh faces a license revocation of one year plus 185 days.

Note that if it were John’s second-time DUI in seven years, he would face a license revocation of one year (for the refusal) plus another year (for the second DUI). If it were John’s third-time DUI in seven years, he would face a license revocation of one year (for the refusal) plus three years (for the third DUI).

If you are an out-of-state driver who refused to take a chemical test in Nevada, your home state DMV will revoke your license if your state is part of the Interstate Driver’s License Compact. Contact a local attorney for more information.²

3. Trouble Giving Breath Sample

If you try to take an evidentiary breath test (EBT) but cannot provide an adequate breath sample, you will be asked to submit to a blood test. If you then refuse the blood test, Nevada law will consider this a “refusal.”³

In our experience, an inadequate breath sample rarely means that a driver was deliberately refusing to cooperate. We have seen situations where people genuinely tried to complete the breath test but had difficulty providing a sufficient sample.

When reviewing these cases, we look closely at how many attempts were made, what instructions the officer gave, whether the driver appeared to be making a good-faith effort, and what happened when blood testing was offered. These details can be important when showing that the police unfairly characterized the incident as a refusal.

Two police officers arresting a driver following a DUI investigation — Potential defenses to chemical test refusals are that the police committed misconduct or you were incapable of refusing.

4. Defenses to Refusals

The police might falsely claim that you refused a chemical test following your Nevada DUI arrest. Depending on the circumstances, we may be able to use the following arguments to show that you, in fact, consented:

You were willing to take an evidentiary breath test: This defense can work as long as the police did not suspect you were taking drugs and there was a working breathalyzer available.
You were incapable of refusing a chemical test: This defense may apply if you were knocked out from a car accident or sedated by medics, and the police drew blood while you were unconscious and therefore unable to refuse. This defense does not help if you are conscious, even if you are extremely drunk or high.
The police officer committed misconduct: Perhaps the police failed to inform you that refusing would result in a license revocation, or perhaps you never actually refused, and the officer misconstrued your actions. Or perhaps the officer failed to offer you the choice between a breath and blood test when you were entitled to the choice. Either way, the police’s neglect should negate your alleged refusal.

The above arguments are useful not only in DMV hearings: We can also raise them in criminal court in an effort to exclude (“suppress”) the state’s evidence that you refused the chemical tests.

Note that it is not a defense that the police misconstrued your silence, passive resistance, or ambiguous statements as a refusal. Nevada courts have construed the phrase “do what you have to do” as a refusal.⁴

5. If You Are Under 18 Or Have Medical Conditions

Being a minor does not exempt you from Nevada DUI chemical test requirements: You still have to take a breath or blood test following a DUI arrest. Learn more about underage DUI laws.

If you are a hemophiliac or have a heart condition requiring the use of an anticoagulant, you can take a breath test but are not required to take a blood test.

Police are allowed to administer breath tests on you if you have asthma; however, we can try to invalidate the result by arguing that you could not provide an adequate breath sample. Learn more about how medical conditions can cause false breathalyzer results.

Note that anyone who died from a car crash will have their blood drawn by a coroner within eight hours of the accident.⁵

Needle going into an arm during a blood draw after a DUI arrest — In Nevada, DUI arrestees are required to take a breath or blood test.

6. The Preliminary Breath Test

When a Nevada police officer pulls you over, they may ask you to submit to a preliminary breath test (PBT). The purpose of the PBT is to help the police determine whether there is probable cause that you are drunk. The following blood alcohol content (BAC) readings are “per se” unlawful:

0.08% for regular adult drivers and
0.04% for commercial drivers

(If you are under 21, you face an administrative 90-day driver’s license suspension for driving with a BAC of .02% to less than 0.08%)

PBTs are mandatory like the breath or blood test following a DUI arrest. If you refuse the PBT, the officer will immediately seize your driver’s license and arrest you for DUI. Plus, prosecutors may use the refusal as evidence against you in a DUI trial and DMV hearing.⁶

If you try in good faith to provide a breath sample but are unsuccessful, police consider this a “technical refusal” (also called a “machine refusal”). Depending on the case, we may be able to show the judge that the police were wrong to arrest you based on an incomplete breath test.

7. No Right To Attorney For Testing

You do not have the right to consult with a Nevada DUI attorney prior to submitting to the preliminary breath test or the evidentiary breath or blood tests. Therefore, you should exercise your right to remain silent.⁷

We have seen cases where drivers, unsure of what to do, make statements or ask questions that later become part of the evidence against them. When reviewing a DUI case, we examine not only the chemical-test results but also what the driver said, what officers asked, and whether the driver’s rights were respected throughout the investigation.

DUI suspect submitting to a breath test following a DUI traffic stop — You do not have the right to consult with an attorney before taking a breath or blood test.

8. When There Is No Refusal

Suppose you are arrested for DUI in Nevada and agree to take the breath test. In that case, the police will confiscate your license immediately (assuming your BAC result is unlawful) and give you a seven-day temporary permit.

Though if you opt for the blood test, you get to keep your license until the DMV mails you a notice that your blood showed unlawful levels of drugs or alcohol. That mailing will also include a seven-day temporary permit.

We must request a DMV hearing within those seven days, or your license revocation begins on the eighth day. If we request a DMV hearing in time, you can continue driving pending the hearing’s outcome.

Even if we lose the hearing, you may be able to continue driving during your revocation with an ignition interlock device (IID) installed in your vehicle.

Doctor in white coat and gloves taking blood against the patient's will. — Police may force you to take a blood test if you refuse following a DUI arrest.

Frequently Asked Questions

Can I change my mind after refusing a DUI chemical test in Nevada?

Possibly, but acting quickly matters. If you initially refuse and then agree to testing, whether your change of mind prevents the incident from being treated as a refusal can depend on the circumstances, including how much time has passed and whether police have already begun the warrant process.

We can review the timeline and determine what effect your initial refusal may have on your case.

Is refusing a breath or blood test a separate crime in Nevada?

Generally, refusing an evidentiary chemical test is not itself a separate DUI offense. However, a refusal can result in a driver’s license revocation and may be used as evidence against you in the DUI case. Police may also obtain a warrant for a blood draw despite your refusal.

Can prosecutors use my refusal against me at a DUI trial?

Yes. Nevada law generally permits evidence of a chemical-test refusal to be introduced in a DUI case. Prosecutors may argue that the refusal shows consciousness of guilt. However, we can challenge that interpretation and present the circumstances surrounding the alleged refusal.

What if I was physically unable to provide a breath sample?

Being unable to produce an adequate breath sample is not necessarily the same as intentionally refusing to cooperate. Police may require you to submit to a blood test instead. If you refuse the blood test, however, Nevada can treat that as a chemical-test refusal.

In our experience, details such as your efforts to complete the breath test, the officer’s instructions, and any documented difficulties can become important evidence.

Can I refuse a blood draw if I am afraid of needles?

A fear of needles generally does not give you a legal right to refuse an evidentiary blood test when Nevada’s implied-consent requirements apply. Depending on the circumstances, police may obtain a warrant authorizing a blood draw despite your objection.

Does refusing a chemical test automatically mean I will be convicted of DUI?

No. A chemical-test refusal does not automatically establish that you were driving under the influence. The prosecution still has to prove the DUI charge.

We may challenge other evidence, including the traffic stop, field sobriety tests, officer observations, blood-test procedures, and the circumstances surrounding the alleged refusal.

Can I challenge a license revocation for refusing a chemical test?

Yes. You may be able to contest the revocation through the Nevada DMV’s administrative hearing process. Note that DMV hearings are harder to win than criminal trials because the state’s burden of proof is very low.

What happens if police obtain a warrant after I refuse?

A judge may issue a warrant authorizing police to obtain a blood sample. Once a valid warrant has been issued, officers can generally have the blood drawn even without your consent.

We can examine whether the warrant was legally supported and whether officers and medical personnel complied with the applicable requirements when obtaining and testing the sample. It is not uncommon for them to make mistakes.

Additional Reading

For additional information, our Las Vegas criminal defense attorneys suggest you refer to our related articles:

Getting charges for “driving under the influence” reduced to reckless driving – When the D.A. may be willing to drop DUI charges to a lesser offense.
Can police do a forced blood draw in a Nevada DUI arrest? – Why refusing a chemical test will result in a forced blood draw.
Do I need an “ignition interlock device” after a DUI in Nevada? – How you can keep driving with an IID.
Nevada DUI court process – arrest to trial – Step-by-step overview of DUI cases.
Out-of-state visitors who get a Nevada DUI arrest – Help for non-Nevada residents.

Legal References

See NRS 484C.150; NRS 484C.160. NRS 484C.180. NRS 484C.240. State v. Smith (Nev. 1989) 774 P.2d 1037 (“[T]he law recognizes the driver’s right to refuse his consent, but penalizes him for exercising that right by revoking his license…The fact of his refusal can be introduced against him in an administrative or criminal proceeding…”By striking this balance, the statute motivates drivers to take the test, but does so without resorting to physical compulsion.”). Note that if you choose to take a blood test when breath-testing equipment is readily available, you will be charged fees if you are ultimately convicted of DUI. Also note that if you are suspected of drugged driving, the police may require you to take a blood test, a urine test, or both. Though if the police suspect you are DUI of marijuana, you must take a blood test and not a urine test. Nevada Assembly Bill 135 (2017). Department of Motor Vehicles & Pub. Safety v. Dunn (Nev. 1993) 854 P.2d 858 (“No statute, however, requires a police officer to explain the possible durations of a license revocation.”). Missouri v. McNeely (2013) 569 U.S. 141. See also State v. Eighth Jud. Dist. Ct. (Kirk, Jr.) (2025) 141 Nev. Adv. Op. No. 60 (re. obstructive behavior).
NRS 484C.210. NRS 484C.230. NRS 484C.240. NRS 483.460.
Department of Motor Vehicles & Pub. Safety v. Pida (1990) 106 Nev. 897 (“[The defendant] initially blew into the breathalyzer, but failed to continue…After the third failure to complete the test, the officers decided to revoke [the defendant’s] driving privileges for failure to submit to an evidentiary test.”). NRS 484C.240.
NRS 484C.160. Higgins v. State, Dep’t of Motor Vehicles (Nev. 1985) 706 P.2d 506 (“Considering the objective factors, namely, the circumstances of the accident, appellant’s multiple serious injuries, sedated condition, and general incoherency, along with uncontradicted medical testimony, we conclude that she was incapable of refusing to submit to the required evidentiary test.”). State, Dep’t of Motor Vehicles & Pub. Safety v. Brown (Nev. 1988) 62 P.2d 882 (“We must conclude…that voluntary intoxication, even when grossly excessive, cannot fairly be included in the same semantic category with unconsciousness and death…We believe that to allow a driver’s culpability to decrease as his state of intoxication increases offends not only the legislative policy behind Nevada’s implied consent statute but common sense as well…we join the numerous jurisdictions that have interpreted statutory provisions…to preclude voluntary intoxication, by itself, as a condition rendering a driver incapable of refusal.”). Department of Motor Vehicles & Pub. Safety v. Becksted (1991) 813 P.2d 995 (“Voluntary intoxication, by itself, may not render an individual incapable of refusing to take an evidentiary test…The present ambiguity stems from the meaning of respondent’s statement: “Well do what you have to do.” Such a statement could mean “do the blood test” or it could mean “take away my license.” The administrative officer was in the best position to determine what respondent meant by that statement. The administrative officer determined that respondent did not consent to an evidentiary test, and we conclude that his decision was supported by substantial evidence.”). State, Dept. of Motor Vehicles and Public Safety v. Root (Nev. 1997) 944 P.2d 784 (“An initial refusal to take such a chemical sobriety test is final; the suspect cannot “cure” this refusal by making a subsequent request to take a test.”). Schroeder v. State, Dep’t of Motor Vehicles & Pub. Safety (Nev. 1989) 772 P.2d 1278 (“Other states hold that an initial refusal to take a chemical sobriety test is final, and thus, the accused has no right to “cure” the original refusal…We cannot reasonably expect the arresting officer to consider a refusal as conditional, one that could be withdrawn at any time, and compel him to remain near the arrested person for an extended period of time.”). State, Dep’t of Motor Vehicles & Pub. Safety v. Dunn (Nev. 1993) 854 P.2d 858 (“Assuming, without deciding, that a police officer’s misleading or confusing explanation of the implied consent law may excuse a person’s refusal to submit to an evidentiary test for the purpose of license revocation, we nevertheless conclude that the district court erred in reversing the hearing officer’s decision.”). Department of Motor Vehicles & Pub. Safety v. Brough (Nev. 1990) 796 P.2d 1089 (“‘Whether the declination is accomplished by verbally saying, “I refuse,” or by remaining silent and just not breathing or blowing into the machine, or by vocalizing some sort of qualified or conditional consent or refusal, does not make a difference.'”).
NRS 484C.160. See Bruce W. Nelson, DUI Prosecutors Manual, p. 63 (2017). NRS 484C.170.
NRS 484C.150. State v. Sample (2018) 414 P.3d 814 (In this case, the police arrested the suspect prior to administering the PBT: “Because the PBT was not administered pursuant to a warrant or an exception to the warrant requirement, we conclude that the district court properly suppressed the PBT evidence as an unconstitutional search.”).
See Sixth Amendment. McCharles v. State, Dep’t of Motor Vehicles (Nev. 1983) 673 P.2d 488 (“[S]ince the driver has already impliedly consented to submit to the test by driving in Nevada, an attorney could not properly have advised the driver that he has the right to refuse.”). Schroeder v. State, Dep’t of Motor Vehicles & Pub. Safety (Nev. 1989) 772 P.2d 1278 (“Because the right to counsel does not attach in implied consent situations, any response conditioned upon obtaining the advice of an attorney amounts to a refusal to take the test.”). See Miranda v. Arizona (1966) 384 U.S. 436.