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

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

A refusal alone generally leads to license consequences rather than a separate criminal charge under Nevada's implied-consent statutes. It can also be used as evidence in the DUI case. Separate conduct, such as assaulting an officer, can raise additional criminal issues. We look at the exact conduct alleged so you understand which consequences come from the refusal and which come from other accusations.

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

A good-faith attempt does not automatically prevent a refusal finding. Tell the officer about your medical limitations. Police may require an appropriate alternative test, and refusing that test can carry consequences too. We review medical records, the instructions you received, your attempts to complete the test, and any alternative offered.

The Nevada DMV will revoke your driver’s license for one year for refusing an evidentiary breath or blood test (also called a “chemical test”) after a DUI arrest. Your license revocation increases to three years if you already had a revocation for refusing in the last seven years.¹

Key Rules

Implied consent: Under NRS 484C.160, you must consent to evidentiary testing when an officer has reasonable grounds to believe you committed DUI.
No right to an attorney: Saying you will not get tested without a lawyer can count as a refusal, even if you change your mind later.²
Forced blood draw: If you refuse, police may get a warrant allowing them to draw your blood through reasonable force.
Refusals are evidence: Your refusal to submit to evidentiary testing can be used against you in criminal and DMV proceedings.
The DMV and criminal cases are separate: Refusing still triggers a license revocation even if your DUI charges are dropped.
Act fast after a revocation notice: You have only seven days after the refusal to request a DMV hearing to contest the revocation.³
You usually can still drive: If you lose the DMV hearing, you generally can keep driving with an ignition interlock device.⁴

In our experience handling Nevada DUI cases, an officer writing “refused” in a report does not tell the whole story. We look at what you actually said, whether you could complete the test, what alternatives were available, and whether the officer explained the consequences. Body camera footage can show that the officer misconstrued the situation and that you never refused.

In this article, our Las Vegas DUI lawyers explain Nevada’s chemical test refusal rules and your options:

1. Nevada’s Implied Consent Law

NRS 484C.160 is Nevada’s implied consent law for evidentiary DUI testing. It applies when an officer has reasonable grounds to believe you drove or were in actual physical control of a vehicle while impaired or committed another offense covered by the statute.

Evidentiary tests are given after an arrest. The type of test depends on what the officer is investigating:

Alcohol: You generally may choose between a breath test or a blood test.
Drugs (including marijuana): Police will require a blood test because a breath test cannot detect drugs. In some cases, police will allow a urine test in addition to or instead of a blood test.

If you request a blood test when breath testing is reasonably available, and you are later convicted, you must pay the blood test costs and certain related witness expenses.

If you refuse to take the evidentiary required test, the officer must inform you that your driving privilege will be revoked if you do not submit. If you still refuse, the officer may seek a warrant or court order authorizing a blood draw with reasonable force.

You may also request a reasonable opportunity to have a qualified person of your choice perform an independent chemical test at your expense. That test is in addition to the required police test; it does not replace it.⁵

Officer administering a roadside breath test during a DUI investigation — A roadside breath test and an evidentiary DUI test have different refusal consequences.

2. License Revocations and DMV Hearings

The Nevada DMV can revoke your driving privilege for refusing a required evidentiary test even if you are never convicted of DUI. The refusal and the DUI charge are separate issues.

Evidentiary Test Refusal History	Nevada Driver’s License Revocation Period
No refusal-based revocation during the preceding seven years	One year
At least one refusal-based revocation during the preceding seven years	Three years

If you refuse an evidentiary test after a DUI arrest, the officer will seize your Nevada driver’s license and serve you with a refusal revocation and a temporary license valid for only seven days.

Before the seven days are up, be sure to request, or have your lawyer request, a DMV hearing to contest the revocation. Once you do, you can get another temporary license and continue driving pending the results of the hearing, which will likely be a month or two later.

The DMV hearing is an administrative trial where you or your attorney can argue that you never refused to submit to evidentiary testing. Whether you win or lose does not affect your criminal DUI case, which is a separate matter.

If you lose the DMV hearing and have your license revoked, you generally can continue driving if you qualify for an ignition-interlock driving privilege after installing the device and satisfying DMV’s other requirements.

Additional Revocations and Out-of-State Drivers

A refusal revocation can be added to a separate DUI-related revocation. NRS 484C.210 requires these revocation periods to run consecutively—one after the other.

Example: Josh receives a one-year refusal revocation. He also receives a 185-day revocation for a first-time offense of driving with a blood alcohol content (BAC) of 0.08% or higher. Therefore, his license will be revoked for one year and 185 days total.

If you have an out-of-state license, Nevada can only revoke your privilege to drive in Nevada. Whether your home state also suspends or revokes your license depends on that state’s laws and how it treats the Nevada case. Contact a local criminal defense attorney in your home state for more information on what to expect.⁶

3. Trouble Giving a Breath Sample

Trying but failing to take an adequate breath test sample can be considered a refusal under Nevada law, but police typically give you the option to take the blood test before deeming you as a “refusal.”⁷

Tell the officer about any breathing problem or other medical limitations. When reviewing your case, we look at the testing instructions, your attempts, medical records, equipment issues, and whether an appropriate alternative was offered.

Two officers arresting a driver during a DUI investigation — A refusal allegation can be challenged through the DMV hearing process.

4. Defenses to an Alleged Refusal

In Nevada, the best way to challenge a refusal allegation in DUI cases depends on what exactly happened and whether the requested test was legally required. Possible issues include:

You did not refuse: The body-cam recording may show that you agreed and cooperated, contrary to the report.
You chose an available breath test: In an alcohol-only investigation, choosing reasonably available evidentiary breath testing over blood testing generally is allowed.
You were incapable of refusing: Unconsciousness or serious injuries, sedation, and incoherence may support that you were not capable of a refusal. However, voluntary intoxication alone generally does not excuse a refusal.
The warning or request was defective: We can examine whether the officer gave the required revocation warning, had reasonable grounds for testing, and followed the rules governing the test requested.

You do not have to say “I refuse” for your conduct to count as a refusal. Silence, failure to complete testing, or agreement with conditions attached can be enough as long as the police substantially complied with the testing rules.⁸

5. Minors and Medical Conditions

Being under 18 does not exempt you from required DUI testing. Before testing a minor, the officer must make a reasonable attempt to notify a known parent, guardian, or custodian. This is a notification requirement, not a right to delay testing until a parent arrives. See our discussion of Nevada underage DUI laws.

If you have hemophilia or a heart condition requiring anticoagulants, as determined by a physician or advanced practice registered nurse, NRS 484C.160 exempts you from blood testing. You must still submit to appropriate breath or urine testing.

Asthma does not automatically excuse you from testing or invalidate a result. However, a documented breathing condition may help explain difficulty producing a sample. Learn more about medical conditions and DUI testing.

For people killed in a motor vehicle crash, a separate law directs the coroner or similar official to arrange blood testing.⁹

Medical professional drawing blood for testing — Certain documented medical conditions provide an exemption from blood testing under Nevada’s implied consent statute.

6. Roadside Tests vs. Evidentiary Tests

Field sobriety tests, roadside breath screening, and evidentiary chemical testing are different in Nevada DUI cases. Their refusal consequences are different, too, as the following table shows:

Test	Nevada’s Rule	Refusal Consequences
Field sobriety tests, such as walking a line, standing on one leg, or following an object with your eyes, done at the roadside during a DUI traffic stop/investigation	Not mandatory	Police may still investigate and arrest if they have lawful grounds.
Preliminary breath test (PBT), usually a roadside handheld device used during a DUI traffic stop/investigation	Mandatory	Police may still investigate and arrest if they have lawful grounds.
Evidentiary chemical test, administered after a DUI arrest	Mandatory	Refusal generally carries a one- or three-year driver’s license revocation. Police may seek a warrant for blood, and refusal evidence may be used in court or DMV proceedings.

A PBT helps police decide whether they have grounds to arrest. Its result generally cannot be used in a criminal case except to show reasonable grounds for arrest.

The purpose of these tests is to indicate to police whether you may have been driving impaired and/or with an unlawful BAC level. The usual per se alcohol limit is 0.08%; operating a commercial motor vehicle carries a 0.04% limit. Drivers under 21 also face a separate 90-day administrative suspension for a BAC of at least 0.02% but below 0.08%.¹⁰

7. Speaking With a Lawyer Before Testing

During a Nevada DUI traffic stop/investigation, you do not have a right to delay required DUI chemical testing until you speak with a lawyer. Saying you will take the test only after calling an attorney can count as a refusal.

Later changing your mind generally does not undo an earlier refusal. In Schroeder v. Department of Motor Vehicles, the Nevada Supreme Court upheld a revocation despite the driver’s later request to take a test.¹¹

We review the full conversation rather than isolated words. The important questions include what the officer requested, what warnings you received, and whether your response actually amounted to a refusal.

Driver taking a breath test during a DUI investigation — You cannot make required chemical testing conditional on speaking with a lawyer first.

8. Agreeing to the Test

Voluntarily taking a DUI evidentiary test can still lead to Nevada driver’s license revocation if the results indicate you were under the influence. For example, a BAC of 0.08% or more can trigger a 185-day administrative revocation for a first-time DUI in seven years.

If you voluntarily take the evidentiary breath test following the arrest, and you fail, the officer will seize your license immediately and provide you with a seven-day temporary license (as the officer would following a refusal). Then you would request a DMV hearing to contest the revocation.

Though if you voluntarily take the blood test following the arrest, it will take weeks for the results to come back. Therefore, you get to keep your license pending the results. If you fail, the DMV will mail you the revocation order instead. At that point, you would request a DMV hearing to contest the revocation.¹²

Medical professional preparing a blood draw — A judge may authorize a blood draw after a driver refuses required testing.

Frequently Asked Questions

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

You can later agree to testing, but that generally does not erase an earlier refusal. Nevada courts have rejected the argument that a driver can undo a refusal simply by asking to take the test later.

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

A refusal alone generally leads just to license consequences rather than a separate criminal charge. However, the refusal can be used as evidence in the DUI criminal case, not just the DMV case.

Separate conduct, such as assaulting an officer, can trigger additional criminal charges.

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

Generally, yes. Prosecutors may argue that you refused because you knew the test would show alcohol or drugs. However, refusal is not automatic proof of DUI, and the prosecution still must prove the charge beyond a reasonable doubt.

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

You would then be asked to submit to a blood draw. Refusing the blood draw, even after a good-faith attempt to give a breath sample, generally counts as a refusal.

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

Fear of needles alone generally does not excuse refusing a required blood test. In an alcohol-only investigation, you generally may choose to take a breath test instead of a blood test.

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

No. A refusal does not establish every element of DUI. However, a valid refusal revocation can remain in effect even if your criminal charge is dismissed or you are found not guilty.

Can I drive with an ignition interlock after a refusal?

You may qualify for an ignition-interlock driving privilege during a refusal revocation. You must install the required device and meet the DMV’s other conditions before driving, which includes paying for the installation and maintenance costs.

What happens if police obtain a warrant after I refuse?

A valid warrant or court order can authorize police to obtain a blood sample without your consent, using reasonable force to the extent necessary. This typically involves them restraining your movement.

Additional Reading

For more information, our Las Vegas criminal defense attorneys suggest these related articles:

Reducing a DUI charge to reckless driving — How a negotiated resolution may work.
Forced blood draws in Nevada DUI cases — How police may obtain a sample without your consent.
Ignition interlock devices after a Nevada DUI — Requirements for driving with an IID.
The Nevada DUI court process — What happens from arrest through trial.
Nevada DUI cases involving out-of-state drivers — Issues for visitors and nonresidents.

Legal References

NRS 484C.210(1).
Schroeder v. State, Department of Motor Vehicles & Public Safety (1989) 105 Nev. 179, 772 P.2d 1278 (conditioning testing on legal advice constitutes refusal; later consent did not undo prior refusals).
NRS 484C.220; NRS 484C.230.
NRS 484C.160; NRS 484C.210; NRS 484C.230; NRS 484C.240.
NRS 484C.160; NRS 484C.180.
NRS 484C.210; NRS 484C.220; NRS 484C.230; NRS 483.460; NRS 483.490; Nevada DMV, License Suspensions and Revocations (interlock reinstatement and administrative-hearing eligibility).
NRS 484C.200; State, Department of Motor Vehicles & Public Safety v. Root (1997) 113 Nev. 942, 944 P.2d 784 (unsuccessful testing and later consent; the opinion’s preliminary-test discussion applies the older statute then in effect).
NRS 484C.160; NRS 484C.240; Higgins v. State, Department of Motor Vehicles (1985) 101 Nev. 531, 706 P.2d 506 (serious injuries, sedation, incoherence, and medical testimony supported incapacity to refuse); Department of Motor Vehicles & Public Safety v. Becksted (1991) 107 Nev. 456, 813 P.2d 995 (voluntary intoxication alone and ambiguous responses); Department of Motor Vehicles & Public Safety v. Brough (1990) 106 Nev. 492, 796 P.2d 1089 (refusal may be expressed through conduct or conditional consent).
NRS 484C.160(3), (4), (10); NRS 484C.170.
NRS 484C.150; NRS 484C.160; NRS 484C.210; NRS 484C.240; NRS 484C.110; NRS 484C.120; NRS 483.461.
Schroeder v. State, Department of Motor Vehicles & Public Safety (1989) 105 Nev. 179, 772 P.2d 1278.
NRS 484C.210; NRS 484C.220; NRS 484C.230.