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Chemical Testing in Nevada

Under Nevada’s per se law, if chemical tests show an alcohol content of 0.08% or higher, or any detectable drug substance, your driving privileges will be revoked. If you plead guilty or are found guilty of a DUI and a chemical test was provided, the court will impose an additional $60 fee to cover the cost of the chemical analysis.

Chemical testing can be performed in two ways: blood draw and breath testing. A police officer is entitled to require a person to submit to a blood test if the officer has a valid reason for believing that the person was under the influence of alcohol and caused death or serious bodily harm to another person, or if that person has a previous DUI conviction within the last seven years. Again, in Nevada, you do not have the right to refuse testing, however, no more than three blood samples may be taken during the five hour period following the time of the arrest. Blood testing may only be withdrawn by a person other than the arresting officer, who is a physician, licensed physician assistant, registered nurse, licensed practical nurse, emergency medical technician or someone who has special knowledge, skill, experience, training and education in withdrawing blood.  Further, if the suspect makes a reasonable request to have a qualified person of his own choosing administer the chemical test to determine his BAC, the police must permit such a request for additional testing at the offender’s expense.

Nevada uses both preliminary breath testing and evidentiary breath testing. Preliminary breath testing is done at the scene of the arrest prior to the suspect being taken into custody. Preliminary blood testing however, is not admissible in court. Preliminary testing is only used to determine whether an officer has probable cause to make a DUI arrest. The Nevada statutes that relate to chemical testing are as follows,

N.R.S. 484C.200

484C.200. Requirements for evidentiary test of breath to determine concentration of alcohol in breath; use of reasonable force to obtain sample or conduct test

1. Except as otherwise provided in subsection 2, an evidentiary test of breath to determine the concentration of alcohol in a person’s breath may be used to establish that concentration only if two consecutive samples of the person’s breath are taken and:

(a) The difference between the concentration of alcohol in the person’s breath indicated by the two samples is less than or equal to 0.02;

(b) If the provisions of paragraph (a) do not apply, a third evidentiary test of breath is administered and the difference between the concentration of alcohol in the person’s breath indicated by the third sample and one of the first two samples is less than or equal to 0.02; or

(c) If the provisions of paragraphs (a) and (b) do not apply, a fourth evidentiary test is administered. Except as otherwise provided in NRS 484C.160, the fourth evidentiary test must be a blood test.

2. If the person fails to provide the second or third consecutive sample, or to submit to the fourth evidentiary test, the results of the first test may be used alone as evidence of the concentration of alcohol in the person’s breath. If for some other reason a second, third or fourth sample is not obtained, the results of the first test may be used with all other evidence presented to establish the concentration.

3. If a person refuses or otherwise fails to provide a second or third consecutive sample or submit to a fourth evidentiary test, a police officer may direct that reasonable force be used to obtain a sample or conduct a test pursuant to NRS 484C.160.

N.R.S. 484C.240

484C.240. Admissibility of evidence of refusal to submit to evidentiary test; availability of results of test; admissibility of evidence from test

1. If a person refuses to submit to a required chemical test provided for in NRS 484C.150 or 484C.160, evidence of that refusal is admissible in any criminal or administrative action arising out of acts alleged to have been committed while the person was:

(a) Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance; or

(b) Engaging in any other conduct prohibited by NRS 484C.110, 484C.120, 484C.130or 484C.430.

2. Except as otherwise provided in subsection 3 of NRS 484C.150, a court or hearing officer may not exclude evidence of a required test or failure to submit to such a test if the police officer or other person substantially complied with the provisions of NRS 484C.150 to 484C.250, inclusive, and 484C.600 to 484C.640, inclusive.

3. If a person submits to a chemical test provided for in NRS 484C.150 or 484C.160, full information concerning that test must be made available, upon request of the person, to the person or his or her attorney.

4. Evidence of a required test is not admissible in a criminal or administrative proceeding unless it is shown by documentary or other evidence that the law enforcement agency calibrated the breath-testing device and otherwise maintained it as required by the regulations of the Committee on Testing for Intoxication.

N.R.S. 484C.180

484C.180. Arrested person to be given opportunity to choose qualified person to administer test; substitution of test prohibited

1. A person who is arrested for driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or for engaging in any other conduct prohibited by NRS 484C.110, 484C.120, 484C.130 or 484C.430must be permitted, upon request and at the person’s expense, reasonable opportunity to have a qualified person of his or her own choosing administer a chemical test or tests to determine:

(a) The concentration of alcohol in his or her blood or breath; or

(b) Whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present in his or her blood or urine.

2. The failure or inability to obtain such a test or tests by such a person does not preclude the admission of evidence relating to the refusal to submit to a test or relating to a test taken upon the request of a police officer.

3. A test obtained under the provisions of this section may not be substituted for or stand in lieu of the test required by NRS 484C.160.

N.R.S. 484C.250

484C.250. Admissibility of results of blood test in hearing or criminal action; immunity from liability for person administering blood test in certain circumstances

1. The results of any blood test administered under the provisions of NRS 484C.160 or484C.180 are not admissible in any hearing or criminal action arising out of acts alleged to have been committed by a person who was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or who was engaging in any other conduct prohibited by NRS 484C.110, 484C.120, 484C.130or 484C.430 unless:

(a) The blood tested was withdrawn by a person, other than an arresting officer, who:

(1) Is a physician, physician assistant licensed pursuant to chapter 630 or 633 of NRS, registered nurse, licensed practical nurse, emergency medical technician or a phlebotomist, technician, technologist or assistant employed in a medical laboratory; or

(2) Has special knowledge, skill, experience, training and education in withdrawing blood in a medically acceptable manner, including, without limitation, a person qualified as an expert on that subject in a court of competent jurisdiction or a person who has completed a course of instruction described in subsection 2 of NRS 652.127; and

(b) The test was performed on whole blood, except if the sample was clotted when it was received by the laboratory, the test may be performed on blood serum or plasma.

2. The limitation contained in paragraph (a) of subsection 1 does not apply to the taking of a chemical test of the urine, breath or other bodily substance.

3. No person listed in paragraph (a) of subsection 1 incurs any civil or criminal liability as a result of the administering of a blood test when requested by a police officer or the person to be tested to administer the test.


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