Do I Have to Allow a Blood Test When Suspected of DUI?

Do I Have to Allow a Blood Test When Suspected of DUI?

When a driver is stopped in Nevada under suspicion of driving under the influence (DUI), it is common for the investigating officer to request that the individual provide a biological sample.  Although you often think of breathalyzer tests being used in this context, there can be circumstances when a driver may be asked to give a blood sample.  A driver confronted with this request may ask:  Do I have to allow a blood test when suspected of DUI?

Implied Consent

Nevada, like most other states, has “implied consent” laws for drivers.  Essentially, implied consent means that by using Nevada roads you have agreed to submit to chemical testing if it is suspected that you are driving under the influence of alcohol or drugs.  The measurement can be taken from your breath, blood, or urine.

Refusing a Blood Test

In 2013, the United States Supreme Court issued its opinion in Missouri v. McNeely which held that a warrantless blood test in the context of a DUI arrest was unconstitutional. In keeping with this decision, the Nevada Supreme Court found in Byars v. State that Nevada’s former implied consent law, which allowed officers to take a blood sample from a DUI suspect by reasonable force without a warrant due to their “consent” by driving on Nevada roads was unconstitutional. 

In 2015, Nevada Assembly Bill 67 became law and corrected the constitutional defects to the implied consent laws including those concerning warrantless blood draws.  Now Nevada law states that if a DUI suspect refuses to submit to an evidentiary blood test, the requesting officer may apply for a warrant or other court order directing the use of reasonable force to obtain a blood sample and the driver’s license must be revoked for a specific period of time.

Under Nevada law, If a person fails to submit to an evidentiary test as requested by a police officer the license, permit or privilege to drive of the person must be revoked and the person is not eligible for a license, permit or privilege to drive for a period of:

  • One year; or
  • Three years, if the license, permit or privilege to drive of the person has been revoked during the immediately preceding 7 years for failure to submit to an evidentiary test

In other words, a Nevada driver who is suspected of DUI can refuse a requested blood test.  However, he is she will lose their license or privilege to drive, and the officer can seek a warrant to obtain a blood sample.   Additionally, the law also provides that if the driver is dead or unconscious, the officer will direct that blood samples be drawn.

Exceptions

If a physician determines that a driver cannot provide a blood sample due to being a hemophiliac or having a heart condition which requires the use of a blood thinning medication, he or she may be exempt from the test.  However, this individual will probably have to submit to urine or breath testing.

Contact an Experienced DUI Attorney

If you’ve been arrested for DUI, it is critical that you have an experienced attorney on your side to protect your interest.  At the Law Office of Darren Weiss, we have experience challenging blood test results and procedures and are here to advocate for you.  Contact us today to schedule your consultation.

 

 

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