Should You Refuse or Take Test When Stopped for a DUI

In Nevada, a licensed driver has the right to refuse to submit to a blood or breath test. However, a refusal to submit to a test can have collateral consequences, such as a revocation of driving privileges.

If a person who is arrested for suspicion of Drunk Driving / DUI refuses to provide a sample of blood or breath, the police can apply for a search warrant over the telephone to a magistrate or justice of the peace. When granted, this telephonic search warrant allows the police to strap a person down and forcibly remove blood from a suspect. Once this is done, the police will impound the blood sample and send it to the crime lab for the purpose of determining a persons blood alcohol concentration (BAC). A person can consent to a blood or a breath test, but if such a test is refused, the police will seek a warrant as described here and ultimately attempt to test the driver's blood.


If you are the driver of a vehicle, and are suspected by law enforcement of driving under the influence, and you refuse a breath test, such a refusal immediately results in the revocation of the suspect drunk driver’s license to drive for a period of one (1) calendar year. This is in excess of the standard revocation period of ninety (90) days for a first offense DUI. If the police deem that you have refused to provide a forensic sample in the form of a blood or a breath test, they will seek to revoke driving privileges. However, the driver can request an administrative review before an administrative law judge at the Nevada Department of Motor Vehicles.


Although the driver can choose to refuse a blood or breath test, he or she may select to provide a sample voluntarily in order to avoid the revocation of his or her driving privileges for the period of one (1) year. This does not change the drivers right (under NRS 484C.180) of choosing another qualified person (other than the police) to administer a blood test, at the suspect’s own expense.

Other Considerations

What happens if you try to give a breath test, but can’t provide a satisfactory sample of breath for testing? This is known as a technical refusal, or “a machine refusal.” The answer, according to law enforcement, is that even a good faith, but unsuccessful, attempt to complete a breath test constitutes a “refusal to submit” under the “implied consent” laws in Nevada. Why is this important? Because an experienced DUI Defense Attorney will know that any mention by the arresting officers of this “refusal” should be suppressed and not admitted in Court. This is just one of the many ways a well- trained, experienced and aggressive DUI lawyer can assist in your case.

Warning About Your Driver’s License


If you have been arrested for DUI, you are in danger of losing your driving privileges and having your driver’s license suspended or revoked.

You can — Save Your Driver’s License – - but you must act quickly!

When you have been arrested for DUI, the wheels are immediately put into motion to suspend your ability to drive. You can preserve your right to drive, but you must act immediately. In some cases you have as little as one (1) week to request a hearing and fight to retain your ability to drive. When you retain us to represent you for your DUI case, we represent you in the DMV administrative process – - we preserve your right to a hearing, appear on your behalf and FIGHT TO KEEP YOUR RIGHT TO DRIVE. Better yet, we do this for FREE. You are reading this correctly. We handle the administrative process with the DMV at NO COST TO YOU, once you retain us as counsel in your criminal DUI case.


If you have been arrested for a DUI in Nevada, you WILL have your license suspended UNLESS you act quickly to preserve your right to drive. Under Nevada law, if the police ask you submit to a breath test (what most people refer to as a “breathalyzer”) for the presence of alcohol and you blow a .08 or more, then the police officer or officers who stopped and arrested you will seize your driver’s license and immediately serve you with an order, which will revoke your driver’s license. You will be given a temporary license that is only good for one week. This is IMPORTANT – you only have seven days to contact the DMV to request as stay and a hearing regarding the revocation of your driving privileges before you license is suspended. Once this is done, you are able to drive normally, on a temporary license, until the DMV hearing is concluded.

If you have had a blood test to determine the presence and level of alcohol in your blood, then the officer will give you your license back and wait for the results of the blood test. In Nevada, the results from the blood test can take a period of time, often several months, to come back. Once the police obtain the results of your test, they will notify the DMV. The DMV then sends you a letter letting you know your license will be suspended in 7 days. Again, this is IMPORTANT — if you don’t act on your letter from the DMV your license will automatically be suspended and you could be driving on a suspended license without being aware. Driving on a suspended license is, of course, an additional and separate crime.

It is imperative that you have a knowledgeable, experienced DUI/Drunk Driving lawyer who is dedicated to you and your case so that you can properly deal with the charges you face.

Contact Us Today

If you have been arrested or charged with a drunk driving offense in Nevada, contact DUI attorney Josh Tomsheck at the Law Firm of Hofland & Tomsheck right away to discuss your DUI case. We will give you a free consultation to determine what needs to be done to get you the best result possible. We are available during regular business hours and can be reached 24/7 in the case of an emergency. Call (702) 895-6760 or e-mail to schedule an appointment.

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