When pulled over at a traffic stop or DUI checkpoint for suspicion of driving under the influence of alcohol and/or drugs, a Nevada police officer may ask you questions and make you do certain tasks to confirm their suspicions. This most often includes taking a preliminary breath test and field sobriety test. The results of these tests will determine if you’re to be arrested for DUI or not.
What is a Preliminary Breath Test?
A Preliminary Breath Test, or PBT, also referred to as Preliminary Alcohol Screening (PAS) and sometimes as the roadside breath test, is a quick test to determine the presence and quantity of alcohol in the blood through breath. It is performed through a portable device called a breathalyzer. The test involves the suspect blowing into the device, which then detects and measures their Blood Alcohol Concentration (BAC).
BAC is calculated in percentage based on the quantity of alcohol in grams/ 100 ml of blood or 210 liters of breath.
If the BAC is equal to or higher than the state’s legal limit, which is .08% (for adults), the officer can arrest you for DUI.
Under Nevada Law, one is considered to be driving under the influence if they meet any of the following conditions:
- A Blood Alcohol Concentration (BAC) equal to or higher than the state’s legal limit, .08%
- A certain amount of any controlled or prohibited substance in the blood
- Struggling or unable to safely drive due to alcohol and/or any drug consumption (whether it’s a recreational drug or a prescription medication)
Provided that the traffic stop or pulling you over was legal, any of these conditions give the cops probable cause to arrest you for violating Nevada’s DUI laws.
Is Preliminary Alcohol Screening Different Than the Post-Arrest Breath Test?
A preliminary breath test is different from the breath and blood tests you are made to undergo when arrested for DUI. A PBT is merely a tool for the police to determine whether to arrest a driver for DUI or not. Its results cannot be used to prove a DUI claim or get you convicted for it. The results of post-arrest breath and/or blood tests, on the other hand, are used as evidence to prove that you were intoxicated when driving and get you convicted of DUI.
It’s important to note that despite being a preliminary tool, a PBT is not optional in Nevada, some neighboring states. According to Nevada laws, anyone who chooses to drive (is on a public roadway) gives implied consent for taking a preliminary breath test in the following situations:
- On a traffic stop when the police officer has reasonable grounds to suspect that:
- You were in control of a vehicle or driving while under the influence of alcohol and/or drugs, including recreational and prescription drugs.
- You have consumed alcohol and/or drugs in a higher quantity (more than the state law allows).
Legally, the implied consent only exists when a police officer (or any other law enforcement personnel) has reasonable grounds to suspect that you were drunk driving or were under the influence of drugs. However, it’s the best call for the driver to believe that reasonable grounds exist when asked to take the preliminary breath test and follow the officer’s orders. Your lawyer can challenge the legality of the traffic stop or arrest later; it’s one of the many defenses Nevada lawyers use in DUI cases.
It’s best to let your lawyer determine the legality of the traffic stop or arrest and challenge it in court. Doing it on your own on the spot may get you in more trouble.
What Happens if You Refuse to Take the DUI Tests in Nevada?
If you refuse to take the preliminary breath test, Nevada law allows the police officer to arrest you and transport you to a convenient place for administration of an evidentiary test.
The refusal to take an evidentiary DUI test will automatically lead to the revocation of the driver’s license for at least a year, along with the ignition interlock device in the car(s) you operate.
When Should You Refuse a Preliminary Breath Test in Nevada?
Given that preliminary breath tests for DUI suspicions are not optional in Nevada, i.e., the drivers do not have the right to decide if they want to take the test or not, refusing to take it can do you more harm than good. As explained above, it can give the officer one more reason to believe you’re intoxicated.
We recommend taking the test even if you recently consumed a drink and know that your BAC percentage will be higher than the legal limit due to residual mouth alcohol. This is because the preliminary breath test results cannot be used against you in court; it’s not reliable enough evidence to get someone convicted of driving under the influence. By the time the cops process an evidentiary breath test, which is the actual legal proof that can be used against you in court, any residual alcohol may have dissipated.
However, in situations where you’re not intoxicated (did not consume any alcohol or drug recently), you can politely tell the officer what the possible reason for your symptoms could be. These may include:
- Cold
- Allergy
- Lack of sleep
- Crying
- A medical condition, like diabetes or GERD that can give a false positive on PBT
Having said that, it’s important to know that the officer isn’t liable to listen and believe you. In fact, considering that it’s common for people to lie in such situations, it’s more likely that the officer won’t believe whatever you say. So, it’s best to be polite and comply with the officer’s instructions. We also advise you to refrain from talking too much in such situations. Try to speak as little as possible because your statements could be used against you if you’re charged with DUI. Do what you’re told by the police officer and call an experienced Nevada DUI lawyer from The Bourassa Law Group at your earliest.
Fight a DUI Charge in Nevada with a BLG Lawyer
We at The Bourassa Law Group have a team of experienced Nevada DUI lawyers to help you fight a DUI arrest made based on preliminary breath test results. Having been in the industry for years, our lawyers know that breathalyzers cannot always be trusted to give correct results. The DUI breath testing equipment Nevada law enforcement officers use is prone to errors. We will help you prove an inaccurate breath test result in court.
Don’t wait until the case is taken to court to seek legal assistance. Contact us at your earliest convenience to avoid losing your license, avoid fines and jail, and keep the DUI charge off your criminal record. Call us for a free Nevada DUI case consultation.