Refusal to Submit to DUI Test
After an arrest for Driving Under the Influence, the arresting officer may allege that the driver refused to submit to a breath, blood or urine test. However, in the State of Nevada a person does not have the right to refuse a blood or a breath test. If a person refuses the Officer has the right to strap a person down and forcibly remove blood from a suspect.
In April 2013 the United State Supreme Court in Missouri v. McNeely, determined that before an officer can strap a person and forcibly remove their blood, they must obtain a warrant from a neutral magistrate, or Judge. The McNeely decision will dramatically affect the way police officers in Nevada will conduct a DUI investigation. If a person does not consent to a test, the officer will be forced to call and obtain a warrant before he can “pierce the skin” and withdraw blood.
Since the McNeely decision, it might be in a Nevada suspected DUI driver’s interest to refuse all tests and force the officers to follow the law and get a warrant. If and when a warrant is obtained, the officer will then have a court order allowing them to strap you down and withdraw your blood. In Nevada, by refusing the tests, there are no actual consequences for that refusal other than the officer obtaining a warrant first. In other states there can be dramatic affects for a refusal, such as a loss off a driver’s license for a year or more.
At the Law Office of Joel M. Mann, attorney Joel Mann has defended several clients against DUI allegations. He is trained and certified in conducting field sobriety tests and familiar with chemical BAC tests along with the flaws in all of these tests. If you have been charged with a DUI, it is important to contact Joel Mann right away so he can start working on your defense. For DUI charges, it is necessary to hire a lawyer that will fight for you. Contact Joel Mann at (702) 474-6266 for a free consultation about your DUI allegations.
Impact of Nevada's Implied Consent Laws on the DUI Refusal Case
Nevada law, NRS 484C.150, provides that a person arrested for DUI shall be deemed to have given his consent to a preliminary breath test for the purpose of determining his blood alcohol concentration (BAC). This test is to be administered at the direction of a police officer if the officer has reason to believe the person to be tested was driving while under the influence of alcohol or a controlled substance.
The failure to submit to a preliminary breath test immediately results in the revocation of the suspect's driver's license, but is subject to an administrative or judicial review only if requested by the alleged offender, as explained in NRS 484C.220. An initial refusal to take such a test is often final because the DUI suspect cannot "cure" this refusal by later requesting to take the test.
Although the driver cannot outright refuse a breathalyzer test, under NRS 484C.180, the suspect does have the option of choosing another qualified person to administer the blood test instead of a police officer, at the expense of the suspected offender.
Further, under NRS 484C.160, if the driver is suspected of driving under the influence of a controlled substance, he is deemed to have consented to a blood test in addition to, or in place of a breath test. If the driver refuses to submit to a test by the police officer, the officer is permitted to use reasonable force to use a blood test on the driver. However, based on the United States Supreme Court decision in McNeely, the officer is required to obtain a warrant before obtaining a non-consensual blood sample.
More Information on Nevada's Complied Consent Laws
The Machine Refusal - When an Inadequate Breath Sample is Provided
In some cases, the suspect will attempt to comply with the breath testing procedure, but is unable to provide a sufficient sample. Sometimes, even a good faith, but unsuccessful effort to complete a breath test is insufficient, and therefore, constitutes a "refusal to submit"under the "implied consent" statutes.
However, in this situation, the suspect's defense attorney can move for the exclusion of any mention of the refusal. If the court does not exclude the evidence, the defense attorney can argue at trial that the suspect's actions do not constitute refusal, and thus do not indicate a consciousness of guilt.
Finding Experienced Representation for the DUI Refusal Case
If you have been arrested for DUI refusal after you failed to provide a breath, blood or urine sample, contact an experienced Las Vegas criminal defense attorney to discuss the particular facts of your case. Attorney Joel M. Mann is experienced in fighting the DUI refusal case in Las Vegas, Clark County and the surrounding areas of Nevada.
Law Office of Joel M. Mann | Refusing a DUI Test in Nevada
If you refused to take a field sobriety test or a breath or chemical test in conjunction with a DUI allegation there is still a possibility to overcome the consequences of the refusal. Contact the Law Office of Joel M. Mann to talk about your DUI charge. There are still many defenses and strategies that can your DUI defense attorney can use to either reduce or dismiss the DUI charge and get your license back. Contact Joel Mann at (702) 474-6266 for a free consultation about your alleged DUI offense.
The Law Office of Joel M. Mann serves the greater Las Vegas area of South Nevada, including:
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