What is the “2 hour rule” for DUI in Nevada?
Have you heard of the 2 hour rule for DUIs? When an individual is suspected to be driving under the influence in Nevada and the police stop them, the officer may administer a breathalyzer test or order a blood test to determine their blood alcohol content (BAC). A person is legally drunk when their BAC is 0.08% or higher, even if they are unimpaired and sober. This is called a “per se” offense meaning that the offense is inherently illegal regardless of any factors that may make it appear otherwise, such as having a BAC over the legal limit but still appearing sober.
Typically, the person can choose whether they want to take a blood test or breathalyzer test, but if the officer suspects that they are under the influence of drugs, then their only option is a blood test.
Blood Test for DUI in Nevada
A blood test for DUI is becoming more popular with law enforcement when assessing whether a person is driving under the influence. While the breathalyzer test is still used frequently, blood tests are being used more often than they once were.
Nevada is an “implied consent state,” which means that when a person gets behind the when and operates a vehicle on Nevada roads. This means that if a person is driving in Nevada and is stopped because the officer suspects they are driving under the influence the driver gives “implied consent” to submit to a breathalyzer test or blood test to determine their BAC or breath alcohol level simply because they are driving on a road in Nevada.
If someone is stopped for a DUI, the officer may ask if they’ve been drinking then ask them to submit to an evidentiary test which is either a blood test or breath test. At that point, the driver has two options for how they will proceed:
- Submit to the test – The officer places the person under arrest and takes them to jail where either a phlebotomist or nurse will draw their blood and send it to a lab for testing.
- Refuse the test – The officer detains the driver and requests a warrant for their blood to be taken for testing. When the warrant comes through, the officer arrests the driver and takes them to jail where either a phlebotomist or nurse will draw their blood and sent it to a lab for testing.
If a person refuses to submit to a breath or blood test, the Department of Motor Vehicles will automatically suspend their driver’s license for one year.
Preliminary Breath Test
In some cases, typically with a first-offense DUI, the officer may give the driver the option of taking what is called a “preliminary breath test” (PBT) before they are asked to take a breathalyzer test or blood test. Many people believe that the PBT is just another evidentiary test that can be used in court as proof that the individual’s BAC was over the legal limit. That is not the case. It is simply an investigative tool that law enforcement uses to establish probable cause for them to legally administer a breathalyzer test or blood test.
If the PBT results show that the individual’s breath alcohol level is above the legal limit of 0.08%, the officer may ask the individual to submit to one of the evidentiary breath tests which are a blood test or breath test.
A person who is stopped for a second offense DUI is legally required to submit to a blood test automatically.
The “2 Hour Rule” for DUI in Nevada
Nevada law gives a two-hour window for law enforcement to draw blood or administer a breathalyzer. This means that whichever evidentiary test that the officer chooses must be done within two hours after an individual has been in physical control of a vehicle or has been driving a vehicle.
Failure to administer the test or draw blood within that “2 hour rule” timeframe can be used by the individual as an affirmative defense to the charge of DUI.
The reason for the 2 hour rule is that any test results that are obtained beyond two hours are not reliable. However, when a person is arrested for DUI in Nevada, they have two hearings. The first is the criminal hearing which determines if they are guilty of the crime of DUI and a conviction is handed down. The second is the DMV hearing where the administrative law judge reviews the tests and other documentation and determines whether or not there is “clear and convincing evidence” that the person was driving under the influence of drugs or alcohol. The DMV is not subject to the 2 hour rule. This can result in what is called a non-DUI disposition and the individual could have their license suspended for 90 days under the judge for the DMV hearing.
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