Consequences of Refusing a DUI Breath or Blood Test: Is it Unconstitutional?
Implied Consent Requires Driver to Submit to Breath of Blood Tests
In Nevada, drivers arrested for DUI are required to submit to a “chemical test” which the law defines as an evidentiary breath test or an evidentiary blood test. In cases where a driver is suspected of being drunk (an alcohol DUI), the driver will be given a choice of either a breath test or a blood test. In cases where the driver is suspected of a drug related DUI, the driver does not get a choice and must consent to a blood test. The results of the breath or blood test will be used against the driver in both criminal court as well as the DMV hearing. (To read more about DUIs and DMV hearings, visit our DUI page HERE).
Many drivers, especially out of state license holders, often ask if they can refuse to submit to the breath or blood test. The answer is not legally. In Nevada, every driver is said to have given their “implied consent” to breath and blood testing. So, the question remains what happens if a driver refuses?
What Happens if I Refuse Breath or Blood Test?
When a driver in Nevada refuses to submit to an evidentiary blood or breath test, the driver’s license will be revoked for either 1 or 3 years depending on the driver’s criminal history. The police may also obtain a warrant to take the driver’s blood, even if using force is necessary. This means that the police can obtain a warrant and perform a forced blood draw from the driver; and the driver’s refusal to submit to the breath or blood test will be used as evidence in criminal court and at DMV hearings. So not only does the refusal itself result in a suspension of your driver’s license, but it will also be used as evidence to try and convict you of DUI.
Implied Consent and Self-Incrimination
The attorneys at The Wright Law Group, P.C. have always argued that the driver should have the right to refuse breath and blood testing on the basis that such testing is, by its very nature, self-incriminating. But regardless of our belief about what the law should be, we know that for many drivers, there is no real choice. This matters because every criminal defendant has the constitutional right to not incriminate themselves. Many states, including Nevada, have crafted laws that put drivers in the lose-lose scenario of submitting to a breath or blood test and being convicted of a DUI (which results in the loss of your driver’s license) or refusing the test (which results in the loss of your driver’s license) and then having the refusal used against them. Recent decisions in other states suggest that this law may be unconstitutional.
The use of a Driver’s Refusal as Evidence may be Unconstitutional
In February 2019, the Georgia Supreme Court addressed this very issue. Like Nevada, Georgia’s laws allowed prosecutors to use the evidence of a refused breath test as evidence against a driver during his or her DUI criminal prosecution.
In a unanimous decision, the Georgia Supreme Court ruled that a driver’s right against self-incrimination prohibits admission in a criminal trial of a driver’s refusal to blow into a breathalyzer.
Law enforcement, prosecutors, and DUI enforcement advocates alike often argue that driver’s suspected of DUI should be required to submit to such tests because of the severity of DUI. Advocates argue the risk of serious harm to innocent motorists supports such mandatory testing. When faced with such argument, the Georgia Supreme Court stated, that “the right to be free from compelled self-incrimination does not wax or wane based on the severity of a defendant’s alleged crimes.”
Of note, the Georgia decision does not address forced blood draws as may be the case in Nevada. But even in cases where a Defendant is suspected of an alcohol DUI and refuses both the breath test and blood test, the logic still applies. A Driver’s refusal to voluntarily submit to a blood test is just as self-incriminating as a driver who refuses to submit to a breath test.
Although the latest authority on this issue come from Georgia, there is a strong argument to be made that using a breath or blood test refusal against a Nevada driver should be declared unconstitutional.
If you or someone you know has been arrested for DUI, call the lawyers at The Wright Law Group, P.C. today. Our lawyers have decades of criminal defense experience, and we can help you achieve the best possible outcome; and depending on the circumstances, we may be able to help you keep your license. Don’t wait! In most DUI cases, the time to save your driver’s license from a DMV suspension is very short. DUI cases often move very quickly, so make sure you have an experienced DUI defense attorney on your side right away. Call us now at (702) 405-0001 to arrange a consultation.