Choosing Between The Breath Or Blood Tests

If you are stopped for driving under the influence of alcohol, you may be given the option of a breath or blood test. The breathalyzer will give an instant response, and if you are over the 0.08 legal limit, the police will take your license on the spot. That could give you the impression that you have a higher chance of passing a blood test, but that is not necessarily true.

It will take the police department some time for the blood results to come back. The problem is if your resulting BAC is over 0.08, you will lose your license. These are much harder cases to defend. The standard breath machine, the Intoxilyzer 8000, is far more inaccurate than a blood test. There is a lot of operator error and some officers do not use the machine correctly or instruct the individual to blow for the correct amount of time. If you do blow over the legal limit, you will lose your license immediately. However, you can fight the charges and potentially win your case at the DMV level.

Consenting To A Test

The admonishment of rights form that law enforcement officers will read says that you are required to submit to a breath or blood test. If you don’t submit to either test, the police will obtain a warrant to take your blood anyway.

That language is problematic because having a license and driving in Nevada is no longer consenting to taking your breath or your blood under law. If you are pulled over for DUI, the police do have a right to get a warrant if they believe that you are under the influence, but there is no requirement that you submit to a breath or blood test.


In Bumper v. North Carolina, the police told Mr. Bumper they wanted to search his house, and that if he didn’t consent they would get a search warrant and come back anyway.

The supreme court ruled that this was not valid consent because the police coerced him into consenting using the warrant as leverage.

It is against the law for the police to tell you that you are required to submit to a breath or blood test, and if you do not, they will get a warrant and force you to anyway.

Breathalyzer Inspections

There are two numbers that the city or state prosecutor is going to use when they claim that you are over 0.08. However, they cannot just rely on the breath test machine.


The police department has to conduct Radio Frequency Interference surveys. This involves measuring radio frequency transmissions from officer cell phones or walkie talkies. If they do not do these surveys, the manufacturer of the Intoxilyzer 8000 states that the results of the breath test will be skewed.
The prosecutors have said in the past that the survey information has to be obtained from the manufacturer, but it is actually the Henderson or Las Vegas Metro Police departments that have to carry out these tests and keep the logs.

Getting A Temporary License

If you are arrested for a DUI, take a breath test at the police station, and the Intoxilyzer 8000 machine shows you are over 0.08, they will take your drivers license on the spot. You will get a pink DP45 form which states at the bottom that your license is valid for seven days.


Don’t worry, because at the end of those seven days, we can still get a temporary license which will be valid until we have a DMV hearing. It is very likely the DMV will revoke your license for a period of 90 days. For the first 45 days you cannot drive, but during the second 45 day period you can get a restricted license.

If you do not perform a breath test and instead consent to a blood test, your license is not taken right away because the blood results take longer to come in. Once the results do come in, you will get a notice from the DMV in the mail indicating that they are taking your license. At this point, we can get you a temporary license that will be good until the DMV hearing.

The Field Sobriety Test

The Standardized Field Sobriety Test was developed in the 1970s by the National Highway Traffic Safety Administration. The problem with it is an officer is providing a personal opinion on whether the person has a BAC of 0.08. The original study on field sobriety tests done in 1977 showed that only 53% of people said to be impaired by an officer were actually impaired. These tests were never designed to determine impairment at all.


The government likes to use field sobriety tests as extra evidence to convince a judge of impairment because they are difficult to pass. The heel-to-toe walk and turn test contains 93 separate specific motions, but only allows for two errors such as failing to touch a toe to a heel a single time.

By challenging the test we have had success in throwing out the Probable Cause from the FST that led to the warrant for a blood test.

Happy Holidays

Please drive safely and celebrate responsibly this holiday season. Remember that you do have constitutional rights and Pariente Law Firm, P.C. will always be here to defend them. Do not hesitate to contact us with any questions regarding DUI defense or anything else.


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