Is it Legal to Refuse a Breathalyzer or Field Sobriety Test?

If you are driving on the road and subsequently stopped by a law enforcement officer because he or she suspects that you have been drinking, you will likely be asked to submit to a breathalyzer or field sobriety test. A breathalyzer is a device that tests a person’s breath and estimates their blood alcohol content (BAC). A field sobriety test, on the other hand, are physical tasks that a person does while an officer watches to determine if they are under the influence of drugs or alcohol. 

While it is perfectly legal to refuse to submit to a breathalyzer or field sobriety test when asked by an officer, there are often significant consequences for doing so under state law.

Breathalyzer and Field Sobriety Tests

According to Medical News Today (MNT), a breathalyzer is a small diagnostic device that examines a person’s breath and measures how much alcohol is in the air the person breathes out into the device. This number is then used to determine the person’s blood alcohol content level. In most states, the legal BAC limit for driving is 0.08%, although in some, the legal limit is lower. 

Field sobriety tests (FST), on the other hand, are standardized tests approved by the National Highway Traffic Safety Administration (NHTSA) for determining someone’s sobriety. The most commonly used sobriety tests include:

  • Walk and turn: requiring the subject to walk heel-to-toe for nine steps, then turn and walk heel-to-toe for nine steps back. The officer is looking to see if the person cannot balance during instructions, starts walking before being instructed to do so, stops while walking, fails to touch heel-to-toe, uses his or her arms to balance, steps out of line, does not take the right number of steps, loses balance, or turns the wrong way. If two of these are present, the person fails the test;
  • One-leg stand: the subject is asked to balance on one leg while counting for 30 seconds. The purpose of the test is to see if they can do two tasks at once. The officer is looking for signs of hopping, swaying while balancing, using arms to balance, or placing the foot on the floor. If two are present, the person fails;
  • Pen test (or HGN): this examination is to see if the person’s eyes involuntarily bounce or jerk when they are looking all the way to one side. The officer places a pen in front of the person’s nose and moves it slowly all the way to each side. If someone fails this exam, it is likely that they have a BAC of 0.10 or higher.

There are other tests that are often used, but the above three are the standard ones approved by the NHTSA.

Bottom Line

It is important to know that under Nevada law, you are not required to submit to a breathalyzer or field sobriety test. Refusal to do so, however, could trigger an arrest, which is at the officer’s discretion. This is because many states, including Nevada, have instituted an “implied consent” law that forces individuals to take these evaluations or face legal consequences, which can range from fines to license suspensions. 

H&P Law has years of experience helping victims of accidents in Las Vegas and across the greater Nevada area. If you have been hurt due to the fault of another, contact us at (702) 598-4529 for your initial case evaluation. 

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