Breath Test

In Las Vegas, and other regions of Nevada, police officers use breath testing machines (commonly referred to incorrectly as “breathalyzers”) to measure the breath alcohol concentration of someone whom they suspect to be driving under the influence. The breath testing machine used in Nevada is manufactured by a company called “Intoxilyzer” and is usually kept at a jail or detention facility, although there are traveling units that can be brought to the location of the stop in some circumstances. Unlike the blood test, the breathalyzer machine is painless and non-invasive. You simply blow into a machine and the results of the breath test are instantaneous. The police officer will be able to see your current breath alcohol level on a screen. If the results show you are above the presumptive legal limit of 0.08%, the officer will take your driver’s license away from you. The results will then be sent to the prosecutor’s office, and the Department of Motor Vehicles.

A driver suspected of driving under the influence may be asked to submit to two different types of breath tests: a preliminary breath test (or “PBT”) and an evidentiary breath test. The preliminary breath test is often given at the scene of a traffic stop and is administered by a small handheld device. This is typically done after a police officer asks you to answer questions and conducts field sobriety tests. The results of the preliminary breath test are not as reliable as evidentiary breath tests and thus, are inadmissible in Court to prove you are over the legal limit for alcohol. They can however, be used to help show why the arresting officer had probable cause that you were driving under the influence.

An evidentiary breath test is typically given after field sobriety tests show a person may be under the influence or a preliminary breath test shows a breath alcohol level higher than 0.08%. While many in law enforcement want people to believe forensic breath testing is always accurate, this simply is not the case. The results may show that there is alcohol in an individual’s breath even if no alcohol has been consumed, specifically if the individual is on a low-carb diet, is diabetic, or has ingested substances that lend themselves to false positives, such as mouthwash with alcohol in it recently. Further, there are many regulations that the police officers must meet for an evidentiary breath test to be valid, which experienced Las Vegas Criminal Defense Attorney Josh Tomsheck can discuss with you. Each case is unique and has their own circumstances which can affect the defenses available.

If a driver refuses to take an evidentiary breath test, there can be repercussions with the Department of Motor Vehicles. If a driver refuses the breath test, the police officer will immediately take the individual’s driver’s license and arrest him or her for driving under the influence. At this point, the police officer will have to get a warrant for your blood to determine your blood alcohol level. For more information on a blood test, please click here. The refusal will then be reported to the Department of Motor Vehicles, who will automatically suspend the individual’s driver’s license, and thus driving privileges, for one (1) year.

If you have been arrested for a DUI based on a breath test it is extremely important to contact a Las Vegas Criminal Defense Attorney as soon as possible. There are important deadlines that must be met by the Nevada Department of Motor Vehicles and the Court. It is in your best interest to hire a trusted Las Vegas Criminal Defense Attorney. Josh Tomsheck has over a decade of legal experience. He has successfully argued defenses against breath tests for his clients. Mr. Tomsheck may be able to prevent charges ever being filed against you, which has happened to thousands of his past clients. For your free consultation, please contact him here today!