If you are arrested for Driving Under the Influence in the State of Nevada, you will be requested to submit to a chemical test to determine if your Blood Alcohol Level is at or above the legal limit of .08%. There are 3 evidentiary tests that are used: the blood test, the breath test and the urine test (urine tests are very rare). All of these tests are subject to inherent errors such as laboratory testing errors, sample contamination, improper procedure followed by technicians, etc.
The Blood Test:
1. Problems with blood draw: The results of the test can be challenged in court if the phlebotomist, officer or EMT technician was not properly certified or did not follow standard procedure during the blood draw. Additionally, broken blood testing equipment, improperly maintained equipment or otherwise faulty equipment can be attacked.
2. Sample Storage: Many times the sample is not stored properly leading to inaccurate results (inadequate levels of anticoagulants and preservatives in the vial can also cause problems).
3. Contamination: The blood test can be suppressed in court if the sample is proven to have been contaminated. Fermentation of alcohol can occur in improperly stored samples which can yield inflated results.
4. Chain of Custody: If there was a break in the chain of custody, from phlebotomist to crime lab, then it can be argued that someone may have switched the samples or contaminated it.
5. Two-Hour-Rule: The blood must be drawn within 2 hours of your driving. If done later, then the defense can argue that the results should be suppressed because alcohol is absorbed into the body over time (rising blood alcohol). Thus, the results will be elevated—not accurately representing the BAC at the time of driving.
The Breath Test:
1. Cannot detect drugs: Breath tests can only detect alcohol from the exhaled air in the lungs. It is an indirect measure of the level of alcohol in the blood (the breach machine converts the breath alcohol reading using the “partition ratio” and produces a blood alcohol reading.
2. Fifteen Minute Rule: The person administering the test must watch the subject for at least 15 minutes, in “close proximity,” prior to administering the test to make sure he or she does not burp, belch, regurgitate, vomit, or put anything into the mouth.
3. Faulty Breath Testing Machines: To assure accuracy, the device must be frequently calibrated with air containing known amounts of alcohol.
4. False High Readings: Many factors can lead to inflated breath test readings, (asthma, mouth alcohol, GERD, etc.). Mouth alcohol itself can be caused by many factors (acid reflux, vomiting belching, alcohol trapped indentures, retainers, food, etc.).
5. Evidentiary Breath Test Failure = License Revocation: If you fail your breath test, the officer is required to seize your driver’s license immediately (you will be issued a 7 day “temporary” license to drive on until you retain counsel). However, if you opt for a blood test, your driving privileges cannot be revoked until the results come back from the lab. You will receive a notice in the mail. It could take anywhere from 3 months to 13 months between the day of your blood draw and your receipt of the revocation notice (depending on the facts of the case).
The Urine Test:
1. Least Accurate: Urine tests are very rare and are also the least accurate (and therefore the most likely to be inadmissible in court). Experts agree that the level of alcohol in urine is typically about 1.33 times the BAC level. However, this number is an average, and a DUI attorney can argue at trial that the result was not divided by this average figure. For example, some studies have shown that some people have alcohol levels only 40% as high in their urine as in their blood, while others have 200% the alcohol content in their urine as in their blood.
2. Results vary: Urine is stored in the bladder and stays there until it is emptied. If water or other beverages are also consumed, then the urine may be diluted and the results lower than the actual BAC. On the flip side, if the bladder was not emptied, alcoholic drinks were accumulating and the urine could be overly concentrated.
3. Available for Independent Testing: It is likely that the sample will be preserved for later testing.
4. Detecting Drugs: Urine tests can detect marijuana use within the past week. But urine tests cannot measure the frequency of use nor the severity of impairment. Also urine tests cannot distinguish between the illicit use of street drugs and the legitimate use of certain prescription and over-the-counter drugs.
If you have been accused of DUI in the state of Nevada, call The Hayes Law Firm at (702) 656-0808. We will fight your case to the extent of the law to eliminate or reduce the penalties you will face. Our expert DUI attorneys are on your side. You don’t have to fight this alone.