Before or after a person’s arrest for a DUI/DWI criminal offense, police officers may ask the accused/defendant to submit to a breath test for alcohol concentration to determine whether the person is per se intoxicated. Per se intoxication is intoxication by definition—as defined in the state’s statutes, which is often a blood alcohol concentration (BAC) of .08 or higher (.05 in Utah). A breath test measures the amount of alcohol in the air a person exhales and uses that amount to estimate how much alcohol is in the person’s blood (BAC).

There are two types of breath tests: (1) a portable breath test (PBT) that is typically given in the field (at the side of the road or other place where a driver has been detained); and (2) the Intoxilyzer or DataMaster breathalyzer machine that is usually located at the police station. The results of a PBT are generally not admissible at trial but may be the basis for probable cause for the police officer to arrest a driver when the test shows a BAC of .08 or higher in most states (.05 in Utah). And the results of an Intoxilyzer test generally are admissible at trial.

All states have implied consent laws that make a driver’s consent or agreement to submit to a blood, breath, or urine test (a chemical test) when requested by a law enforcement officer a condition of the driver’s acceptance of a driver’s license offered by the state. Despite implied consent laws, in 2013 the United States Supreme Court held that if a person refuses to submit to having their blood drawn the police cannot draw the blood by force without a search warrant, as required under the Fourth Amendment to the United States Constitution. But more recently the Supreme Court upheld a nonconsensual blood draw of an unconscious person suspected of driving under the influence—based on the state’s implied consent laws and the exigent circumstances exception to the Fourth Amendment’s warrant requirement.

And if a driver refuses to take a breath or blood test there are other consequences even if the police do not secure a search warrant for a blood draw—including fines, penalties, and automatic suspension of the driver’s license for a year or more.

In Nevada, the legal limit for blood alcohol concentration (BAC) is .08, and driving with a BAC at or above this level is considered per se intoxication. Law enforcement officers may administer two types of breath tests to determine BAC: a portable breath test (PBT) at the scene and an Intoxilyzer test at the police station. While PBT results are typically not admissible in court, they can provide probable cause for arrest. Intoxilyzer test results are generally admissible in court. Nevada's implied consent laws require drivers to submit to chemical tests (blood, breath, or urine) when requested by an officer, as a condition of holding a driver's license. Refusal to submit to these tests can result in penalties such as fines, license suspension, and other consequences. Following the U.S. Supreme Court rulings, forced blood draws without consent require a search warrant, unless the individual is unconscious and exigent circumstances are present, in which case the implied consent laws may allow a nonconsensual blood draw.