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Many drivers assume that failing a breathalyzer test is the only way to be arrested for driving under the influence (DUI) in Nevada. In reality, that’s not the case. Nevada law allows for DUI arrests even when a breath test shows a blood alcohol concentration (BAC) below the legal limit, or when no breath test is given at all.
Understanding this distinction is critical for drivers of all ages. A breath test is just one tool law enforcement uses to evaluate impairment. Officers may rely on other forms of evidence—such as field sobriety tests, driver behavior, or observed signs of intoxication—to justify an arrest. This broader approach allows police to respond to cases involving drugs, prescription medications, or situations where the effects of alcohol are present but not captured by a standard test.
Nevada’s DUI laws are built to prioritize safety over strict test results. That means a person can be arrested if their ability to drive is impaired, even without a failed chemical test. This post explains how and why DUI arrests happen without failed breath tests, and what drivers in Nevada should understand about impairment, probable cause, and testing limitations.
Nevada DUI Laws Go Beyond BAC Results
Nevada’s DUI statute does not limit arrests to cases where a person has a BAC of 0.08% or higher. Instead, the law allows a DUI charge when a driver is found to be “under the influence of alcohol, a controlled substance, or any combination thereof” to a degree that renders them incapable of safely operating a vehicle.
This means the key issue isn’t just BAC—it’s impairment. If an officer observes that a driver appears unable to safely control their vehicle, they can initiate a DUI investigation regardless of the results of a breath test.
The law applies similarly to drugs, both illegal and legal. A driver under the influence of marijuana, prescription painkillers, or other substances can be arrested for DUI if those substances affect their driving ability.
This broad definition allows Nevada law enforcement to pursue DUI cases even when chemical evidence is limited or unavailable. Officers are trained to observe signs of impairment and use multiple types of evidence to support an arrest decision.
Physical and Behavioral Signs That Can Lead to Arrest
In the absence of a failed breath test, behavioral clues often become the primary basis for a DUI arrest. During a traffic stop, officers are trained to look for a range of signs that may indicate impairment.
These include:
- Slurred or mumbled speech
- Glassy, red, or watery eyes
- Difficulty answering questions
- Strong odor of alcohol or drugs
- Inability to focus or follow directions
- Unsteady movements when exiting the vehicle
If a driver exhibits several of these signs, officers may proceed with field sobriety tests (FSTs) to assess balance, coordination, and attention. Poor performance on these tests provides further evidence of impairment, even if a breath test is not failed or not taken.
In some cases, especially those involving drugs, impairment symptoms may not show up on a breathalyzer at all. Officers may rely instead on a drug recognition expert (DRE) or request a blood or urine test to determine the presence of other substances.
The takeaway is clear: in Nevada, a driver can appear impaired based on behavior and performance alone—making a failed breath test unnecessary for an arrest.
Field Sobriety Tests and Probable Cause
Field sobriety tests are a major factor in DUI arrests without failed breath tests. These standardized tasks, developed by the National Highway Traffic Safety Administration (NHTSA), are used across Nevada to measure coordination, focus, and divided attention.
The most common FSTs include:
- Horizontal Gaze Nystagmus (HGN): Tracks eye movement as the driver follows a stimulus.
- Walk-and-Turn: Assesses balance, attention, and the ability to follow instructions.
- One-Leg Stand: Measures balance and control.
Failure to complete these tests properly—such as stepping off line, using arms for balance, or starting early—can indicate impairment. These failures provide probable cause for arrest, even without a BAC above 0.08%.
Officers document the results of these tests carefully, and they are often cited in police reports and court proceedings. While not foolproof, field sobriety tests are a standard method for determining whether a driver is too impaired to drive safely.
Drivers should know that participation in FSTs is voluntary in Nevada. However, refusing them doesn’t prevent an arrest—it may still happen based on other observations or test results.
Arrests Involving Drug Impairment or Prescription Medications
A breath test only detects alcohol, not other substances. That’s why Nevada law allows for DUI arrests based on drug impairment—even when the breathalyzer is passed or not administered.
Common scenarios include:
- A driver using marijuana (legally or illegally)
- Prescription medication affecting reaction time or alertness
- Use of illegal narcotics, including stimulants or depressants
In these cases, a blood or urine test may be requested to identify the presence of drugs. Officers may also call in a drug recognition expert who performs a detailed evaluation, checking for physical symptoms such as pulse rate, pupil size, or muscle tone.
These arrests often follow a pattern: poor driving behavior, physical signs of impairment, and failed field sobriety tests. Even without a breath test or with a BAC below 0.08%, Nevada law permits arrest if the driver is considered impaired by any substance.
This includes medications with side effects like drowsiness, confusion, or slowed reaction time. Drivers should always check prescription labels and consult with medical professionals about how medications could affect driving ability.
What Happens After an Arrest Without a Failed Breath Test
Being arrested for DUI without a failed breath test follows the same process as any other DUI arrest in Nevada. Once probable cause is established—through behavior, FST results, or other evidence—the officer may take the driver into custody.
At this point, the driver may be subject to:
- Further chemical testing (blood or urine)
- License suspension via DMV administrative action
- Criminal charges for DUI, depending on the results and evidence
The lack of a failed breath test doesn’t reduce the seriousness of the charges. In fact, arrests based on drug impairment can be more complex and may involve mandatory testing or testimony from medical professionals.
Drivers should also know that refusal to submit to a blood or urine test, when requested, can trigger automatic penalties under Nevada’s implied consent law. This includes immediate license suspension, even if no impairment is ultimately proven.
The arrest record will still appear on the individual’s record, and if charged, the person will have to go through the full court and DMV process, just like someone arrested after a failed breath test.
Why Nevada Allows DUI Arrests Without Breath Test Failure
Nevada’s DUI law is written to address all forms of impaired driving, not just those confirmed by alcohol tests. There are several important reasons why the law allows for arrests without a failed breath test:
- Not all substances are detectable via breathalyzer
Many impairing drugs—such as marijuana, opioids, and sedatives—require blood or urine tests. - Alcohol affects people differently
A person may be visibly impaired with a BAC below 0.08%, especially if they are inexperienced, tired, or mixing alcohol with other substances. - Behavior is often the best indicator of impairment
Law enforcement prioritizes public safety and bases arrests on whether a person can drive safely—not just their BAC level. - Legal thresholds don’t guarantee safety
Some drivers may be over the legal limit and still seem fine, while others may be dangerously impaired at lower levels. The law gives officers discretion based on overall observations.
In short, Nevada’s approach is designed to keep unsafe drivers off the road, regardless of whether their BAC registers at or above a specific number.
FAQ: DUI Arrests Without Failing a Breath Test in Nevada
Can you still be charged with DUI in Nevada if your BAC is under 0.08%?
Yes. If law enforcement believes you’re impaired and unable to drive safely, you can be arrested even if your BAC is below the legal limit.
What if you pass a breath test but fail field sobriety tests?
Poor performance on field sobriety tests may provide enough probable cause for arrest, especially if the officer suspects drug use or combined substance impairment.
Do prescription drugs count toward DUI charges?
Yes. Legal medications that impair your ability to drive can still result in DUI charges under Nevada law.
Is it legal to refuse a breath or blood test in Nevada?
Refusal is allowed, but it can lead to automatic license suspension and may be used against you in administrative or legal proceedings.
Can marijuana use lead to DUI arrest even if you’re not high?
If the officer believes you are impaired at the time of the stop—based on behavior or test results—you can be arrested. The presence of THC in your system can be used as evidence.
Conclusion
In Nevada, you can absolutely be arrested for DUI without failing a breath test. The law focuses on impairment, not just chemical readings. Whether the cause is alcohol, drugs, or a combination of both, a driver may be taken into custody based on behavior, physical signs, and poor test performance—even with a BAC below 0.08%.
For a full breakdown of how the state’s DUI enforcement works, visit the How DUI Laws Work pillar page. To understand what officers look for during traffic stops, see the What Triggers a DUI Arrest During a Traffic Stop mini-hub for more detail.