What level Blood Alcohol Concentration in Nevada is someone presumed intoxicated?

Answer 1

FIRST EFFORTS TO DEFINE THE OFFENSE:

PRESUMPTIONS OF INTOXICATION

For over 30 years, no Nevada law defined, or otherwise provided direction concerning

what constituted, intoxication or being "under the influence." Like their counterparts in

other states, Nevada's peace officers relied upon observation, certain sobriety tests,

and judgment to determine if drivers were intoxicated.

During the late 1930s and early 1940s, technology to measure the amount of alcohol

in a person's blood (Blood Alcohol Content or BAC) became readily available. Further,

evidence from the new tests indicated that, at higher BAC levels, drivers were more

likely to be involved in accidents.

In an effort to make the evaluation of DUI more objective and, thus, the enforcement

of DUI laws more effective, states began adopting "presumptive" DUI statutes. That

is, a person was presumed to be intoxicated at a specified BAC, although the

presumption was rebuttable in court. Indiana passed the first such law in 1939.

Appendix A to this paper, a chronicle of selected DUI legislation in Nevada, includes chapter citations of all bills

referenced.

1 Similarly, Nevada, in 1957, enacted Assembly Bill 267, which established statutory

presumptions associated with certain BAC levels. Like the presumptive statutes of

most other states, AB. 267 set what is now generally considered to be a very

conservative standard for presumed intoxication--0.15.

2

A person with a BAC of 0.05 or less was presumed not to be under the influence of

intoxicating liquor; with a BAC of 0.15 or more, a person was presumed to be

intoxicated. A BAC between 0.05 and 0.15 gave rise to no statutory presumption

concerning whether the person was intoxicated, although the BAC might be considered

with other evidence in making that determination.

Further, the bill specified that the presumptions were not to be "construed as limiting

the introduction of any other competent evidence bearing upon the question of whether

or not the defendant was under the influence of intoxicating liquor." Thus, the

presumption that a driver was intoxicated was rebuttable in court.

By 1967, national attention to the dangers of drunk driving had prompted the

Federal Government to include among its standards for highway safety programs a

presumptive BAC level of 0.10. Two years later, the Nevada Legislature considered

a bill to lower the standard (Assembly Bill 266 of the 1969 Session), but the measure

did not pass. Opponents referred to AB. 266 as the "two-drink" bill, arguing that "just

two drinks" could result in a BAC of 0.10.

Thus, it was not until 1971 that the Nevada Legislature lowered the presumptive level

from a BAC of 0.15 to 0.1 O. Accordin~ to testimony during legislative hearings, at that

time 25 states had already done so. The Nevada Safety Council, one advocate of

lowering the standard for presumed intoxication, conducted an experiment to counter

the "two-drink" argument of the previous session. The council's testimony included the

results of that (admittedly non-scientific) experiment, in which it found "it takes a

sufficient number of drinks before an average person's blood-alcohol content registers

0.10."

ILLEGAL PER SE

Nationwide, the presumptive statutes of the 1950s were followed by "per se" statutes

in the 1970s. Although a presumptive law allows a driver with a BAC over the

presumed level of intoxication to rebut the presumption in court, a per se law stipulates

that to drive with a BAC at or above a specified level constitutes an offense in and of

itself Proponents of the new legislation argued that police officers were not inclined

to arrest drivers for DUI if they believed that the presumption of intoxication would be

successfully rebutted. Further, they suggested that per se laws encouraged arrest and

prosecution and, therefore, deterred drinking and driving.

Currently, all 50 states have either presumptive or per se statutes at a BAC no higher than 0.10.

See the Legislative History of A.B. 24, available in the Research library of the Legislative Counsel Bureau, for more

information about lowering the presumptive BAC level.