Breath, blood and urine tests in a DUI case

The statutes discussed in this guide name different kinds of bodily sample. Missouri's Mo. Rev. Stat. § 577.012 provides that percent by weight of alcohol in the blood "may be shown by chemical analysis of the person's blood, breath, saliva or urine." Montana's Mont. Code Ann. § 61-8-1002 describes its alcohol concentration grounds as shown "by analysis of the person's blood, breath, oral fluid, or other bodily substance."

Nebraska's Neb. Rev. Stat. § 60-498.02, which addresses revocation of an operator's license, refers to refusal to submit to "a chemical test of blood, breath, or urine." Arkansas's A.C.A. § 5-65-205, in the subsection setting out refusal consequences, refers to a chemical test of "breath, saliva, or urine."

Each list above is quoted from a single named state's statute. None of them describes the law of any other state, and this guide does not combine them into a general rule.

Among the statutes covered in this guide, Montana's speaks to the question directly. Mont. Code Ann. § 61-8-1017 allows a person to file a petition in the district court in the county where the arrest was made to challenge a license suspension or revocation, within a period the statute measures from when a peace officer gave notice of the right to a hearing. At that hearing, the court decides the matter on no other issues than whether a peace officer had a basis for requesting a test or tests under a cross-referenced section, and whether the person refused to submit to any of the "tests designated by the peace officer."

That wording places designation of the test with the peace officer in Montana's refusal-review setting. The same section provides that, upon the petitioner's request, the court may issue a stay of the suspension or revocation pending the hearing; filing is not described as an automatic stay. The section does not grant a right of appeal to a state court where a license is suspended or revoked under a tribal law or regulation requiring alcohol or drug testing of motor vehicle operators.

The excerpts relied on for Arkansas, Missouri, Nebraska and Virginia do not address who designates a test, so this guide says nothing about it for those states.

Nebraska's Neb. Rev. Stat. § 60-498.02 directs the director to revoke the operator's license of a person arrested for refusal to submit to a chemical test of blood, breath, or urine as required by a cross-referenced section, and of a person who submits to such a test and whose result discloses a concentration of alcohol specified in Neb. Rev. Stat. § 60-6,196. That action follows either the expiration of a stated period after the date of arrest or a hearing after which the director finds the license should be revoked.

The statute sets a revocation period for refusal and, for a test result, a period that depends on whether the driving record abstract shows prior administrative license revocations with final orders within a stated lookback.

Arkansas's A.C.A. § 5-65-205 directs the Office of Driver Services to suspend or revoke the driving privilege of an arrested person who refuses to submit to a chemical test under its subchapter. The subsection setting out the length of that consequence refers to a person who refuses "a chemical test of his or her breath, saliva, or urine," and the length turns on whether earlier offenses fall within a window the statute sets. This guide does not extend that wording to any other kind of test.

On this site, "per se" describes a ground of the offense defined by a measured concentration rather than by being under the influence. Nebraska's Neb. Rev. Stat. § 60-6,196 shows the structure: it makes it unlawful to operate or be in the actual physical control of any motor vehicle while under the influence of alcoholic liquor or of any drug, or when the person has a stated concentration of alcohol in the blood, or a stated concentration of alcohol in the breath. The blood ground and the breath ground are written as separate alternatives, each measured against its own quantity of blood or of breath.

Missouri's Mo. Rev. Stat. § 577.012 defines the offense of driving with excessive blood alcohol content, with a concentration for operating a vehicle and a different concentration for operating a commercial motor vehicle. Virginia's Va. Code § 18.2-266 includes a concentration ground for driving or operating a motor vehicle, engine or train, alongside a ground based on being under the influence of alcohol and grounds based on drugs, or alcohol and drugs combined, to a degree which impairs the ability to drive or operate safely.

No figures are repeated here. State-specific information is collected on the state pages for Arkansas, Missouri, Montana, Nebraska and Virginia.

Virginia and Missouri each connect a result to testing provisions in their own codes. Virginia's Va. Code § 18.2-266 frames its concentration ground as a concentration "as indicated by a chemical test administered as provided in this article." Missouri's Mo. Rev. Stat. § 577.012 provides that, for determining the alcoholic content of a person's blood under that section, the test "shall be conducted in accordance with" cross-referenced provisions. This guide does not describe what those cross-referenced provisions contain.

Montana's Mont. Code Ann. § 61-8-1002 addresses timing. Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by a person driving or in actual physical control of a vehicle while under the influence of alcohol, the alcohol concentration at the time of a test gives rise to inferences about whether the person was under the influence. Those inferences apply to a sample "drawn or taken within a reasonable time after the alleged act."

The statute calls the inference that a person was under the influence rebuttable, and provides that its inference provisions "do not limit the introduction of any other competent evidence" bearing on whether the person was under the influence of alcohol, drugs, or a combination of alcohol and drugs.

Virginia's Va. Code § 18.2-266 includes a ground for driving or operating a motor vehicle, engine or train while the person has a blood concentration of any of a listed group of substances at or above a level the statute states.

Montana's Mont. Code Ann. § 61-8-1002 includes a ground for driving or being in actual physical control of a noncommercial vehicle or commercial motor vehicle on the ways of the state open to the public while, without a valid prescription, the person has an amount of any substance listed in its prohibited-substance table in their body, as shown by analysis of the person's blood. The listed levels are not restated here.

Separate guides on this site cover blood draws and warrants after an arrest, and how breath-test evidence is reviewed.

Deadlines, limits and penalty ranges are set by each state’s statutes, so this page does not state them. Each state page shows them with the official source and the date they were verified — or says plainly that a figure has not been confirmed yet.