Clarifying the Two-Hour BAC Testing Rule and Juror Impartiality in DUI Convictions

Introduction

This commentary examines the Nevada Supreme Court’s decision in Gonzales (Cristian) v. State, decided April 30, 2025. The appellant, Cristian Alejandro Gonzales, was convicted by a jury of driving under the influence of intoxicating liquor with a prior felony DUI conviction. On appeal, Gonzales challenged two rulings by the district court: (1) the seating of an alternate juror who worked as a deputy court clerk familiar with his case record, and (2) the admission of his blood‐alcohol test result taken more than two hours after he stopped driving. The Supreme Court of Nevada addressed both issues under the plain‐error and abuse‐of‐discretion standards and ultimately affirmed the conviction, finding the errors harmless.

Summary of the Judgment

The Court held that the district court plainly erred by seating the deputy court clerk as an alternate juror, since she had likely reviewed documents mentioning the prior felony DUI conviction. However, because she did not participate in deliberations, that error did not affect Gonzales’ substantial rights and was therefore harmless.
The Court further concluded that admission of the blood test result—taken at two hours and 20–30 seconds after Gonzales turned off his vehicle—violated NRS 484C.110(1)(c) (which requires testing within two hours of driving). Despite this abuse of discretion, the error was harmless under the harmless‐error standard, given the strong eyewitness testimony, body‐camera footage, odor of alcohol, and failed field sobriety tests.
Cumulative‐error review confirmed that, even taken together, the errors did not deprive Gonzales of a fair trial, and the judgment of conviction was affirmed.

Analysis

1. Precedents Cited

Nelson v. State, 123 Nev. 534 (2007) – Sets the plain‐error standard and the test for juror removal for cause: whether a veniremember’s views prevent or substantially impair performance of juror duties.
Garner v. State, 116 Nev. 770 (2000) – Defines “plain error” as an error apparent on casual inspection of the record.
Koenig v. State, 99 Nev. 780 (1983) – Holds it is “unquestionable error” to admit references to a prior DUI conviction at trial.
Dixon v. State, 137 Nev. 217 (2021) – Applies Batson to alternate‐juror selection and finds failure to sustain a Batson challenge harmless when the alternate did not deliberate.
Armstrong (State v. Eighth Jud. Dist. Ct.), 127 Nev. 927 (2011) – Discusses admissibility of blood tests taken beyond two hours and sets out factors for reliable retrograde extrapolation.
Batson v. Kentucky, 476 U.S. 79 (1986) – Governs race‐based juror exclusion, extended to alternate jurors in Dixon.
Patterson v. State, 129 Nev. 168 (2013) – Outlines the harmless‐error standard: reversal is required only if error contributed to the conviction.
Gordon v. State, 121 Nev. 504 (2005) – Holds that a guilty verdict may rest on any one of multiple legally sufficient theories of DUI.

2. Legal Reasoning

Juror Impartiality and Plain Error: During voir dire, a deputy court clerk disclosed familiarity with Gonzales’ filings, including references to his prior felony DUI. Although defense counsel did not move to strike her, the trial court had a duty to remove any veniremember whose prior knowledge would “prevent or substantially impair” impartial service. Under Nelson and Garner, seating her was plain error. But under Dixon, because she served only as an alternate and did not join deliberations, her presence did not affect Gonzales’ substantial rights.

Blood Test Timing and Abuse of Discretion: NRS 484C.110(1)(c) mandates that to prove BAC ≥0.08, the measurement must be “within 2 hours” of driving. Gonzales’ sample came at 2 hours 0 minutes 30 seconds, rendering it inadmissible under that subsection. His toxicologist could not perform a reliable retrograde extrapolation under the 15‐factor Armstrong framework. Thus, admitting the result was an abuse of discretion. Nevertheless, the Court applied the harmless‐error doctrine (Patterson) and found overwhelming alternative proof of intoxication—erratic driving, odor of alcohol, failed sobriety tests—satisfying NRS 484C.110(1)(a).

3. Impact

This decision clarifies several important points for DUI prosecutions in Nevada:

Trial courts must remove any juror whose prior involvement with case files creates a substantial risk of bias, even as an alternate, but such error may be harmless if the juror does not deliberate.
NRS 484C.110’s strict two‐hour window is mandatory for per se BAC proof under subsection (1)(c). Samples taken even seconds beyond two hours are inadmissible under that subsection absent a reliable retrograde extrapolation meeting Armstrong’s factors.
Admission of an out‐of‐time sample may still be harmless if other evidence establishes intoxication under subsection (1)(a) (influence standard) beyond a reasonable doubt.
The harmless‐error doctrine remains a powerful tool for upholding convictions where procedural or evidentiary mistakes did not contribute to the verdict.

Complex Concepts Simplified

Plain Error: An error so obvious from the record that the trial court should have corrected it on its own, even if no objection was made.
Harmless Error: An error is deemed harmless if the appellate court is convinced beyond a reasonable doubt that the mistake did not affect the trial’s outcome.
Retrograde Extrapolation: A scientific method used to estimate a person’s BAC at an earlier time based on a later‐taken sample, requiring multiple reliability factors (e.g., time frame, drinking history, physiology).
Alternate Juror: A juror who sits through the trial but does not join deliberations unless called to replace a regular juror; bias by an alternate is less prejudicial if they never deliberate.

Conclusion

The Gonzales decision reinforces strict adherence to statutory timing rules for BAC evidence and underscores the importance of juror impartiality. It confirms that procedural missteps—seating a biased alternate or admitting an untimely blood test—do not automatically overturn a conviction if those errors did not influence the verdict. Future cases will look to this decision when evaluating:

Whether a veniremember’s prior exposure to case files mandates removal, and when such error is harmless; and
How strictly the two‐hour BAC window is applied and under what circumstances alternative proof of intoxication will sustain a conviction.

In the broader legal context, Gonzales v. State exemplifies the Court’s balanced approach, protecting defendants’ rights while recognizing the practicalities of evidence and trial management.