DUIs in Nevada can range from a misdemeanor to a felony depending on the facts. Nevada uses a 7 year offense window to determine if you will be charged with a DUI misdemeanor 1st, misdemeanor 2nd or a felony 3rd. It is possible to receive more than 3 DUI convictions and not be charged with a felony DUI, so long as you are not in the 7-year window and there is no substantial bodily harm or death. If you are charged with a felony DUI 3rd there may be diversion programs to keep you out of prison and prevent you from being a felon, such as the Serious Offender’s Program/ Felony DUI Program.
There are several ways someone may be charged with a felony DUI regardless of the number of offenses and the 7-year period, this happens if you are charged with a DUI and there is substantial bodily harm or a death resulting from the DUI. Or you already have a DUI felony conviction on your record in any state.
DUI charges are triggered when you have a BAC (blood alcohol content) of .08, .02 if under 21 years of age and .04 if driving on a commercial driver’s license, at the time of driving or within two hours of driving. You may also be charged with a DUI even if the BAC is below .08 under the impairment theory. Prohibited substances or drugs may also be grounds for a DUI in Nevada. Marijuana may also trigger a DUI arrest. Click here for more on Marijuana DUIs. You may also be charged with Boating Under the Influence, BUI, if you were in a boat on a lake. For more information on BUIs click here.
A DUI 1st is a misdemeanor offense and carries a minimum of 2 days jail and up to 6 months jail, or 48 hours of community service. Typically you will be ordered to attend the Victim Impact Panel, DUI school, coroner’s program, stay out of trouble and pay a fine up to $1000. If your BAC is .18 or higher the court may impose additional treatment and restrictions. Your Driver’s license will be suspended for 90 days as well.
A DUI 2nd is a second DUI offense within 7 years and is still a misdemeanor. It carries a minimum 10 days jail and up to 6 months jail, or house Arrest. You may be ordered to attend DUI school, Victim Impact Panel, Coroner’s Program and pay a fine up to $1000. Your Driver’s license will be suspended for 1 year as well. If you have a high BAC this may trigger harsher penalties. For more information on DUI 2nd offenses click here.
If you receive a 3rd DUI offense in 7 years, this may be charged as a category B felony and carries a minimum 1-year in prison and not more than 6 years in prison. Furthermore, it is not probational. Your Driver’s license will be suspended for a minimum 3 years.
Do not take any DUI charge lightly, as you can see even a misdemeanor DUI can be used to bring a simple DUI to felony status in the future. For more information on DUI 3rd offenses click here.
Even though a felony 3rd offense is a non-probational charge that carries prison time, there is a way to avoid prison and a felony conviction if you get into felony DUI court. For more information of Felony DUI Court click here.
If you have a prior felony DUI or receive a DUI and cause substantial bodily harm to someone or the DUI results in a death you will be charged with a felony from the beginning. For more information of felony DUIs offenses click here.
If a minor was in the vehicle and a DUI occurred, it is common to be charged with a DUI and a Child Endangerment charge. For more information on Child Endangerment, click here.
If there was an accident and you left the scene, chances are you might be charged with a Hit and Run charge on top the DUI charge. This may be a misdemeanor or felony depending on the facts. For more information on Hit and Runs click here.
If you are arrested for a DUI and the officer knows your BAC, typically from a intoxilyzer, the officer will fill out an Officer Certification of Cause and suspend/revoked your Driver’s license. If you did a blood test, the revocation may come later and you will be notified by mail. Once you are notified you have 7 days to request a DMV hearing and a temporary Driver’s license. This hearing is an administrative hearing to determine if there is reasonable grounds to believe you were operating a motor vehicle while under the influence. Your temporary Driver’s license is good until the DMV hearing results in a decision, if you lose the DMV hearing your license will then be suspended/revoked. If you win, it will be fully reinstated. Keep in mind the outcome of the DMV hearing has no impact on your criminal case, the DMV hearing is a much lower burden than the criminal case. Our firm includes DMV hearings as part of the DUI representation. For more information on the DMV click here.
Sometimes there may be multiple issues that your attorney can use as a defense, other times, one single issue might be enough. Your attorney needs to decide whether to focus on multiple issues with your case to build a defense or to focus one on single issue. If you have one single issue that may be you best defense since that one issue may be critical. Multiple issues may confuse a judge or jury allowing them to overlook the reasonable doubt you may be trying to build. However, if you case is riddled with defenses your attorney may still want to address this at trial.
At trial the burden is on the prosecutor to prove his or her case, your defense attorney needs to poke holes in the case to create reasonable doubt or to prove you are innocent.
Common DUI Defenses
In a nutshell, you have to be driving or in physical control of your vehicle while under the influence of alcohol or a controlled substance. Your attorney needs to look to see if the prosecution can prove each element. Some common defenses are:
You were not driving or in control of your vehicle;
Your BAC was not obtained within 2 hours of driving;
Your BAC was not reliable because of operator error;
Your BAC was not reliable because of a physical condition such as GERD (Gastro-Esophageal Reflux Disorder);
Chain of custody issues with your blood work;
Improper testing; and
Breathalyzer was not properly calibrated.
There may also be issues with the stop or the search. Illegal searches and seizures may be grounds for your attorney to file a motion to suppress evidence, such as your blood, if your rights were violated. A good defense attorney will start with looking at whether the stop or police contact was even lawful from the beginning.
You should always hire an attorney to go through the facts and discovery with you to see if any defenses are available.
Field Sobriety Exercises – Valuable Tools or Junk Science?
This article will address the listed accuracy of some commonly-administered roadside exercises used every day by the police in all 50 states at predicting a BAC of .10 or above. Whether or not the tests themselves have any true value is quite subjective and becomes an issue of FACT for the fact-finder, not an issue of LAW for a judge. We will also discuss how we defend our clients against testimony concerning these exercises offered by police at trial.
Almost anytime police pull over someone suspected of driving under the influence, they need to have at least reasonable suspicion that the driver is under the influence of alcohol or a controlled substance. If they smell alcohol or burnt marijuana, accompanied with some unusual driving pattern, those two circumstances are usually enough. The officer will typically ask you to step out of the car, and ask you to perform Field Sobriety Exercises, (hereinafter referred to as FSE’s) to “dispel” any notion the officer has that you are not capable of safely operating your vehicle – and thus would need to be arrested for DUI.
The real danger in having these exercises used against you in a DUI trial involves misleading a judge, who as a human being may be inclined to assign improperly high weight to this type of evidence, either consciously (because they like police) or subconsciously due to the witness wearing a uniform, having a gun, giving answers on the witness stand that sound so “official”. A judge is typically an elected official, who may have been a prosecutor too – and now does not want to appear “soft” on crime. Jurors may come into your trial with no real knowledge of how police operate during DUI investigations. In Nevada a defendant can only get a jury trial for a FELONY Dui – and the dangers of jurors giving this type of testimony unreasonably high weight is even higher.
Question: What are FSE’s?
Answer: They are a series of physical and mental tasks designed to divide your attention – similar to the way the skills needed to operate a car divide your attention – and that is why the police use them. They think (and will tell the judge or jury) that your performance on FSEs EQUATES with your ability to safely drive. The officer will watch you do FSEs and evaluate, and then (in theory) make a more informed decision as to whether or not to arrest you, or let you go.
Question: What are the typical FSE’s?
Answer: The Walk and Turn, The One-Leg Stand, and The Horizontal Gaze Nystagmus Test.
Question: How accurate are they?
Answer: According to data compiled long ago by NHTSA (The National Highway Traffic Safety Administration)
The Walk & Turn is 68% accurate;
The One-Leg Stand is 65% accurate, and
The HGN test is 77% accurate.
Question: Don’t those numbers seem low?
Answer: Yes – and in many scientific circles they would not even be considered acceptable.
How we combat the use of this FSE data against our clients
The most-important core-principle in DUI defense as to FSE’s is summarized by the familiar saying: “Garbage in – Garbage Out”. In other words, the percent accuracy numbers given above should be mentioned PROMINENTLY during cross-examination and closing argument, and used aggressively against the state’s police witnesses. During the pre-trial stages we will compare how the investigating officer conducted these tests versus the way the NHTSA Manual said the exercises should be administered. We will proceed with the assumption that the accuracy numbers listed above are contingent on the exercises being administered perfectly, under ideal conditions, by well-trained, experienced officers. In most DUIs, not surprisingly, the investigation is NEVER conducted perfectly, and rarely under ideal conditions and frequently the officers are not well-trained and not experienced.
Question: What other things cause FSE’s to not be administered properly in the field and contaminates the results?
Answer: Human-nature i.e. Sloppiness, impatience and indifference by police – and insufficient training.
Time-pressure from the TWO HOUR RULE (mentioned again below)
Weather conditions, wind, rain, cold,
Road-noise from semi-trucks, headlights shining in your eyes, crowned roads (not flat roads) pebbles and holes in the pathways, imperfect lighting and camera angles/placement – IMAGINARY lines on the walk-and-turn test as opposed to ACTUAL lines.
A faulty interview can also doom the results before the tests ever begin – The officer is supposed to ask you about things that may affect your ability to do FSEs i.e. current AND past injuries. They are supposed to ask you when you last ate, and when you last slept, and for how long, etc. They are not supposed to be rushing through those steps. I remember one trial where something that my client had eaten – (medication) on an empty stomach affected his balance greatly and his related appearance on the exercises. When it was shown that the officer did not sufficiently consider this possibility in his arrest decision – he ended up appearing less-than thorough to the jury and I suspect if affected the (not guilty) verdict. The real problem in Nevada with being thorough as a police officer involves the TWO-HOUR RULE. Any blood sample the police get from you must be taken within two hours to potentially constitute Per Se evidence of impairment and create any presumption of impairment (at .08 or above). This is measured as two hours from when you last drove or were in actual physical control of a car. The longer they spend “dilly-dallying” around at roadside interviewing you, the closer they get to that time-limit.
REMEMBER – that TWO HOUR RULE in practice means the police have to do ALL of these things before they get you in the jail in front of the nurse to draw blood or near that breath machine –
1 – Stop You and Observe you
2 – Question / Investigate you about where you are going to / coming from
3 – Ask you to get out of the car – Explain the instructions for the FSE’s / Conduct the FSE’s
4 – Evaluate / record FSE’s
5 – Arrest you / Handcuff you
6 – Transport You to jail
7 – Book you in the jail.
Anyone being asked to perform ALL of these tasks in two hours could easily make a mistake and may start “cutting corners” as a result. That is when/where we exploit their mistakes.
Are Field Sobriety Exercises really “Junk Science” ?
We will say and argue that they are. We will argue that walking on an imaginary line and standing on one leg has NOTHING to do with being able to safely operate a vehicle. No one really knows for sure. What matters is that we will attack FSEs at every step of your case – and at trial, discredit them by comparison to the purported value/accuracy of DNA evidence, fingerprints, etc and almost any other scientific system of measure I can think of. We will hit on this topic HEAVILY during jury selection (assuming the judge allows). In past cases I was effective asking people how accurate they EXPECT these type things to be – considering that the standard of proof is BEYOND A REASONABLE DOUBT. Coming into the trial most jurors have NO IDEA how low the listed accuracy of FSEs are. I have asked jurors how accurate they expect an octane rating (and the amount pumped) on a gas pump to be, or the scale for their meat/fruit at the grocery store…How accurate do they expect a pregnancy test to be, or a cancer test…and then ask them WHY…why do they expect those tests to be VERY accurate?
Most – often jurors say they want those tests accurate because those tests are measuring important or valuable things in their life – and if the gas octane and the amount pumped, and the fruit and meat scales in the store are not accurate, the customers are victims of fraud.
Don’t people accused of crimes and facing the loss of liberty/freedom deserve the same level of precision and accuracy?
WILL I GO TO JAIL FOR A DUI?
Going to jail will depend on numerous factors from your case. Make no mistake about it, all DUIs have a possible jail sentence or even prison for felonies. To learn more about if you might go to jail, click here to read an article by former prosecutor Michael Anello on what he thinks are the most important 3 factors in determining jail.
If you have been charged with a DUI contact the Law Offices of Adam J. Graves LLC for a free consultation by calling 702-895-9111.
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