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10 DUI Myths
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Ten Myths About DUI

Professional Advice from a Reno DUI Attorney

1. I have to be driving in order to be convicted of Driving Under the Influence in the State of Nevada

Actually, no. Driving is not required. All that is needed is that you are in “actual physical control” while having a prohibited concentration of alcohol in your blood or breath. That means that if you get behind the wheel of your vehicle, and decide that you have had too much to drink, your decision to “sleep it off” in your car may lead to a conviction of the offense anyway, just as if you had decided to take a chance and drive home. It is immaterial that you felt as if you were doing the prudent thing.

TIP: If you have to sleep it off in your vehicle, it is better if you sleep in the back seat, or the passenger seat, and do not put the key in the ignition. This is not really recommended, however, as prosecutors may still argue that you had the ability to start the vehicle and drive away. Call a cab whenever you are unsafe to drive.

2. If I am stopped by a police officer, I have the right to consult with a lawyer to determine whether to answer his questions, or to decide whether submit to a blood or breath test.

Your constitutional right to speak with an attorney doesn’t allow you to consult with one before deciding whether to remain silent, or before deciding whether to submit to an evidentiary test of your blood or breath. It is only after you answer the officer’s question, and after you submit to the testing, that you can call a lawyer to determine what you should have done.

TIP: Although you are generally expected to answer a police officer’s legitimate “identity” type questions, you should not admit to having consumed any alcohol or any controlled substances. By doing so, especially with the controlled substances, you may be admitting to a felony. When in doubt, don’t talk. You should only agree to take tests that are required by law. Don’t volunteer to take any tests that are not required. Ask if the test is required.

3. I have to be intoxicated, or “under the influence” in order to be convicted of Driving Under the Influence.

Your driving patterns, your ability or inability to safely operate your vehicle, and indeed, your intoxication, or lack of intoxication, are often irrelevant. While some drivers are convicted of Driving Under the Influence because of their poor driving, the overwhelming majority are not what we would normally call “intoxicated.” In fact, most drivers are convicted not because they are operating a vehicle while they are intoxicated, but rather because the evidentiary test of their blood or breath indicates a Blood Alcohol Concentration (BAC) above the legal limit, which is now 0.08 BAC.

4. In order to be convicted of Driving Under the Influence, it is necessary to prove that I was driving at the time that my blood or breath was over the limit.
Thanks to aggressive lobbying, the national advocacy organization Mothers Against Drunk Driving (MADD) was able to force the enactment of legislation in Nevada which allows the prosecution and conviction of drivers whose blood tests over the legal limit not only at the time they were driving, but also for a period of up to two hours after driving. In other words, it is immaterial that your blood contained sufficient alcohol at the time you were operating a vehicle, so long as it tested above the limit later.

5. I have the right to refuse a test of my blood or breath, even if the officer tells me to submit to one.
Years ago, it was possible to refuse to submit to a blood or breath test, without very much fallout. Today, however, should you refuse to submit to a “preliminary” test of your breath, the officer is permitted to arrest you, if he has “reasonable grounds” to do so, and to force you to take an evidentiary test of your blood or breath. If you are asked to submit to an “evidentiary” test of your breath or blood, and you refuse, the officer can use reasonable force to compel you to take the test.

TIP: Cooperate, but don’t volunteer to take tests. Your refusal to take a test may result in your being charged with an additional charge of obstructing or resisting an officer. Be polite, and if told that you have to submit to a test, then submit to it and fight about it later, in court.

6. If I want to fight my case, I can force the prosecutor to prove my guilt to a jury of my peers.

The constitutional right to a jury trial does not compel a court to order one in misdemeanor cases. Since most DUI offenses are misdemeanors, this effectively means that it is extremely unlikely you will get such a jury trial. Instead, you will appear before a Justice of the Peace, or a Municipal Court Judge who has “heard it all.” Sometimes, in certain communities in Nevada, the Justice of Peace is not even trained in the law, yet he or she will be deciding your case.

7. If I am convicted of Driving Under the Influence, and I lose my driver’s license, I can get a restricted license.

Yes, and no. It is not necessary to be convicted of DUI in order to have your driver’s license revoked for a period of time, 90 days on the first offense. The Nevada Department of Motor Vehicles (DMV) can, and does, revoke driver’s licenses without requiring a court conviction of an offense of Driving Under the Influence. In fact, should your blood or breath test over the 0.08 BAC, your license will be automatically revoked for 90 days, without your appearing in any court or administrative hearing. Even if you are acquitted of DUI in the Justice Court or Municipal Court, your license revocation may still stand, since the procedures and rules of the DMV operate independently of the court system. Further, a restricted license is only available when ½ of the revocation period has been served, which means that any such restricted license would only be available after 45 days of buses, bikes, and bumming rides had elapsed.

TIP: By challenging a license revocation with the DMV, you can control just when your license will be revoked, rather than when the DMV or the arresting officer says it will happen. Also, some officers do not show up at the administrative hearing, and you win by default. As Woody Allen says, “Half of winning is just showing up.”

8. Even if I am convicted of Driving Under the Influence, because of my excellent driving record, I will probably get probation, and not have to go to jail or do community service.

Your excellent driving record means diddly when it comes to sentencing on DUI offenses. No probation is possible, and every person who is convicted of such an offense must serve at least 2 days in jail, or must perform at least 48 hours of community service. No exceptions, unless you agree to enter a long and costly alcohol rehabilitation program. These are the minimum jail and community service penalties for a first offense. The actual penalties can be much higher.

TIP: Your agreement to enter an outpatient educational or treatment program may reduce the mandatory periods of both jail time and community service.

9. If I am stopped and arrested for Driving Under the Influence, I am as good as convicted.

Despite the attitude of many courts and prosecutors, there are defenses to the crime which should be raised by you. Sadly, there are law enforcement officers who are not above coloring the truth and are willing to do so. Also, many officers who investigate DUI cases are not qualified to administer the sobriety tests, and they make serious mistakes in so doing. Remember this: If you plead guilty, you have a 100% chance of being found guilty. If, however, you are willing to fight for your rights, and to contest the prosecution’s case, you will have the best chance of a satisfactory outcome.

TIP: Pleading Not Guilty at the Arraignment does not mean that you cannot change your mind later. For this reason, do not plead guilty until you are satisfied that nothing can be done to improve your legal position. Your attorney will know how to advise you.

10. I can defend myself effectively in this kind of case, if I just let the judge know the facts.

If you have a headache, it is perfectly acceptable to take an aspirin or two. Similarly, a small cut may heal perfectly well without doing anything to remedy it. If your appendix bursts, however, you need to consult an expert, and no one would suggest that you should personally attempt to remove that appendix. If you are arrested for Driving Under the Influence, you need professional help to get past the many pitfalls and adverse consequences. You need a competent lawyer, one who is experienced in the defense of Driving Under the Influence cases, and who is well versed on the law and facts regarding these offenses. Your investment in such representation is essential.

TIP: Hire the best attorney you can afford, one with depth of knowledge and experience in defending other drinking drivers. Schedule a case evaluation with the Reno DUI lawyer from The Law Office of Walter B. Fey at (888) 339-4384!

888-339-4384
247 Court Street, Reno, NV 89501
The Law Office of Walter B. Fey - Reno DUI Attorney
Located at 247 Court Street Reno, NV 89501. View Map
Phone: (888) 339-4384 | Local Phone: (775) 329-1101.
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