Nevada Drinking and Driving Law
Nothing could be further from the truth.
While a conviction for DUI could arise out of bad
driving, which most people would interpret as “drunk driving,” the more
common way of being convicted to have either your breath or your blood test
above the illegal “per se” concentration of 0.08 BAC, or Blood Alcohol
Concentration. Further, it is not
necessary for the prosecutor to show that your blood contained that level of
alcohol when you were actually driving or operating a motor vehicle,
but only that you tested above the limit within 2 hours after you drove a
vehicle.
In fact, you can be convicted of a DUI even if you were
not driving or preparing to drive a vehicle, so long as you are in
“actual physical control” of a vehicle.
Picture this: It is a cold night, and you have had more to drink than
you intended. As you sit behind
the steering wheel, you realize that you shouldn’t be driving.
So, being the responsible person you are, you use your cellular phone
and call for a friend or relative to come to pick you up in the bar parking
lot, where you will be waiting for them in your car.
As you shiver in the cold, you decide to turn on the ignition and the
heater while you wait. Even
though you have no intention of driving at all, you may still be convicted
of the offense, and will have to pay all the penalties, including jail time or
community service, that you would if you tried to drive home.
The first conviction of a Driving Under the Influence
Offense results in the imposition of a mandatory jail sentence, or mandatory
community service, without the possibility of probation, even if this
is the driver’s first offense ever. Further,
there are mandatory fines and assessments tacked on,
together
with the mandatory drinking and driving educational course, and attendance at
a Mothers Against Drunk Driving (MADD) sponsored Victim Iimpact Panel.
Sentencing judges feel constrained to imposed lengthy underlying jail
sentences (up to 180 days) which are then suspended, just to enforce any
conditions they may wish to impose on the driver.
Why? The crime of Driving
Under the Influence is something akin to a political prosecution.
Since Judges are elected to the bench in Nevada, it is virtually
political suicide to be soft on offenders, so judges vie with each other to be
stern in their application of DUI penalties.
In addition to the criminal penalties arising out of a
conviction, there are other, equally serious consequences of a DUI conviction,
including the mandatory loss of driver’s license, and greatly increased
rates of insurance premiums. Unlike
the vast majority of misdemeanor offenses, a DUI conviction will remain on a
driver’s record for at least 7 years following his release from jail or from
a suspended sentence before it can be sealed by the court.
If it is not sealed, the conviction will remain on a driver’s record
indefinitely, visible for all the world to see.
Selected
Nevada Statutes regarding DUI
NRS 484.379 Driving
under the influence of intoxicating liquor or controlled or prohibited
substance: Unlawful acts; affirmative defense; additional penalty for
violation committed in work zone. [Effective until the date of the repeal of
the federal law requiring each state to make it unlawful for a person to
operate a motor vehicle with a blood alcohol concentration of 0.08 percent or
greater as a condition to receiving federal funding for the construction of
highways in this state.]
1. It is unlawful for any
person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.08 or more in his blood or
breath; or
(c) Is found by measurement within 2 hours after driving or being in
actual physical control of a vehicle to have a concentration of alcohol of
0.08 or more in his blood or breath, to drive or be in actual physical control
of a vehicle on a highway or on premises to which the public has access.
2. It is unlawful for any
person who:
(a) Is under the influence of a controlled substance;
(b) Is under the combined influence of intoxicating liquor and a
controlled substance; or
(c) Inhales, ingests, applies or otherwise uses any chemical, poison or
organic solvent, or any compound or combination of any of these, to a degree
which renders him incapable of safely driving or exercising actual physical
control of a vehicle, to drive or be in actual physical control of a vehicle
on a highway or on premises to which the public has access. The fact that any
person charged with a violation of this subsection is or has been entitled to
use that drug under the laws of this state is not a defense against any charge
of violating this subsection.
3. It is unlawful for any
person to drive or be in actual physical control of a vehicle on a highway or
on premises to which the public has access with an amount of a prohibited
substance in his blood or urine that is equal to or greater than:
Prohibited substance
Urine
Blood
Nanograms
Nanograms
per milliliter
per milliliter
(a) Amphetamine
500
100
(b) Cocaine
150
50
(c) Cocaine metabolite
150
50
(d) Heroin
2,000
50
(e) Heroin metabolite:
(1) Morphine
2,000
50
(2) 6‑monoacetyl morphine
10
10
(f) Lysergic acid diethylamide
25
10
(g) Marijuana
10
2
(h) Marijuana metabolite
15
5
(i) Methamphetamine
500
100
(j) Phencyclidine
25
10
4. If consumption is proven
by a preponderance of the evidence, it is an affirmative defense under
paragraph (c) of subsection 1 that the defendant consumed a sufficient
quantity of alcohol after driving or being in actual physical control of the
vehicle, and before his blood or breath was tested, to cause him to have a
concentration of alcohol of 0.08 or more in his blood or breath. A defendant
who intends to offer this defense at a trial or preliminary hearing must, not
less than 14 days before the trial or hearing or at such other time as the
court may direct, file and serve on the prosecuting attorney a written notice
of that intent.
5. A person who violates
any provision of this section may be subject to the additional penalty set
forth in NRS 484.3667.
NRS 484.3792 Driving
under the influence of intoxicating liquor or controlled or prohibited
substance: Penalties; segregation of offender; probation, suspension of
sentence and plea bargaining restricted; intermittent confinement; consecutive
sentences.
1. Unless a greater penalty
is provided pursuant to NRS 484.3795, a person who violates the provisions of
NRS 484.379:
(a) For the first offense within 7 years, is guilty of a misdemeanor.
Unless he is allowed to undergo treatment as provided in NRS 484.37937, the
court shall:
(1) Except as otherwise provided in subparagraph (4) or subsection 6,
order him to pay tuition for an educational course on the abuse of alcohol and
controlled substances approved by the Department and complete the course
within the time specified in the order, and the court shall notify the
Department if he fails to complete the course within the specified time;
(2) Unless the sentence is reduced pursuant to NRS 484.37937, sentence
him to imprisonment for not less than 2 days nor more than 6 months in jail,
or to perform not less than 48 hours, but not more than 96 hours, of community
service while dressed in distinctive garb that identifies him as having
violated the provisions of NRS 484.379;
(3) Fine him not less than $400 nor more than $1,000; and
(4) If he is found to have a concentration of alcohol of 0.18 or more
in his blood or breath, order him to attend a program of treatment for the
abuse of alcohol or drugs pursuant to the provisions of NRS 484.37945.
(b) For a second offense within 7 years, is guilty of a misdemeanor.
Unless the sentence is reduced pursuant to NRS 484.3794, the court shall:
(1) Sentence him to:
(I) Imprisonment for not less than 10 days nor more than 6 months in
jail; or
(II) Residential confinement for not less than 10 days nor more than 6
months, in the manner provided in NRS 4.376 to 4.3766, inclusive, or 5.0755 to
5.078, inclusive;
(2) Fine him not less than $750 nor more than $1,000, or order him to
perform an equivalent number of hours of community service while dressed in
distinctive garb that identifies him as having violated the provisions of NRS
484.379; and
(3) Order him to attend a program of treatment for the abuse of alcohol
or drugs pursuant to the provisions of NRS 484.37945.
ĘA
person who willfully fails or refuses to complete successfully a term of
residential confinement or a program of treatment ordered pursuant to this
subsection is guilty of a misdemeanor.
(c) For a third or subsequent offense within 7 years, is guilty of a
category B felony and shall be punished by imprisonment in the state prison
for a minimum term of not less than 1 year and a maximum term of not more than
6 years, and shall be further punished by a fine of not less than $2,000 nor
more than $5,000. An offender so imprisoned must, insofar as practicable, be
segregated from offenders whose crimes were violent and, insofar as
practicable, be assigned to an institution or facility of minimum security.
2. An offense that occurred
within 7 years immediately preceding the date of the principal offense or
after the principal offense constitutes a prior offense for the purposes of
this section when evidenced by a conviction, without regard to the sequence of
the offenses and convictions. The facts concerning a prior offense must be
alleged in the complaint, indictment or information, must not be read to the
jury or proved at trial but must be proved at the time of sentencing and, if
the principal offense is alleged to be a felony, must also be shown at the
preliminary examination or presented to the grand jury.
3. A person convicted of
violating the provisions of NRS 484.379 must not be released on probation, and
a sentence imposed for violating those provisions must not be suspended
except, as provided in NRS 4.373, 5.055, 484.37937 and 484.3794, that portion
of the sentence imposed that exceeds the mandatory minimum. A prosecuting
attorney shall not dismiss a charge of violating the provisions of NRS 484.379
in exchange for a plea of guilty or nolo contendere to a lesser charge or for
any other reason unless he knows or it is obvious that the charge is not
supported by probable cause or cannot be proved at the time of trial.
4. A term of confinement
imposed pursuant to the provisions of this section may be served
intermittently at the discretion of the judge or justice of the peace, except
that a person who is convicted of a second or subsequent offense within 7
years must be confined for at least one segment of not less than 48
consecutive hours. This discretion must be exercised after considering all the
circumstances surrounding the offense, and the family and employment of the
offender, but any sentence of 30 days or less must be served within 6 months
after the date of conviction or, if the offender was sentenced pursuant to NRS
484.37937 or 484.3794 and the suspension of his sentence was revoked, within 6
months after the date of revocation. Any time for which the offender is
confined must consist of not less than 24 consecutive hours.
5. Jail sentences
simultaneously imposed pursuant to this section and NRS 482.456, 483.560 or
485.330 must run consecutively.
6. If the person who
violated the provisions of NRS 484.379 possesses a driver’s license issued
by a state other than the State of Nevada and does not reside in the State of
Nevada, in carrying out the provisions of subparagraph (1) of paragraph (a) of
subsection 1, the court shall:
(a) Order the person to pay tuition for and submit evidence of completion
of an educational course on the abuse of alcohol and controlled substances
approved by a governmental agency of the state of his residence within the time
specified in the order; or
(b) Order him to complete an educational course by correspondence on the
abuse of alcohol and controlled substances approved by the Department within the
time specified in the order, and the court shall notify the Department if the
person fails to complete the assigned course within the specified time.
7. If the defendant was
transporting a person who is less than 15 years of age in the motor vehicle at
the time of the violation, the court shall consider that fact as an aggravating
factor in determining the sentence of the defendant.
8. As used in this section,
unless the context otherwise requires:
(a) “Concentration of alcohol of 0.18 or more in his blood or breath”
means 0.18 gram or more of alcohol per 100 milliliters of the blood of a person
or per 210 liters of his breath.
(b) “Offense” means:
(1) A violation of NRS 484.379 or 484.3795;
(2) A homicide resulting from driving or being in actual physical control
of a vehicle while under the influence of intoxicating liquor or a controlled
substance or resulting from any other conduct prohibited by NRS 484.379 or
484.3795; or
(3) A violation of a law of any other jurisdiction that prohibits the
same or similar conduct as set forth in subparagraph (1) or (2).