DRIVING UNDER THE INFLUENCE "101"
Driving under the influence is a misdemeanor and one of the most frequently charged crimes in the State of Nevada. A conviction for driving under the influence or simply an arrest may also result in both "criminal" and "administrative" penalties, such as revocation or suspension of a person's driving privileges in Nevada by the Nevada Department of Motor Vehicles (DMV). Upon an arrest for driving under the influence, a person must immeidately submit by law to an "evidentiary test" to determine the person's blood alcohol content (BAC). This evidentiary test may be "blood" or "breath," although the person may be required to submit to a "blood" test if the suspicion is that the person is under the influence of a controlled substance or marijuana. Also, if a person refuses to submit to either test, a court may issue an order take the person's blood by force and the Nevada DMV will immediately suspend the person's driving privileges in Nevada for one (1) year. This is called "implied consent." (NRS 484C.160)
When consulting with new driving under the influence clients, one of the first questions that an attorney should ask is whether the person provided a "blood" or "breath" sample. The answer to this question determines a lot about how and when a case may begin. The answer may also help predict the timing of possible consequences with the Nevada DMV. For example, a "blood" sample takes significantly longer to analyze than a "breath" sample, which is why some driving under the influence "blood" cases may not begin until three (3), six (6), or even nine (9) months after an arrest. Consequences such as license suspension, revocation, or installing a breath ignition interlock devices are also unlikely before this time too, so a person may typically drive without any restrictions until further notice. In the alternative, a "breath" sample provides an immediate result, so a driving under the influence "breath" case is likely to be filed by a prosecuting attorney much faster and additional consequences with the Nevada DMV may begin within days after an arrest.
A prosecuting attorney may attempt to prove that a person was driving under the influence in several ways, such as demonstrating that the person's ability to safely operate a motor vehicle was "impaired" by some degree of alcohol or a controlled substance. As such, a person's BAC may be lower than .08 or the person may be under the influence of lawful prescription and the prosecuting attorney may still charge the person with driving under the influence. This "impairment" theory and the broad definition of driving under the influence can therefore reach unsuspecting persons, destroy reputations, destroy careers, and result in an arrest for one of the more difficult misdemeanor offenses to resolve in Nevada. Driving under the influence cases are also incrediby difficult to negotiate with the prosecuting attorney at or before trial because the prosecuting attorney may not reduce or dismiss the charge by law unless an "evidentiary issue" exists. In short, even if the person has no prior arrests or convictions or the person may lose his or her job, the prosecuting attorney may still seek a conviction if the person's BAC was above .08 or the person was somehow "impaired" during the time of a traffic offense. The presence of other "aggravating factors," such as an automobile accident, property damage, injuries, a high BAC, or the presence of children may also complicate a driving under the influence case.
VASEK LAW strongly encourages you to speak with an experienced, knowledgeable criminal defense attorney to analyze your case. An arrest for driving under the influence does not guarantee a you will be charged with a crime, although it is statistically more likely than not. Additionally, you may not need to hire an attorney immediately if you were recently arrested and voluntarily submitted to a "blood" test because your case may not begin for six (6) months or more. VASEK LAW therefore encourages you not to feel pressured to retain an attorney without first understanding all options and to speak with multiple attorneys (not just case manages and non-attorney "specialists") about what may happen next. However, you may wish to hire an attorney immediately if you submitted a "breath" test, refused the "blood" test, or were involved in an automobile accident. The outcome of your case may also depend upon factors such as where your case is filed, what judge your case is assigned, what prosecuting attorney is responsible for your case, and your prior criminal history and ties to the community. You should never accept a deal at your first court appearance without having reviewed all your discovery, such as police reports, witness statements, and body camera footage. An experienced, knowledgeable criminal defense attorney will know how to obtain this discovery and should also know how each court, judge, and prosecuting attorney approaches driving under the influence cases differently. Attorney BRIAN VASEK is here to help and to discuss your case. He even offers FREE CONSULTATIONS.
DRIVING UNDER THE INFLUENCE is an "enhanceable" offense, a Misdemeanor for any first or second offense within seven (7) years, and punishable by up to six (6) months in jail and a fine not to exceed $1,000. For a first offense, the person must spend a minimum of two (2) days in jail. Additional jail time is uncommon. Most persons convicted of driving under the influence "first offense" are ordered to complete counseling and pay a small fine. If the blood alcohol content of the person was greater than .18, the person may be ordered to complete treatment for alcohol or substance abuse. For a second offense within seven (7) years, the person must spend a minimum of ten (10) days in jail. Other requirements may include a fine and more comprehensive treatment or counseling for alcohol or substance abuse. A third offense within seven (7) years is a Category B Felony and punishable by one (1) to six (6) years in prison and a fine not to exceed $5,000. "FELONY DRIVING UNDER THE INFLUENCE" is a non-probationable offense, meaning that the judge is required by law to send the person to prison for at least one (1) year. However, an offender may be eligible for "Felony DUI Court" in lieu of prison. (NRS 484C.110, NRS 484C.350, NRS 484C.400, NRS 484C.420)
DRIVING UNDER THE INFLUENCE RESULTING IN SUBSTANTIAL BODILY INJURY is a Category B Felony and punishable by two (2) to twenty (20) years in prison and a fine not to exceed $5,000. DRIVING UNDER THE INFLUENCE RESULTING IN SUBSTANTIAL BODILY INJURY is also a non-probationable offense, meaning that the judge is required by law to send the person to prison for at least two (2) years. (NRS 484C.430)
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