DUI of Marijuana – The Laws & Penalties in Nevada

Recreational marijuana use is legal in Nevada for adults 21 years of age or older. That said, driving under the influence (DUI) of marijuana is still a crime and treated much the same as DUI of alcohol. The penalties for a first-offense conviction of DUI of marijuana include:

• 2 days to 6 months in jail or 24 to 96 hours of community service;
• Nevada DUI School (at your expense);
• fines of $400 to $1,000 plus court costs;
• Nevada Victim Impact Panel;
• a 185-day driver’s license suspension (you can usually drive right away with an ignition interlock device); and
• a stay-out-of-trouble order while the case is open (meaning you may not get any further arrests).

Nevada DUI laws define being under the influence of marijuana as being too impaired to operate a motor vehicle safely. The amount of marijuana in your blood does not count unless you have two or more DUIs in the last seven years.

If you have at least two or more DUIs in the past seven years, you can face DUI of marijuana charges for either:

• driving impaired by marijuana; or
• having at least 2 nanograms per ml. of marijuana (delta-9-tetrahydrocannabinol) or 5 nanograms per ml. of marijuana metabolite (11-OH-tetrahydrocannabinol) in your blood.

Nevertheless, DUI of marijuana charges can be difficult for the prosecutor to prove.

A criminal defense attorney may be able to get the charges reduced to reckless driving or dismissed completely. Otherwise, a DUI conviction will remain on your record for at least seven (7) years before it may be sealed.

In this article, our Las Vegas DUI defense lawyers answer the following frequently asked questions:

• 1. Can I get a DUI in Nevada for driving high?
• 2. How do marijuana DUI arrests happen?
• 3. Can I choose between a breath or blood test?
• 4. Will my driver’s license be suspended?
• 5. How do I fight marijuana DUI charges?
• 6. Can I go to jail?
• 7. Can I get a marijuana DUI case sealed?
• 8. Can I get deported?

Also see our general article on driving under the influence of drugs (DUID).

1. Can I get a DUI in Nevada for “driving high”?

Yes. The legal definition of “DUI with marijuana” in Nevada makes it a crime to drive while you have ingested marijuana

“to a degree which renders the driver incapable of safely driving or exercising actual physical control of a vehicle.”

However, if you had two or more DUIs in the past seven years, then you can be convicted of DUI for either:

1. being impaired by marijuana, no matter the amount in your blood; or
2. having a blood content of either: 2 nanograms per ml. of marijuana (delta-9-tetrahydrocannabinol), or 5 nanograms per ml. of marijuana metabolite (11-OH-tetrahydrocannabinol).

In short, a first- or second-time DUI in Nevada is based solely on you being impaired from marijuana. It makes no difference how much marijuana is in your blood.

A third- or successive DUI (in a seven-year period) can be based on either:

• you being high, or
• you having an unlawful amount of marijuana in your blood even if you are not high (DUI “per se”).¹

Even though Nevada marijuana laws allow adults 21 or older to possess 1 ounce of marijuana in private, note that smoking marijuana in public is still illegal. Smoking pot in public carries a $600 fine.²

2. How do marijuana DUI arrests happen?

Police who observe erratic driving will initiate a traffic stop. After you pull over, the officer will

• ask you questions,
• observe your behavior and
• probably ask you to take a preliminary breath test (PBT).³

If you pass the PBT, the officer may suspect that you have ingested drugs rather than alcohol if:

• you failed the field sobriety tests (FSTs), such as walking in a straight line and standing on one leg;
• your pupils are dilated;
• you smell of pot;
• you are exhibiting short-term memory impairment;
• you have eyelid or body tremors; and/or
• your behavior is especially relaxed and uninhibited

An officer with specialized drug recognition evaluation training (DRE) may also join the investigation. The DRE may try to determine

• your blood pressure,
• your pulse and
• if you have dry mouth.

If the officer believes there is probable cause that you committed DUI with marijuana, the officer will arrest you and take you to the station for a blood test.⁴

Note that if the officer finds pot on your person or in your car, you may also face charges for marijuana possession.⁵

3. Can I choose between a breath or blood test?

No. If you are suspected of driving under the influence of drugs, you may not choose to take a breath test and must submit to a blood test. You are assumed to have given “implied consent” to take a blood test if you are pulled over in Nevada on suspicion of driving under the influence of marijuana.⁶

If you refuse to take a blood test, the police must get a warrant to use “reasonable force” to administer the blood test.⁷ The officer can order

• up to three (3) samples taken
• within a five (5) hour time span following the initial arrest.

The chemical tests in Nevada Marijuana DUI cases measure the amount of THC (delta-9-tetrahydrocannabinol) in your blood. The amount of marijuana in your system depends on

• your personal tolerance to pot,
• how concentrated the THC was, and
• how much you may have ingested, consumed or smoked.⁸

4. Will my driver’s license be suspended?

At least not right away.

Whenever you take a blood test in Nevada, you get to keep your driver’s license until the results come back from the lab and show positive for drugs. At this point the Nevada DMV notifies you by mail that your license is being suspended. You may then request a DMV hearing to contest the suspension.⁹

The length of the license suspension depends on whether you have previous DUIs:

• A first-time DUI carries a 185-day suspension.
• A second-time DUI carries a one (1) year suspension.
• A third-time DUI carries a three (3) year suspension.¹⁰

You may be able to continue driving immediately with an ignition interlock device.¹¹

5. How do I fight marijuana DUI charges?

A surprisingly large number of Las Vegas DUI marijuana cases get thrown out or reduced to lesser charges like reckless driving or simple possession. The following are just some defenses an attorney may explore in defending a dope driving case in Nevada.

• You were not under the influence of marijuana: The symptoms of smoking marijuana are very general and can be attributed to various innocent causes such as not having slept, not brushing teeth, being around cigarette smoke from partying, and just being nervous from the officer’s questioning. An attorney may be able to demonstrate that the officer merely mistook your appearance and behavior as indicative of DUI with marijuana when the actual cause had nothing to do with drugs.¹²
• Lack of probable cause: Unless it is part of a coordinated DUI checkpoint, police cannot pull you over without adequate probable cause that you have broken a law or traffic violation. People who drive while high on marijuana often tend to drive even more carefully than intoxicated people do; therefore, you may have a good argument that the officer lacked sufficient probable cause to pull you over in the first place.¹³
• Faulty testing equipment or administration: A defense attorney should conduct a thorough investigation to determine whether the police or lab technicians could have made any mistakes or contaminated the blood samples. If the attorney can raise a reasonable doubt about the accuracy of the chemical test results, then your marijuana DUI case should be dismissed.

Note that having a valid medical marijuana card is not a defense to DUI with marijuana.¹⁴

6. Can I go to jail?

Possibly, but not usually for a first offense. Punishments get harsher

• with each successive DUI conviction or
• if the incident resulted in injury or death.

The standard sentence for a Nevada DUI with marijuana conviction is virtually identical to the penalties for drunk driving:

First DUI with marijuana (in 7 years)

A first-time marijuana DUI incident within the last seven (7) years is prosecuted as a misdemeanor as long as no death or serious injury resulted. The punishment includes:

• two (2) days to six (6) months in jail or twenty-four to ninety-six (24 – 96) hours of community service (courts typically order a six (6) month suspended jail sentence);
• Nevada DUI school (at your expense);
• fines of $400 to $1,000 plus court costs;
• Nevada Victim Impact Panel;
• 185-day suspension of your driver’s license; and
• a stay-out-of-trouble order while the case is open (meaning you may not get any further arrests)

Note that penalties can be doubled if the alleged DUI occurred in a work zone.

Second DUI with marijuana (in 7 years)

A second-time marijuana DUI incident within the last seven (7) years is prosecuted as a misdemeanor as long as no death or serious injury resulted. The punishment includes:

• ten (10) days to six (6) months in jail or residential confinement;
• fines of $750 to $1,000 or commensurate hours of community service;
• Nevada Victim Impact Panel;
• an alcohol/drug dependency evaluation (which costs $100);
• one (1) year driver’s license suspension or revocation;
• a long alcohol or drug abuse treatment program (called DUI Court, not Nevada DUI School); and
• a stay-out-of-trouble order while the case is open (meaning you may not get any further arrests)

Note that penalties can be doubled if the alleged DUI occurred in a work zone.

Third DUI with marijuana (in 7 years)

A third-time marijuana DUI incident within the last seven (7) years is prosecuted as a category B felony as long as no death or serious injury resulted. The punishment includes:

• one to six (1 – 6) years in Nevada State Prison;
• fines of $2,000 to $5,000;
• Nevada Victim Impact Panel;
• three (3) year driver’s license suspension or revocation; and
• an alcohol & drug evaluation¹⁵

DUI with marijuana causing injury or death

A marijuana DUI incident that causes death or serious injury is a category B felony. The sentence includes:

• two to twenty (2 – 20) years in prison; and
• fines of $2,000 to $5,000¹⁶

If the incident was fatal and you already have three (3) or more DUI convictions, the prosecutor will instead charge you with vehicular homicide. It is a category A felony carrying

• twenty-five (25) years or
• a life sentence

with the possibility of parole after ten (10) years.¹⁷

7. Can I get my record sealed?

Misdemeanor DUI convictions can usually be sealed seven (7) years after the case ends. Felony DUI convictions may never be sealed.¹⁸

DUI charges that get reduced to reckless driving or careless driving may be sealed one (1) year after the case ends. Finally, DUI cases that get dismissed (where there is no conviction) may be sealed right away.¹⁹

8. Can I get deported?

A misdemeanor DUI is usually not a deportable offense. Felony DUIs may be deportable, but it is a gray area. Plus any alien who is convicted of possessing more than thirty (30) grams of marijuana faces removal.²⁰

Non-U.S. citizens who get charged with any criminal offense are advised to retain legal counsel as quickly as possible. If the attorney can get the charges dismissed or reduced to a non-deportable offense, the alien may be able to avoid immigration court.

Learn more about DUI and deportation in Nevada as well as the criminal defense of immigrants in Nevada.

Call a Nevada criminal defense attorney…

If you have been arrested and charged with driving under the influence of marijuana in Nevada, do not hesitate to call our Las Vegas criminal defense attorneys for a phone meeting.

We have had decades of success in achieving favorable resolutions in every kind of DUI case. For non-citizens, we proceed extra carefully in an effort to ensure that the criminal case will not also threaten your resident status.

Go to our main page on Las Vegas Nevada marijuana laws.

In California? Go to our article on California DUI marijuana law.

In Colorado? Go to our article on Colorado DUI marijuana law.

People suffering from marijuana addiction can join the free, twelve-step program Marijuana Anonymous.

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