Facing a DUI charge in Nevada can be a stressful experience. You may be worried about the potential consequences, such as jail time, fines, and the loss of your driving privileges.
We understand the gravity of your situation and are here to empower you with information and provide you with the support and guidance you need.
What Qualifies as DUI
Many people are surprised to learn they can get convicted of DUI in Nevada even if they are driving safely or if their blood alcohol concentration (BAC) is low. In fact, driving an automobile, motorcycle, or other motor vehicle is automatically illegal if either:
- You are impaired by alcohol and/or drugs, or
- You have more than the lawful limit of certain drugs in your blood (called DUI of drugs/DUID), or
- You have a BAC of .08% or greater within 2 hours of driving (called “per se” DUI).
For commercial drivers, the lawful BAC limit is below .04%. If you are under 21, it is below .02%.
These laws apply to everywhere the public has access except private roads and driveways.
First-time DUI Penalties
Fortunately in most first-offense DUI cases, you never have to go to jail if you get convicted. Typically the judge will grant you a six-month suspended sentence: This means you can remain out of custody as long as you complete all the other sentencing terms.
Perhaps the most inconvenient consequence of a DUI-1st is the six-month driver’s license revocation. However, the DMV usually lets you continue driving without interruption if you install an ignition interlock device (IID) in your car.
The following bubble graph illustrates the standard DUI-first punishments:
We realize that being prosecuted for DUI can be frightening, but please know that you are not alone. Our experienced DUI defense attorneys are committed to protecting your rights, exploring all available options, and fighting for the best possible outcome in your case.
In this article, our Las Vegas DUI lawyers address the following:
- 1. Jail, Fines, and License Suspensions
- 2. Getting a DUI Reduced or Dismissed
- 3. Record Seals
- 4. Nevada DUI Laws’ 2-hour Rule
- 5. The Washout Period
- 6. Refusing a Breath or Blood Test
- 7. When a Child Is In the Car
- Additional Reading About Nevada DUI Laws
1. Jail, Fines, and License Suspensions
DUI is a “priorable” crime. This means the punishment gets harsher with each successive offense.
In addition, DUIs causing substantial bodily harm are always felonies, even if you have an otherwise clean driving record.
The following table spells out the possible criminal sentences under Nevada DUI law.
|
Nevada DUI Offense |
Penalties |
| DUI 1st (in 7 years) – NRS 484C.400 | Misdemeanor:
|
| DUI 2nd (in 7 years) – NRS 484C.400 | Misdemeanor:
|
| DUI 3rd (in 7 years) – NRS 484C.400 | Category B felony:
|
| DUI causing injury or death – NRS 484C.430 | Category B felony:
|
| DUI after felony DUI conviction – NRS 484C.410 | Category B felony:
|
2. Getting a DUI Reduced or Dismissed
NRS DUI statutes forbid prosecutors from reducing or dismissing DUI charges unless their case against you is weak.2 So our job is to show these prosecutors that their evidence has too many holes to hold up at trial.
Ideally, we can persuade the prosecutor to dismiss the drunk/drugged charge completely or else reduce the charge to reckless driving. There are various defenses, such as:
- The blood test or breath test was defective
- You were never in actual physical control of the vehicle
- The police officer did not have reasonable suspicion to make a traffic stop
- Law enforcement did not have probable cause to make a DUI arrest
- The field sobriety tests were not administered in accordance with NHTSA guidelines (short for the National Highway Traffic Safety Administration)
Prosecutors have the high burden to prove your guilt beyond a reasonable doubt should the case go to trial. As long as we can raise that reasonable doubt as to just one “element” of the crime, the government may be willing to drop the case.
“Sleeping DUIs”
A common case we see involves people who know they are too intoxicated to drive and decide to “sleep it off” through the night in their car. Then the police find and wake them, smell that they have been drinking, and arrest them for drunk driving even though they were not driving at all.
In these cases, prosecutors argue that these sleeping defendants:
- were in “actual physical control” of the vehicle even though they were not driving when they were found;
- were likely driving drunk before they decided to pull over and park; and
- can be convicted of DUI even though the police did not witness them driving like in typical drunk driving cases.
We have had great success in getting these “sleeping DUI” cases dismissed if we can show the following:
- When the police found you, you were not in the driver’s seat. Perhaps you were in the passenger seat or the backseat instead;
- The engine was off, and there was no key in the ignition;
- Your car was legally parked when the police found you; and
- There is evidence indicating that you did not drive the vehicle to that location while impaired.
It is also helpful to your case if your car was parked on private property, and the headlights were off.
If you are arrested for a DUI in Nevada, call our criminal defense lawyers in Las Vegas.
3. Record Seals
Misdemeanor DUI convictions must remain on your Nevada criminal record for seven (7) years before you can petition the court for a record seal. Meanwhile, felony DUI convictions are unsealable: They remain on your record forever.
Note that any misdemeanor or felony DUI charge that gets dismissed can be sealed right away.3 Learn how to seal Nevada DUI records.
4. Nevada DUI Laws’ 2-hour Rule
The two-hour rule refers to how Nevada courts can convict you of drunk driving if you fail an
within two hours of operating a motor vehicle. It does not matter if you were driving safely at the time.4
In the event you were tested after the two-hour window, the court can still consider the results as evidence. The results just will not carry as much weight.5
Note that if you choose the breath test, the officer must take two consecutive breath samples. If the results are more than .02% apart, a third sample will be taken.
Meanwhile, if you choose the blood test, you have the option of paying for a qualified healthcare provider of your choosing to administer the blood test. We advise you exercise this right in the hopes that the independent lab shows that your BAC was below the legal limit. This is evidence we can then show to the court.6
5. The Washout Period
When Nevada prosecutors determine whether to charge you with a first, second, or subsequent drunk driving offense, they look back only seven years. Any misdemeanor DUIs you may have had more than seven years ago will not count against you.
This means if you have been convicted of any misdemeanor DUIs within the last seven years, they will count as “priors” should you get arrested for driving under the influence again. It does not matter in which U.S. state or territory these past convictions occurred.
This seven-year look-back period applies only to misdemeanor DUIs. Once you get convicted of felony DUI, any subsequent cases are automatically charged as felonies. It does not matter how long ago or where the original felony conviction occurred.
6. Refusing the Breath or Blood Test
Nevada has an implied consent law. This means that by driving on Nevada roads, you must consent to an
- evidentiary breath test or
- evidentiary blood test
following your DUI arrest.7
If you refuse to take a breath or blood test following a DUI arrest, the officer can get a warrant to draw your blood by force. Then should your drunk driving case go to trial, prosecutors can use your refusal as evidence of your guilt.
The most important consequence of a chemical test refusal is that the DMV will suspend your license for one year even if you end up winning your criminal case. (If you have a prior refusal in the past seven years, the suspension will last three years.)
7. When a Child Is In the Car
Nevada drinking and driving laws are harsher when there is a child under the age of 15 in the vehicle. For instance, the judge in a first-time drunk driving case may order the maximum fine of $1,000 instead of a lesser fine.8
Learn more in our articles on:
Additional Reading About Nevada DUI Laws
For more information about Nevada DUI laws, see our related articles:
- DUI court process – a step-by-step guide of what to expect in your drunk driving criminal and DMV cases
- Violating DUI probation – an examination of the consequences of breaking the terms of your probation, including going to jail
- DUI checkpoints – a discussion of how Las Vegas police are now relying on “blitzes” rather than traditional checkpoints to catch drunk driving suspects
- Boating under the influence – an overview of Nevada’s laws, penalties, and defenses for the crime of driving a watercraft while intoxicated
- DUI and auto insurance – a discussion of how traffic violations can cause your insurance premiums to increase
Legal References
- NRS 484C.110; NRS 484C.400; see also State v. Terracin, (2009) 125 Nev. 31, 199 P.3d 835, 125 Nev. Adv. Rep. 4, 2009; see also Sheriff, Clark County v. Burcham (2008) 124 Nev. 1247, 198 P.3d 326, 124 Nev. Adv. Rep. 101. Koenig v. State (1983) 99 Nev. 780 (“So long as the court records [of prior DUI convictions] from such courts reflect that the spirit of constitutional principles is respected, the convenience of the parties and the court should be given considerable weight, and the court record should be deemed constitutionally adequate [to prove prior DUI convictions].”). Parsons v. State (2000) 116 Nev. 928 (You do not need to prove prior DUI convictions at preliminary hearings). Dep’t of Motor Vehicles & Public Safety v. McLeod, 106 Nev. 852 (“Neither this court nor the district court may substitute its judgment for that of the administrative agency as to the weight of the evidence on questions of fact.”).
- NRS 484C.420 – .440.
- NRS 179.245. NRS 179.255.
- NRS 484C.110 (“It is unlawful for any person who…[i]s 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 or her 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.”).
- State v. Eighth Judicial Dist. Court of Nev. (2021) 479 P.3d 1004.
- NRS 484C.200. NRS 484C.180.
- See also Galvan v. State (1982) 98 Nev. 550 (“We are also inclined to construe our implied consent statute liberally in order to promote the legislative policy of removing intoxicated drivers from our state’s highways.”). See also Davis v. State (1983) 99 Nev. 25 (“If a driver expressly and voluntarily consents to submit to a blood alcohol test, the test results are admissible not because of the implied consent law, but because of his express consent.”).
- NRS 484C.420 – .440.