A minor DUI incident that would ordinarily be a misdemeanor in Nevada will automatically turn into a felony if the driver has already been convicted of either:

1. at least two (2) DUIs within the last seven (7) years, or
2. felony DUI

In this article, our Las Vegas DUI Defense Attorneys discuss Nevada felony DUI based on prior convictions. Click on a question below to go directly to that topic.

• What is felony DUI based on prior convictions in Nevada?
• Do out-of-state convictions count as priors?
• What are the penalties for felony DUI?
• What are the best defenses?
• Can felony DUI be reduced to a misdemeanor?

Note that a DUI causing injury or death is also charged as a felony even if the driver has no past convictions. Also see our article Four ways DUI can be a felony.

1) What is a felony DUI based on prior convictions in Nevada?

Nevada law aims to deter people from racking up DUI cases by increasing the penalties for each successive conviction:

A first-time DUI in Nevada with no injuries or fatalities is only a misdemeanor, and the defendant can often avoid any jail time. A second-time DUI in Nevada within seven (7) years of the first DUI is also only a misdemeanor as long as there are no injuries or fatalities (although the judge typically orders 10 days of jail for a DUI 2nd). However, a third-time DUI within seven years of the first one is automatically charged as a felony even if this third DUI caused no injuries or fatalities.

Alternately if the person has already been convicted of a felony DUI, any successive DUI charges will be treated as felonies as well even if no one gets hurt or killed. So once a person gets a felony DUI, he/she can get only felony DUIs in the future.

Example: Noel has a conviction for a felony DUI twenty years ago. Then he gets pulled over on the Strip for driving erratically, and a cop from the Las Vegas Metropolitan Police Department arrests him for DUI. Even though no one was hurt or killed in this DUI incident, he faces felony DUI charges because he already has a previous felony DUI conviction on his record. It does not matter that this felony DUI occurred more than seven years prior to the current incident. 

Note that a DUI that causes substantial injury or a fatality is always charged as a felony in Nevada even if the driver has no past DUIs on his/her record.¹ This is true regardless of whether you were involved in a car crash or hit a pedestrian.

2) Do out-of-state convictions count as priors?

Yes. When Nevada prosecutors are determining whether to bring DUI charges, they will search national criminal records databases for records of past DUI convictions.

Example: Sharon get arrested for DUI in Las Vegas. The Clark County D.A. sees that Sharon has a misdemeanor DUI conviction from California two years ago and a misdemeanor DUI conviction from Maryland five years ago. Since she has at least two misdemeanor DUI convictions within the last seven years, the D.A. charges Sharon with felony DUI based on those two out-of-state DUI convictions.

If one or both of the past DUI convictions in the above example occurred more than seven years ago, then the D.A. could only charge her with a misdemeanor DUI in Nevada.

3) What are the penalties for felony DUI?

DUI is typically a misdemeanor in Nevada as long as it results in no bodily harm or injuries, but prosecutors will treat an otherwise harmless DUI incident as a felony if either:

• the suspect had two (2) previous DUI convictions in the last seven (7) years, or
• the suspect had a previous felony DUI conviction

The penalties for a third-time DUI are potentially less harsh than the penalties for a DUI following a felony DUI conviction. (Recall that DUIs that result in a fatality or serious bodily injury are automatic felonies in Nevada irrespective of the driver’s past criminal record.)

Penalties for Third DUI Offense in Nevada

A third-time DUI conviction in Nevada that occurs within seven years of the first one is a category B felony. The sentence is:

• Prison term of one (1) to six (6) years,
• Fines from $2,000 to $5,000,
• Victim impact panel,
• A breath interlock device in the person’s car for 1 to 3 years after release from jail,
• 3-year driver’s license suspension or revocation, 5-day registration suspension, and a $35 civil penalty fee, and
• An alcohol & drug evaluation

Depending on the case, the defendant may be eligible for DUI Court. DUI court allows the defendant to do rehab and adhere to other court orders in lieu of some or all of the prison time.

Penalties for a DUI following a Felony DUI conviction

A DUI following a felony DUI conviction is also category B felony in Nevada carrying:

• Nevada prison term of two (2) to fifteen (15) years, and
• Fines from $2,000 to $5,000, and
• A Nevada Breath Interlock Device in the person’s car as a condition of reinstating driving privileges

Penalties for a Nevada DUI Causing Injury or Death:

Note that the potentially harshest penalties are reserved for DUI causing death or injury in Nevada, and it does not matter whether the person has prior DUI convictions. It is also a category B felony, and the punishments are:

• Nevada prison term of two (2) to twenty (20) years, and
• Fines from $2,000 to $5,000, and
• A Nevada Breath Interlock Device in the person’s car as a condition of reinstating driving privileges

Also note that having three (3) previous DUI convictions causes any future fatal DUI accident to instead be charged as vehicular homicide. Nevada vehicular homicide is a category A felony carrying twenty-five (25) years in prison or possibly a life sentence, with the chance of parole after ten (10) years.

Miscellaneous Penalties

Note that transporting a child under 15 years old while committing felony DUI is considered an “aggravating” sentencing factor; learn more in our article on DUI while driving a child.) Also note that people imprisoned for felony DUI in Nevada are typically housed in a minimum-security facility and segregated from violent offenders. Once they are out on probation, these defendants may be required to wear SCRAM bracelets.²

4) What are the best defenses?

Felony DUI charges lend themselves to various defenses depending on the unique circumstances of the case. The following are just some of the possible ways to fight felony drunk driving charges in Nevada:

• Invalid past convictions. If a person faces a felony DUI in Nevada solely because of his/her prior DUI record, the defense attorney may try to show that the previous conviction(s) were somehow invalid. Perhaps the defendant was forced into pleading guilty, or perhaps the court made a clerical error. If the defense attorney can show that the defendant did not have prior DUI conviction(s), the present felony DUI charge could be knocked down to a misdemeanor.
• No probable cause. A cop is not allowed to pull someone over unless he/she had probable cause to think the driver committed a traffic violation or some other crime. If the defense attorney can show that the policeman lacked sufficient probable cause, the entire felony DUI case may be dismissed.
• Police misconduct, malfunctioning equipment, erroneous test results. It is not uncommon for law enforcement to make mistakes in administering field sobriety tests or chemical tests. If the defense attorney can call into question the accuracy of the test results by showing that the police actions did not meet the minimum standards, the case could be dismissed or reduced to a lesser charge.
• Necessity. In some emergency situations that the driver did not give rise to, it may be permissible to drive while intoxicated. Learn more about the necessity defense.

5) Can felony DUI be reduced to a misdemeanor?

Possibly, depending on the case. Misdemeanor DUI penalties typically include the following:

• up to six (6) months in jail (the sentence is usually suspended on a first-time DUI, 10 days are usually required for a second-time DUI),
• DUI School or DUI Court,
• Fines of up to $1,000 plus court costs,
• Victim Impact Panel (a MADD lecture), and
• up to 1-year driver’s license suspension & a $35 civil penalty fee

And if the defense attorney can convince the prosecutor that the state lacks sufficient evidence to prove the defendant guilty of DUI beyond a reasonable doubt, the D.A. may even be amenable to dismissing the case or reducing it to reckless driving.

If you or a loved one has been arrested for “felony DUI based on prior convictions” in Nevada, do not hesitate to contact our Las Vegas criminal defense lawyers for a consultation. We may be able to negotiate with the prosecution to achieve a favorable resolution where you stay out of jail. And we are always ready to take the case to trial if necessary and to fight for a “not guilty” verdict.

Also see our article on Nevada DUI impound laws.

In California? See our article on felony DUI after multiple convictions in California. 

Legal References:

¹NRS 484C.400 Penalties for first, second and third offenses; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.

      1. Unless a greater penalty is provided pursuant to NRS 484C.430 or 484C.440, and except as otherwise provided in NRS 484C.410, a person who violates the provisions of NRS 484C.110 or 484C.120:

      (a) For the first offense within 7 years, is guilty of a misdemeanor. Unless the person is allowed to undergo treatment as provided in NRS 484C.320, the court shall:

             (1) Except as otherwise provided in subparagraph (4) of this paragraph or subsection 2 of NRS 484C.420, order the person 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 the person fails to complete the course within the specified time;

             (2) Unless the sentence is reduced pursuant to NRS 484C.320, sentence the person 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 the person as having violated the provisions of NRS 484C.110 or 484C.120;

             (3) Fine the person not less than $400 nor more than $1,000; and

             (4) If the person is found to have a concentration of alcohol of 0.18 or more in his or her blood or breath, order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.

      (b) For a second offense within 7 years, is guilty of a misdemeanor. Unless the sentence is reduced pursuant to NRS 484C.330, the court shall:

             (1) Sentence the person 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 the person not less than $750 nor more than $1,000, or order the person to perform an equivalent number of hours of community service while dressed in distinctive garb that identifies the person as having violated the provisions of NRS 484C.110 or 484C.120; and

             (3) Order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.

 -> A person who willfully fails or refuses to complete successfully a term of residential confinement or a program of treatment ordered pursuant to this paragraph is guilty of a misdemeanor.

      (c) Except as otherwise provided in NRS 484C.340, for a third 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 who is imprisoned pursuant to the provisions of this paragraph 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 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 484C.320 or 484C.330 and the suspension of his or her 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.

      4. Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.410 or 485.330 must run consecutively.

      5. 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.

      6. For the purpose of determining whether one offense occurs within 7 years of another offense, any period of time between the two offenses during which, for any such offense, the offender is imprisoned, serving a term of residential confinement, confined in a treatment facility, on parole or on probation must be excluded.

      7. As used in this section, unless the context otherwise requires, “offense” means:

      (a) A violation of NRS 484C.110, 484C.120 or 484C.430;

      (b) 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 484C.110, 484C.130 or 484C.430; or

      (c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

NRS 484C.410 Penalties when offender previously convicted of certain felonious conduct or homicide; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.

      1. Unless a greater penalty is provided in NRS 484C.440, a person who has previously been convicted of:

      (a) A violation of NRS 484C.110 or 484C.120 that is punishable as a felony pursuant to paragraph (c) of subsection 1 of NRS 484C.400;

      (b) A violation of NRS 484C.430;

      (c) 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 484C.110, 484C.130 or 484C.430;

      (d) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a), (b) or (c); or

      (e) A violation of NRS 484C.110 or 484C.120 that is punishable pursuant to paragraph (b) of subsection 1 of NRS 484C.400 that was reduced from a felony pursuant to NRS 484C.340,

 -> and who violates the provisions of NRS 484C.110 or 484C.120 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 2 years and a maximum term of not more than 15 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 which is listed in paragraphs (a) to (e), inclusive, of subsection 1 that occurred on any date 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 for 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 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 484C.320 or 484C.330 and the suspension of offender’s 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.

      4. Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.400 or 485.330 must run consecutively.

      5. 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.

      6. For the purpose of determining whether one offense occurs within 7 years of another offense, any period of time between the two offenses during which, for any such offense, the offender is imprisoned, serving a term of residential confinement, confined in a treatment facility, on parole or on probation must be excluded.

      7. As used in this section, unless the context otherwise requires, “offense” means:

      (a) A violation of NRS 484C.110, 484C.120 or 484C.430;

      (b) 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 484C.110, 484C.130 or 484C.430; or

      (c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

NRS 484C.420 Probation prohibited; suspension of sentence and plea bargaining restricted; mandatory orders when person is nonresident.

      1. A person convicted of violating the provisions of NRS 484C.110 or 484C.120 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, 484C.320, 484C.330 and 484C.340, 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 484C.110 or 484C.120 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial.

      2. If the person who violated the provisions of NRS 484C.110 or 484C.120 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 of NRS 484C.400, 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 the person’s residence within the time specified in the order; or

      (b) Order the person 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.

NRS 484C.430 Penalty if death or substantial bodily harm results; exception; segregation of offender; plea bargaining restricted; suspension of sentence and probation prohibited; affirmative defense; aggravating factor. [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. Unless a greater penalty is provided pursuant to NRS 484C.440, a person who:

      (a) Is under the influence of intoxicating liquor;

      (b) Has a concentration of alcohol of 0.08 or more in his or her blood or breath;

      (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 or her blood or breath;

      (d) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;

      (e) 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 the person incapable of safely driving or exercising actual physical control of a vehicle; or

      (f) Has a prohibited substance in his or her blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 484C.110,

–> and does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this State, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, another person, 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 2 years and a maximum term of not more than 20 years and must be further punished by a fine of not less than $2,000 nor more than $5,000. A person 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. A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 may not be suspended nor may probation be granted.

      3. 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 or her blood or breath was tested, to cause the defendant to have a concentration of alcohol of 0.08 or more in his or her 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.

      4. 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.

NRS 484C.440 Penalties for vehicular homicide; segregation of offender; plea bargaining restricted; suspension of sentence and probation prohibited; aggravating factor.

      1. A person who commits vehicular homicide pursuant to NRS 484C.130 is guilty of a category A felony and shall be punished by imprisonment in the state prison:

      (a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

      (b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.

      2. A person imprisoned pursuant to subsection 1 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.

      3. A prosecuting attorney shall not dismiss a charge of vehicular homicide in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 may not be suspended nor may probation be granted.

      4. If the defendant was transporting a person who is less than 15 years of age in the vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.

²Id.