DUI Penalties and Procedures in Las Vegas

INTRODUCTION

Being charged with Driving Under the Influence (DUI) in Las Vegas has very serious implications from both a legal and practical standpoint. After all, it is not surprising why many individuals in Las Vegas commit this offense – the place is an entertainment haven where alcohol is distributed freely and indiscriminately at all hours of the day. As a result, many individuals end up being charged with DUI.

Let’s first start by asking: What is a DUI charge anyway? Many people think a DUI pertains to someone who has only ingested alcohol. However, alcohol is not in the title of Driving Under the Influence. Someone can be charged with a DUI even if they consumed no alcohol at all. There are two types of DUI offenses, 1) Driving or being in Actual Physical Control of a motor vehicle while having a Blood Alcohol Concentration (BAC) of 0.08 or more and/or being incapable of safely operating a motor vehicle (this last part is called the Impairment Theory), and 2) Driving or being in Actual Physical Control of a motor vehicle while under the influence of a Controlled Substance.

THE DUI ARREST PROCEDURE

Stopping Your Car

Generally, a DUI stop begins with a police officer pulling your vehicle over because of some traffic violation. I say generally because there are many other circumstances where you could come into contact with police for a DUI stop other than having been pulled over for a traffic violation. For example, you may have been involved in an accident which required police involvement or you may have fell asleep in your car parked on the side of the road or in a parking lot and the police knock on your window. Even at this early stage, the police officer should have reasonable grounds for stopping your car in order to comply with constitutional procedures. The first question to ask therefore from a defense standpoint is did the police actually have a reasonable suspicion or some justified belief to stop your vehicle or detain you for any period of time? Were you violating any traffic rules or did you cause an accident? Remember that without justifying circumstances, a police officer cannot stop your car.

Actual Arrest

In Las Vegas, a DUI is considered a criminal offense, and arresting an individual for DUI must comply with your constitutional rights. As a rule, an accused person cannot be arrested without the existence of probable cause for his/her arrest. Probable cause means that at the time of the arrest for DUI, there must be a reasonable belief based on facts and circumstances known to the officer that you were driving or in actual physical control of a motor vehicle while under the influence of an intoxicating substance or alcohol before you can be arrested or that the officer felt based on his/her investigation that you were incapable of safely operating a motor vehicle.

The most common method that officers resort to in order to establish this probable cause is by looking at your physical appearance at the time you were pulled over and thereafter. Were you exhibiting symptoms of being under the influence, such as smelling like alcohol, having bloodshot or watery eyes, admitting to drinking/taking drugs or incapable of maintaining your balance? Regarding the aspect of your driving, did the arresting officer see you speed, drive wildly or fail to stay in your traffic lane?

There are actually many tests that an arresting officer may use in order to test your physical and mental capabilities when establishing probable cause to arrest you for DUI. I believe it is misleading to call the following examples tests however, because they are more like physical exercises as opposed to tests, except for the Horizontal Gaze Nystagmus (HGN), I would consider this more of an eye exam than a test. The first physical sobriety exercise that an officer usually gives is called the HGN exam. This is when the officer will hold up a pen or his finger in front of your face and tell you to follow the tip of his pen or finger back and forth a few times. In doing so the officer is NOT looking to see if the person can simply follow his finger or pen but is looking to see whether an individual’s eyes involuntarily jerk or twitch when following his finger or pen. The second exercise is called the Walk and Turn exercise. This is the exercise where the officer will tell you to take 9 heel to toe steps down a straight line (usually imaginary) and turn and take 9 heel to toe steps back. The third physical sobriety exercise is called the One Legged Stand exercise. This test involves the officer telling you to stand with both feet together, lift up one leg 6 inches off the ground and count to 30.

After the officer has had you perform these above exercises or exams they might ask you to blow into what’s called a Portable Breath Test (PBT) to see what your BAC may actually be. The results of this test are simply used to establish probable cause to arrest you for DUI. They cannot be admitted in court. A second test, which can either be a blood or a breath test, will be conducted on you at the detention center for evidentiary purposes.

It is important to remember that you are not required to do any of the above tests or exercises. However, an individual who refuses all tests requested by the officer will likely be taken into custody so that the officer can get a blood or breath sample at the detention center. It is also important to remember that even when taken into custody, you have the right to, number one choose which test you want to take but most importantly you have the right to refuse to take either test unless the officer gets a search warrant to withdraw your blood. Keep in mind that this is the general rule and that there may be exceptions such as when the officer is faced with serious exigent circumstances such as very serious car accident.

THE DEPARTMENT OF MOTOR VEHICLES (DMV) ADMINISTRATIVE HEARING

The purpose of the administrative hearing is basically to allow you to appeal the suspension of your driving privilege in the state of Nevada. Most individuals who have been arrested for DUI erroneously presume that they have no chance at such proceedings and never even bother to contest their suspended driving privileges. Nothing can be farther from the truth, and you should always contest your license revocation. You will lose nothing if you attempt to contest the revocation of your license. Apart from this, a lot of crucial defenses are developed and can be played out in the administrative hearing, which can also have an important bearing for the criminal aspect of your case.

If you do a breath test for your DUI and you are above .08, then the officer will take away your driver’s license and hand you a pink sheet of paper which acts as a temporary license for 7 days. It is very important to contact a DUI/Criminal Defense lawyer as soon as possible during this time frame because they can fax a letter to the DMV requesting a hearing to contest the suspension of your driving privileges as well as get you a temporary driver’s license so that you may continue to drive until the hearing takes place which can be 2-3 months down the road.

If you do a blood test and the results come back above a .08 or above the legal the limit for a particular controlled substance found in your blood then the DMV will send you a green and white post card via certified mail that lets you know that they are going to suspend your driver’s license for 90 days (first offense only). Once you get this letter then you want to again call a DUI/Criminal Defense Lawyer to send a letter to the DMV to contest this suspension and get you a temporary driver’s license in the meantime.

If you are a first time offender, then your license will be revoked for 90 days. Thus, a DUI can be a very striking blow to you since those 90 days can essentially mean a loss of important transportation means as well as affect your lifestyle and your capacity to go to your work place. However, after 45 days, you actually have the option to apply for a restricted license, which will allow you restricted driving privileges to and from your work or school.

A second offense will mean a suspension of your license for at least 1 year.

A third offense (felony DUI) will result in your license being suspended for 3 years\ with no ability to get a restricted license.

During the administrative hearing, the DMV judge will request the arresting officer to appear before its office to show that they had reasonable grounds to believe that you were driving or in actual physical control of a motor vehicle while under the influence of alcohol or drugs and that’s why they had you submit to the breath or blood test.

This proceeding is also very important since it gives you an early and rare opportunity to cross-examine (ask questions to) the arresting officer. Given the nature of the hearing, the testimony of the persons testifying before the administrative proceeding can actually be used in your criminal defense. Thus, if you establish any defect in the process or procedure of your arrest as early as the administrative proceedings, then there will be a higher likelihood that you won’t be found guilty in your criminal case.

THE CRIMINAL CASE

The criminal aspect of a DUI case is more threatening than the administrative aspect. With the criminal charge, you can actually be required to serve jail time for your offense. Since DUI is a misdemeanor in Las Vegas, criminal due process will come into play if you are being arrested for a DUI. This means that there will be a presumption of innocence until you are proven guilty otherwise. Unlike the administrative hearing, in the criminal case you must be proven guilty beyond reasonable doubt.

Right at the onset, an officer should have a legitimate reason to stop your car in the first place, as we discussed above. Whether it is a traffic violation or car accident, there must at least be a suspicious circumstance that necessitated the police to stop your car. If you are stopped for no reason at all, then the whole scenario might be interpreted as a “fishing expedition” for possible arrests, which is a violation of your constitutional rights. Any arrest or evidence that results from this fishing expedition is inadmissible as evidence.

Once you are pulled over, there should be probable cause in order to arrest you. Common reasons that an arresting officer may use to arrest you would include your physical appearance, the smell of your breath, your admission to drinking or taking drugs, how you performed on the physical sobriety exercises (explained above), the use of a portable breath test or any other suspicious behavior.

Once you are arrested and taken to the detention center, you must be given the option to choose either the breath or blood evidentiary test. As I mentioned above, you can refuse both tests unless the police have a valid search warrant to withdraw your blood.

After this, you will then be held in custody of the authorities unless you post bail or are released on your own recognizance (aka OR release). Bail is basically a monetary amount set by a judge, which allows an accused person to be given temporary liberty, conditioned on the promise that they will appear in court if required by the judge.

The arraignment stage is the first court date where the accused person or their lawyer for a DUI charge will be required to appear before the judge. In the arraignment stage, the prosecutor will present and propose to the court the charges of DUI against the accused. In turn, the accused will enter his/her plea of either guilty or not guilty. Even if the accused person intends to enter into a plea bargaining agreement, a plea of not guilty is still usually entered. The defendant (person charged with a crime) will then be given a trial or pretrial court date depending upon which court they get their DUI in. For felony DUI’s, the defendant will be given what’s called a preliminary hearing (like a mini trial-no jury) first and then a jury trial if need be at a later date.

During the time frame leading up to your trial/pretrial or preliminary hearing your lawyer will be given the police reports for your case, the prosecutions list of intended witnesses as well as any other evidence that is relevant to the case. A good lawyer will take the time to review all of the prosecution’s evidence with a fine tune comb and request any additional evidence or witnesses needed for your defense. Most plea bargaining settlements also occur during pretrial. The judge is actually not constrained to agree with a plea bargaining agreement, although in reality most judges actually give their consent to the proposed agreement.

If the parties fail to reach a plea agreement during pre-trial stages, the DUI case will proceed to the trial stage. This is where both parties will argue before the court or jury the merits (facts/issues/evidence) of their case by establishing their reasoning through the use of documents, witnesses, videos, and whatever else your defense lawyer may think is relevant. However, prior to trial, the parties may file their respective motions for various matters, such as a motion on the part of the defendant to suppress evidence or to dismiss the case altogether if, for example, there was a lack of probable cause; if the information of the DUI charge was not sufficiently stated in order to enable the accused to respond intelligently to the charge; or if evidence was acquired from the accused illegally or in violation of constitutional rights or criminal procedure.

PENALTIES

First Time Offender

  • Your driver’s license will be revoked for a period of 90 days. However, after 45 days you will be given the option to apply for a restricted license, which allows you to drive to work or school.
  • You can be given a jail sentence, which ranges anywhere from 2 days up to 6 months.
  • You can be fined from $685 up to $1000.
  • You will be required to attend a State approved DUI school, which can cost $200
  • Attend the Victim Impact Panel class (MADD).

For alcohol levels of 0.18% or higher, you may be required to do the following:

  • Pay $100 for a DUI alcohol evaluation- which requires you to meet with a substance abuse counselor.
  • The court may require you to install Breath Interlock Devices for 12 to 36 months in your car.
  • Based on the results of the DUI alcohol evaluation, you may be required to undergo counseling.

Second Time Offender

If you have been charged for the second time for a DUI within 7 years:

  • Your driver’s license will be revoked for a period of at least one year. Your vehicles registration will be suspended for at least 5 days.
  •  You can be given a jail sentence, which ranges anywhere from 10 days up to 6 months.
  • You can face a fine of $750 up to $1000.
  • You may be required to complete community service.
  • Your car registration can be suspended for at least 5 days.
  • You will be required to attend a State approved DUI school, which can cost $200.
  • You will be required to attend the Victim Impact Panel class.
  • Pay $100 for a DUI alcohol evaluation- which requires you to meet with a substance abuse counselor.
  • The court may require you to install Breath Interlock Devices for 3 to 6 months in your car.
  • Based on the results of the DUI alcohol/drug evaluation, you may be required to undergo counseling.

Third Time Offender (Felony DUI)

If you have been charged for the third time for a DUI within 7 years:

  • Your driver’s license will be revoked for a period of at least three years.
  • You can face 1-6 years in prison.
  • You can be fined at least $2000 up to $5000.
  • If convicted, this offense is non-probationable (meaning that the person cannot get probation)
  • You must install a breath interlock device on any vehicle you own or operate for a period not less than 12 months nor more than 36 months.
  • Pay $100 for a DUI alcohol evaluation- which requires you to meet with a substance abuse counselor.
  • Based on the results of the DUI alcohol evaluation, you may be required to undergo counseling.
  • Complete the Victim Impact Panel class.

If your DUI (even on a first offense) caused death or serious bodily harm than it is considered a Category B Felony.

  • Your Driver’s license will be revoked for 3 years.
  • You can face a prison sentence of at least 2- 20 years which is non-probationable.
  • You will also be fined at least $2,000 up to $5,000.

CONCLUSION

There are many practical reasons and considerations as to why you should be aware of the procedure and penalties for a DUI. First and foremost, having knowledge of these things gives you a better ability to enforce your rights and remedies when being stopped for DUI. Was there a sufficient reason to stop your car? Was there probable cause to arrest you? Were you given an option whether to take the breath or blood test? If you refused did the police get a warrant? Any mistake in the above procedures gives you a legitimate legal defense.

The complexities in DUI case can be quite overwhelming. That is why it is very important hire a DUI lawyer as early in the process as you can so that they may go through your case with a fine tune comb and address every possible defense available for you.

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