DRIVING AND ALCOHOL CONSUMPTION

Nevada law forbids anyone from drinking an alcoholic beverage while they are driving or in actual physical control of a motor vehicle. In addition, it is unlawful for anyone to have an open alcoholic beverage container in the passenger area of a motor vehicle while the motor vehicle is being driven. This statute is separate and apart from Nevada's drunk driving laws.

DUI means Driving Under the Influence of alcohol or drugs (whether prescription or illegal drugs). You can also violate the DUI laws by driving with 0.10 or more blood alcohol level or if a blood or breath sample within 2 hours of driving is 0.10 or more - unless you can prove that you consumed the alcohol AFTER driving.

You may be arrested for driving under the influence if it can be shown you were driving while influenced by alcohol, "to a degree which renders you incapable of safely driving or being in actual physical control" of a vehicle, even if your blood alcohol level is less than 0.10 percent.

If you are arrested for DUI, the police officer may request that you submit to a preliminary breath test and then a follow-up breath, blood, or urine test. If you refuse to submit to the tests, the police officer will seize your drivers license on the spot, arrest you, and may use reasonable force necessary to obtain a blood sample from you.

If you are arrested for DUI, you do not have the right to speak to your attorney before submitting to a test for alcohol or controlled substances. These tests do not constitute a custodial interrogation, so your Miranda rights do not apply here. You must submit to the test(s) for alcohol and/or controlled substances, and the police can use reasonable force against you if you refuse to cooperate.

Even if you are just asleep in the car when an officer arrives, you will be arrested for a DUI if it is determined that you are in actual physical control of a vehicle while under the influence of drugs or alcohol. Actual physical control is determined in many ways, but includes: 1) having the keys in your possession; or, 2) being behind the wheel or having driven the car to its present location. The penalty for driving under the influence and being in actual physical control are the same.

The first DUI offense is a misdemeanor. Misdemeanors are punishable by up to six months in jail and a $1,000 fine. The minimum penalties for first offense are two days in jail or 96 hours of community service while wearing distinctive DUI clothing, a $200 fine, $70 in court costs, a $60 chemical test fee, and a DUI education course including mandatory attendance at a victim impact panel. If your blood alcohol level was 0.18 or more or you are under the age of 21, you must also pay to have an alcohol evaluation done.

A second offense within seven years also constitutes a misdemeanor. You would have to pay $100 to have an alcohol evaluation done, pay a fine of from $500 to $1,000, serve 10 days in jail or 10 days of in-house arrest to six months of jail/in-house arrest, and perform 100 to 200 hours of community services.

A third offense within seven years is a felony. The person must be sentenced to one to six years in prison (not subject to probation) and pay a $2,000 to $5,000 fine.

You must have an attorney if: 1) the prosecutor is recommending imprisonment for your DUI conviction; 2) if the arrest will be your second or third DUI conviction; or, 3) if you are being charged with a felony DUI. If you cannot afford an attorney, one will be appointed for you by the court.

You have committed a Felony DUI if:

1. You cause an accident while under the influence which results in death or "substantial bodily harm" as described in to another person; or
2. You receive a third DUI conviction within seven years (including a conviction from another state).

If you are convicted of felony DUI you can expect to be fined from $2000-$5000 and will serve between 2-20 years in prison. Also, it is important to note that a DUI conviction from any state within seven years of the current DUI case will count as a prior conviction in Nevada.

If you are arrested for a DUI, you will go to jail. You will be transported to the nearest facility for blood alcohol testing. You will have the opportunity to post bail for your release.

You will face the possibility of losing your license if you are arrested for DUI. The first offense will result in a 90 days revocation of your license, with that period increased to one year for your second conviction. Your third DUI offense will result in a loss of your license for three years. You may appeal the revocation of your driver's license through a hearing, and you may request a temporary license enabling you to drive to work after half of the revocation period has expired. This "work license" will also require a Breath Ignition Interlock Device to be installed in your vehicle. The revocation begins five days after the notice is mailed by DMV. You may request a hearing on the revocation. A driver is required to notify DMV of his or her current address so it is not a defense that the driver did not receive notice. A license to drive to work is available after half the revocation time has been served.

Driving with a revoked license will result in a penalty of 30 days in jail or 60 days house arrest and a $500-$1000 fine. Additionally, your license will be revoked for an additional period of time. After your revocation period has expired, you must reapply for your license through the DMV (including all tests and fees) and you will be required to carry an SR-22 insurance policy for three consecutive years following your offense.

If you are charged with a DUI e-mail or call Jeffrey S. Posin & Associates at (702) 897-5870 so that our attorneys can help in your defense.