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Will I have to serve jail time for a first time DUI?

Very unlikely. If you were arrested for a DUI and detained for a short period of time, that will be the most time you’ll likely ever serve for a first time DUI. However, if your DUI caused an accident and resulted in death or substantial bodily injury to another person, that’s a different story and can lead to serious jail time. A first time DUI, however, will rarely result in any significant jail time.

What are the elements of a DUI charge?

The law of Nevada states it is illegal for a person under the influence of intoxicating liquor who has a concentration of liquor of 0.08 or more in his or her blood or breath (or is found 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. This is the basic definition of a DUI offense in Nevada based upon consumption of liquor. A person can also be convicted of a DUI under Nevada law, specifically NRS 484C.110, based upon the consumption of a controlled substance (for example marijuana) or a combination of a controlled substance and liquor.

What does “under the influence” mean?

Under Nevada law, “under the influence” means a person is impaired to a degree that renders that person “incapable of safely driving or exercising actual physical control of a vehicle.”

Can I be charged with a DUI if my alcohol concentration is below 0.08?

Yes. In egregious situations such as a person driving in an erratic manner or incapable of operating a vehicle safely, he or she can be charged with a DUI even if his or her alcohol concentration is below the legal limit.

Can I be charged with a DUI if I’m in my car but asleep at the wheel?

It depends. The issue in a situation like this is whether you’re in actual physical control of the car. Nevada law provides that a person cannot be deemed to be in actual physical control of a vehicle if they’re asleep, not in the driver’s seat, the engine isn’t running and the vehicle is lawfully parked. However, let’s assume you’re behind the wheel, asleep, the engine is running but the car is parked. Under these circumstances you could be charged with a DUI because you were in a position of actual physical control even though you were asleep. It might sound crazy but people have been charged with DUIs under these circumstances.

If I get stopped by the police, what can I expect to have happen?

First, the officer will ask you for identification, vehicle registration and proof of insurance. You’re required to comply with the officer’s request. Next, the officer will ask you if you’ve been drinking. If you answer “yes,” you’ll be asked to step out of the vehicle and complete a field sobriety test. If you answer “no,” the officer might take your word for it depending upon how you appear and let you go on your way. At The Vegas Lawyers, our advice is that you should be very respectful to the officer and avoid making any admissions of alcohol or drug use. Kindness and good manners can go a long way. Showing the officer respect might get you out of a tricky situation. Slurring your words and being belligerent will not help.

What is a field sobriety test and can I refuse to take it?

A field sobriety test (FST) is helpful only to the police and hardly ever to the person being required to take it. You have the right to refuse the FST and should do so. In almost every police report involving a DUI, a police officer will write down something to the effect that the driver had “bloodshot and watery eyes” and smelled of “unknown alcoholic beverages.” This is all to justify stopping you in the first place. In other words, the police officer is simply trying to satisfy the legal requirement that he have “probable cause” to stop you. By asking you to take a physical test of dexterity, which most people couldn’t pass even if completely sober, and having you fail only gives the officer something else to write down that supports his decision to stop you in the first place.

What is a preliminary breath test and can I refuse to take it?

A preliminary breath test or PBT is simply a test administered by a police officer to determine if you’ve been drinking. In addition to a field sobriety test, an officer can ask you to blow into a device (“breathalyzer”) that will determine if you’ve been drinking. If you pass the test, the officer will likely let you go. If you fail, he can arrest you on the spot for suspicion of DUI. The key point to remember is that you cannot refuse to take a PBT without putting your license at risk. Under Nevada law, when you use the public highways and roads you are deemed to have given implied consent to submitting to a PBT. Remember, driving is a privilege not a right. By refusing to submit to a PBT your license will get revoked by DMV for one year. The results of a PBT cannot be used as evidence of guilt in a criminal trial. Instead, the results can only be used to establish the police officer had reasonable grounds to stop you for suspicion of DUI.

What’s the difference between a breath versus blood test?

After you’ve been arrested for suspicion of DUI, the police can request you take a breath or blood test. They’ll read you an implied consent warning notifying you that by driving on the Nevada roadways you impliedly consented to taking either test. With the breath test, you’ll once again be blowing into a breathalyzer to determine your blood alcohol content (BAC) level and whether it exceeds the legal limit. With a breath test, results are known immediately. A blood test on the other hand requires drawing your blood and then having a certified technician analyze it in a lab. The results from a DUI blood test will take anywhere from 3-9 months.

Is it better to take a breath test than a blood test?

A breath test is sometimes better than a blood test because its less reliable. Whereas, a blood test is very hard to dispute scientifically. If the police are relying upon a breathalyzer, the evidence can be attacked on the basis that the officer may not have properly calibrated the device or failed to properly administer the test. Under Nevada law, a person “may refuse to submit to a blood test if means are reasonably available to perform a breath test.” If you refuse to take both tests, the police can get a search warrant from a judge and force a blood draw.

What is the 2-hour rule regarding DUIs?

The main DUI statute in Nevada requires the police to administer a breathalyzer or draw blood within 2 hours after a person’s been driving or in physical control of a vehicle. The failure of the police to do so can constitute an affirmative defense to a DUI charge. The rationale behind this 2-hour rule is that any test results outside that period of time are not reliable.

What are the main defenses to DUI charge?

A DUI charge can be challenged by arguing there was no probable cause to stop the vehicle. That the driver was not in actual physical control or capable of operating the vehicle. Another defense is that breath/blood alcohol test was not taken within the 2-hours required by the DUI statute. Finally, another avenue for attack is that the results of the breath or blood tests do not establish the required 0.08 BAC for a DUI conviction. In other words, you might have been intoxicated but not enough to be charged with a crime. DUI cases turn on the facts and therefore it is important to have a lawyer that understands how to present the best defenses. At The Vegas Lawyers, our DUI defense team is lead by the former Chief Judge of the Las Vegas DUI court.

Can I walk down the Strip and drink a beer?

The answer to this question you’ll be pleased to know is “yes.” Under the state of Nevada’s “open container” laws you can walk the Strip drinking an alcoholic beverage as long as it’s in a plastic, paper or aluminum container. The same is true for the Fremont Street area except no aluminum containers. You can also consume liquor on a party bus, as long as you’re not the driver. The definition of an open container includes a can of beer with the top off, uncorked wine and pouring shots from a bottle of hard liquor.

Can I drink a beer if I’m just the passenger in a car?

The answer under Nevada law is “no.” It is illegal to have an open container of alcohol in the passenger area of a vehicle that isn’t a party bus or “house coach or house trailer.”

Is it true that first time DUIs are generally dismissed?

No. This is a myth that somehow seems to persist. While it was true several decades ago that prosecutors would dismiss DUI charges if the person had a “clean” record, that is no longer the case. There have been too many tragic deaths over the years involving fatal DUI accidents that have prompted prosecutors to treat DUIs as serious traffic crimes. That plus the pressure from groups such MADD have prompted society in general to look at DUIs in a more serious light.

Is it legal for the police to conduct a sobriety checkpoint?

Yes. In Michigan Department of State Police v. Sitz, the United States Supreme Court held that sobriety checkpoints do not violate the Fourth Amendment of the Constitution because there is a “substantial governmental interest” in stopping drunk driving. If you find yourself at a sobriety checkpoint after you’ve been to “happy hour,” the best course of conduct is to be very polite to the police and do not engage in any conduct that will arouse suspicion. Being rude to the police or acting in a manner that will make you appear odd can likely get you pulled over and subjected to a sobriety test.

What happens at a DUI trial?

A DUI trial is like any other trial, it involves both sides presenting evidence in the form of documents and testimony to support their case. Each side will make an opening statement telling the judge or jury what the evidence will reveal. The prosecution will call certain witnesses, generally a police officer and lab technicians that performed BAC tests. The defense can cross-examine these witnesses and this is where most DUI cases are won or lost. How skilled your attorney is at cross-examination is very important. If the case is not dismissed by the judge, then the defendant can call witnesses as well. Finally, once all the evidence has been presented, each side gets to make closing arguments where they get to argue to the judge or jury the meaning of the evidence presented at trial. After that happens, either the judge or the jury will deliberate and render a decision. The verdict is read in open court. If the defendant is convicted, the case does not end there. The defense attorney can file post-trial motion and even an appeal.


If you have questions about DUI or DWI, we can help. Contact The Vegas Lawyers today.

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