Driving Under the Influence
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A DUI case is more technical that the typical criminal law matter (as one is dealing with BAC levels or drug concentration levels determined by blood or breath) and not just dependant on witness testimony and photographs in other criminal law matters. With public policy and statutes which limit the ability of the prosecutor to negotiate and reduce a DUI charge if they believe they can secure a conviction, it is important to have an attorney to properly handle your DUI case.
A DUI charge is not just limited to a person under the influence of alcohol, in fact a person can be charged with a DUI if they have a prohibited level of amphetamines, cocaine, marijuana, heroin, or other substances as specified in statute in your system.
A DUI arrest normally puts into motion two "cases": a criminal case and a DMV case. The criminal case deals with how one should be punished for the "crime" of Driving Under the Influence (which for a 1st or 2nd offense DUI is a misdemeanor) and has a specific range of jail time, classes, and fines to be paid. It is important to have an attorney to represent you to obtain the best possible result, ensure your consitutional rights are protected, and minimize any consequences and avoid jail time.
The DMV case is limited only to the suspension of your driver's license in regards to being in actual physical control of an automobile under the influence. During a DUI stop/arrest, if you take a breath test and the results are above a 0.08%, the officer will take your license and give a temporary license good for seven days. After the seven days if no DMV hearing is requested, then your license is suspended. If you request a hearing, then you can obtain a temporary license that will remain in effect until the hearing. If you take a blood draw, you will keep your license until those blood results come back and if they are above a 0.08%, the DMV will mail you a notice that your license will be suspended. After receiving the notice from the DMV it is vital that you or your attorney request a DMV administrative hearing challenging the suspension and you will be able to keep your license until the hearing.
If the DMV prevails at the hearing, then you will serve a 90 day suspension of your driver's license but depending on the facts of your case it may be possible to win the DMV hearing and keep your license.
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Frequently Asked Questions on DUI's
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Why was I charged with Driving Under the Influence?
Here in the State of Nevada, anyone who has "actual physical control" of a motor vehicle and is either under the influence of liquor (or controlled substance) or has a blood alcohol content (BAC) of 0.08 or higher or within two hours after driving or having actual physical control of a vehicle on a road to which the public has access can be charged with Driving Under the Influence. What this means is that even if you have a BAC of only 0.04 which is half the legal limit, if you are under the influence of the alcohol and are driving in an unsafe manner you can still be arrested for a DUI.
Do I have to perform the Field Sobriety Tests (FST's) if asked by the officer?
No, in the State of Nevada, FST's are purely voluntary and you are perfectly free to refuse to perform them if asked by the officer and that refusal alone does not subject you to automatic arrest. However, if the officer has other indicia and a reasonable suspicion that you are under the influence of alcohol or a controlled substance the officer will still be able to place you under arrest for a DUI.
Do I have to perform the Portable/Preliminary Breath Test if asked by the officer?
Yes, in the State of Nevada, much like the majority of states in the U.S., by getting a driver's license you have given your implied consent that if asked by an officer to take a portable/preliminary breath test you will comply. Failure or a refusal to give a breath test is autmatically going to have your license seized by the officer and you will be placed under arrest and taken to the police station where either breath or blood will then be taken.
Do I have to take the breath test or agree to a blood test at the station?
Yes, in the State of Nevada, much like the majority of states in the U.S., by getting a driver's license you have given your implied consent that if asked by an officer to take the breath test or have your blood taken you will comply. Failure or a refusal to submit to a test will allow the officer to use "reasonable force" to take your blood in order to perform a blood test. Likewise if your are unconscious, dead, or likewise unable to respond, then your blood will be taken to perform a blood test. You can refuse a blood test if there are means to perform a breath test. Likewise you can also request a blood test over a breath test at the station but if the means were available for a breat test and you are convicted then you will have to pay the cost for the blood test.
What are the penalties and consequences of a DUI conviction?
Unlike most crimes, a DUI charge has two components: a criminal case through the court (either Municipal or Justice Court) and an administrative case through the Department of Motor Vehicles (DMV). In the State of Nevada, a DUI 1st (meaning no prior DUI convictions from the last seven years) is a misdemeanor that is punishable for up to six months imprisonment but no less than two days, between 48 and 96 hours of community service and between $400.00 and up to $1,000.00 in fines and additional penalites if your BAC is above a 0.18. The DMV once they obtain notice of your BAC and the DUI charge is going to schedule a license revocation hearing where if they show that you were under the influence they will revoke your license for 90 days. Even if we win the DMV license revocation hearing but you are ultimately convicted or plead guilty to the DUI, you are still going to have your license revoked for 90 days. There are additional and stronger penalities for a 2nd or 3rd DUI offense that occurs within the past seven years.
A DUI has many ramifications beyond the legal and it is imperative that you have an attorney to fight in your corner! If you or a loved one has been charged with Driving Under the Influence contact my law office today to schedule a free consultation with me.
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