Nevada's drunk driving laws make it illegal for a person to drive, or to be in actual physical control of, a vehicle on state roads while under the influence of alcohol or drugs. That means that it is possible to get a Nevada driving under the influence (DUI) charge without actually driving, but the state recognizes a limited "sleeping it off" defense.
Like in other states, Nevada's penalties for a DUI offense depend largely on the driver's prior driving record. While a first offense DUI will have the least severe punishments, the sanctions can include jail time.
Drunk Driving in Nevada
Nevada statutes make it a crime for a person to operate a motor vehicle while under the influence of alcohol, any controlled substance or any substance or chemical that renders them incapable of driving or of exercising actual, physical control of the vehicle. Any combination of two or more substances can likewise be the basis for a DUI. It is not a defense to a DUI under these provisions that a person charged is legally entitled to use that drug under state law.
It is also a crime for a person to operate a motor vehicle with a blood alcohol concentration (BAC) level of 0.08 percent or higher. That offense is termed a "per se" DUI. Per se means "in and of itself," and proof of the BAC level at or above 0.08 percent is deemed sufficient proof of intoxication in and of itself. No additional evidence of impairment is required. It is an aggravating factor if the driver's BAC level tests out at 0.10 percent or higher.
There are lower BAC limits for commercial drivers. Their legal BAC limit is 0.04 percent, and drivers under 21 can be picked up for driving with a BAC of 0.02 percent or above.
Actual Physical Control in Nevada
Nevada's laws also make it a crime to be under the influence of any of these substances or a combination of them, and to be in actual, physical control of a motor vehicle in Nevada. That means that a person can face a DUI arrest even if the vehicle isn't moving. What exactly actual physical control means is a case-to-case determination, a factual question for the judge or jury. The finders of fact have, in the past, looked at these questions in determining whether a driver was in actual physical control of a vehicle:
- Was the vehicle running?
- Was it night or day?
- Was the ignition key in the ignition?
- Where was the driver in the vehicle?
- Was the driver sleeping?
- Were the headlights of the car turned on or off?
- Was the vehicle stopped on public or private property?
- Was the vehicle in the road or parked legally off the road or on a lot?
Nevada recognizes the "sleeping it off" defense. The law does not consider a driver in actual physical control of a vehicle if they are asleep in the backseat or in a passenger seat, the car isn't running, and it is legally parked.
Nevada Per Se Rules for Drugs
One uncommon provision in the Nevada DUI laws sets a per se DUI limit for a variety of drugs. All states have the per se rule for alcohol, but few have been able to agree on a specific amount of drugs in a driver's system that will establish intoxication or being under the influence.
Nevada law sets legal limits for amphetamine, cocaine, heroin, morphine, methamphetamine and marijuana, among others, setting out the legal limit of each substance in the blood and in the urine. Anyone with an amount of a substance in their system that exceeds the legal limit is deemed intoxicated for the purposes of the DUI statute, just like the legal limit for alcohol.
Implied Consent in Nevada
Both a per se alcohol DUI charge and a per se drug charge in Nevada are based on the amount of the substance in the person's body. This is determined based on chemical testing. While breath testing is more common for alcohol, blood and urine sample testing is more common for drugs. Given the fact that a per se DUI is easier to prove than a regular "under the influence" violation, a driver might think twice before agreeing to take a chemical test if stopped for a DUI by a police officer.
Recognizing this, Nevada, like many other states, enacted an implied consent law. This law provides that anyone stopped on suspicion of driving under the influence is required to submit to a preliminary breath test to check for alcohol, drugs or intoxicants in their body. If a person refuses, the police must advise the driver of the potential penalties for refusal and then ask again. A driver who again refuses to take the chemical test violates the implied consent law, which triggers an automatic license revocation for 90 days for a first offense. This is in addition to any criminal penalties imposed by the court.
The driver can request an administrative hearing to challenge the revocation if they have grounds to do so. If the driver succeeds, the license revocation is rescinded.
Nevada First Offense DUIs
A driver arrested and convicted of a DUI in Nevada faces penalties including jail time, fines and loss of driving privileges. The more prior convictions a driver has, the higher the applicable penalties and the longer the driver's license suspension. That is, a second offense DUI will have more serious penalties than a first offense, and a third offense DUI is punished more severely than a first or second offense. In every case, a first offense is subject to the least severe punishment.
A first-time DUI sounds like it could occur only once in a driver's lifetime. But this is not necessarily the case in Nevada. It is considered a first offense DUI when a driver is charged with operating a motor vehicle while under the influence of drugs or alcohol and has no prior DUI convictions within the past seven years. The seven-year period is called the look-back period – seven years after a conviction, the case gets what is called a "record seal," meaning that the conviction no longer counts as part of the DUI offender's record.
First Offense DUI Penalties
Most drivers facing a DUI violation in Nevada are concerned about jail time. A first offense DUI is a misdemeanor, the less severe type of crime, and the normal jail sentence for a first DUI is between two days and six months in jail. The court can agree to convert the jail time for a first conviction to community service hours.
The criminal sanctions for a DUI includes fines. A first offense fine will be between $400 to $1,000, depending on where in Nevada the case is tried. The driver will also be required to attend an eight-hour Nevada DUI school and attend a victim impact panel, both at their own expense.
The driver will also have their license revoked for 185 days. It is sometimes possible for the driver to obtain a restricted driver's license to use for essential trips, such as driving to work or school. The court will require the driver to install an ignition interlock device (IID) in every vehicle they own or drive regularly. This is a type of breathalyzer that attaches to the vehicle and allows it to start only when the driver blows into it, and their breath is alcohol free.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.