When Is a DUI a Felony in Nevada?

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In the state of Nevada, a prosecutor will charge a DUI, or driving under the influence, as a felony when a defendant commits a third DUI within seven years; if the defendant had a prior felony DUI conviction; or if the defendant caused an accident resulting in substantial bodily injury or death of another person. The other person could be a passenger in the defendant’s vehicle, in another vehicle or a pedestrian. A DUI conviction and license revocation remains on a driver's full DMV record for the rest of their life. A DUI conviction will show on an individual’s driver history for up to 10 years, according to the Nevada Department of Motor Vehicles.

Definition of a Nevada DUI

Driving under the influence is defined as driving with a blood alcohol concentration (BAC) level of 0.08 percent or above. Typically, a DUI offense is a misdemeanor. The penalties for a first offense are much less severe than for a felony DUI. Penalties for a first DUI include between two days and six months in jail or 96 hours of community service, and a fine between $400 and $1,000.

Nevada Implied Consent Law

A driver on Nevada’s roads who is lawfully arrested for drunk driving gives implied consent to have their blood, urine or breath tested for alcohol and controlled substances, according to Nevada Revised Statutes (NRS) 484C.160. A driver who refuses a blood, urine or breath test will suffer a driver’s license revocation of one year for a first refusal and three years for a second or subsequent refusal. Nevada law counts refusals and failed BAC tests (0.08 percent or above) within the past seven years as prior DUIs when evaluating what constitutes a second or subsequent refusal.

Felony DUI Penalties

A felony DUI is typically a Category B felony. This type of offense is the second-most serious felony in the state. A Category B felony carries penalties of between one and 20 years in prison, according to NRS 193.130. Yet the typical prison sentence for a felony DUI includes between one and six years of incarceration, and the fine for a felony DUI is between $2,000 and $5,000, according to the Research Division of the Nevada Legislative Counsel Bureau.

Additional penalties for a felony DUI in Nevada differ depending on the type of DUI committed. For DUI charges that involve a third offense within seven years, a defendant may also be required to attend a victim impact panel and to pay for the cost of attendance; suffer a three-year driver’s license suspension; install an ignition interlock device (IID) in their vehicle for between one and three years; and submit to an alcohol and drug addiction evaluation.

A defendant convicted of another DUI following a felony DUI or a DUI causing substantial bodily harm or death is subject to roughly the same penalties as for a third DUI within seven years. When a defendant accused of driving under the influence was also transporting a child under 15, the judge will consider this an aggravating factor. The court may impose a stronger sentence under these circumstances.

Definition of Vehicular Homicide

A defendant convicted of driving under the influence and committing vehicular homicide (NRS 484C.440) may be required to serve 25 years or life in prison, with a chance of parole after 10 years. Vehicular homicide is defined as proximately causing the death of another person through an act or omission that constitutes simple negligence, according to NRS 484B.657. Simple negligence is defined as failing to use a degree of care that an ordinarily prudent person would exercise under the circumstances to avoid injury to another party.

Typically, vehicular manslaughter is considered a misdemeanor. The exception is when the driver of a vehicle is under the influence of alcohol or drugs or is driving recklessly.

Felony DUI Treatment Court

In certain areas of the state, Nevada offers Felony DUI (FDUI) Treatment Court. This is a minimum three-year program in which participants must undergo intensive treatment and community supervision. Offenders must have had at least three DUI charges within seven years. Defendants who participate in FDUI may be able to avoid prison time and a felony conviction.

FDUI is an option for defendants with DUI cases in Clark County, Nevada, according to the Eighth Judicial District FDUI Court. Clark County contains the city of Las Vegas. In order to be eligible for FDUI, individuals must have committed three or more charged DUIs, but have no prior felony DUI convictions. They also must not have participated in the program before.

Participants are subject to random drug and alcohol testing. There is court supervision of their compliance with a substance abuse treatment program. A participant must pay the cost of the program – in Clark County, the cost is approximately $550 a month. A defendant who successfully completes the FDUI program will see their felony DUI charge reduced to a second-degree misdemeanor conviction.

Out-of-State DUIs

An out-of-state DUI conviction usually counts toward one of three DUI convictions. Nevada DUI law interprets the definition of DUI rather liberally to include being in “actual physical control” of a vehicle while under the influence of alcohol or drugs or having a BAC of 0.08 or higher. In considering whether a person was in actual physical control of the vehicle, Nevada looks at whether the vehicle was running, the key was in the ignition or the driver was asleep.

“Sleeping it off” can be a defense to a DUI, but not if the key is in the ignition. This is true even when the vehicle's engine is not on. An individual asleep in the driver’s seat in a vehicle parked in an area which indicates the individual drove there, can be convicted of a DUI. The landmark Nevada case about DUIs involving sleeping is Rogers v. State (1989).

Driver’s License Revocation

An individual whose license has been revoked based on a DUI can reinstate their driving privileges before the end of the revocation period by installing an IID on any vehicle they operate, according to the Nevada DMV. The individual must also present a Certificate of Compliance in person at a DMV office and follow other required reinstatement procedures. These procedures include taking written tests, purchasing SR-22 insurance and paying license reinstatement fees.

The reinstatement fee for an alcohol or controlled substance offense is higher than a regular reinstatement fee. In addition, an individual with a DUI conviction must pay a victim impact fee for an offense involving alcohol or a controlled substance, according to the Nevada DMV.

Hiring a Criminal Defense Lawyer

A defendant who hires a DUI lawyer experienced in DUI defense may be able to get a felony DUI charge bargained down to a misdemeanor DUI. This can lower the individual’s fines and incarceration time. They may also suffer a decreased penalty as to their loss of driving privileges. For example, a misdemeanor DUI conviction can result in a one-year suspension of a driver’s license.

A defendant accused of committing three or more prior DUIs should consider determining whether the state has adequate records of the DUI convictions and whether the convictions occurred within the past seven years. Potential defenses to felony DUIs include an invalid arrest due to a lack of probable cause, police misconduct, and alcohol- or substance-reading equipment that does not work correctly.