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Driving Under the Influence in Nevada

A DUI, or Driving Under the Influence, is a very common criminal charge. Every year, thousands of Las Vegas locals and visitors find themselves charged with DUI after having a few too many drinks and then driving. A DUI can result in serious criminal penalties, including fines, classes, and even jail time. Below, read about what a prosecutor must prove in order to convict someone of DUI, the varying limits for alcohol and drugs and how DUI charges are defended.

How the Prosecution Proves DUI

To convict a person of DUI, the prosecutor must show two things. Specifically, they must show that the accused person was driving a motor vehicle or was in "actual physical control" of a vehicle while under the influence of alcohol or drugs to the point of being "impaired." These are two "elements" that must be proven. If either element is lacking, a person cannot be convicted of DUI. Let's address the elements one at a time.

The first element, as stated above, is that the accused person operating a vehicle or was in actual physical control of a vehicle. Operating a vehicle means actually driving it. This is simple. But "actual physical control" is a trickier concept, and allows people to be convicted of DUI even when they aren't observed driving. Being "in actual physical control" of a vehicle can include times when a person is sitting in a car on the side of the road waiting for the effects of alcohol to wear off. To read more about this situation, click here.

The second element requires a showing that the driver is under the influence of alcohol or drugs to the point of impairment. Impairment can be shown two ways. The first way is considered a per se offense, meaning that the government only needs to show that a person was operating or in actual physical control of a vehicle while that person had equal to or greater than the prohibited amount of alcohol or drugs in his system. In other words, lawmakers have decided that if a person has a certain amount or alcohol or drugs in his system, then he is impaired. Period. No argument.

The other way the government can proceed is under what is called "impairment theory." This allows the government to prosecute a person for a DUI even if the person had less than the prohibited amount of alcohol or drugs in his system. However, impairment theory requires the prosecution to prove that the person displayed an impaired ability to operate the motor vehicle while in the officer's presence.

DUI Alcohol: Legal Limits

Most DUIs arise when a person operates a motor vehicle while he has a blood alcohol concentration (BAC) that is above the legal limit. BAC represents the amount of alcohol present in a person's blood. The legal limit in Nevada is 0.08 percent for drivers over 21, 0.02 percent for drivers under 21, and 0.04 percent for commercially licensed drivers (when they are driving commercial vehicles).

DUI Drugs: Legal Limits

A person can also be charged with a DUI when that person has illegal drugs in his system. There is an "allowable amount" of illegal drugs that can be in a person's system, but the amounts are quite low. Any amount that is equal to or greater than the prohibited amount will result in a DUI.

The prohibited amounts are as follows:

Prohibited Substance

Urine

Nanograms

Per Milliliter

Blood

Nanograms

Per Milliliter

(a) Amphetamine

500

100

(b) Cocaine

150

50

(c) Cocaine Metabolite

150

50

(d) Heroin

2,000

50

(e) Heroin Metabolite (Morphine)

2,000

50

(f) Heroin Metabolite (6-monoacetyl morphine)

10

10

(g) Lysergic acid diethylamide (LSD

25

10

(h) Marijuana

10

2

(i) Marijuana metabolite

15

5

(j) Methamphetamine

500

100

(k) Phencyclidine (PCP)

25

10

Drugs such as cocaine, heroin and marijuana are metabolized by your body into molecules that are called "metabolites." These metabolites are temporarily stored within fat cells and are eventually processed out of the body through urination and the digestive process.

The amount of allowable metabolites is measured in nanograms per milliliter and differs based on the type of drug and whether the sample is blood or urine. The amounts listed are based on standards that were set by the Substance Abuse and Mental Health Services Administration, which is a federal agency tasked with establishing standards for toxicology testing of certain federal employees such as train engineers or airline pilots.

The problem with testing for metabolites in order to determine intoxication is that these metabolites can stay in the body for days and sometimes even weeks after the drug has been taken. This means that a person could still have metabolites of a drug in his system, but not actually be at all impaired or affected by the drug.

The detection of metabolites in a person's system really only proves is that a person previously consumed a particular drug. However, under current Nevada law, this is enough to convict a person of a DUI if he has more than the allowable amount of metabolites in his system.

Marijuana metabolites in particular can stay in a person's system for much longer than other illegal drugs. It is important to note that even if a physician prescribed marijuana for medicinal purposes, a person will be charged with a DUI if he has equal to or greater than the prohibited amount of metabolites in his system.

DUI Involving Prescription and Over-the-Counter Medications

While most people know that it is unlawful to operate a motor vehicle while taking illegal drugs, many people are not aware that a person can also be charged with a DUI if he has prescription drugs in his system. If those prescription drugs impair the person's ability to operate a motor vehicle, they are treated the same way as an illegal drug. This is true even though the person has obtained a valid prescription for the drugs. While there are many prescription drugs that may impair a person's ability to drive, some of the most common include painkillers and sleeping pills.

Additionally, there are certain prescription drugs that have adverse effects when mixed with alcohol. For example, when medications prescribed to treat anxiety or depression are mixed with alcohol, they can increase the effect of the alcohol. This is known as a "synergistic effect," and means that while you may have only had a couple of drinks, you may feel like you have had three or four times as much.

There are also certain over-the-counter medications that impair a person's ability to drive, so it is always important to read any drug warning labels to know of any possible side effects. Common over-the-counter medications that can impair a person's ability to drive include those taken for allergies and cold medications. However, any drug that lists amongst its common side effects problems such as drowsiness, dizziness, fainting, confusion, hallucinations, seizures or loss of coordination should not be taken while driving.

Potential Penalties for DUI

If you are convicted of a DUI, you face serious penalties, including incarceration, fines, court mandated counseling, the loss of your driver's license, and more. The penalties vary depending upon whether the DUI is charged as a misdemeanor or a felony. In general, misdemeanor DUIs are first or second offense DUIs that don't involve a serious accident resulting in an injury. To learn about misdemeanor DUI in greater detail, click here. Felony DUIs are third offense DUIs and DUIs that involve an accident causing death or serious bodily injury. To learn more about felony DUI, click here.

Defending DUI Charges

A DUI conviction can result in serious penalties, including substantial fines and even jail time. So if you have been arrested for DUI, you should seek the help of a criminal defense lawyer. There are many ways to defend a DUI case, and potential defenses vary greatly based on the particular facts of your case. Remember, the prosecution always has the burden of proving every charge beyond a reasonable doubt. But even when the evidence of guilt appears strong, favorable plea negotiations can be entered into to avoid jail time and other penalties. It is sometimes possible to avoid having a DUI conviction on your record.

If you have been charged with DUI in Las Vegas or anywhere else in Clark County, Nevada, including Henderson, North Las Vegas, and Boulder City, call me now to discuss your case. I have helped many people avoid harsh DUI penalties, and I offer free consultations over the phone or in person.

By Michael Pandullo

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