In Nevada, a DUI is charged as either a misdemeanor or a felony. Misdemeanor DUIs are more common and require that a person be driving or in actual physical control of a vehicle while under the influence of drugs or alcohol. Felony DUIs include all of the same elements as a misdemeanor DUI, but also require additional elements. A DUI will be charged as a felony instead of a misdemeanor when one of the following also exists:
The government can use two different theories in order to prove a DUI. The first is considered a per se offense, meaning that the government need only 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.
The other way in which the government can proceed is under what is called an "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 so long as they can prove that the person displayed an impaired ability to operate the motor vehicle while in the officer's presence.
When you are charged with a felony DUI, two separate cases are opened. One is criminal and is handled by the court. The other is administrative and is handled by the DMV.
When a person is arrested for a third DUI within 7 years, the DUI is charged as a category B felony and they are subject to the following penalties:
Where a person's prior DUI convictions took place is irrelevant. If the person had a DUI in California 5 years ago and another DUI in Ohio 2 years ago, both will still count toward the total amount of DUIs that person has committed. The only issue with prior DUI convictions is when they occurred. If a person had prior DUI convictions but they all occurred over 7 years ago, the person's new DUI will be charged as a DUI first offense.
If you are found to have a BAC that is twice the legal limit or more (0.18 or higher), additional penalties may apply. These can include having to wear a SCRAM bracelet and having a Breath Interlock Device installed in your vehicle for 12 to 36 months.
The standard administrative penalty for a third offense felony DUI is a 3-year suspension of your driver's license, a 5-day suspension of your registration, and a $35 civil penalty fee.
When a person causes either the death or serious bodily injury of a third party while driving under the influence, that person will be charged with a Category B felony. The punishments for this type of felony DUI include incarceration in prison for not less than 2 years and not more than 20 years and a fine ranging from $2,000 to $5,000.
Vehicular Homicide has all of the same elements as a DUI Causing Death (causing a person's death while driving under the influence) with the added element that the person must also have had at least three prior DUIs. Vehicular Homicide is a Category A felony. The punishment for this felony is either a definite term of incarceration of 25 years or a life sentence, both with the possibility of parole after the person serves a minimum of 10 years of his sentence.
A person convicted of a felony DUI is not eligible for probation, which means that a prison sentence is mandatory. However, it is possible to avoid having to go to prison in some instances if that person applies for and participates in what is called the Serious Offender Program.
The Serious Offender Program requires that a person be diagnosed as an alcoholic or drug abuser by either a drug and alcohol abuse counselor or a physician who is properly licensed and certified. The counselor or physician will then prepare a report for the court that makes recommendations for what type of treatment is most appropriate for the person.
If the court approves the person's application, they will, without entering a judgment of conviction, suspend further proceedings and place the person on probation for a minimum of 3 years and a maximum of 5 years. One of the conditions of probation will be the successful completion of whatever treatment program that was recommended by the counselor or physician. The treatment program may include being confined in an institution.
The person has to agree to participate in any treatment that is recommended by that counselor or physician and must pay to the extent he is able for the costs associated with the treatment. Additionally, the court may order additional conditions for your probation. At minimum, these conditions must include:
If the person successfully completes his probation, he may be convicted of a DUI 2nd instead of a DUI 3rd and will not have to do any additional prison time. If, however, the person does not successfully complete the treatment program or violates any other conditions of his probation, the court will enter a judgment of conviction for a DUI 3rd and may impose the corresponding prison sentence. The person will receive credit for any time he served in jail prior to beginning treatment.
Certain people are not eligible for the Serious Offender Program. In particular, people who have already previously applied for the Serious Offender Program are ineligible. Furthermore, people who have been previously convicted of certain offenses are also ineligible for the Serious Offender Program. These offenses include:
Felony DUI is a very serious charge, and if you're convicted of felony DUI you face a mandatory prison sentence. This and other harsh penalties can be avoided, however. The best way to avoid these consequences is to hire a criminal defense lawyer. I have helped many individuals charged with DUI in Las Vegas and all throughout Southern Nevada. Call me today to talk about your case.