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Las Vegas Marijuana DUI Attorney

Understanding Marijuana DUI Charges In Nevada

Driving under the influence of drugs (DUID) appears to be a growing factor in impaired-driving crashes. NHTSA’s 2013-2014 National Roadside Survey reveals a decreasing trend in alcohol use by drivers between 1973 and 2013-2014. By contrast, the percentage of weekend nighttime drivers who tested positive for the presence of marijuana rose from 8.6% in 2007 to 12.6% in 2014. While in 2013-2014, 8.3% of weekend nighttime drivers tested positive for alcohol (a BAC of more than .005) and 1.5% had a BAC of .08 or higher, 22.5% had a positive drug oral fluid and/or drug blood test; the survey focused on drugs with the potential to impair driving skills, including over-the-counter, prescription, and illegal drugs. The study does point out that the presence of drugs does not necessarily imply impairment. According to NHTSA, drug use among fatally injured drivers who were tested for drugs rose from 25% in 2007 to 42% in 2016, and marijuana presence doubled in this time frame.

Since 2001, the medicinal use of marijuana in Nevada has been legal. Additionally, a person may apply for inclusion into the Nevada medical marijuana program and take or possess up to 2.5 ounces of medical marijuana. As of 2016, the recreational use of marijuana in Nevada has been legal. An individual that is 21 years or older is permitted to possess no more than 1 ounce of marijuana. The legalization of marijuana for these purposes have provided medical benefit and relief of symptoms to people in Nevada but it has also created a unique and problematic situation because you may still be charged with driving under the influence according to NRS 484C.110 (2). If you’re facing marijuana DUI charges in Nevada, it’s crucial that you speak with an experienced Las Vegas marijuana DUI attorney as quickly as possible to discuss your case and understand the defenses you have available to you. The Spartacus Law Firm frequently represents these types of cases and has the resources you need to help you obtain a favorable outcome in your case. Call our office today for a free consultation to learn more.

Defining Marijuana DUI in Nevada

According to Nevada law, NRS 484C.110, an individual is guilty of a marijuana DUI if any of the following conditions are true at the time of the arrest. Additionally, because these state laws only discuss the amount of marijuana found in a driver’s urine or blood, a driver can still be arrested for driving under the influence of marijuana in Nevada even if the driver is not high at the time of the arrest. Although the definition of a marijuana DUI is clear, no two cases are alike. For a better understanding of your specific case, it’s recommended that you speak with a Las Vegas marijuana DUI attorney to understand the best way to proceed with litigation.

  • The driver’s blood contains 5 nanograms per milliliter of marijuana metabolite or 2 nanograms per milliliter of marijuana
  • The individual’s urine contains 15 nanograms per milliliter of marijuana metabolite or 10 nanograms per milliliter of marijuana
  • The person behind the wheel has ingested marijuana to a degree that leaves them unable to drive safely or have physical control of the vehicle

According to NRS 484C.110, it’s against the law for an individual to be behind the wheel, or to be “in actual physical control of a vehicle” on a public road, when the person has the following amounts of Marijuana, or Metabolite, in their system:

Marijuana DUI Penalties In Las Vegas

If you’re facing marijuana DUI charges in Nevada, you may be subject to similar fines and penalties as someone who has been found guilty of driving while under the influence of alcohol. Any type of DUI charge is serious, regardless if it was drugs or alcohol that was abused. However, the severity of the charge can often be mitigated or potentially dismissed with the help of a skilled Las Vegas marijuana DUI lawyer. But without experienced legal counsel, you may face the following consequences:

First Marijuana DUI Offense

A first marijuana DUI offense within the last 7 years is charged as a misdemeanor as long as no death or serious injury occurred. The penalties for a first time marijuana DUI includes the following:

  • 2 days to 6 months in jail or 24-96 hours of community service
  • Nevada DUI school
  • Fines of $400 to $1,000 plus court costs
  • Nevada Victim Impact Panel
  • 185-day suspension of driver’s license
  • A stay-out-of-trouble order while the case is open

Second Marijuana DUI Offense

A second marijuana DUI offense within the last 7 years is charged as a misdemeanor as long as no death or serious injury resulted. The penalties for a second time marijuana DUI includes the following:

  • 10 days to 6 months in jail or residential confinement
  • Fines of $750 to $1,000 or commensurate hours of community service
  • Nevada Victim Impact Panel
  • An alcohol/drug dependency evaluation
  • 1-year driver’s license suspension or revocation
  • A long alcohol or drug abuse treatment program
  • A stay-out-of-trouble order while the case is open

Third Marijuana DUI Offense

A third marijuana DUI offense within the last 7 years is charged as a category B felony as long as no death or serious injury resulted. The penalties for a third-time marijuana DUI include the following:

  • 1-6 years in Nevada State Prison
  • Fines of $2,000 to $5,000
  • Nevada Victim Impact Panel
  • 3-year driver’s license suspension or revocation
  • An alcohol and drug evaluation

Marijuana DUI Causing Injury Or Death

A marijuana DUI offense that causes death or serious injury is also charged as a category B felony. The penalties for a marijuana DUI that causes injury or death includes the following:

  • Two to twenty (2 – 20) years in prison; and
  • Fines of $2,000 to $5,000

Nevada’s “Per Se” Drug DUI Law

THC is considered a substance that impairs driving. Under Nevada law, the presence of 2 blood nanograms per milliliter of delta-9-THC and 5 nanograms per milliliter of 11-OH-THC gives rise to the presumption that the person’s judgment, sensory perception, motor skills, and coordination are impaired and they have violated NRS 484C.110. This is what it means when the Nevada DUI marijuana law is described as a “per se” policy: any person caught driving or operating a motor vehicle in Nevada with concentrations of THC that exceed those limits is presumed to be driving under the influence of marijuana, and they are driving while impaired. It doesn’t matter whether the person’s driving was actually impaired at the time they were arrested. All that matters is that their blood THC levels exceed the allowable legal limit while they were operating a vehicle and they will be charged with a marijuana DUI.

Juvenile Court vs Criminal Court For Underage DUIs

One of the biggest questions surrounding an underage DUI offense in Las Vegas is if the defendant will be charged in juvenile court or criminal court. If the arrested motorist is under the age of 18 years old, they will likely face charges in the Nevada juvenile court system. However, any motorist over the age of 18 charged with an underage DUI in Las Vegas will be prosecuted in a Nevada criminal court. The biggest difference between these two courts is that there are harsher penalties for those found guilty in criminal court as an adult. Additional differences between juvenile court penalties and criminal court penalties can be found below.

Prescribed Medical Marijuana Is Also Prohibited

Doctors in Nevada may prescribe Marinol to certain patients, which would show up in the blood as marijuana or marijuana metabolites. Unlike the prescribed use of medication, the prescribed use of illicit drugs is not controlled by a doctor, therefore, if this medication freedom is abused, you may face criminal charges. Prescription drugs are approved and reviewed by the Food and Drug Administration (FDA) for a specific potency, are prescribed at a certain dosage, and are often accompanied by warnings not to drive. The Nevada Supreme Court has found these arguments sufficient to differentiate between illegal drugs prescribed for medicinal purposes and legally prescribed drugs. However, if the prosecution is able to prove that a person was so impaired by the drugs that it rendered them incapable of safely driving then you can still be convicted of a Marijuana DUI in Nevada.

Marijuana Metabolites And DUI Charges

According to NRS 484C.080, an individual can still face marijuana DUI charges in Nevada if they are found to have marijuana metabolites in their system. A prohibited substance could include any of the following substances listed below. Especially if the person who uses the substance has not been issued a valid prescription to use the substance and the substance is classified in schedule I or II according to NRS 453.166. Although marijuana metabolites are not listed in schedule I or II of NRS 453.166, they are specifically listed as a prohibited substance in the statute.

  • Amphetamine
  • Cocaine or cocaine metabolite
  • Heroin or heroin metabolite
  • Lysergic acid diethylamide
  • Marijuana or marijuana metabolite
  • Methamphetamine
  • Phencyclidine

Nevada’s Implied Consent To Drug Testing

As stated in NRS 484C.160, when a police officer forms a reasonable belief that the driver is operating a vehicle while under the influence of alcohol or drugs, the police officer may request a blood test to determine the concentration of drugs in the blood. In Nevada, a driver cannot effectively refuse to take the test because under NRS 484C.150 because the law presumes that the driver had given implied consent to the test when the driver applied for and was issued a driver’s license.

Under Nevada law, if a driver refuses to take the blood or urine test, the police officer is given the authority to do two things: the police can temporarily revoke the driver’s license and the police can apply for a warrant to give them authority to use reasonable force to obtain a blood sample from the driver. The requirement for the Nevada police to first obtain a warrant before taking a blood sample from the driver is in compliance with the doctrine laid down by the US Supreme Court in 2013 in the case of Missouri v. McNeely. Reasonable force means handcuffing or strapping down the driver so that a technician may take a blood sample. Implied consent is often a misunderstood topic to the general public, luckily, an experienced Las Vegas marijuana DUI attorney can help you better understand the potential stakes as well as the best defense strategy to deploy.

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Frequently Asked Questions

Are There Still Sobriety Checkpoints In Nevada?

No, not at this time, in 2021 the Las Vegas police have done away with DUI checkpoints and are taking a new approach to getting impaired drivers off the streets. The new approach involves officers saturating an area and looking for impaired drivers in that vicinity. The Las Vegas Metropolitan Police Department has affectionately named this police tactic a “Blitz.”

“Instead of going out and fishing, we wanted to go out and be hunters,” said Metropolitan Police Department Lt. Bret Ficklin. “We want to take an active, proactive approach to finding DUI drivers. We’re sending resources around the whole area and actively look for DUI drivers.” The DUI Strike Team patrols the city in a targeted blitz, usually picking one Saturday night each month to send up to 70 officers from multiple jurisdictions into a section of town to scout out impaired drivers.

As an example, during one of these Blitzes in October 2021, the Las Vegas Police reported the following:

  • “On Saturday night, officers stopped more than 160 vehicles and made 13 DUI arrests.
  • Police also issued 40 citations, recovered three guns and made one felony arrest.
  • The DUI blitz was part of an ongoing effort aimed at catching and stopping impaired drivers.”

These Blitzes occur about twice a month and they do not have to conform to rules regarding DUI checkpoints. If you are stopped during one of these blitzes and the police officer smells alcohol or the scent of marijuana from the car, the officer will form a reasonable belief that the driver is under the influence of either alcohol or marijuana. They can request the driver to take a sobriety test and when the driver fails the field sobriety test, the police officer can request the driver to take a blood or urine test to confirm the level of THC in their blood. The driver will be placed on hold and will not be allowed to leave until they have submitted to a blood or urine test. When working with the Spartacus Law Firm and our Las Vegas marijuana DUI attorney, we’ll make sure we review the sobriety test in detail and determine if there are any issues that can present reasonable doubt in court or dispute the sobriety tests validity.

Can You Get A DUI For Marijuana In Nevada?

Yes, you can get a DUI for marijuana in Nevada. The legal term for this is called “DUI with marijuana”. In Nevada, you can be charged with a marijuana DUI if you have ingested marijuana “to a degree which renders the driver incapable of safely driving or exercising actual physical control of a vehicle”, or if your blood contains 2 nanograms per ml.

How Does A DUID Marijuana Arrest/Investigation Occur?

In most scenarios, law enforcement will initiate a traffic stop that leads to an investigation of impaired driving. Driving conduct such as weaving between lanes, driving too slow or too fast, running through a red light or failing to stop at a stop sign, swerving, or even being asleep behind the wheel of your vehicle can give law enforcement probable cause to initiate a traffic stop which ca lead to an impairment investigation. Once a traffic stop has been initiated if the officer suspects impairment he or she may ask the driver to submit to a preliminary breath test (PBT) pursuant to NRS 484C.150.

If a driver passes the PBT but exhibits other signs of impairment, law enforcement may suspect the driver of being under the influence of a drug, such as marijuana.

At this point, the officer may invoke the assistance of a drug recognition expert or drug recognition evaluator (DRE) to assist in the investigation. The DRE officer may question the driver about their general health, consumption of food, alcohol, drugs, prescribed medications, and during this questioning, the DRE will make observations about coordination and speech patterns. The DRE may also note the driver’s pupil size, pulse, and blood pressure.

Can I Choose To Take A Breath Test Instead Of A Blood Test?

Pursuant to NRS 484C.160 if the presence of a controlled substance is in issue the officer may direct the person to submit to a blood or urine test, or both, in addition to the breath test. The only exception to taking a blood test for drug impairment is if a person is afflicted with hemophilia or with a heart condition requiring the use of an anticoagulant as determined by a physician or an advanced practice registered nurse is exempt from any blood test which may be required but must, when appropriate, be required to submit to a breath or urine test. NRS 484C.160(4).

Is A Marijuana DUI A Felony?

third DUI conviction will no longer be charged as a misdemeanor, instead it will be enhanced to a category B felony and the penalties are much more severe. The court may order the driver to be detained in state prison for 1-6 years and pay a fine of $2000-$5000. The court may also order the driver to be medically evaluated to determine if the driver has a substance abuse disorder and if the driver can still be treated.

Will I Go To Jail For A First Time DUI Marijuana?

While it is possible to receive jail time for a first offense DUI marijuana, it is unlikely. A great majority of defendants get time served for the time they were in custody for the DUI marijuana arrest. If the DUI marijuana charge involved injury to others, the likelihood of jail time increases. But, for a first-time DUI marijuana you will not likely receive any jail time. The penalties are not enhanced for the marijuana component and the penalties are almost identical to being convicted of a DUI alcohol first offense.

How Is THC Level Determined?

Much like alcohol, blood draw testing is used to determine a driver’s THC levels. However, a marijuana DUI is often difficult for a prosecutor to prove. A Las Vegas marijuana DUI attorney may be able to get the charges reduced or dismissed entirely with the right defense strategy. Hiring a qualified criminal defense lawyer is imperative in these types of cases and can make the difference between time in jail and no time served.

How Can I Defend Myself Against A DUI Marijuana Charge?

One of the first challenges to a driving under the influence charge is to challenge the probable cause of the traffic stop itself. A motion to suppress the evidence can challenge the probable cause for initiating the traffic stop, and if the motion is granted the DUID charge will be dismissed.

An experienced defense attorney may also be able to rebut the presumption that you were impaired while you were in actual physical control of a vehicle. Marijuana stays in your system long after the intoxicating effects have worn off. Proving impairment in a marijuana DUI case can be difficult, and the prosecutor may be willing to stipulate to a negotiated resolution such as reckless driving, careless driving, or speeding.

Cotter v. State, 738 P.2d 506 (1987) — Holding that aside from per se DUI cases, the state must show more than consumption of a controlled substance and subsequent driving. Furthermore, the State must show impairment as “to a degree which renders him incapable of driving safely or exercising actual physical control of the vehicle.”

Sheriff Clark County v. Burcham, 198 P.3d 326 (2008) — Holding that aside from per se laws, whether a driver is under the influence will “always be a question of fact, to be considered in the light of such variable circumstances as the individual’s resistance to the substance, the amount ingested and the type and time of ingestion. An attack on the blood draw itself may be warranted if the driver did not consent to the blood draw and the police officer failed to obtain a warrant to perform a blood draw.

At the Spartacus Law Firm, we will also analyze the testing equipment to determine whether the police or lab technicians had their equipment up to date, certified, and functional, and whether any contamination of the blood sample or chain of custody could have occurred.

Will My License Be Suspended After A Marijuana DUI In Nevada?

Although it’s likely for a license suspension, there are plenty of instances where this can be avoided. Following a blood test in Nevada, the driver gets to keep their driver’s license until the results come back from the lab and show positive for drugs. At this point, the Nevada DMV notifies the driver by mail that their license is being suspended. The driver may then request a Nevada DMV hearing to contest the suspension. The length of the license suspension depends on whether the driver has previous DUIs:

  • A first-time DUI carries a 185-day suspension
  • A second-time DUI carries a one (1) year suspension
  • A third-time DUI carries a three (3) year suspension

Can My Marijuana DUI Be Sealed Or Expunged?

Unfortunately, Nevada does not provide for the expungement of criminal offenses. However, your file can be sealed for a misdemeanor marijuana DUI conviction after seven years from the date the case was closed NRS 179.245. Marijuana DUI charges that are negotiated to reckless or careless driving can be sealed one year after the case is closed NRS 179.245. Charges that are dismissed can be sealed immediately NRS 179.255.

Contact A Las Vegas Marijuana DUI Attorney Today

A marijuana DUI charge in Nevada can significantly affect your reputation, your future, your job, and many other aspects of your life. That’s why it’s essential that you contact legal representation immediately after you have been accused of a marijuana DUI. At the Spartacus Law Firm, our Las Vegas marijuana DUI attorney is dedicated to fighting for the rights of our clients. When you contact our legal team, we can explore every avenue of your case and determine which facts can be used to safeguard your future. We understand the stresses that may occur due to such a charge, which is why we work so diligently to obtain the best possible outcome for your case. For more information about how we can help, call our office today for a free consultation.