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Attorney Chandon S. Alexander is a Las Vegas lawyer who is an active member of the National Trial Lawyers Association and has been recognized as one of the Top 10 Attorneys under 40. He is a member of the Clark County Bar Association, American Bar Association, and the Nevada Justice Association.
You’re likely well aware that driving while under the influence of illegal drugs or alcohol bears the potential of a criminal charge of DUI. However, you may not realize that you can also get a DUI for using legally prescribed medications.
When it comes to a DUI defense for medications your doctor legally wrote prescriptions for, you need a drug attorney who knows how to handle the Nevada courts.
Don’t leave anything to chance if you face a prescription drug DUI. Spartacus Law Firm has the experience you need to help you stand up to Nevada’s prosecutors. Nevada has laws that control the testing used to check if someone is under the influence, even for prescription drugs. You can always refuse the testing, but the refusal may be considered evidence of your guilt during your DUI hearing. They may also use this to revoke your driver’s license.
If you have DUI charges for legal prescription drugs, a Las Vegas lawyer can help you navigate the complicated court system. At Spartacus Law Firm, our experienced team is ready to fight to protect your rights.
Being behind the wheel while under the influence of certain medications that your doctor legally prescribed could lead to an arrest and conviction for a prescription drugs DUI. In Nevada with regards to driving under the influence, NRS 484C.100 addresses unlawful acts relating to operation of vehicle and states that “it is unlawful for any person who is under the influence of a controlled substance to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.”
Although you may have been legally prescribed these drugs, you can’t use that as your defense in your DUI case.
Some prescription drugs do not create the kind of side effects that would lead to a DUI charge. But painkillers or narcotic analgesics can impact your ability to operate a motor vehicle safely.
Sedative-hypnotics or sleeping pills are another concern since they slow down your ability to function, leading to impaired driving. If you are prescribed either of these types of medications, you will be advised against driving when you are under the influence of them. If you are caught with these medications in your system, you could be charged for violating Nevada’s DUI laws.
Some of the more common drugs that could result in DUI charges are Vicodin, Codeine, Oxycontin, Percocet, Demerol, Ambien, Lunesta, Lortab, and Hydrocodone.
When you take these legal prescriptions and drive, you may feel drowsy and lightheaded. Weakness and fatigue are other common side effects, along with delayed reaction times and impaired coordination and judgment. Some people also have trouble breathing or experience nausea while taking these medications.
This could lead to a condition known as sleep-driving, where you are not awake or fully conscious while driving and have no recollection of these events.
According to NRS 484C.160, “any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath or to determine whether a controlled substance, or another prohibited substance is present.”
Should a police officer believe you are driving under the influence, they can test you without your expressed and confirmed consent. That means if you refuse to submit to this test by the police officer, they are then permitted to use reasonable force to test you. You do have the option to choose another qualified person to administer these tests instead of the officer.
The penalties you may face for a DUI in Nevada while under the influence of prescription drugs could include a fine of $400 to $1,000 and spending two days to six months in jail. Jail time could be replaced with 48 to 96 hours of community service.
You will also need to complete an educational course on the abuse of controlled substances and possibly a drug abuse treatment program. Additionally, you may have your driver’s license revoked.
These penalties are assigned to first-time offenders of DUI for prescription drugs. If you commit a second or third DUI offense, the punishments will increase with each subsequent charge.
However, there is an exception to the rule of lighter penalties for first-time DUI offenses. If your DUI results in a severe or fatal accident or you have had three or more DUI charges in the span of seven years, the prosecutor will try to bring a category B felony charge.
With a category B felony, you could be sentenced to two to 20 years in prison and have to pay a fine between $2,000 and $5,000. You should also be aware that if your DUI offense causes a fatality and you’ve had three or more prior DUI convictions, the state will consider this vehicular homicide. This has a penalty of 25 years to life imprisonment with the possibility for parole after ten years.
In Las Vegas, an experienced drug crimes attorney can help you even if your test comes back positive. Spartacus Law Firm has the experience it takes to get your charges reduced or dismissed.
For you, it is a stressful time, but for us, it is what we do every day to help our clients. DUI charges can be extreme, and often, the penalties won’t be in your favor. Choose the best defense possible by working with one of our criminal defense lawyers who will work tirelessly to fight for justice on your behalf.
“Treatment provider” has the meaning ascribed to it in NRS 458.010. “Treatment provider” means a public or private agency, residential treatment center, facility for the treatment of alcohol or other substance use disorders, voluntary organization which is certified by the Division or a practitioner licensed or certified pursuant to chapter 641, 641A, 641B or 641C of NRS.
Subsection (7), which permits officers to use force to obtain a blood sample from a person, is unconstitutional because it allows officers to conduct a search without a warrant, valid consent, or another exception to the warrant requirement. Byars v. State, 130 Nev. 848, 336 P.3d 939, 130 Nev. Adv. Rep. 85, 2014 Nev. LEXIS 111 (Nev. 2014), cert. dismissed, 131 Nev. 1350, 2015 Nev. Unpub. LEXIS 64 (Nev. 2015).
Nevada had legitimate purpose in creating this section of insuring the public safety by removing drunken drivers from its highways. It was reasonable for the Nevada legislature to believe that repeat DUI offenders posed a greater threat to the public safety and therefore should be subject to nonconsensual blood withdrawals. Westmoreland v. Demosthenes, 737 F. Supp. 1127, 1990 U.S. Dist. LEXIS 6714 (D. Nev. 1990).
Implied consent statute is construed liberally to promote the legislative policy of removing intoxicated drivers from the state’s highways. Davis v. State, 99 Nev. 25, 656 P.2d 855, 1983 Nev. LEXIS 380 (Nev. 1983).
The implied consent statute will be construed liberally in order to promote the legislative policy of removing intoxicated drivers from the state’s highways. Any doubt as to the Legislature’s intent in enacting subsection 3 of this section was resolved by the 1981 amendment to this section, which unequivocally permits performance of alcohol tests on those incapable of being arrested if there is probable cause for an arrest under the statute. Galvan v. State, 98 Nev. 550, 655 P.2d 155, 1982 Nev. LEXIS 519 (Nev. 1982).
Implied consent provisions enforced independently of driving under the influence.
Although the implied consent section is clearly intended to promote the enforcement of the driving under the influence section, they are separate and distinct and, in the absence of any evidence of legislative intent to the contrary, should be enforced independently of one another. Department of Motor Vehicles & Pub. Safety v. Brown, 104 Nev. 524, 762 P.2d 882, 1988 Nev. LEXIS 79 (Nev. 1988).
Implied consent statutes provide for administrative, civil proceedings entirely separate and distinct from criminal statutes prohibiting drunk driving, and a person who refuses to submit to a blood alcohol test risks license revocation regardless of whether he is acquitted or convicted, and even when he is never charged with an offense or charges are later dismissed. Department of Motor Vehicles v. Frangul, 110 Nev. 46, 867 P.2d 397, 110 Nev. Adv. Rep. 7, 1994 Nev. LEXIS 6 (Nev. 1994).
Driver’s license revocation is not a record, proceeding or event relating to the arrest which as a result, need not be sealed, under NRS 179.255. Department of Motor Vehicles v. Frangul, 110 Nev. 46, 867 P.2d 397, 110 Nev. Adv. Rep. 7, 1994 Nev. LEXIS 6 (Nev. 1994).
There can be no question that subsection 1 becomes operative only upon an arrest of a driver capable of refusing consent; however, subsection 3 contains no similar requirement for persons incapable of refusing consent. The courts will not imply such a requirement. Galvan v. State, 98 Nev. 550, 655 P.2d 155, 1982 Nev. LEXIS 519 (Nev. 1982).
Conditional consent to blood alcohol test amounts to a refusal to submit to chemical test. The driver’s consent to submit to a chemical test is absolute and may not be revoked or conditioned upon consultation with an attorney once the driver finds himself or herself confronted by the police. McCharles v. Department of Motor Vehicles, 99 Nev. 831, 673 P.2d 488, 1983 Nev. LEXIS 554 (Nev. 1983).
An individual arrested for D.U.I. is required to submit to an evidentiary test before examination by a doctor where there is no evidence of injury beyond the individual’s own assertion, and his license may be suspended for refusal to submit to a test. Department of Motor Vehicles & Pub. Safety v. Brough, 106 Nev. 492, 796 P.2d 1089, 106 Nev. Adv. Rep. 93, 1990 Nev. LEXIS 99 (Nev. 1990).
Liberal construction requires that once suspect chooses a testing method they must either undergo that test, or affirmatively request an alternative one. Otherwise, a suspect may be able to use the resulting confusion to delay testing and thereby lessen the amount of alcohol in his or her system. 107 Nev. 257, 810 P.2d 1201, 1991 Nev. LEXIS 46.
Where, at scene of accident, defendant was presented with choice of taking either a blood or a breath test; she initially chose a blood test, but then refused to take such a test at the jail; and she never indicated a willingness to take a breath test at any time, the defendant failed to submit to testing, and the district court erred in reinstating her license. 107 Nev. 257, 810 P.2d 1201, 1991 Nev. LEXIS 46.
Driving in this state is a privilege which is not granted as a matter of course to all who have the physical ability to climb behind the wheel of a car, but is extended only to those who are qualified to operate a motor vehicle safely and the privilege of operating a vehicle in this state is conditioned upon the driver’s consent to submit to a chemical sobriety test. McCharles v. Department of Motor Vehicles, 99 Nev. 831, 673 P.2d 488, 1983 Nev. LEXIS 554 (Nev. 1983).
No requirement that officer explain possible durations of license revocation.
No statute requires a police officer to explain the possible durations of a license revocation. A police officer is only required to inform the person to be tested that her failure to submit to the test will result in the revocation of her privilege to drive a vehicle. Department of Motor Vehicles & Pub. Safety v. Dunn, 109 Nev. 572, 854 P.2d 858, 109 Nev. Adv. Rep. 90, 1993 Nev. LEXIS 98 (Nev. 1993).
The chemical sobriety tests, although incriminating, are not testimonial communications within the meaning of the Fifth Amendment. Nor are chemical tests critical stages within the meaning of the Sixth Amendment of the U.S. Constitution since the absence of counsel during the test will not affect a defendant’s right to a fair trial. McCharles v. Department of Motor Vehicles, 99 Nev. 831, 673 P.2d 488, 1983 Nev. LEXIS 554 (Nev. 1983).
Person who is arrested for DUI does not have the right to speak to an attorney prior to submitting to chemical tests as required by the implied consent laws. Robertson v. State, 109 Nev. 1086, 863 P.2d 1040, 109 Nev. Adv. Rep. 161, 1993 Nev. LEXIS 167 (Nev. 1993), overruled in part, Krauss v. State, 116 Nev. 307, 998 P.2d 163, 116 Nev. Adv. Rep. 30, 2000 Nev. LEXIS 33 (Nev. 2000).
Individual arrested for driving under the influence of alcohol does not have the right to speak to an attorney prior to submitting to chemical tests required by this state’s implied consent law. McCharles v. Department of Motor Vehicles, 99 Nev. 831, 673 P.2d 488, 1983 Nev. LEXIS 554 (Nev. 1983).
Trooper gave defendant reasonable version of rights.
Where state trooper arrested defendant for driving under the influence of alcohol, and where defendant argued that the arresting officer confused defendant as to his right to consult counsel before submitting to a chemical sobriety test, state trooper gave defendant a reasonable version of his rights and obligations under the implied consent law since the admonition regarding submission to a chemical test which state trooper read to defendant was a summary of the provisions contained within NRS 484.382—484.384 and since nothing in the statutes directs law enforcement officers to provide drunk driving suspects with a proviso on the absence of a right to consult an attorney prior to taking a test. Schroeder v. Department of Motor Vehicles & Pub. Safety, 105 Nev. 179, 772 P.2d 1278, 1989 Nev. LEXIS 35 (Nev. 1989), limited, Department of Motor Vehicles & Pub. Safety v. Becksted, 107 Nev. 456, 813 P.2d 995, 107 Nev. Adv. Rep. 71, 1991 Nev. LEXIS 117 (Nev. 1991).
No commingling of Miranda rights and implied consent law warnings.
Evidence indicated that defendant’s refusal to take a test was not the result of any commingling of the implied consent law warnings and a recitation of defendant’s Miranda rights; state trooper testified that after defendant failed most of the field sobriety tests, he read the implied consent law warnings to defendant and only after that exchange did state trooper inform defendant of his Miranda rights. Schroeder v. Department of Motor Vehicles & Pub. Safety, 105 Nev. 179, 772 P.2d 1278, 1989 Nev. LEXIS 35 (Nev. 1989), limited, Department of Motor Vehicles & Pub. Safety v. Becksted, 107 Nev. 456, 813 P.2d 995, 107 Nev. Adv. Rep. 71, 1991 Nev. LEXIS 117 (Nev. 1991).
Desire for independent test must be communicated.
Without a request from appellant requesting an independent chemical blood test, the police are not obligated to facilitate such testing. Robertson v. State, 109 Nev. 1086, 863 P.2d 1040, 109 Nev. Adv. Rep. 161, 1993 Nev. LEXIS 167 (Nev. 1993), overruled in part, Krauss v. State, 116 Nev. 307, 998 P.2d 163, 116 Nev. Adv. Rep. 30, 2000 Nev. LEXIS 33 (Nev. 2000).
If driver expressly and voluntarily consents to submit to blood alcohol test, test results are admissible not because of the implied consent law, but because of his express consent. Davis v. State, 99 Nev. 25, 656 P.2d 855, 1983 Nev. LEXIS 380 (Nev. 1983).
Later consent did not constitute retraction of earlier refusal.
Where, after state trooper returned to his patrol, drunk driving suspect changed his mind and told another officer on duty in the jail that he wanted to take a chemical sobriety test and where the officer refused to give the test to defendant, defendant’s eventual consent to a blood-alcohol test did not constitute a retraction of his earlier refusal. Schroeder v. Department of Motor Vehicles & Pub. Safety, 105 Nev. 179, 772 P.2d 1278, 1989 Nev. LEXIS 35 (Nev. 1989), limited, Department of Motor Vehicles & Pub. Safety v. Becksted, 107 Nev. 456, 813 P.2d 995, 107 Nev. Adv. Rep. 71, 1991 Nev. LEXIS 117 (Nev. 1991).
Where a driver chooses to submit to a urine test but is unable to complete the test due to an inability to pass urine, the driver will be found to have refused to submit to a chemical test unless he submits to and completes a different test. Garvin v. State Dep’t of Motor Vehicles, 96 Nev. 827, 619 P.2d 534, 1980 Nev. LEXIS 720 (Nev. 1980); Department of Motor Vehicles v. Jenkins, 99 Nev. 460, 663 P.2d 1186, 1983 Nev. LEXIS 475 (Nev. 1983).
A driver who had been arrested for driving under the influence of drugs could not satisfy the implied consent law by submitting to a breath test alone and the arresting officers, having explained the requirement of taking additional tests, were not required to refuse the driver’s request for a breath test. Garvin v. State Dep’t of Motor Vehicles, 96 Nev. 827, 619 P.2d 534, 1980 Nev. LEXIS 720 (Nev. 1980).
Since the physical effects of alcohol diminish with the passage of time, it is apparent that the nature of a chemical sobriety test demands that it should be administered as soon as possible after the individual has been stopped on the road and placed under arrest. McCharles v. Department of Motor Vehicles, 99 Nev. 831, 673 P.2d 488, 1983 Nev. LEXIS 554 (Nev. 1983); Department of Motor Vehicles & Pub. Safety v. Brough, 106 Nev. 492, 796 P.2d 1089, 106 Nev. Adv. Rep. 93, 1990 Nev. LEXIS 99 (Nev. 1990).
This section precludes voluntary intoxication, by itself, as a condition rendering a driver incapable of refusal. Department of Motor Vehicles & Pub. Safety v. Brown, 104 Nev. 524, 762 P.2d 882, 1988 Nev. LEXIS 79 (Nev. 1988).
Scope of Department of Motor Vehicles hearing to review an order of revocation under NRS 484.385 is limited to the issues of whether the person failed to submit to an evidentiary test or had 0.10 percent or more by weight of alcohol in her blood at the time of the test; a person may also challenge whether the police officer who directed the person to submit to an evidentiary test had reasonable grounds, at the time the officer directed the evidentiary test, to believe that the person had been driving or in actual physical control of a vehicle while under the influence of alcohol. Beavers v. Department of Motor Vehicles & Pub. Safety, 109 Nev. 435, 851 P.2d 432, 109 Nev. Adv. Rep. 67, 1993 Nev. LEXIS 68 (Nev.), cert. denied, 510 U.S. 946, 114 S. Ct. 387, 126 L. Ed. 2d 336, 1993 U.S. LEXIS 6718 (U.S. 1993).
Review limited to determination that agency’s decision supported by evidence.
Where driver contended that police officer misled her into believing that he had already revoked her license before he informed her that her failure to submit to an evidentiary test would result in revocation of her license and where district court reversed the hearing officer’s decision and reinstated driver’s driving privileges, district court erred in reversing the hearing officer’s decision. Neither this court nor the district court may substitute its judgment for that of the administrative agency as to the weight of the evidence on questions of fact, and review is limited to the determination that the administrative agency’s decision is supported by substantial evidence. Substantial evidence supported the hearing officer’s decision that driver understood her responsibilities and the consequences of her actions under the implied consent law. Department of Motor Vehicles & Pub. Safety v. Dunn, 109 Nev. 572, 854 P.2d 858, 109 Nev. Adv. Rep. 90, 1993 Nev. LEXIS 98 (Nev. 1993).
Revocation of license is improper where the defendant was incapable of refusing to submit to testing.
Where the defendant driver’s multiple serious injuries, sedated condition, and general incoherency rendered her incapable of refusing to submit to the required evidentiary test, the district court erred in revoking her driving privileges. Higgins v. Department of Motor Vehicles, 101 Nev. 531, 706 P.2d 506, 1985 Nev. LEXIS 462 (Nev. 1985).
Once an arresting officer has determined that a suspect has prior driving under the influence convictions, the suspect no longer has a right to refuse a blood test, thus, officer was justified in requiring appellant to take a blood test without first giving him the option of refusing, or offering him an election between a blood test and a breath test, because appellant’s prior convictions made a blood test inevitable. Ebarb v. Department of Motor Vehicles & Pub. Safety, 107 Nev. 985, 822 P.2d 1120, 107 Nev. Adv. Rep. 158, 1991 Nev. LEXIS 217 (Nev. 1991).
The blood samples were lawfully taken pursuant to subsection 8 and properly admitted at trial since the officers were justified in not obtaining a warrant prior to taking defendant’s blood samples. Defendant’s failure to remain at the accident scene, and the delays which occurred prior to defendant’s arrival at the sheriff’s office, caused an undetermined amount of time to elapse between the time of the accident and defendant’s confrontation with authorities; under such circumstances, and given the rapid and inevitable destruction of the evidence sought, the officers could reasonably have believed they were confronted with an emergency. Almond v. State, 105 Nev. 904, 785 P.2d 217, 1989 Nev. LEXIS 320 (Nev. 1989).
Evidence of blood alcohol level was properly admitted where officer ordered forced blood drawn from a defendant who was previously convicted of DUI in California and there was no evidence officer acted in bad faith or deliberately violated the law. Brockett v. State, 107 Nev. 638, 817 P.2d 1183, 107 Nev. Adv. Rep. 108, 1991 Nev. LEXIS 149 (Nev. 1991) (decided prior to the 1989 amendment).
Officers may consider many factors when determining whether reasonable grounds exist for an evidentiary test; State Department of Motor Vehicles v. McLeod, 106 Nev. 852, 801 P. 2d 1390, 1990 Nev. LEXIS 162 (1990) does not in any way limit the factors used to determine whether there are reasonable grounds to believe that a person is impaired. Wright v. State DMV, 121 Nev. 122, 110 P.3d 1066, 121 Nev. Adv. Rep. 14, 2005 Nev. LEXIS 17 (Nev. 2005).
Substantial evidence supported an officer’s decision to require an evidentiary test under this section where the officer cited several factors indicating possible intoxication, including the gait and odor of the driver, the occurrence of an accident, admission of alcohol consumption by the driver, and the driver’s inability to perform field sobriety tests. Wright v. State DMV, 121 Nev. 122, 110 P.3d 1066, 121 Nev. Adv. Rep. 14, 2005 Nev. LEXIS 17 (Nev. 2005).