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FOURTH DUI OFFENSE IN NEVADA
In Nevada, the essence of a DUI charge is that the defendant was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor. Nevada v. Eighth Judicial Dist. Court of State. Once a person has been convicted of felony DUI under the laws of Nevada or any other jurisdiction that prohibits the same or similar conduct, any subsequent DUI committed in Nevada is a Category B felony, regardless of how much time has passed since the prior felony conviction. Sindelar v. State. Nevada also has regulations regarding habitual violators of traffic laws, which may be relevant in the case of multiple DUI convictions. Bauer v. Department of Motor Vehicles.
The nature of a DUI charge in Nevada is centered around the defendant being in control of a vehicle while under the influence of intoxicating liquor. Nevada v. Eighth Judicial Dist. Court of State. This means that the prosecution does not need to prove that the driver committed any other act or neglected any duty imposed by law while under the influence. Nevada v. Eighth Judicial Dist. Court of State.
WHAT ARE DEFENSES TO A FOURTH DUI CHARGE?
One potential defense in a DUI case is to challenge the admissibility of blood test results. Under Nev. Rev. Stat. § 484.393, blood test results are not admissible unless the blood was withdrawn by a qualified medical professional and the test was performed on whole blood. Department of Motor Vehicles & Pub. Safety v. Clements. If the sample was clotted when it was received by the laboratory, the test may be performed on blood serum or plasma. Therefore, if the blood test was not conducted in accordance with these requirements, a defendant could argue that the results should be excluded from evidence.
Another potential defense is to challenge the calibration and maintenance of the testing device. Under Nev. Rev. Stat. § 484.389(4), blood-alcohol tests are not admissible against a defendant unless it can be shown that the law enforcement agency which administered the test calibrated the testing device and otherwise maintained it as required by the regulations of the committee on testing for intoxication. Las Vegas v. O’Donnell. If the testing device was not properly calibrated and maintained, a defendant could argue that the test results are unreliable and should not be admitted into evidence.
Another challenge to a DUI arrest is whether the defendant was actually driving under the influence Johnson v. State, Nevada v. Eighth Judicial Dist. Court of State. The defendant can argue that there is insufficient evidence to prove impairment beyond a reasonable doubt. This may include challenging the reliability and accuracy of any blood alcohol tests performed or contesting the officer’s observations during field sobriety tests Wright v. State DMV.
Another possible defense is to claim the defendant’s blood alcohol level was rising at the time of testing and was actually below the legal limit at the time of driving Sereika v. State. This is known as the “rising blood alcohol” defense. The defendant would need to present evidence showing the timing of drinks consumed and the absorption rate to support this defense.
A person charged with a fourth DUI may also argue that their driving performance was not actually impaired despite being over the legal limit Reel v. Harris. Evidence of the defendant’s ability to drive normally and safely despite alcohol consumption could rebut an impairment charge Reel v. Harris, Marciniak v. State.
Another defense to a DUI charge is the defense of necessity. In certain limited circumstances, a defendant may claim justification or necessity as a defense, arguing that the DUI was necessary to avoid a greater harm Hoagland v. State. However, this defense rarely succeeds against DUI charges Pimentel v. State.
Overall, the main defenses against a DUI charge target either the accuracy of the blood alcohol testing results or the sufficiency of evidence proving actual impairment at the time of driving Slinkard v. State. The defendant bears the burden of introducing reasonable doubt as to one of these elements.
WHAT ARE THE PENALTIES FOR A FOURTH DUI CONVICTION?
A fourth DUI conviction in Nevada is treated as a Category B felony, irrespective of the time elapsed since the prior felony conviction. Sindelar v. State. This is a significant escalation from the treatment of a third DUI conviction within seven years, which is also a Category B felony. Sindelar v. State. The law does not distinguish between DUI convictions in Nevada and those from other jurisdictions that prohibit similar conduct. Sindelar v. State.
A fourth DUI in Nevada is not probation-eligible and consequently the offense encompasses mandatory prison time. The punishment for a fourth DUI in Nevada includes imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years. Additionally, a fine of not less than $2,000 nor more than $5,000 is imposed. A fourth DUI offense would be charged as a felony in Nevada, and felonies are not eligible for Felony DUI Court. The accused would face standard felony sentencing instead.
When a DUI offense results in injury to another person, the consequences can be even more severe. In Sinatra v. Albregts, the defendant was subject to punitive damages for driving drunk and intoxicated, violation of the law in DUI, and failure to comply with the law. The plaintiff was awarded damages for the sake of example and by way of punishing the defendant Sinatra v. Albregts. Consequently, punishment can include both civil and criminal penalties.
In addition to the criminal penalties associated with a fourth DUI conviction, the individual may face administrative consequences. Under Nev. Rev. Stat. Ann. § 483.460, the Department of Motor Vehicles (DMV) in Nevada is required to revoke the license of any driver convicted of certain offenses. For a third or subsequent violation within 7 years of NRS 484C.110 or 484C.120, which are related to driving under the influence (DUI), the driver’s license is revoked for a period of 3 years NRS 483.460.
However, the statute does not specify the penalty for a fourth DUI offense. It is likely that the penalty would be at least as severe as that for a third offense, but the exact penalty would depend on the specific circumstances and the discretion of the court.
A fourth DUI conviction in Nevada is a serious matter, treated as a Category B felony. This applies regardless of the time elapsed since the prior felony conviction. The individual may also face administrative consequences, such as being considered a habitual violator of traffic laws and having their driver’s license suspended for at least 3-years.
CAN A FELONY DUI CONVICTION BE SEALED OR EXPUNGED?
Felony DUI charges cannot be sealed, no matter how long ago the offense occurred. Certain types of crimes are never eligible for sealing, including crimes such as sexual assault, DUI involving death, and crimes against children. If the charge is negotiated to a misdemeanor of it is dismissed, then you can get the criminal file sealed.
WILL I GO TO JAIL FOR A FOURTH DUI CONVICTION?
The following chart gives some guidance on the likelihood of jail time based on the number of DUI convictions. As you can see from the graphic, the chances of jail time for a fourth DUI are quite high, and similarly to the sentence imposed in Rowell, 180 days is a likely outcome for a Fourth DUI conviction. A sentence of incarceration can increase dramatically if someone is injured by the impaired diver.
If someone has died as a result of a fourth DUI incident, the driver can face charges of vehicular homicide which is a Category A felony, and the penalty can range between 25 years to life in prison with the possibility of parole after 10 years NRS 484C.130.
This chart is for information purposes only and represents outcomes based on history and experience, each case has its own factors that will influence the sentence imposed by a Court.
CAN A DUI CONVICTION AFFECT THE OUTCOME OF CHILD CUSTODY IN A DIVORCE PROCEEDING
Yes, a DUI conviction can affect the outcome of a child custody dispute.
In Rowell v. Rowell, The mother had a history of DUIs, including a felony DUI for which she served 6 months in prison in 2021. While the mother was in prison, the father took care of the child. The court awarded primary physical custody to the father because the mother was unable to care for the child for at least 146 days due to her incarceration, establishing a rebuttable presumption in favor of the father having primary custody.
The court found it was in the child’s best interests for the father to have primary physical custody based on factors such as the father’s ability to meet the child’s needs while the mother was incarcerated, the father’s actions to facilitate contact between the mother and child while she was incarcerated, and concerns over the mother’s lack of accountability and treatment for alcohol abuse.
WILL A FOURTH DUI CHARGE OR CONVICTION AFFECT MY IMMIGRATION STATUS IN THE UNITED STATES
A fourth DUI conviction in Nevada could have serious implications on immigration status. The accused could face removal from the United States through deportation. They may also be unable to reenter the United States. The conviction could prevent the defendant from gaining United States citizenship or legal residency. It could also affect their ability to renew or retain any legal residency status. Furthermore, the defendant could face an indeterminate term of confinement with the United States Federal Government based on the conviction and immigration status. It’s important to note that no one can promise that this conviction will not result in negative immigration consequences or impact the defendant’s ability to become a United States citizen or a legal resident Nev. v. McAlinden, Nev. v. Mendoza-Guerrero, State v. Giarmo.
IF YOU ARE FACING A DUI CHARGE YOU NEED QUALIFIED LEGAL ASSISTANCE FROM AN EXPERIENCED LAS VEGAS DUI LAWYER
If you or someone you know is facing charges of a Fourth DUI offense, you need assertive and dynamic legal representation from a skilled Las Vegas DUI lawyer. We have vast expertise and knowledge when it comes to DUI/DWI defense law in Nevada. At Spartacus Criminal Defense Lawyers we even have a toxicologist that we work with to obtain maximum results for our clients and ensure that your rights are protected at every stage of the criminal proceeding.
Our DUI attorney, Chandon S. Alexander has been ranked in the Top 10 Criminal Defense Attorneys under 40 in Las Vegas and the National Trial Lawyers Top 100 Lawyers. He is a member of the Clark County Bar Association, the American Bar Association, and the Nevada Justice Association.
Spartacus Criminal Defense Lawyers has been recognized as a top-ranked DUI law firm and will fight to make sure that your rights are protected. A DUI charge in Nevada is a serious legal matter and should be handled by a serious and capable legal defense team. We will aggressively represent you to avoid jail time, penalties, fines, and damage to your driver’s history. Contact us today for a free consultation. We are available 24/7.
Nevada v. Eighth Judicial Dist. Court of State | Supreme Court | 116 Nev. 127 | Feb 2, 2000
Sindelar v. State | Supreme Court | 132 Nev. 683 | Sep 29, 2016
Bauer v. Department of Motor Vehicles | Supreme Court | 101 Nev. 351 | Aug 27, 1985
Sinatra v. Albregts | 2018 Nev. Dist. LEXIS 2046 | Nov 16, 2018 | Nevada
Department of Motor Vehicles & Pub. Safety v. Clements | Supreme Court | 106 Nev. 516 | Aug 21, 1990 | Nevada
Las Vegas v. O’Donnell | Supreme Court | 100 Nev. 491 | Aug 24, 1984 | Nevada
Johnson v. State | Supreme Court | 111 Nev. 1210 | Aug 24, 1995
Nevada v. Eighth Judicial Dist. Court of State | Supreme Court | 116 Nev. 127 | Feb 2, 2000
Wright v. State DMV | Supreme Court | 121 Nev. 122 | May 12, 2005
Sereika v. State | Supreme Court | 114 Nev. 142 | Feb 26, 1998
Reel v. Harris | Nev. Dist. Ct., 4th Jud. Dist., Elko Cty. | 1999 Nev. Dist. LEXIS 492 | May 27, 1999
Marciniak v. State | Supreme Court | 112 Nev. 242 | Mar 1, 1996
Hoagland v. State | Supreme Court | 126 Nev. 381 | Oct 7, 2010
Pimentel v. State | Supreme Court | 133 Nev. 218 | Jun 22, 2017
Slinkard v. State | Supreme Court | 106 Nev. 393 | Jun 28, 1990
Gonzalez v. State | Court of Appeals | 2017 Nev. App. Unpub. LEXIS 451 | Jun 29, 2017
Weaver v. State | Supreme Court | 121 Nev. 494 | Aug 11, 2005
State v. Sample | Supreme Court | 134 Nev. 169 | Apr 5, 2018
State v. Hiatt | Supreme Court | 112 Nev. 868 | Jul 22, 1996
State v. Stewart | Supreme Court | 9 Nev. 120 | Jan 1, 1874
State v. Eighth Judicial Dist. Court of Nev. | Supreme Court | 127 Nev. 927 | Dec 29, 2011
Smith v. State | Supreme Court | 468 P.3d 375 | Jul 31, 2020
Cruz-Garcia v. State | Supreme Court | 385 P.3d 584 | Oct 21, 2016
Long v. State | Supreme Court | 109 Nev. 523 | May 27, 1993
White v. State | Supreme Court | 82 Nev. 304 | Aug 15, 1966
McCord v. State | Supreme Court | 107 Nev. 162 | Mar 28, 1991
Rowell v. Rowell | Clerk of Courts | 2021 Nev. Dist. LEXIS 1836 | Oct 6, 2021 | Nevada
Nev. v. McAlinden | Clerk of Courts | 2014 Nev. Dist. LEXIS 1818 | Oct 8, 2014 | Nevada
Nev. v. Mendoza-Guerrero | Clerk of Courts | 2014 Nev. Dist. LEXIS 938 | May 6, 2014 | Nevada
State v. Giarmo | Clerk of Courts | 2012 Nev. Dist. LEXIS 1181 | Mar 19, 2012 | Nevada