In the state of Nevada, you can be found guilty of a DUI when driving under the influence of drugs or alcohol, with a BAC of 0.08%+, or with certain amounts of metabolized controlled substances. But, when a third time DUI is charged, the harsh penalties will remain consistent. However, for the state of Nevada to prove that you are guilty of a DUI third offense, it must be proven beyond a reasonable doubt that there are inconsistencies or lack of evidence in the case. Below is the criteria needed for the prosecution to successfully convict a defendant for driving under the influence for a third time.
- The defendant’s driving was impaired by drugs or alcohol, OR
- The defendant’s BAC reading was 0.08% or more when driving, OR
- The defendant’s BAC reading was 0.08% or more within 2 hours of driving, OR
- The defendant’s blood had more than the maximum amount allowed of various illegal prescription drugs, AND
- This is the defendant’s third DUI offense within the last 7 years
There are many questions surrounding the time frame associated with multiple DUI charges in Nevada. When does the seven-year time window start? Does the seven-year time window reset? The logic used by Nevada courts for determining if previous DUI convictions will count towards a third DUI offense is to add up the time from the arrest date of the first DUI charge
to the arrest of the third DUI charge. If that total time between first and third DUI charges is within 7 years, you will be facing a felony charge for the third DUI. It’s also worth noting that all DUI cases that were not yet closed will also count toward the DUI Third offense.
In Speer v. State, 116 Nev. 677 (2000), Appellant pleaded guilty to driving under the influence (DUI) in violation of Nev. Rev. Stat. § 484.379. At sentencing, the State offered evidence of two prior convictions, one a misdemeanor and one a felony, for the same or similar conduct within the preceding seven years. Appellant did not challenge the use of the prior convictions for enhancement purposes. The trial court found that the State had proved that appellant had sustained two valid prior convictions and enhanced the offense to a felony. The court sentenced appellant to 28 to 72 months. Appellant filed a post-conviction petition for a writ of habeas corpus. Among other things, appellant claimed that the district court erred in using a prior felony conviction for enhancement purposes. The petition was denied and appellant sought review. Judgment was affirmed because any two prior DUI offenses may have been used to enhance a subsequent DUI so long as they occurred within seven years of the principal offense and were evidenced by a conviction. Whether the prior DUI offenses were misdemeanors or felonies was not otherwise relevant.
In several prior cases, the Nevada Supreme Court has held that a second DUI conviction may not be used to enhance a conviction for a third DUI arrest to a felony where the second conviction was obtained pursuant to a guilty plea agreement specifically permitting the defendant to enter a plea of guilty to first offense DUI and limiting the use of the conviction for enhancement purposes. See, e.g., State v. Crist, 108 Nev. 1058, 843 P.2d 368 (1992); Perry v. State, 106 Nev. 436, 794 P.2d 723 (1990); State v. Smith, 105 Nev. 293, 774 P.2d 1037 (1989). The Nevada Supreme Court’s decisions in Crist, Perry and Smith were based solely on the necessity of upholding the integrity of plea bargains and the reasonable expectations of the parties relating thereto. See Grover v. State, 109 Nev. 1019, 862 P.2d 421 (1993). The rule recognized in these cases is not applicable where, as here, there is no plea agreement limiting the use of the prior conviction for enhancement purposes. See id. Because the Nevada Supreme Court’s prior decisions in Crist, Perry and Smith depend on the existence of a plea agreement limiting the use of the prior conviction for enhancement purposes, they do not stand for the general proposition that only offenses designated as a “first” or “second” offense may be used for enhancement purposes. Ultimately the Defendant in Speer lost his appeal because the benefit of the bargain was not included in the plea agreement, that is why it is so important to have experienced legal counsel that understands the totality of the circumstances involved in a negotiated plea resolution. The attorney’s at the Spartacus Law Firm have the experience you need to ensure your rights are protected at every stage of a criminal proceeding up to and including the language of any plea bargain or negotiated resolution.
To sustain a felony conviction for DUI in Nevada based on an out-of-state DUI conviction, the other state’s statute must punish the same or similar conduct as that proscribed by Nev. Rev. Stat. § 484C.110. That issue is a question of law; therefore, an appellate court reviews it de novo. The criminalized conduct need not be identical in order to satisfy § 484C.410(1)(d). The conduct may merely be the same “kind or species.”
For example, Utah prohibits driving while incapable of safely operating a vehicle due to alcohol consumption. Utah Code Ann. § 41-6-44(2)(a) (1998). Nevada prohibits driving under the influence of intoxicating liquor. Nev. Rev. Stat. § 484C.110(1). Both states prohibit driving with a blood-alcohol concentration at or above 0.08. Utah Code Ann. § 41-6-44(2)(a). Additionally, both states classify a third offense within a statutorily prescribed recidivism window as a felony, the only difference being that Nevada’s recidivism window is seven years, Nev. Rev. Stat. § 484C.400(1)(c), while Utah’s recidivism window is 10 years, Utah Code Ann. § 41-6-44(6)(a)(i). The length of the recidivism window, however, does not change the offending conduct. Because Utah’s DUI recidivism statute prohibits the same or similar conduct as Nev. Rev. Stat. § 484C.110(1) and Nev. Rev. Stat. § 484C.400(1)(c), a Utah felony conviction satisfies Nev. Rev. Stat. § 484C.410(1)’s mandate that the offense be deemed a Category B felony.
In Isom v. State, 105 Nev. 391 (1989), a police officer noticed a parked car at a closed gas station. Upon approaching the car, the officer noticed defendant asleep with the car engine running. The officer noticed a number of unopened cans of beer in the back seat and two open cans of beer beside defendant. Defendant was charged with DUI. The state introduced evidence of two prior DUI convictions within the past seven years. The defendant was convicted of felony DUI for having three DUI convictions within seven years. Defendant sought review contending that she was not in actual control of the car and the prior convictions were not sufficiently proved. The Nevada Supreme Court affirmed the conviction holding that defendant was in actual physical control of the car because she reached the gas station on a public highway. The prior DUI citations and pleas were sufficient evidence to prove the prior convictions.
Therefore, remember that you do not always have to be driving a vehicle in order to be charged with a DUI, the standard is not driving but whether you were in physical control of the vehicle. For purposes of NRS 484.379, a person has actual physical control of a vehicle “when the person has existing or present bodily restraint, directing influence, domination, or regulation of the vehicle.” Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989). In Rogers, The Nevada Supreme Court provided several standards that triers of fact must consider in determining whether a driver was in actual physical control. See Rogers, 105 Nev. at 234, 773 P.2d at 1228.
Nevada law prohibits judges to award probation for certain crimes, and a third DUI offense is one of them. As stated previously, Nevada is cracking down on drunk driving, and to do so, there is a clear message being sent that the penalties associated with this crime will be strict and harsh. That’s why it’s crucial to have experienced legal representation fighting for you. There are ways to mitigate penalties or even have charges dropped altogether, but it requires an attorney who has dealt with these types of cases in the past and understands the best defense strategies for those convicted of DUIs. Without this, you will likely be looking at the standard penalties for a third time DUI in Las Vegas, which include:
- 1 to 6 years in a Nevada prison
- Fines ranging from $2,000 to $5,000
- Driver’s license suspended for up to three years after your prison sentence is complete
- Enrollment in an alcohol or drug treatment program
- Attendance in a Victim Impact Panel at your own expense
There are treatment programs available for those facing a third DUI charge in Nevada. These treatment programs have the potential to reduce a felony third DUI down to a misdemeanor second DUI offense. However, these conditions are not handed out easily. It often takes skilled negotiating from an experienced DUI defense attorney. If you are presented with the option of entering into a treatment program, you will have one of two options, Veterans Treatment Court and or an alcohol or drug treatment program.
Veterans Treatment Court
is a specialty court exclusively for military veterans accused of non-violent crimes in Nevada. Veterans who struggle with substance abuse, alcoholism, mental health, PTSD, or traumatic brain injuries
as a result of their time serving are prime candidates for Veterans Treatment Court. The goal of Veterans Court is to lend those who served a helping hand and help them restore their lives, rather than sentence them to prison. Veterans Court takes roughly one year to complete if all requirements are followed. Ultimately, a third DUI charge can be completely dismissed after successfully finishing treatment through the Veterans Court.
To avoid handing down a Class B Felony, the court may defer a third DUI conviction and permit you to enter an alcohol or drug treatment program. The treatment program is required to last three years for it to be accepted. Along with the length of treatment, there are also many other stipulations passed down by the court designed to monitor your progress at a treatment program. If it is found that you have strayed from the treatment plan, you will face future penalties. On the other hand, if you successfully complete the treatment program, your felony DUI will be reduced to a misdemeanor.
Under Nev. Rev. Stat. § 484.37941, a third-time DUI offender may seek to undergo a program of treatment for a minimum of three years. Pursuant to the statute, the State may oppose the offender’s application and request a hearing on the matter. If a district court grants the application for treatment, it must suspend the proceedings and place the offender on probation for a period not to exceed five years. Probation is conditioned upon the offender’s acceptance for treatment by a treatment facility and the completion of that treatment and any other conditions as ordered by the district court. If the offender is not accepted for treatment or if he or she fails to complete any of the district court’s conditions, the court will enter a judgment of conviction for a violation of Nev. Rev. Stat. § 484.3792(1)(c), a category B felony, and the district court may reduce the amount of time in prison by a time equal to that which the offender spent in treatment. On the other hand, if the offender successfully completes treatment, the district court will enter a judgment of conviction for a violation of Nev. Rev. Stat. § 484.3792(1)(b), which is a misdemeanor.
The plain language of Nev. Rev. Stat. § 484.37941 reflects the legislature’s intent that all third-time DUI offenders may apply for treatment pursuant to the statute. Specifically, § 484.37941(1) provides that an offender who enters a plea of guilty or nolo contendere may, at the time he enters his plea, apply to the court to undergo a program of treatment for alcoholism, as long as he is properly diagnosed an addict or alcoholic by a professional qualified under the statute and agrees to pay the cost of treatment to the best of his ability. Once an offender applies for the treatment program, the prosecuting attorney may oppose the application for treatment. Nev. Rev. Stat. § 484.37941(2). If the prosecuting attorney opposes the application, the district court shall order a hearing on the application. Section 484.37941(3) states that if a hearing is not held, the court shall decide the matter and other information before the court. This statutory language dictates that the district court is required to consider the merits of a DUI offender’s application for treatment as well as any opposition proffered by the prosecuting attorney.
Nev. Rev. Stat. § 484.37941(4)(a) not only provides a district court with the authority to place an offender on probation while he or she is in treatment, the statute requires it.
Once again, if you are being charged with a third DUI offense in Las Vegas, it’s strongly recommended that you obtain a qualified DUI lawyer in the Clark County area. Treatment programs like those mentioned above are not always standard options for someone facing a third DUI. Felony drunk driving charges are not taken lightly in the Nevada courts, if they have the opportunity, they will throw the book at you. Contact the Spartacus Law Firm today to discuss your options and begin planning your defense.
Remember, you are innocent until proven guilty when facing criminal charges. When facing a third DUI charge, If there are any inconsistencies or lack of evidence in your case, there is a chance to get the charges reduced to a misdemeanor DUI or completely dismissed. There are many ways to fight your third offense DUI charge, but the best defense tactic is to have an experienced and aggressive criminal defense lawyer
with a proven track record of winning DUI cases in Clark County. The Spartacus Law Firm specializes in these types of cases and can work with you to build the best possible defense for your situation. Some of the most effective defense tactics for a third DUI in Las Vegas include:
- The first two DUI convictions were not valid convictions
- The previous DUI convictions were outside the seven (7) year time period.
- The recent arrest was not a valid arrest
- The Officers failed to perform the field sobriety test (FST) correctly
- The laboratory failed to perform the proper procedures in handling your blood and testing your blood.
Things can get tricky if one or more of your previous DUIs were acquired in another state. The reason being is that DUI charges can be very treated differently in other states. For example, in Pennsylvania, a felony is not charged until your fourth DUI within the last 10 years. Some states will also treat DUIs as an advanced misdemeanor rather than a felony. However, it’s important to understand that a prior DUI from a different state will be subject to Nevada’s seven-year rule if the elements of the case are the same or substantially similar. Out of state DUIs are often complex matters and without experienced representation, you may receive a felony charge that could have been avoided. For more information about out of state DUIs and how we can help, contact the Spartacus Law Firm today for a free consultation.