NRS § 453.411 makes it a misdemeanor in Nevada to consume illegal drugs or to be under the influence of a controlled substance. You can be convicted even if there are no narcotics in your possession at the time of the arrest.
The penalties for being under the influence of a controlled substance are up to 6 months in jail and/or up to $1,000 in fines. Many Nevada judges will even dismiss your charge if you complete a pre-prosecution diversion program (rehab).
The only exceptions where you may lawfully be “under the influence of controlled substances” are:
- you are taking prescribed medications (and you are not driving impaired),
- you are at least 21 and using 2.5 ounces or less of marijuana (and you are not driving impaired), or
- you are being administered the drugs in a hospital or rehab facility.
Three common strategies to fight NRS 453.411 charges are to argue that:
- you did not act knowingly (you were drugged),
- you had not been using, or
- the blood test was contaminated.
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. The law
- 2. Penalties
- 3. Defenses
- 4. Immigration consequences
- 5. Record seals
- Additional resources
1. The law
In Nevada, it is illegal under NRS 453.411 either to:
- take a controlled substance, or
- be under the influence of a controlled substance, even if there are no drugs currently in your possession.
There are three exceptions where you can legally take controlled substances:
- your doctor prescribed you the drug;
- you are consuming marijuana; or
- you are being administered the drugs at a rehab or other medical facility.
Even if one of these situations applies to you, you can still be arrested for violating NRS 453.411 if a police officer ever catches you “high” in public or in private.1
Recreational marijuana
It is now legal to possess and consume up to 2.5 ounces of marijuana in a private residence. However, you could still be cited for NRS 453.411 if you go out in public high.2
Driving under the influence of drugs
It is always a form of DUI to drive while impaired by controlled substance. It does not matter if you were prescribed or administered the drug or if the drug is marijuana.
Therefore if you are taking recreational marijuana or another controlled substances, make sure the effects have worn off before getting behind the wheel. Otherwise, you may be arrested and required to take a blood test.
Furthermore, NRS 453.411 is an entirely separate crime from DUI of drugs (DUID). You can be convicted of both DUID and unlawful drug use without violating double jeopardy laws.3
2. Penalties
Violating NRS 453.411 is a misdemeanor in Nevada. A conviction for using or being under the influence of a controlled substance carries:
- up to 6 months in jail, and/or
- up to $1,000 in fines4
In many cases however, you can get the charge dropped and avoid having a conviction on your record by completing “pre-prosecution diversion.” Once you complete a course of rehab (and any other diversion conditions the judge imposes), the court will dismiss your NRS 453.411 charge.
3. Defenses
Here at Las Vegas Defense Group, we have represented literally thousands of people charged with drug crimes such as being under the influence. In our experience, the following defenses have proven very effective with judges and prosecutors.
You did not realize you took any drugs.
We see this case a lot with people who were slipped drugs or had their drink spiked without their knowledge. Unless the D.A. can prove beyond a reasonable doubt that you “knowingly” took a controlled substance, you committed no crime.
Since “knowledge” is invisible and cannot be easily shown, prosecutors are often willing to drop an NRS 453.411 charge in exchange for you doing rehab.
You never took any drugs.
We have had clients wrongfully arrested for being high when in reality they were in the throes of a diabetic coma, an epileptic seizure, or severe fatigue. It is not unusual for police officers to mistake legitimate medical conditions for drug intoxication.
In these cases, we rely on forensic analysis, blood tests, your medical records, and eyewitnesses to show that you did not consume any controlled substances.
Your blood test was contaminated.
Sometimes blood tests get contaminated in the lab and return false positives. We work with skilled and experienced expert witnesses who may be able to show that the police’s lab procedures were problematic and therefore untrustworthy.
Once your blood results are discredited, the D.A. may have no choice but to drop your case for lack of proof.
4. Immigration consequences
Nearly all drug crime convictions are deportable.5 Therefore, non-citizens charged with violating NRS 453.411 should consult with an attorney right away.
An attorney may be able to persuade the D.A. to dismiss the charge or else change it to a non-deportable offense such as disturbing the peace (NRS 203.010).
5. Record seals
NRS 453.411 convictions can be sealed one year after the case ends. If the charge gets dismissed (such as through diversion), you can pursue a record seal immediately.6
You should seal your criminal records as soon as possible. A drug charge can jeopardize future employment, licensing, and housing prospects.
Additional resources
If you or a loved one is struggling with addiction, refer to the following:
- Narcotics Anonymous (NA) – A 12-step program to overcome drug addiction.
- Substance Abuse and Mental Health Service Administration (SAMHSA) – 24/7 treatment referral service.
- Recovery Village – Support group for families of people struggling with drug addiction.
- Drug Addiction – Mayo Clinic article on diagnosing Substance Use Disorder.
- I Need Help With Drug Addiction – Resources provided by Recovery Centers of America.
Legal References
- NRS 453.411 – Unlawful use of controlled substance; penalty.
1. It is unlawful for a person knowingly to use or be under the influence of a controlled substance except in accordance with a lawfully issued prescription.
2. It is unlawful for a person knowingly to use or be under the influence of a controlled substance except when administered to the person at a rehabilitation clinic established or licensed by the Division of Public and Behavioral Health of the Department, or a hospital certified by the Department.
3. Unless a greater penalty is provided in NRS 212.160, a person who violates this section shall be punished for a misdemeanor. - NRS 453.336.
- Byars v. State (Nev. 2014) 336 P.3d 939. See also State v. Jones (Nev. 1995) 895 P.2d 643.
- NRS 453.411.
- INA § 237(a)(2)(B).
- NRS 179.245; NRS 179.255.