A first-time DUI in Nevada without serious injuries is a misdemeanor carrying five main penalties:
- $400 to $1,000 in fines;
- 8 hour DUI School;
- attendance at a Victim Impact Panel;
- 2 days to 6 months in jail (usually the judge suspends the jail sentence or orders 48 to 96 hours of community service); and
- a 90-day driver's license revocation, though a restricted license is available at 45 days (for arrests after October 1, 2018, it will be a 185-day driver's license revocation.)
A DUI first is when someone gets charged for driving drunk or high, and the person had no prior DUI cases in the last 7 years. Even drivers who are not impaired can be convicted of "DUI per se" for having either:
- a minimum .08 blood alcohol content (BAC), or
- illegal amounts of controlled substances in their blood (DUI of drugs or "DUID"), such as DUI of prescription drugs or DUI of marijuana.
Defendants convicted of DUI 1st have to wait 7 years after the case ends to get a record seal. But it may be possible to plea bargain a DUI first down to a dismissal or reckless driving, which can be sealed after only 1 year.
It is not uncommon for law enforcement to make mistakes while executing a DUI arrest. And the tools and tests they use to determine intoxication levels are unreliable. So a defense attorney would conduct a thorough investigation to show that the state's evidence is not solid enough to support a conviction.
In this article, our Las Vegas DUI defense attorneys discuss:
- 1. DUI 1st Penalties
- 2. Effect of a DUI 1st on DMV and criminal records
- 3. Common DUI defenses
- 4. Plea bargains and possible outcomes in court
For a general overview of all drunk/drugged driving sentences, go to our article on Nevada DUI penalties.
It is possible but unlikely. A judge has discretion impose the maximum misdemeanor penalty of six (6) months in jail.1 But in practice, defendants who get convicted of a DUI 1st get the following "minimum mandatory" sentence:
- $400 to $1,000 plus court costs;
- ex. Las Vegas Justice Court charges a total of $685, and Las Vegas Municipal Court charges a total of $810;
- DUI School, which is an eight (8) hour alcohol awareness and traffic safety program that usually can be completed online. The defendant is required to pay for the course, around $150;
- Attendance at a Victim Impact Panel, such as a MADD lecture. This usually costs the defendant $40;
- An order to "stay out of trouble":
- The defendant may pick up no new arrests or citations other than minor traffic tickets while the DUI case is open. DUI cases usually last six (6) months or a year;2
- Driver's license revocation:
- 90-day driver's license revocation (for arrests on or after October 1, 2018, the revocation period will be 185 days);3
- The defendant needs to maintain SR-22 insurance for three (3) years to reinstate and keep his/her driver's license;
- Ignition interlock device:
- The court may order that the defendant install an ignition interlock device in each of his/her cars for three to six (3 - 6) months;
- For arrests that occur on or after October 1, 2018, the court will order at least six (6) months of having an ignition interlock device in each of the defendant's vehicles unless the judge determines otherwise;
- The defendant pays for installation and maintenance of the devices;4
- Anyone who gets a DUI arrest on or after October 1, 2018, with BAC of at least 0.08 is required to use an ignition interlock device for 90 days following the arrest. It does not matter if the charge ultimately gets dropped;5and
- Jail or community service:
- The law mandates the defendant serve at least two (2) days in jail for a first-time DUI. But judges usually count the arrest and initial incarceration as two (2) days credit for time served. If the defendant bailed out of jail before the two (2) days were up, the judge may order the defendant to complete 48 to 96 hours of community service;
- Finally, the judge will impose a suspended jail sentence of six (6) months. This is a type of probation where the defendant will do no time behind bars as long as he/she completes all the above sentencing terms.
Note that DUI defendants who were transporting a child under 15 at the time of the arrest may face harsher punishments than normal. Examples include a higher fine or some mandatory jail time.6
Also, note that a defendant's prior misdemeanor DUI convictions from more than seven (7) years ago do not count against the defendant's current DUI case. As long as seven (7) years have passed between the previous and current DUI arrest dates, the defendant's current DUI incident will be charged as a DUI first. 7
Finally, note that Nevada law makes no distinction between prior DUIs that occurred in Nevada or elsewhere in the U.S. Henderson criminal defense attorney Michael Becker gives an example:
Example: Greg was convicted of DUI 1st in California following an arrest on January 1, 2016. Then on January 1, 2018, Greg was arrested for DUI in Nevada. Since the previous DUI arrest occurred within seven (7) years from this current arrest, Greg will face DUI 2nd charges in Nevada. It makes no difference that the previous arrest occurred out-of-state.
For penalty information for drunk drivers under 21, click here.
1.1. A BAC of .18 or higher
If the defendant's BAC was 0.18 or greater at the time of DUI arrest, the judge will also order these additional penalties:
- an alcohol/drug dependency evaluation ("DUI Assessment Program), which costs $100,
- an alcohol or drug abuse treatment program (depending on the results of the evaluation), and
- one to three years (12 - 36 months) of having an ignition interlock device in each of the defendant's vehicles, plus the costs of installation and maintenance8
For information on the penalties for refusing to give consent to take a breath or blood test, click here.
1.2. Admonishment of Rights
If a defendant pleads guilty (or no contest) to a DUI 1st in Nevada, the court will require that he/she sign an "admonishment of rights" form. (Click here for an example.) This document outlines how DUI is a "priorable" crime, meaning that the punishments get greater with each successive conviction.
1.3. Prior felony DUI conviction
Anyone with a previous felony DUI conviction will face another felony DUI charge if he/she is arrested again for driving under the influence. It makes no difference if the next DUI involved no injuries, or if the previous DUI arrest occurred more than seven (7) years ago. "Once a felon, always a felon."9
Every DUI first arrest opens two separate cases that operate independently of each other:
- A DMV case, which may result in a 90-day license revocation, and
- A criminal case, which may result in a DUI conviction that must stay on the defendant's record for seven (7) years.
2.1. Driver's License
The DMV imposes a 90-day driver's license revocation on people arrested for a first-time DUI. (For DUI arrests on or after October 1st, 2018, the revocation period is 185 days.)10
Note that commercial drivers arrested for DUI face a one (1) year revocation of their commercial driver's licenses (CDL). It does not matter if they were driving a personal vehicle at the time of the DUI arrest. Also, note the revocation will last three (3) years if the driver was transporting hazardous materials 11
People whose license get revoked on a DUI first will have to pay the following fees to get the license back:12
|Nevada DMV penalties for 1st time DUI||Fees|
Victims Compensation Civil Penalty
2.1.1 DMV Hearings
If a driver's breath or blood test shows a BAC of .08 or higher, the suspect is given a seven (7) day temporary driver's license. If the defendant does not request a DMV hearing to fight the revocation, the revocation will begin after the seventh day. If the defendant does request a DMV hearing, the revocation is postponed pending the outcome of the hearing.
DMV hearings can be tough to win. This is because DMV hearings demand a much lower standard of proof from the state than criminal trials do. But it may still be possible to win a DMV hearing if there are problems or inconsistencies in the state's evidence, or if the arresting officer fails to attend the hearing.
Even if a defendant wins the DMV hearing, the DMV will still impose a license revocation if the defendant gets convicted of DUI in criminal court. So the only way to avoid completely a license revocation in a DUI case is 1) to succeed in having the criminal DUI charge reduced or dismissed, and 2) to win the DMV hearing.13
2.1.2 Restricted License
A DUI defendant may be eligible to apply for a "restricted license" 45 days into the 90-day revocation. (If the DUI arrest occurred on or after October 1, 2018, a restricted license is available once the defendant installs an ignition interlock device.)
A restricted license permits the defendant to drive only to work, school, grocery stores, medical appointments or court-ordered child visitation. Click here for the restricted license application.14
2.2. Criminal Record
Once a person gets arrested for a DUI, the arrest goes on the defendant's criminal record. If the case results in a guilty verdict, the conviction goes on the defendant's criminal record as well. The only way to keep the DUI case from showing up on background checks is to get the case sealed...
- DUI. People convicted of a first-time DUI in Nevada may petition the court to seal the case once seven (7) years have passed since the case closed.15
- Reckless driving. If the DUI charge gets reduced to reckless driving, the waiting period to pursue a record seal is only one (1) year after the case closed.16sup>
- Dismissal. And if the DUI charge gets totally dismissed...or if the defendant is found "not guilty" at trial...there is no waiting period to pursue a record seal.17sup>
The record seal process can take several weeks and involves a lot of paperwork. Defendants are advised to hire a criminal defense attorney to handle the long and complicated process.
Three common DUI defenses include:
- Poorly administered field sobriety tests;
- Defendant's physical condition caused inaccurate BAC result; and/or
- Rising blood alcohol
3.1. Poorly administered field sobriety tests
The National Highway Transportation Safety Administration (NHTSA) outlines detailed procedures that police must use to explain, administer and score the following field sobriety tests:
- the horizontal gaze nystagmus test (following a stimulus with your eyes),
- the one leg stand test, and
- the walk and turn test.18
But police often lack NHTSA training. And they make critical mistakes when giving instructions and rating the suspect's performance. If a defense attorney can invalidate the field sobriety test results in the case, the D.A. may be left with insufficient evidence to prosecute.
3.2. Physical condition caused inaccurate BAC result
There are many physical and medical conditions that can cause an Intoxilyzer 5000 EN breathalyzer to register falsely high BAC numbers. Just some of these include:
- acid reflux
- mouth alcohol
- low-carbohydrate diet
- auto-brewery syndrome
- dentures or other orthodontic devices19
In these situations, a defense attorney would compile the defendant's medical records. A defense attorney would also seek expert medical testimony about how the defendant's condition can inflate BAC results. This may leave the prosecutor with too weak a case to sustain a conviction.
3.3. Rising blood alcohol
Rising blood alcohol is a biological phenomenon where a person's BAC rises after he/she stops drinking. So it is plausible that someone who drank wine at dinner had a legal BAC when he/she was initially pulled over. Then an hour or two later when the police administered the chemical test, his/her BAC may have risen to illegal levels.
DUI charges apply only when a driver has illegal BAC levels while operating the vehicle, not later on. If an attorney can show that the defendant's high BAC was due to rising blood alcohol, the DUI charge should be reduced or dismissed.20
A good defense lawyer will examine every aspect of the matter including the initial confrontation between the driver and police, how the arrest was conducted, how the BAC was determined, and whether there were any witnesses. Other possible defenses to a Nevada DUI charge are:
- the breath testing or blood testing equipment did not work properly or was misused;
- the people handling the testing equipment were not properly certified; and/or
- the arresting officer lacked probable cause to pull the defendant over
Typical evidence in DUI cases includes the police report, eyewitnesses, surveillance video, medical records, and expert testimony.
Depending on the case, a DUI first may be reduced to reckless driving or dismissed. However, Nevada prosecutors are prohibited from pleading down DUI charges unless a guilty verdict is obviously unattainable.21 Therefore, the defense attorney's job is to convince the prosecutors that their evidence is too inadequate and unreliable to sustain a conviction.
Certainly, the ideal scenario is to get the entire case dismissed. Prosecutors do this only when it is clear the defendant was sober and had a legal BAC of alcohol or drugs.
4.2. Reckless Driving
The next best...and more common...scenario is for the prosecutor to reduce the DUI to a reckless driving charge.22 Prosecutors typically do this when the total evidence indicates that the defendant was guilty, but the police made a procedural mistake. An example would be administering the breath or blood test slightly after the two-hour post-arrest window.23
When a DUI defendant plea bargains down to reckless driving, the judge will typically impose the same penalties as a DUI first (see section 1 above for the punishments). However, getting a reckless driving conviction is far preferable than a DUI conviction for four reasons:
- If the defendant ever gets arrested for DUI again, the reckless driving conviction will not count as a previous DUI conviction. Therefore, the defendant will face prosecution for only a DUI first and not a DUI second, which carries much harsher penalties.
- Having a reckless driving conviction carries less of a social stigma than having a DUI conviction. Therefore prospective employers are less likely to pass over people for a job if they have only a reckless driving conviction.
- A reckless driving conviction does not cause an automatic license revocation like a DUI first does. However, it will add eight (8) demerit points to the defendant's driver's license.24
- The waiting time to seal a reckless driving conviction is only one (1) year after the case ends. The DUI record seal waiting time is seven (7) years.25
Note that DUI defendants in any Clark County justice court may be able to plea bargain the charge down to "careless driving." This ordinance-enacted offense is similar to reckless driving, except that it carries only six (6) demerit points as opposed to eight (8).26
4.3. Misdemeanor DUI Court (rehab)
Defendants suffering from alcoholism may be eligible for Misdemeanor DUI Court (aka the Moderate Offenders Program). Upon successful completion of this alcohol rehabilitation program, the DUI conviction may be reduced to a lesser offense, such as reckless driving.
DUI Court usually lasts one (1) year and costs thousands of dollars. The defendant is required to participate in counseling, court monitoring, alcohol testing, wearing a SCRAM anklet, and other terms.27
DUI defendants always have the option of going to trial. At trial, the prosecutor has a high burden of proving guilt beyond a reasonable doubt. But since first-time DUIs are only misdemeanors, defendants are entitled to just a bench trial (where the judge decides the verdict), not a jury trial.28
In practice, juries are more likely than judges to find defendants not guilty. Part of the reason is that judges have presided over many DUI cases, and experience has hardened them.
Call us if you are facing charges . . . .
If you have been accused of a DUI first in Nevada, call our Las Vegas criminal defense lawyers at 702-DEFENSE (702-333-3673) for a free consultation today. They may be able to negotiate a favorable resolution without a trial. But if necessary they will argue your side to a jury and fight for a "not guilty" verdict.
Arrested in California? See our article on DUI firsts in California law.
Arrested in Colorado? See our article on DUI firsts in Colorado law.
- NRS 193.150.
NRS 484C.400 Penalties for first, second and third offenses; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.
- Unless a greater penalty is provided pursuant to NRS 484C.430 or 484C.440, and except as otherwise provided in NRS 484C.410, a person who violates the provisions of NRS 484C.110 or 484C.120:
- (a) For the first offense within 7 years, is guilty of a misdemeanor. Unless the person is allowed to undergo treatment as provided in NRS 484C.320, the court shall:
- (1) Except as otherwise provided in subparagraph (4) of this paragraph or subsection 2 of NRS 484C.420, order the person to pay tuition for an educational course on the abuse of alcohol and controlled substances approved by the Department and complete the course within the time specified in the order, and the court shall notify the Department if the person fails to complete the course within the specified time;
- (2) Unless the sentence is reduced pursuant to NRS 484C.320, sentence the person to imprisonment for not less than 2 days nor more than 6 months in jail, or to perform not less than 48 hours, but not more than 96 hours, of community service while dressed in distinctive garb that identifies the person as having violated the provisions of NRS 484C.110 or 484C.120;
- (3) Fine the person not less than $400 nor more than $1,000; and
- (4) If the person is found to have a concentration of alcohol of 0.18 or more in his or her blood or breath, order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.
- A person who willfully fails or refuses to complete successfully a term of residential confinement or a program of treatment ordered pursuant to this paragraph is guilty of a misdemeanor.
- A term of confinement imposed pursuant to the provisions of this section may be served intermittently at the discretion of the judge or justice of the peace, except that a person who is convicted of a second or subsequent offense within 7 years must be confined for at least one segment of not less than 48 consecutive hours. This discretion must be exercised after considering all the circumstances surrounding the offense, and the family and employment of the offender, but any sentence of 30 days or less must be served within 6 months after the date of conviction or, if the offender was sentenced pursuant to NRS 484C.320 or 484C.330 and the suspension of his or her sentence was revoked, within 6 months after the date of revocation. Any time for which the offender is confined must consist of not less than 24 consecutive hours.
- Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.410 or 485.330 must run consecutively.
- If the defendant was transporting a person who is less than 15 years of age in the motor vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
- SB 259 (2017); NRS 483.460.
- NRS 484C.400; In legalese, driving intoxicated with a child is an "aggravating factor" that judges consider when deciding the defendant's sentence.
- Id.; see also, What happens when you get a DUI?, Las Vegas Sun (September 6, 2015).
- NRS 484C.410.
- SB 259 (2017); NRS 483.460.
- 49 CFR §383.51.
- See Nevada DMV License Suspensions and Revocations.
- NAC 484C.894; NRS 484C.230.
- NAC 483.200.
- NRS 179.245.
- NRS 179.255.
- See Impaired Driving, NHTSA.
- See Challenges and Defenses II, The National Traffic Law Center.
- NRS 484C.420.
- NRS 484B.653.
- NRS 484C.430.
- NAC 483.510.
- NRS 179.245.
- CCC 14.60.190; NAC 483.510.
- NRS 484C.330.
- Sixth Amendment.