Fighting "DUI of Prescription Drugs" charges in Las Vegas, Nevada (NRS 484C.110)

Definition

Nevada law treats "driving under the influence of prescription medication" the same as drunk driving. The only difference is that suspects are required to submit to a DUI blood test instead of a DUI breath test.

The punishment for "DUI of prescription drugs" include fines, classes, and driver's license revocation. But depending on the case, it may be possible to get the DUI charge reduced to reckless driving or completely dismissed.

Penalties

A first-time DUI of prescription meds is a misdemeanor, carrying:

  • A maximum fine of $1,000 plus court costs;
  • Nevada DUI School;
  • Victim impact panel;
  • 3-month driver's license revocation (185-day revocation for arrests on or after October 1, 2018); and
  • A 7-year waiting period to seal the DUI criminal record

The sentence grows harsher with each successive DUI conviction within a 7-year period. And a DUI causing serious injury or death is a category B felony, carrying $2,000 to $5,000 in fines and 2 to 20 years in Nevada State Prison.

Defenses

Three of the several possible arguments to fight charges of "DUI of prescription drugs" include:

  1. The blood tests were inaccurate.
  2. The driver did not ingest the drugs until after he/she stopped driving.
  3. The police lacked probable cause to stop the driver.

Note it is not a defense that:

  • the driver had a valid and current doctor's prescription,
  • the drug is FDA-approved, or
  • the driver had an unexpected physiological reaction to the drug.

On this page, our Las Vegas DUI defense attorneys discuss:

Anyone in Clark County suffering from prescription drug abuse is encouraged to reach out to Southern Nevada Area Narcotics Anonymous.

DUI prescription drugs
Nevada law treats driving under the influence of prescription drugs the same as driving under the influence of alcohol.

1. What is "DUI of prescription drugs" in Las Vegas, Nevada?

It is a crime in Nevada to drive under the influence of prescription drugs. Even if the driver was prescribed the drug, operating a motor vehicle (including motorcycles) while intoxicated by prescription drugs is just as illegal as driving while intoxicated by alcohol.1 Mesquite criminal defense attorney Michael Becker offers an illustration:

Example: Greg is an insomniac who has a prescription for Ambien to help him sleep. One evening he takes a pill just before getting a call from his boss instructing him to rush to the Henderson office for an emergency meeting. He makes himself some strong coffee in an effort to fight off his sleep deprivation and hops into the car.

But on the way to the office the Ambien kicks in, and he begins nodding off and swerving erratically. If a police catche him, Greg could be arrested and booked at the Henderson Detention Center for driving under the influence of a prescription drug.

In the above scenario, it is irrelevant that Greg is not a drug addict. Nor does it matter that he tried to counteract the sedative with caffeine. Just his action of taking the wheel while being affected by sleeping pills qualifies as DUI in Nevada.

1.1. Prescription drugs that impair driving

There are three main categories of prescription drugs that may cause a driver to be impaired. These include:

Type of Prescription Drug that may impair driving Examples

Sedative-hypnotics

See our related article on DUI of Ambien and Lunesta in Nevada.

Anti-anxiety

Narcotic analgesics (painkillers)

See our related article on DUI of prescription painkillers in Nevada.

While prescription medicines can be lifesavers, they can slow the body's functions and inhibit the person's ability to drive safely. Common side effects of prescription medications include:

DUI prescription drugs: drowsy
  • Fatigue and drowsiness
  • Lightheadedness, dizziness, or fainting
  • Weakness
  • Breathing difficulties
  • Nausea or gastric distress
  • Prolonged reaction times
  • Lack of coordination
  • Unsound judgment and delayed cognition
  • Sleep driving, where the driver is literally unconscious while driving and cannot remember having driven when he/she wakes up

Sometimes doctors and pharmacists fail to inform their patients that a certain drug could impair their driving. So anyone on a prescription medication is advised to consult with his/her provider and inquire as to whether it is safe to drive after taking the drug.

Note that some over-the-counter (OTC) medications may also be hazardous to take before driving, such as Unisom. Driving under the influence of an OTC drug still subjects the driver to DUI prosecution. So always read the drug's label and warnings before taking the wheel.

1.2. DUI of amphetamines and marijuana in Nevada

It is also "DUI of prescription drugs" in Nevada to drive with unlawful amounts of prescription marijuana or amphetamines (such as Adderall) in one's blood. (It makes no difference that recreational marijuana is now legal in Nevada.):

Prescription drug

Illegal blood content while driving

(in nanograms per milliliter)

Amphetamine

100

Marijuana

2

Marijuana metabolite

5

Therefore, drivers with too much amphetamine or pot in their blood may be convicted of DUI even if they are driving safely.2 It does not matter if the driver has valid and current prescriptions for the weed or amphetamines. Las Vegas criminal defense attorney Neil Shouse gives an example:

Example: Don is a valid card-holding Nevada medical marijuana patient. While driving in Las Vegas, a patrol officer notices that his tail light is out and pulls him over. At that point the cop smells marijuana on Don, which gives the cop probable cause to suspect DUI. The cop then asks Don to perform Nevada field sobriety tests, which he passes.

Still, the cop decides to arrest Don for DUI and books him at Clark County Detention Center. Don's blood results come back showing that he has more than the legal limit of marijuana in his system. The Clark County D.A. presses charges against Don for DUI.

In the above example, Don can still get convicted of DUI even though he was a legal medical marijuana cardholder and passed the field sobriety tests. Merely the fact that the marijuana content in his blood exceeded 2 nanograms per milliliter is enough to sustain a guilty verdict for DUI.

1.3. Blood tests for "DUI of prescription drugs" cases in Nevada

When a Nevada police officer pulls over a driver on suspicion of driving under the influence, the officer will ask the driver to take a preliminary breath test (PBT) and to perform the following field sobriety (FTS) tests:

If the driver takes the tests and passes them, the cop may suspect that the driver is under the influence of not alcohol but rather drugs. (Drivers can refuse to submit to the PBT and FTSs, but cops interpret their refusal as evidence they have something to hide. Plus, refusing to take the PBT will cause the police to confiscate the person's license under NRS 484C.150.)

blood test

At this point, an officer with special training in drug recognition evaluation (DRE) may be called to take over the investigation. If the cops decide to arrest the driver for DUI of drugs, the driver will be required to submit to a DUI blood test.

Under Nevada law, all drivers arrested for DUI give "implied consent" to submit to a chemical test (such as a blood test). If the driver refuses to take the blood test, the officers must get a warrant. Then the officers may use "reasonable force" to constrain the driver to get the blood sample.3

Note that the suspect may at his/her own expense choose a phlebotomist of his/her own choosing to administer the blood draw.4

Also note that refusing to take a DUI blood test can be used as evidence against the defendant at trial. Additionally, the Nevada DMV will revoke the defendant's license for one (1) year.5

2. What are the penalties for "DUI of prescription drugs" in Nevada?

The standard punishments for "DUI prescription drugs" in Nevada are the same as for drunk driving and driving under the influence of illegal narcotics...

The sentence gets harsher with each successive DUI within the past seven (7) years.6 And a DUI incident that causes a victim to sustain substantial bodily harm is an automatic felony:7

"DUI of prescription drugs" offense in Nevada Penalties

DUI 1st (in 7 years)

Misdemeanor:
  • 2 days to 6 months in jail, or 48 to 96 hours of community service (the court usually imposes a suspended jail sentence of 6 months);
  • Nevada DUI School (an alcohol education program that the defendant pays for and can be done online);
  • $400 to $1,000 in fines plus court costs (In Las Vegas Justice Court, the fine is $685. In Las Vegas Municipal Court, it is $810.);
  • Victim impact panel (such as a MADD lecture); and
  • 90-day driver's license revocation, though the defendant can apply for a restricted driver's license for the last 45 days. Note that on or after October 1, 2018, the revocation period extends to 185 days.

Learn more about Nevada DUI first penalties.

DUI 2nd (in 7 years)

Misdemeanor:
  • 10 days to 6 months in jail;
  • $750 to $1,000 in fines;
  • Victim impact panel;
  • An alcohol/drug dependency evaluation (costs $100); and
  • 1-year driver's license revocation

Learn more about Nevada DUI second penalties.

DUI 3rd (in 7 years)

Category B felony:
  • 1 to 6 years in prison;
  • $2,000 to $5,000 in fines; and
  • 3-year driver's license suspension (a restricted license may be available after 1 year)

Learn more about Nevada DUI third penalties.

DUI causing serious injury or death

Category B felony:
  • 2 to 20 years in prison;
  • $2,000 to $5,000 in fines; and
  • 3-year driver's license suspension

Learn more about felony DUI penalties.

Note that if the driver has three (3) or more previous DUI convictions, then a DUI incident causing death will be prosecuted as the Nevada crime of vehicular homicide.8 The prison term for vehicular homicide is either:

  • 25 years with the possibility of parole after 10 years; or
  • Life with the possibility of parole after 10 years

Learn more in our article on Nevada DUI penalties.

3. Can I get a "DUI of prescription drugs" charge reduced or dismissed?

In some circumstances, a defense attorney may be able to persuade the D.A. to reduce a charge of "DUI prescription drugs" down to the Nevada crime of reckless driving. There are three advantages to having a conviction for reckless driving rather than for DUI prescription drugs:

  1. Reckless driving carries less of a social stigma than DUI, and it does not look as troubling to employers on background checks.
  2. Reckless driving convictions can be sealed from the driver's criminal record only one (1) year after the case is closed. In contrast, DUI convictions may not be sealed until seven (7) years have passed from the time the case was closed.9
  3. The penalties for DUI get worse with each successive conviction. So if a defendant can get a first-time DUI charge reduced to a reckless driving, then his/her next DUI arrest (if there is one) will be prosecuted as only a first-time DUI as opposed to a second.10

Note that Nevada law prohibits prosecutors from outright dismissing DUI charges unless they have significant problems with their evidence. But depending on the case, getting DUI charges dropped may still be possible.11

Also note that there is always the option to take the DUI case to trial. If the judge or jury returns a "not guilty" verdict, then defendant gets acquitted and can pursue a record seal right away.

3.1. DUI Court

DUI defendants who are addicted to prescription drugs may be eligible for Nevada DUI Court, an intensive rehabilitation program that allows the defendant to avoid lengthy jail sentences. And upon successful completion of DUI Court, the DUI conviction may be reduced to a lesser charge.

People facing a first- or second-time DUI may be eligible for Misdemeanor DUI Court, called the Moderate Offenders Program in Clark County.12 And people facing a third-time DUI may be eligible for Felony DUI Court, call the Serious Offenders Program in Clark County.13

4. What happens to my Nevada license in a "DUI of prescription drugs" case?

Defendants arrested for DUI of prescription drugs keep their driver's license during the several weeks it takes the police to test their blood. If the results come back positive for drugs, the Nevada DMV notifies the defendants by mail that their license will be revoked. The length of the revocation depends on the defendant's DUI history:

DUI offense (in any state) Length of Nevada driver's license revocation

DUI 1st (within 7 years)

90 days, though it may be possible to get a restricted license after 45 days

(Starting October 1, 2018, the revocation period will be 185 days.)

DUI 2nd (within 7 years)

1 year

(No restricted license is available.)

Felony DUI, including a DUI 3rd (within 7 years)

3 years, though a restricted license may be available after 1 year

Recall that drivers suspected of DUI of prescription drugs are required to take blood tests and not breath tests. Breath tests cannot detect drugs, only alcohol.14

4.1. DMV hearings

When the DMV notifies DUI defendants that their license will be revoked, they have seven (7) days to request a DMV Hearing to contest the revocation. If they do not request this hearing, the revocation begins after the seventh day. If they do request it, the revocation is postponed pending the outcome of the hearing.

A DMV hearing is like a mini-trial, except it is civil rather than criminal. There is an administrative judge presiding. And the defendant and his/her attorney get to present evidence and make arguments that the defendant was not under the influence.

DMV hearings are harder to win than criminal trials. The reason is that the DMV needs far less evidence than a criminal judge to find against the defendant. But these hearings are still worth doing if the defendant can show that the state's evidence was problematic. And defendants always win DMV hearings if the arresting officer fails to appear.15

5. What are the defenses to "DUI of prescription drugs" in Nevada?

Common defenses to "DUI of prescription drugs" are similar to typical drunk driving defense strategies:

  • Defective blood testing equipment or mishandling of blood samples. Blood results should not count as evidence if the testing equipment was faulty, or if the lab technician contaminated the samples. Even showing that the drug tester's certification was expired may be sufficient to get the DUI charge dropped.16
  • The driver did not ingest the drugs until after he/she stopped driving the car. Perhaps the driver did not pop any pills until after the police pulled him/her over, and the driver took the medicine to calm down and focus. If the D.A. cannot demonstrate that the driver was under the influence of a prescription before the traffic stop, the case should be dismissed.
  • Lack of probable cause for traffic stop. Police are not allowed to pull over drivers on suspicion of DUI without "probable cause" (unless the driver is going through a Nevada DUI checkpoint). If the defense attorney can show that the cop did not see the defendant breaking any traffic laws or driving erratically before the police stop, the judge should throw out the case.17

Note that it is not an affirmative defense to "DUI of prescription drugs" charges that the driver had an unexpected reaction to the drug.

6. When can I seal a conviction of "DUI of prescription drugs" in Nevada?

It depends on what charge the defendant was ultimately convicted of:

"DUI of prescription drugs" offense in Nevada Record seal wait time

Felony DUI

  • DUI 3rd or
  • DUI causing serious injury or death

May never be sealed

Misdemeanor DUI

  • DUI 1st or
  • DUI 2nd

7 years after the case ends

Misdemeanor Reckless Driving

1 year after the case ends18

Dismissal of the entire DUI case

No wait time19

7. Will I get deported for "DUI of prescription drugs" in Nevada?

Driving under the influence is usually not a deportable crime in Nevada. But a non-citizen charged with possessing prescription drugs without a valid and current prescription could face deportation for committing an aggravated felony.20

Therefore, a non-citizen charged with a criminal offense in Nevada should seek experienced legal counsel as soon as possible to try to get the case dismissed or reduced to a non-deportable offense, if necessary. Learn more about the criminal defense of immigrants in Nevada.

Arrested for DUI? Call us for help...

702-DEFENSE (702-333-3673)
Call our Las Vegas criminal defense attorneys at 702-DEFENSE for a FREE consultation.

If you are facing charges for "driving under the influence of prescription drugs" in Nevada, call our Las Vegas criminal defense lawyers at 702-DEFENSE (702-333-3673). Perhaps we can reach a resolution with the D.A. that results in your case getting reduced or dismissed. And we are always ready to take your case to trial and fight for a "not guilty" verdict.

Arrested in California? Refer to our pages on Driving Under the Influence of Vicodin or Hydrocodone in California and DUI of sleeping pills in California.

Arrested in Colorado? Refer to our page on DUI of drugs in Colorado.


Legal References

  1. NRS 484C.110 Unlawful acts; affirmative defense; additional penalty for violation committed in a work zone (excerpt)

    2. It is unlawful for any person who:

    (a) Is under the influence of a controlled substance;

    (b) Is under the combined influence of intoxicating liquor and a controlled substance; or

    (c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle,

    -->to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. The fact that any person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this State is not a defense against any charge of violating this subsection.

    5. A person who violates any provision of this section may be subject to the additional penalty set forth in NRS 484B.130.
  2. Id.
  3. Birchfield v. North Dakota, 136 S. Ct. 2160, 579 U.S. ___ (2016); NRS 484C.160.
  4. NRS 484C.180.
  5. NRS 484C.240; NRS 484C.210.
  6. NRS 484C.400.
  7. NRS 484C.430.
  8. NRS 484C.440.
  9. NRS 179.245.
  10. NRS 484C.400.
  11. NRS 484C.420.
  12. NRS 484C.320; NRS 484C.330.
  13. NRS 484C.340.
  14. NRS 483.460.
  15. Id.
  16. NRS 484C.640.
  17. NRS 484C.420.
  18. NRS 179.245.
  19. NRS 179.255.
  20. 8 U.S. Code § 1227.

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