Nevada law prohibits prosecutors from dropping drunk driving charges unless there are extenuating circumstances . . . that is where a good defense team is key. An experienced Nevada DUI attorney may be able to convince the prosecutors to reduce the charges to the lesser offense of reckless driving.
This article explains how Nevada DUI charges may be knocked down to reckless driving charges. Keep reading to learn more about the strategies and benefits of avoiding a drunk driving conviction.
Is it possible to get misdemeanor DUI charges reduced or dismissed in Nevada?
Yes, but reducing charges for the Nevada crime of drunk driving is much more difficult to do than in other types of criminal cases...
In an effort to promote sober driving, the Nevada legislature specifically prohibits prosecutors from reducing or dropping DUI charges unless the prosecutor knows ... or it is obvious that ... the DUI charge is not supported by probable cause or cannot be proved at the time of trial.
In other words, Nevada prosecutors are legally required to pursue DUI convictions except when they have good reason to believe that the DUI charges were clearly bogus or that there is insufficient evidence to prove the DUI charge beyond a reasonable doubt.
What can defense attorneys get a misdemeanor DUI charge reduced to in Nevada?
The most common offense that misdemeanor DUI charges are reduced to is the Nevada crime of reckless driving. Reckless driving ... which is also chargeable as a misdemeanor in Nevada... is defined as driving with willful disregard to the safety of other people or property. Boulder City criminal defense attorney Neil Shouse gives an example:
Brad is driving safely down the highway in North Las Vegas when a cop spots that one of his taillights is broken. When the cop pulls him over, he smells alcohol on Brad. He then conducts a preliminary breath test and field sobriety tests. Brad fails the breath test but passes the field sobriety tests. The cop decides to arrest him for DUI based on the preliminary breath test and books him at the North Las Vegas Detention Center, where he proceeds to fail another breath test. Ultimately the prosecutor allows Brad to plead to reckless driving instead of DUI because the cop would not be available to testify at trial.
Note that it does not matter that Brad was never at any point "reckless" and was never driving impaired. It is still in Brad's interest to take the plea bargain because it is a lesser offense than DUI.
Also note that it may be possible in rare cases to get a DUI charge reduced to the minor crime of careless driving. Learn more about reducing a Nevada DUI to careless driving.
How do defense attorneys try to get misdemeanor DUI charges reduced to reckless driving in Nevada?
The defense attorney conducts a thorough investigation of all available evidence in order to discover problems and inaccuracies in the prosecution's case. Some of the issues defense attorneys examine include the following:
- whether the police performed a legal traffic stop when pulling over the defendant (unless the defendant was already parked when the police arrived)
- whether the police followed proper procedures when questioning the defendant and administering field sobriety tests (FSTs)
- whether the Nevada DUI breath-testing equipment or Nevada DUI-blood testing equipment was operating property and used correctly
- whether the defendant was suffering from a condition or taking a medication that caused inaccurate FST-, blood- or breath-testing results
- whether the arresting officer(s) would be available to testify at trial
- whether there are other eyewitnesses to the incident, and whether they are credible
- whether there was surveillance video or other recordings of the event
Note that prosecutors have the burden to prove guilt beyond a reasonable doubt. Therefore prosecutors may agree to reduce a DUI charge to reckless driving if the defense attorney can show that the state's evidence is too inconsistent, unreliable, or insufficient to support a DUI conviction.
It may also be possible to get a DUI charge reduced to reckless driving if the defendant was sleeping while drunk in a parked car and not actually driving. Although sleeping while drunk in a parked car is still a form of DUI, the prosecutor might agree to lower the charge because sleeping drunk in a car is safer than driving drunk. Learn more about Nevada sleeping under the influence laws.
What are the benefits of pleading to reckless driving in a misdemeanor DUI case in Nevada?
There are four main benefits to getting a DUI charge reduced to reckless driving:
- Lesser criminal record.
- Lesser penalties on future DUIs
- Earlier record seals
- No court-triggered license suspension
1) Lesser criminal record
Prospective employers are less likely to pass over job applicants whose background checks show reckless driving rather than DUIs. And a reckless driving conviction carries a lesser social stigma than DUI convictions do.
2) Lesser penalties on future DUIs
DUI penalties get much more severe with each successive conviction. So if a defendant's previous DUI charge was reduced to reckless driving, then it will not count against the defendant if he/she is later convicted of another DUI. Henderson criminal defense attorney Michael Becker explains:
Dan gets arrested by the Henderson Police for driving drunk in Henderson and is booked at the Henderson Detention Center for DUI. He is charged with DUI before his attorney gets it reduced to reckless driving. A year later Dan gets arrested for DUI again, but this time it does not get reduced to reckless driving and he is convicted of DUI. Even though it is his second DUI arrest, it is only his first DUI conviction. Therefore the judge sentences Dan to only first-time DUI penalties, which are significantly less harsh than second-time DUI penalties.
Had Dan in the above example never gotten his first DUI case reduced to reckless driving, his second DUI case would have been charged as a "DUI-second." Consequently, he would be sentenced to the harsher DUI-second penalties. Learn more about Nevada DUI penalties.
3) Earlier record seals
People convicted of a first- or second-time DUI in Nevada may petition the court to seal the criminal record seven years after the case has closed. In contrast, reckless driving convictions may be sealed only one year after the case is closed. Therefore, DUI cases where the charge is reduced to reckless driving allow the defendant to "wipe the slate clean" six years earlier.
Learn more about sealing a DUI record in Nevada.
4) No court-triggered license suspension
Unlike DUIs, reckless driving does not carry driver's license suspension as a penalty. However, merely getting arrested for a DUI may trigger license suspension even if the charge later gets reduced to reckless driving. This concept is explained more fully in later questions.
Can felony DUI charges be reduced to felony reckless driving charges in Nevada?
It is possible for felony DUI charges ... such as third-time DUIs or DUIs causing injury or death in Nevada ... to be reduced to felony reckless driving. Although they both carry time in Nevada State Prison, felony reckless driving criminal records may be sealed after 5 years. Felony DUI criminal records may never be sealed.
It is technically possible for a felony-level DUI to be reduced to misdemeanor-level reckless driving ... but this rarely happens unless the prosecution's case is extremely weak. Learn more about felony DUI in Nevada.
Note people charged with felony DUI may be able to attend felony DUI Court in Nevada in lieu of prison. Upon the defendant's successful completion, the charge is reduced to a misdemeanor DUI.
If a DUI charge is reduced to reckless driving in Nevada, does the judge still impose standard DUI penalties?
Yes. Judges typically make DUI defendants "pay" for getting the charge reduced to reckless driving by imposing standard DUI penalties:
The standard penalties for first-time misdemeanor DUI in Nevada are:
- 2 days to 6 months in jail or 24 hours to 96 hours of community service (however, the court typically imposes a suspended jail sentence of 6 months)
- Nevada DUI School, which is an alcohol awareness program
- Fines of $400 to $1,000 plus court costs
- A Victim Impact Panel (such as a MADD lecture)
- If the defendant was under 21 or if his/her blood alcohol content (BAC) was .18 or greater, an alcohol/drug dependency evaluation
- If the defendant's BAC was .18 or greater, an alcohol or drug abuse treatment program
- If the defendant's BAC was .18 or greater, a Breath Interlock Device in his/her car for 12 months to 36 months
For more about information go to our article on DUI 1st penalties in Nevada.
Sometimes defendants who get a DUI charge reduced to reckless driving already have a previous DUI conviction. If that past conviction was within seven years of the current case, the judge may impose the following standard second-time misdemeanor DUI penalties:
- 10 days to 6 months in jail or residential confinement
- Fines from $750 to $1,000 or community service
- A Victim Impact Panel
- An alcohol/drug dependency evaluation
- A lengthy alcohol or drug abuse treatment program (such as misdemeanor DUI Court in Nevada)
- If the defendant's BAC was .18 or greater, a Breath Interlock Device in his/her car for 12 months to 36 months
Learn more about DUI 2nd penalties in Nevada. Note that people originally charged with misdemeanor reckless driving (and not drunk driving) face up to six months in jail and/or up to $2,000 fines.
What is the process of getting a DUI charge reduced to reckless driving in Nevada?
If the prosecutor agrees to reduce the DUI charge to reckless driving, the defendant will initially plead guilty (or no contest) to DUI. If the judge accepts the plea, the judge will impose a sentence to be completed within several months. If the defendant completes the terms of the sentence, the court will adjudicate the defendant guilty of reckless driving instead of DUI.
After a Nevada DUI defendant pleads guilty to reckless driving, what happens if the defendant never completes the sentence?
The terms of the reckless driving plea bargain will be disregarded, and the judge will find the defendant guilty of DUI after all. Depending on the case, the judge may also impose penalties such as fines and jail.
Does pleading to a reckless driving prevent the defendant's driver's license from being suspended in a Nevada DUI case?
Many people do not realize that driver's licenses get suspended by the Nevada DMV and not criminal courts. Therefore the same person can be found not guilty of DUI in criminal court but still liable for DUI in the DMV. However, it is possible for DUI defendants to keep their licenses whether or not the charge gets reduced to reckless driving.
Each driver is entitled to a Nevada DMV hearing to contest a license suspension. DMV hearings are like a mini-trial where the defense attorney can present evidence and cross-examine witnesses. If the judge finds in favor of the defendant, the license will not be suspended.
Note that people arrested for a first-time DUI in Nevada face a three-month license suspension, and people arrested for a second-time DUI face a one-year license suspension, and people arrested for a third-time DUI face a three-year license suspension.
Does pleading to reckless driving in Nevada add demerit points to the defendant's driver's license?
Yes. A reckless driving conviction adds eight demerit points to the defendant's driver's license. Demerit points stay on the defendant's record for one year. If a defendant ever racks up twelve or more demerit points in a one-year period, the license will be suspended for six months.
Note that DUI defendants who plead to reckless driving will still have eight demerit points added to their driver's license even if the DMV already suspended their license for DUI. Learn more about Nevada DMV demerit points.
Is it possible for a Nevada DUI charge to be dismissed without the defendant having to plead to reckless driving?
It is possible. If the state's evidence is especially inadequate, the defense attorney may be able to convince the prosecution to drop the DUI charges completely. Then the case would be completely dismissed and the defendant would have pleaded to no other charges.
If a defendant goes to trial on a Nevada DUI charge and is convicted, can the defendant opt for a reckless driving conviction instead?
No. Once a guilty verdict is rendered in a Nevada DUI trial, there is no avenue for pleading to a lesser charge instead.
Arrested for DUI in Nevada? Call us for help...
If you have been accused of driving under the influence of drugs or alcohol in Nevada, call 702-DEFENSE (702-333-3673) to talk about your options for free. Our Las Vegas DUI defense attorneys may be able to get the charges dismissed or reduced to the lesser offense of "reckless driving."
We represent clients throughout Nevada, including Las Vegas, Henderson, Washoe County, Reno, Carson City, Laughlin, Mesquite, Bunkerville, Moapa, Elko, Pahrump, Searchlight and Tonopah.