A third-time DUI arrest is prosecuted as a category B felony in Nevada even if no one was hurt. The penalties include:
- 1 to 6 years in Nevada State Prison;
- $2,000 to $5,000 in fines;
- Victim Impact Panel attendance;
- an alcohol/drug dependency evaluation;
- a Nevada breath interlock device in the defendant's car for 1 - 3 years; and
- a 3-year driver's license revocation (with the possibility of a restricted license after 1 year)
Like it sounds, a third offense DUI is when a driver gets a third DUI arrest within a 7-year time span. People may be prosecuted for DUI if:
- their driving is impaired by alcohol or drugs;
- they have a blood alcohol content (BAC) of 0.08 or more ("DUI per se"); or
- blood tests reveal excessive quantities of drugs in their system ("DUI of drugs"). Examples include DUI of prescription drugs or DUI of marijuana.
In summary, it is unlawful in Nevada for someone to operate a motor vehicle while drunk or high. Even if the driver is driving safely, it is still a crime to drive if his/her blood contains too much alcohol or narcotics.
Criminal records of third time DUI may never be sealed. But it may be possible to plea bargain a DUI third down to a DUI second, which can be sealed after 7 years. Or it may be possible to get the charge dismissed or reduced to reckless driving, which can be sealed after only 1 year.
There are dozens of ways to challenge DUI allegations, even felonies. And many of these defense strategies have to do with police misconduct and other failures by law enforcement. A defense attorney would investigate every aspect of the DUI case to find every possible avenue of weakening the state's case.
In this article, our Las Vegas DUI defense attorneys discuss:
- 1. DUI 3rd Penalties
- 2. How prior offenses are established
- 3. Effect on criminal and DVM records
- 4. Common DUI defenses
- 5. Plea bargains and possible outcomes in court
For a discussion of drunk driving punishments in general, go to our article on Nevada DUI penalties. Also refer to our article on the Nevada crime of felony DUI based on prior convictions.
Yes. A third DUI conviction within seven years of the first one is a category B felony in Nevada even if nobody was injured from the incident. The penalties include:
- $2,000 to $5,000, plus court costs;
- One to six (1 - 6) years in prison. This offense is not eligible for probation;
- The defendant must take an alcohol/drug dependency evaluation ("DUI Assessment Program), which costs $100. Depending on the outcome, the defendant may be ordered to do a rehabilitation program;
- Attendance at a Victim Impact Panel, such as a MADD lecture. This usually costs the defendant approximately $40;
- Driver's license revocation:
- Three (3) year driver's license revocation;
- The defendant needs to maintain SR-22 insurance for three (3) years in order to reinstate and keep his/her driver's license;
- Ignition interlock device (IID):
- Once the defendant is out of prison, the defendant must install and maintain IIDs in all his/her cars for 12 to 36 months.
- Anyone arrested for DUI on or after October 1, 2018, with BAC of 0.08 or more will have to use an IID for 90 days following the arrest. This rule applies even if the charge ultimately gets dropped.
If there was a child under 15 in the vehicle at the time of the DUI arrest, the judge may impose harsher punishments. Examples include a higher fine or more prison time.
1.1. Admonishment of Rights
When a driver pleads guilty (or no contest) to a DUI 3rd in Nevada, he/she is required to sign an "admonishment of rights" form. (Click here to see an example.) This document explains that any future DUI arrests will be charged as felonies even if they caused no injuries.
Any DUI arrests that happened within seven (7) years of a defendant's current DUI arrest qualifies as a prior DUI. But if that earlier DUI charge did not end with a DUI conviction, it does not qualify as a prior DUI. Consequently, an earlier DUI charge that was reduced to a reckless driving conviction is not considered a prior DUI.
The dates that the D.A. uses to calculate whether prior DUIs exist are the dates of the arrest. Henderson criminal defense attorney Michael Becker provides an example:
Example: Greta was arrested for DUI in Las Vegas on January 1, 2018. She has two past misdemeanor DUI convictions on her record: The arrest for the first incident occurred on January 1, 2013, in California, and the arrest for the second incident occurred on January 1, 2011, in Nevada.
Since both previous arrests happened within the 7-year "lookback period" (also called "washout period") prior to the 2018 arrest, they both count as prior DUIs. Consequently, Greta will face DUI 3rd charges for the 2018 incident.
Note that it does not matter in the above example that one of the prior convictions was from California. Nevada law recognizes previous DUI convictions from any state, not only Nevada.
2.1. Burden of proof
If a DUI third defendant goes to trial, the D.A. has to prove beyond a reasonable doubt that:
- the defendant had two prior DUI arrest within the last seven (7) years, and
- those DUI arrests ended with DUI convictions
The court will consider a "certified docket showing the prior judgment of conviction" as sufficient evidence of a prior DUI. If the prosecutor is unable to produce this documentation, the court should not find the defendant guilty of DUI 3rd.
2.2. Past felony DUIs
Once a person gets convicted of felony DUI, any future DUI arrests will be prosecuted as a felony as well. It does not matter if there were no injuries, or if the prior felony DUI arrest happened more than seven (7) years earlier. For this reason, anybody facing felony DUI charges should retain an attorney to fight to get the charges lessened or dropped.
Once a person gets arrested for DUI third, two cases begin that are distinct from each other:
- A Nevada DMV case, which may result in a three (3) year license revocation, and
- A Nevada criminal case, which may result in a felony DUI conviction that cannot be sealed
3.1. Driver's License
The DMV imposes a three (3) year driver's license revocation on people arrested for a third-time DUI. After one (1) year, the defendant may be eligible for a restricted license. Click here for the restricted license application.
And once the revocation is over, the defendant may have to take another driving test and pay the following fees:
Nevada DMV penalties for 1st time DUI
Victims Compensation Civil Penalty
3.1.1 DMV Hearings
Whenever a DUI suspect's breath or blood test results in a BAC of .08 or higher, the suspect is granted a temporary driver's license good for seven (7) days. If the defendant decides not to request a DMV hearing to argue against the revocation, the DMV will revoke the license after the seventh day. If the defendant does ask for a DMV hearing, the DMV will postpone the revocation pending the hearing's outcome.
DMV hearings are not easy to win. This is because DMV judges need much less evidence than criminal judges to find against the defendant. But there are still ways to be successful in a DMV hearing if the state's evidence has mistakes or if the arresting officer is a no-show.
Even when DMV judges rule in the defendants' favor, the DMV will still revoke their licenses if they ultimately get convicted of DUI 3rd in criminal court. Therefore, 3rd offense DUI defendants will get their license revoked unless they can 1) get the DUI charge reduced to reckless driving or dismissed, and 2) win the DMV hearing.
3.2. Criminal Record
If a person gets convicted of a third-time DUI, his/her criminal record will show the arrest and conviction. And prospective employers will see this record if they run a background check.
Unfortunately, felony DUI convictions in Nevada may not be sealed from criminal records.
But if the defense attorney can succeed in getting the DUI 3rd charge reduced or dismissed, the case then becomes sealable:
Nevada DUI plea bargain
Record Seal Wait Time
DUI 1st or DUI 2nd
7 years after the case closes
1 year after the case closes
The process of getting a record seal is slow, time-consuming, and frustrating. People are advised not to undertake this process themselves and instead to hire an attorney to take care of it.
The best way to fight DUI charges depends on the unique circumstances of the case. The defense attorney will often find one or more strong defenses by scouring the police report, eyewitness testimony, any available photographs and videos, the defendant's medical records, and expert witness testimony.
A sampling of the many possible DUI defenses include:
- Lack of probable cause:
- The case should be dismissed if the arresting officer had no reasonable grounds to suspect criminal activity when he/she pulled the defendant over.
- Police mistake:
- There are detailed instructions law enforcement must adhere to when administering the walk and turn test, one leg stand test, and horizontal gaze nystagmus test. The results of these "field sobriety tests" should be voided if the arresting officer did not follow the rules of the National Highway Transportation Safety Administration (NHTSA).
- Medical condition:
- Certain medical conditions can cause inaccurately high BAC results. Examples include:
- Rising blood alcohol:
- When a person consumes alcohol, his/her BAC can still rise hours after he/she quits drinking. Since there is a one-to-two hour window between when DUI suspects are pulled over and when they are tested, it is possible that the suspects' BAC will rise during that interval. And if the defense attorney can argue that the suspect's BAC was still legal while he/she was driving, the suspect committed no crime.
- Faulty chemical test equipment:
- The Intoxilyzer 5000 EN breathalyzer and blood testing equipment are sometimes defective or fall into disrepair. Any BAC results from broken equipment should be voided.
- Lapsed certification:
- Only certified technicians may maintain breathalyzers and read blood samples. If they let their licenses lapse, their lab results should be voided.
Perhaps, depending on the case. But Nevada law forbids prosecutors from reducing or dismissing DUI charges unless they clearly have inadequate evidence to obtain a guilty verdict.
And by the time a defendant is on his/her third DUI, prosecutors are not anxious to plea bargain. However, it may possible to get a lesser charge and skip prison through the DUI court program.
5.1. Felony DUI Court (rehab)
Some defendants who are accused of a third DUI can avoid prison by participating in Felony DUI Court (also known as the Serious Offenders Program). Upon completion of this three to five (3 - 5) year rehabilitation program, the felony DUI 3rd charge may be reduced to a misdemeanor DUI 2nd.
Felony DUI Court requires frequent court appearances and counseling and costs thousands of dollars. The program includes rigorous counseling, court monitoring, alcohol testing, wearing a SCRAM anklet, and other terms.
Most DUI cases resolve with a plea bargain. But some defendants may choose to go to trial in hopes of winning an acquittal.
Call us if you are facing charges . . . .
If you have been accused of a DUI third in Nevada, call our Las Vegas criminal defense lawyers at 702-DEFENSE (702-333-3673). We can consult with you free of charge about how best to craft a successful defense and whether you are eligible for DUI Court. Or perhaps we can get the charge reduced or dismissed.
Arrested in California? See our article on DUI 3rd in California.
NRS 484C.400 Penalties for first, second and third offenses; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.
1. 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.
3. 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.
4. Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.410 or 485.330 must run consecutively.
5. 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.
- NRS 483.460.
- NRS 484C.460.
- SB 259 (2017).
- NRS 484C.400; in legalese, driving drunk or high with a child is an "aggravating factor" that courts consider when determining the defendant's sentence.
- NRS 484C.110.
- See NRS 175.191; see Prior Convictions in Impaired Driving Prosecutions, American Prosecutors Research Institute ("The prosecution must prove the prior conviction to the trier of fact beyond a reasonable doubt. Simply holding up the records of the prior conviction will not be sufficient. Evidence of the prior conviction must be introduced."); see e.g. Florida v. Harbaugh, 754 So. 2d 691 (2000).
- NRS 484C.110.
- NRS 483.460.
- See Nevada DMV License Suspensions and Revocations.
- NAC 484C.894; NRS 484C.230; NAC 483.200.
- NRS 179.245.
- Id.; NRS 179.255.
- See Impaired Driving, NHTSA.
- See Challenges and Defenses II, The National Traffic Law Center.
- NRS 484C.420.
- NRS 484C.340.
- Sixth Amendment.