July 1, 2020
NRS 453.411 is the Nevada law that prohibits knowingly using drugs or being under the influence of drugs. The only exceptions are taking lawfully-prescribed medications or using one ounce or less of marijuana (by adults 21 and over in a private residence). And people face under the influence charges even if there are no narcotics in their possession at the time of the arrest.
The statute states:
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 … [or] 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.
A misdemeanor. The penalty is up to 6 months in jail and/or up to $1,000 in fines.
Three common strategies to fight NRS 453.411 charges are to argue that:
- The defendant did not act knowingly (the defendant was drugged),
- The defendant had not been using, or
- The blood test was contaminated
In this article, our Las Vegas criminal defense attorneys discuss:
- 1. What is “unlawful use of controlled substances” in Nevada?
- 2. What are the penalties under NRS 453.411?
- 3. What are common defenses?
- 4. Are there immigration consequences?
- 5. Is the criminal record sealable?
It is illegal to take drugs or to be under the influence of drugs without a legal prescription. It makes no difference whether the drug use or intoxication occurs in public or private.1
However, it is now legal for adults 21 and older to possess up to one (1) ounce of marijuana in a private residence. But people who smoke marijuana at home could still be cited for NRS 453.411 if they go out in public high.2
NRS 453.411 is an entirely separate crime from driving under the influence of drugs (DUID). And people can be convicted of both DUID and unlawful drug use without violating double jeopardy laws.3
Violating NRS 453.411 is only a misdemeanor. The punishment is:
- Up to 6 months in jail, and/or
- Up to $1,000 in fines4
The following three arguments may get an NRS 453.411 charge reduced or dismissed.
- No knowledge. Only knowing drug use and intoxication is illegal in Nevada. Defendants who were slipped a drug or had a spiked drink without their knowledge committed no crime.
- No use or intoxication. Perhaps the police mistook a legal substance for a drug. Or perhaps the police wrongly believed the defendant was high. Forensic analysis and blood tests can show that the defendant did not consume any controlled substances.
- Contaminated blood test. Sometimes blood tests get contaminated in the lab and return false positives. A defense attorney may be able to show that the lab procedures used were problematic.
Prosecutors have the burden to prove guilt beyond a reasonable doubt. In many NRS 453.411 cases, there is no physical evidence: No drugs and no blood tests. If the defense attorney can show prosecutors they have insufficient evidence, the charge could be dropped.
Yes. 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. the dismiss the charge. Or else change it to a non-deportable offense such as disturbing the peace (NRS 203.010).
Yes. NRS 453.411 convictions can be sealed 1 year after the case ends. And if the charge gets dismissed, the defendant can pursue a record seal immediately.6
Everyone should seal their criminal records as soon as possible. A drug charge can jeopardize future employment, licensing, and housing prospects. Learn how to seal Nevada criminal records.
Call us 24/7 or fill out the form on this page.
In California? See our article on “Under the Influence of Drugs” laws (Health & Safety Code 11550 HS).
- NRS 453.411.
- NRS 453.336.
- Byars v. State, 336 P.3d 939, 130 Nev. Adv. Rep. 85 (2014)(Note that defendants can be convicted of DUID while not technically “under the influence” as long as drug levels in their blood exceed the legal maximum).
- NRS 453.411.
- INA § 237(a)(2)(B).
- NRS 179.245; NRS 179.255.