First Time DUI in Nevada – 4 Key Things to Know

A first-offense DUI conviction in Nevada typically results in 2 days to 6 months in jail or 48 to 96 hours of community service, a fine of $400 to $1,000 plus court costs, and a license revocation of 185 days, as well as mandatory attendance of DUI school and a victim impact panel. The penalties can vary depending on the circumstances of the case.

It is often possible to convert the jail time to community service and the license revocation to a restricted driver’s license with an ignition interlock device. It may also be possible to get the DUI charge reduced or dismissed.

The penalties increase if

• the motorist has prior DUI convictions within 7 years,
• the motorist causes an accident in which someone is injured or killed,
• the BAC is measured at .18 or higher, or
• the motorist is under 21 years of age.

Definition

A DUI first is when someone gets charged for operating a motor vehicle 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.

Record seal

First offense DUI offenders 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 dismissal or reckless driving (NRS 484B.653), which can be sealed after only 1 year.

Defenses

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. Can I go to jail for a DUI first in Las Vegas, Nevada?
• 2. What happens to my driver’s license and criminal record?
• 3. How can a defense attorney help?
• 4. Can I get a first time DUI reduced or dismissed?

For information on successive charges in Nevada, go to our articles on second-time DUI penalties and third-time DUI penalties.

For a general overview, go to our article on Nevada DUI penalties.

In this article, our attorneys will discuss 4 key things to know about dealing with a 1st DUI charge in Las Vegas:

1. Can I go to jail for a DUI first in Las Vegas, Nevada?

It is possible but unlikely. A judge has the discretion to 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:

• Fines:
  • $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;
• Classes:
  • 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:
  • 185-day driver’s license revocation by the Department of Motor Vehicles (DMV), but defendants may be able to get a restricted license right away with a breath interlock device;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:⁴
  • The court will order that the defendant install an ignition interlock device in each of his/her cars for at least six (6) months;
  • The defendant pays for installation and maintenance of the devices;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 case. As long as seven (7) years have passed between the previous and current arrest dates, the defendant’s current 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.

Example: Greg was convicted of DUI 1st in California following an arrest on January 1, 2018. Then on January 1, 2020, Greg was arrested for driving under the influence of alcohol in Henderson, Nevada. Since the previous drunk driving 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.

Read about laws for drunk drivers under 21.

1.1. A BAC of .18 or higher

If the defendant’s blood alcohol concentration was 0.18 or greater at the time of intoxicated driving arrest, the judge will also order these additional penalties:

• an alcohol/drug dependency evaluation (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

Read about the penalties for refusing to give consent to take a breath or blood test.

1.2. Admonishment of Rights

If a defendant pleads guilty (or no contest) to 1st offense of operating a motor vehicle under the influence in Nevada, the court will require that he/she sign an “admonishment of rights” form. (Click click here for an example.) This document outlines how driving under the influence 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 intoxicated driving incident involved no injuries, or if the previous intoxicated driving arrest occurred more than seven (7) years ago. “Once a felon, always a felon.”⁹

2. What happens to my driver’s license and criminal record?

Every DUI first offense arrest opens two separate cases that operate independently of each other:

1. A DMV case, which may result in license revocation, and
2. A criminal case, which may result in a DUI conviction that stays on the defendant’s record for seven (7) years.

2.1. Driver’s License

The DMV imposes a 185-day driver’s license revocation on people arrested for first-time drunk driving.¹⁰

Note that commercial drivers arrested for driving under the influence 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 drunk driving 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	$35
Reinstatement fee	$121

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 driving under the influence in criminal court. So the only way to avoid 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 drunk driving defendant may be eligible to apply for a “restricted license” right away if 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. All other driving privileges remain suspended. Click here for the restricted license application.¹⁴

2.2. Criminal Record

Once a person gets arrested for violating Nevada DUI laws, 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.

• Driving under the influence. People convicted of first-time drunk driving 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 drunk driving charge gets reduced to reckless driving, the waiting period to pursue a record seal is only one (1) year after the case closed.¹⁶
• Dismissal. And if the drunk driving charge gets totally dismissed – or if the defendant is found “not guilty” at trial – there is no waiting period to pursue a record seal.¹⁷

The record seal process can take several weeks and involves a lot of paperwork and back-and-forth with the district attorney. Defendants are advised to hire a criminal defense attorney to handle the long and complicated process.

3. How can a defense attorney help?

DUI lawyers are experienced in fighting criminal charges for operating a vehicle under the influence. Three common DUI defenses include:

1. Poorly administered field sobriety tests;
2. Defendant’s physical condition caused inaccurate BAC result; and/or
3. 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 officers often lack NHTSA training. And they make critical mistakes when giving instructions and rating the suspect’s performance. If a DUI 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:

• GERD
• acid reflux
• heartburn
• mouth alcohol
• diabetes
• hypoglycemia
• 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.

Drunk/drugged driving charges apply only when a driver has illegal BAC levels while in actual physical control of the vehicle, not later on. If an attorney can show that the defendant’s high BAC was due to rising blood alcohol, the drunk/drugged driving 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 drunk driving 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 drunk driving cases includes the police report, eyewitnesses, surveillance video, medical records, and expert testimony.

4. Can I get a first time DUI reduced or dismissed?

Depending on the case, a first time case of intoxicated driving may be reduced to reckless driving or dismissed. However, Nevada prosecutors are prohibited from pleading down charges for driving under the influence unless a guilty verdict is obviously unattainable.²¹ Therefore, the DUI lawyer’s job is to convince the prosecutors that their evidence is too inadequate and unreliable to sustain a conviction.

4.1. Dismissal

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 drunk driving charge 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 first-time drunk driving conviction (see section 1 above for the punishments). However, getting a reckless driving conviction is far preferable than a drunk driving conviction for four reasons:

1. If the defendant ever gets arrested for driving under the influence again, the reckless driving conviction will not count as a previous DUI conviction. Therefore, the defendant will face prosecution for only a first-time drunk driving and not a second-time drunk driving, which carries much harsher penalties.
2. Having a reckless driving conviction carries less of a social stigma than having a drunk/drugged driving conviction. Therefore prospective employers are less likely to pass over people for a job if they have only a reckless driving conviction.
3. A reckless driving conviction does not cause an automatic license revocation like a first-time drunk driving conviction does. However, it will add eight (8) demerit points to the defendant’s driver’s license.²⁴
4. The waiting time to seal a reckless driving conviction is only one (1) year after the case ends. The drunk driving record seal waiting time is seven (7) years.²⁵

Note that drunk driving 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

4.4. Trial

Drunk driving 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 drunk driving cases 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 cases, and experience has hardened them.

See our related article, What is the difference between DWI and DUI in Nevada?

Arrested in California? See our article on first-time drunk driving in California law.

Arrested in Colorado? See our article on first-time drunk driving in Colorado law.

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