“2nd Time DUI” in Las Vegas, Nevada

Updated May 15, 2020

A second drunk driving charge in seven years and with no serious injuries is a misdemeanor in Nevada under NRS 484C.400. The prior case can be from any state. Penalties include 10 days in jail, a one-year driver’s license revocation, and up to $1,000 in fines. But it may be possible to get the charge reduced to reckless driving (NRS 484B.653) or full dismissal.

In this article, our Las Vegas DUI defense attorneys discuss:

• 1. Can I go to jail for a DUI-second in Nevada?
• 2. What counts as prior DUIs?
• 3. How does a DU- second affect my driver’s license and criminal record?
• 4. What are common defenses?
• 5. Can I get a DUI-second reduced or dismissed?

For information on 1st- and 3rd-time DUIs, refer to our articles on first-time DUI penalties and third-time DUI penalties.

For a broad overview of drunk driving punishments, go to our article on Nevada DUI penalties.

1. Can I go to jail for a DUI-second in Nevada?

Yes, a conviction for a 2nd offense carries a mandatory 10-day jail sentence.¹

A second-time DUI — within seven (7) years of a prior misdemeanor DUI — is also a misdemeanor; therefore, the court may order the maximum misdemeanor jail sentence of six (6) months in jail.² But in practice, judges usually impose the following penalties for a DUI 2nd conviction:

• Jail:
  • Ten (10) days in jail (the judge may allow the defendant to serve part of the time in home confinement);
• Fines:
  • $750 to $1,000 in fines plus court costs, which typically amounts to $1,100 total;
  • The judge may allow the defendant to perform 100 to 200 hours of community service in lieu of the fine;
• Rehab:
  • If the defendant’s blood alcohol content (BAC) measured 0.18 or higher, the defendant has to submit to an alcohol/drug dependency evaluation (“DUI Assessment Program), which costs $100. Depending on the results, the defendant will have to complete up to one (1) year of clinical supervision by a treatment facility;
• Victim impact panel:
  • Such as a MADD lecture;
• An order to “stay out of trouble”:
  • The defendant cannot get arrested or cited again other than for minor traffic tickets while the DUI case is open;
• Driver’s license revocation:
  • One (1) year driver’s license revocation;
  • The defendant must get SR-22 insurance for three (3) years to reinstate and keep the license;
• Ignition interlock device (IID):
  • If the defendant’s BAC measured 0.18 or higher, the court will order an IID to be installed in the defendant’s car(s) for 1 to 3 years (12 -- 36 months);
  • If the defendant’s BAC measured under 0.18, the judge will still order the IID be installed in the defendant’s car(s) for 185 days probably; and
• Probation:
  • A suspended jail sentence of six (6) months, which will be imposed only if the defendant does not complete any of the above sentencing terms³

Note that anyone arrested with BAC of at least 0.08 has to use an ignition interlock device for a time after the arrest in order to get a restricted license. It makes no difference if the DUI charge eventually gets dismissed.⁴

Note that the judge may impose a harsher penalty if the defendant was transporting a child under 15 at the time of the incident. For example, the judge may increase the fines or order more jail time.⁵

For information on DUI of under 21 drivers, click here. And for information on the penalties for failure to take a breath or blood test, click here.

1.1. Admonishment of Rights

Whenever a person enters a guilty (or no contest) plea to a second offense DUI in Nevada, he/she is required to sign an “admonishment of rights” form. (Click here for an example.) This form explains how DUI is a “priorable” offense, meaning that the penalties increase with each successive conviction within seven years.

2. What counts as prior DUIs?

Any misdemeanor DUI arrest that occurred within seven (7) years of a defendant’s current DUI arrest counts as a prior DUI. But if that prior DUI arrest did not result in a DUI conviction, it does not count as a prior DUI. So an earlier DUI arrest that ended in a reckless driving conviction cannot count as a prior DUI.⁶

The date that prosecutors use to calculate whether there are prior DUIs is the date of the arrest, not the date of the conviction or when the case ends. Henderson criminal defense attorney Michael Becker gives an example:

Example: Bernice was arrested for DUI without injuries in Las Vegas on January 1, 2018. She has two past misdemeanor DUI convictions In Nevada: the arrest for the first case was on January 1, 2008, and the arrest for the second case was on January 1, 2011.

Since the 2008 arrest occurred outside of the 7-year “washout period” (also called “lookback period”) prior to the current arrest, it does not count as a prior DUI. But since the 2011 arrest did occur within 7 years of the current arrest, it will count as a prior DUI. Therefore, Bernice will face DUI 2nd charges for the 2018 incident.

Note that Nevada law counts prior DUI convictions from any state, not just Nevada. So if the 2011 DUI conviction in the above example was from California, Bernice would still be facing a DUI 2nd charge for the 2018 arrest in Nevada.⁷

2.1. Burden of proof

If a DUI second case goes to trial, the prosecutor has to prove beyond a reasonable doubt that:

1. the defendant had a prior DUI arrest within the last seven (7) years, and
2. that DUI arrest resulted in a DUI conviction

In Nevada, a prosecutor can meet this requirement by presenting a certified docket showing the prior judgment of conviction. If the D.A. cannot produce this document, the defendant should not be convicted of DUI 2nd.⁸

2.2. “Once a felon, always a felon”

People with a prior felony DUI conviction who get arrested again for driving under the influence automatically face felony DUI charges. It does not matter if the current DUI case caused no injuries, or if the prior DUI conviction was more than seven (7) years earlier.⁹ Therefore, it is critically important that anyone facing felony DUI charges hire counsel in an attempt to get the charges lessened or dismissed.

3. How does a DUI-second affect my driver’s license and criminal record?

Every DUI second arrest creates two (2) separate cases that function independently of one another:

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

3.1. Driver’s License

People arrested for a second-time DUI face a one (1) year driver’s license revocation by the Nevada DMV. Restricted licenses are not available.¹⁰

If the driver has a commercial driver’s license (CDL), the CDL will be revoked for life. It makes no difference if the defendant was driving his/her own car during the incident.¹¹

Defendants whose licenses got revoked for a DUI second may have to pay the following fees to reinstate the license:¹²

3.1.1 DMV Hearings

When a driver’s breath or blood test returns a BAC of at least .08, the suspect is given a temporary driver’s license good for seven (7) days. If the defendant decides not to demand a DMV hearing to contest the revocation, the revocation will start after the temporary license lapses. If the defendant does demand a DMV hearing, the revocation will not occur unless the DMV judge finds against the defendant.

DMV hearings are actually harder to win than criminal trials. This is because the state has a much lower burden of proof in DMV hearings. But it is still a possibility to prevail in a DMV hearing if the state’s case is weak, or if the arresting officer neglects to show up to the hearing.

Note that DUI defendants who win their DMV hearing may still have their license revoked if they ultimately get convicted of DUI 2nd in criminal court. Therefore, the only way to avoid a driver’s license revocation is by 1) winning the DMV hearing, and 2) not getting convicted of DUI 2nd.¹³

3.2. Criminal record

DUI arrests and convictions go on the defendant’s criminal record, which means they come up in background checks. 2nd time DUI defendants have to wait seven (7) years after the case closes to ask the court to seal the record.¹⁴

However, the waiting period is only one (1) year If the DUI charge gets reduced to reckless driving.¹⁵ And if the DUI charge gets dismissed…or the defendant is acquitted at trial…then the defendant can pursue a record seal right away.¹⁶

Note that the record seal process is confusing, complicated, and can take weeks. It is recommended to hire an attorney to handle record seals.

4. What are common defenses?

Just some of the many available DUI defenses include:

• Police mistakes:
  • The officer did not administer the field sobriety tests correctly, including the walk and turn test, one leg stand test, and horizontal gaze nystagmus test. The National Highway Transportation Safety Administration (NHTSA) has strict instructions on how to carry out these tests, and some cops lack training.¹⁷
• Medical conditions:
  • An elevated BAC can be caused by various physical conditions that have nothing to do with being under the influence. Examples of these medical conditions include:
    • GERD
    • acid reflux
    • heartburn
    • auto-brewery syndrome
    • diabetes
    • hypoglycemia
    • low-carbohydrate diet
    • mouth alcohol
    • dentures or other orthodontic devices¹⁸
• Rising blood alcohol:
  • When a person drinks, his/her BAC level continue to rise long after he/she stops drinking. And there is typically an hour or two lag-time between when a person gets stopped for DUI and when he/she gets tested. This means people may have a legal BAC while driving but will register an illegal BAC later during the chemical test. All that matters is the BAC level while driving.¹⁹
• Faulty chemical test equipment:
  • Blood-testing equipment and breath-testing equipment like the Intoxilyzer 5000 EN breathalyzer can be defective. And they will fail unless they are properly maintained.
• Lapsed certification:
  • Lab technicians sometimes forget to renew their certification. Any lab work they do while uncertified should be invalid.
• No probable cause:
  • If the police did not have reasonable grounds to believe a crime was being committed when they initiated the traffic stop, the case should be dismissed.

The most effective methods of fighting DUI charges always turns on the facts of the case. In order to craft a defense, the defendant’s lawyer will thoroughly investigate everything from why the cop targeted the defendant, how the cop carried out the arrest, who determined the BAC, and whether any witnesses saw the incident.

When investigating a case, the defense attorney often relies on the police report, witnesses, video (surveillance, dashcam, or smartphone), medical records, and testimony by expert witnesses.

5. Can I get a DUI second reduced or dismissed?

It is possible for a DUI to get lessened to reckless driving or a full dismissal. But the Nevada D.A. may not reduce or drop a DUI case unless the state’s evidence is clearly deficient.²⁰ Consequently, the defense attorney’s mission is to convince the D.A. that a trial would return a “not guilty” verdict, and that a favorable plea bargain is in everyone’s favor.

5.1. Dismissal

A defense attorney’s first goal is to try to get the entire DUI case dismissed, though this is rare. Prosecutors do not dismiss DUI charges unless the evidence shows that the defendant was not impaired and had legal BAC levels.

5.2. Reckless Driving

A defense attorney’s next — and often more obtainable — goal is to get the DUI charge reduced to a reckless driving charge.²¹ Prosecutors are usually willing to allow this when the police made a procedural error, such as not administering a preliminary breath test.²²

The penalties may still be the same as a standard DUI second, but the long-term consequences are beneficial in four ways:

1. Having a reckless driving conviction will not count as having a previous DUI. This means that if the defendant is convicted of a new DUI, he/she will face lesser penalties.
2. Pleading to reckless driving keeps the defendant’s criminal record more desirable to future employers. Bosses do not look down on reckless driving convictions as much as they do DUIs.
3. Unlike DUIs, a reckless driving conviction does not trigger automatic license revocation. But note that it does tack on eight (8) demerit points to the defendant’s driver’s license.²³
4. The waiting period to get a reckless driving conviction sealed from the defendant’s criminal record is only one (1) year. DUI convictions mandate a seven (7) year waiting period to seal.²⁴

If the case is in Clark County, it may be possible to plea bargain a DUI second charge down to “careless driving.” It is like reckless driving, but it carries just six (6) demerit points instead of eight (8).²⁵

5.3. Misdemeanor DUI Court (rehab)

Defendants with a drinking problem may apply to do Misdemeanor DUI Court (aka the Moderate Offenders Program). If the defendant completes the program successfully, the DUI conviction should be reduced to a less serious offense like reckless driving. And participants have to do only five (5) days in jail rather than ten (10) days.

The length of DUI Court is about one (1) year, and the defendant has to pay all costs (which can be thousands). Just some of the requirements include counseling, house arrest, court appearances, random alcohol testing, and having to wear a SCRAM anklet.²⁶

5.4. Trial

If the prosecution refuses to extend a good offer, the defendant may wish to explore going to trial. The D.A. has the burden to prove guilt beyond a reasonable doubt, which is a high standard.

However, DUI 2nd defendants may have just a bench trial (where the judge determines the verdict), not a jury trial.²⁷ And historically, juries are more likely to hand down a “not guilty” verdict than judges.

Call us if you have been arrested . . . .

If you have been accused of a second DUI in Nevada, phone our Las Vegas criminal defense lawyers. We can speak with you for free regarding the odds of getting your case reduced to a lesser offense or dismissed completely. And if you wish, there is always the option of taking your matter to trial.

Arrested in California? See our article on DUI 2nd in California.

Arrested in Colorado? See our article on DUI 2nd in Colorado.

Legal References: