“3rd DUI” in Nevada – A Game Plan for Fighting It

A third-offense DUI in Nevada is prosecuted as a category B felony (even if there is no accident or injuries). Offenders are not eligible for probation. The penalties include a mandatory 1 to 6 years in state prison and fines ranging from $2000.00 to $5000.00.

But defendants who complete Felony DUI Court may be able to avoid prison and get the charge reduced to a misdemeanor DUI-2nd.²

The standard penalties for a DUI-3rd conviction 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 and possibly rehab; and
• A three-year driver’s license revocation (with the possibility of a restricted license after 1 year)

Then once the defendant is out of custody, he/she will need to keep a breath interlock device in his/her car for one to three years. ^{1 2 3}

1. What is a third-time DUI in Nevada?

Defendants face DUI-third charges if:

1. They get arrested for a DUI without causing serious injuries or death; and
2. They have two prior DUI convictions from any state in the past seven years

This seven-year time span is called a “lookback” or “washout” period.

DUI is short for “driving under the influence.” It occurs when either:

• the defendant’s driving is impaired by alcohol or drugs;
• the defendant has a blood alcohol content (BAC) of at least 0.08%; or
• the defendant has illegal quantities of certain drugs in his/her system⁴

Drivers who plead guilty or no contest to a DUI-3rd sign an “admonishment of rights” form. It explains that any future DUI arrests will be charged as felonies even if they cause no injuries. (To see an example form, click here.)

2. Will I lose my license?

The Nevada DMV will revoke a defendant’s license for three years following a DUI-third arrest. But it may be possible to get a restricted license after one year.⁵ For a restricted license application, click here.

Even if the case gets dismissed in criminal court, the DMV can still suspend the defendant’s license. But his/her attorney may try to contest this license suspension at a DMV administrative hearing.

Once the three-year revocation period is over, the defendant may have to take another driving test and pay various fees.⁶

Nevada DMV penalties	Fees
Victims Compensation Civil Penalty	$35
Driver’s License	$42.24
Testing fee	$26
Reinstatement fee	$121

The defendant will also have to maintain SR-22 insurance for three years even if he/she does not own a vehicle. Learn more about driver’s license revocations for DUI-thirds in Nevada.

3. How do I fight the case?

Nevada prosecutors are prohibited from reducing or dismissing DUI charges unless they have inadequate evidence.⁷ So the defense attorney’s job is to show prosecutors that their evidence is too weak to support a conviction.

There are many potential DUI defenses. The facts of each case dictate which strategies would be most effective. Possible defenses include the following:

• Lack of probable cause: The case may be dismissed if the arresting officer had no reasonable grounds to suspect criminal activity when the defendant was pulled over.
• Police mistake: Police must follow detailed instructions when administering the field sobriety tests. The results could be voided if the officer did not follow the rules of the National Highway Transportation Safety Administration (NHTSA).⁸
• Medical condition: Certain medical conditions can cause inaccurately high BAC results. Examples include:
  • GERD
  • acid reflux
  • heartburn
  • auto-brewery syndrome
  • diabetes
  • hypoglycemia
  • low-carbohydrate diet
  • mouth alcohol
  • dentures or other orthodontic devices
• Rising blood alcohol: People’s BAC rises after they stop drinking. So people’s levels may be legal while they are driving but then peak hours later when they get tested. People commit no crime as long as their levels are legal while they are driving.
• Faulty chemical test equipment: The Intoxilyzer 5000 EN breathalyzer and blood testing equipment may be defective or in disrepair. Any BAC results from broken equipment are void.
• Lapsed certification: Only certified technicians may maintain breathalyzers and read blood samples. If they let their licenses lapse, their lab results could be voided.

Most drunk or drugged driving cases resolve with a plea bargain. But some defendants may choose to go to trial in hopes of winning an acquittal.

Defendants may request a bench trial (where the judge decides the verdict) or a jury trial. Jury trials take longer. But juries are usually more sympathetic to the defendant than judges.

4. Can I do DUI Court instead of prison?

Yes, if the defendant gets accepted into Felony DUI Court (also called Serious Offenders Program). This is an intensive three-to-five-year rehabilitation program. It typically involves:

• periods of home confinement
• alcohol and drug testing
• wearing a SCRAM alcohol-detection anklet
• rigorous counseling
• court monitoring

If the defendant completes the program, the DUI-third charge will be reduced to a DUI-second — a misdemeanor in Nevada.⁹

5. Can I seal my record?

Criminal records of third-time DUI convictions may never be sealed. But DUI-third charges that get plea bargained down or dismissed can be.¹⁰

Nevada DUI conviction	Record Seal Wait Time
DUI 3rd	Never
DUI 1st or DUI 2nd	7 years after the case closes
Reckless driving (NRS 484B.653)	1 year after the case closes
Dismissal (no conviction)	Immediately

Learn more about how to seal DUI records in Nevada.

6. Can I keep my gun?

Defendants convicted of a third-time drunk or drugged driving charge in Nevada may not keep their firearms. The only way convicted felons may get gun rights restored is through a governor’s pardon.

7. Can I get deported?

Driving under the influence is not typically deportable. It is not a crime involving moral turpitude or an aggravated felony.

In the current climate, however, any non-citizen facing felony charges is vulnerable to removal proceedings. Learn more about the criminal defense of immigrants in Nevada.

Call us for help…

Accused of driving under the influence in Nevada? Call our Las Vegas criminal defense lawyers.

We can consult with you free of charge about how best to craft a successful defense and whether you are eligible for the Serious Offenders Program. Perhaps we can get the charge reduced or dismissed.

Also see our article Four ways DUI can be a felony in Nevada and fourth-time DUIs.

Arrested in California? See our article on DUI 3rd in California.

Arrested in Colorado? See our article on DUI 3rd in Colorado.

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