Definition
Nevada law treats a DUI of prescription medication the same as a DUI of alcohol, even if the medication was lawfully prescribed. The only difference is that, with DUI of drugs, you are required to submit to a blood test instead of a breath test.
The punishment for DUI includes fines, classes, and driver’s license revocation. Depending on the case, it may be possible to get the charge reduced to reckless driving or even completely dismissed.
Penalties
A first-time DUI of prescription meds is a misdemeanor, carrying:
- A maximum fine of $1,000 plus court costs;
- Nevada DUI School;
- Victim impact panel;
- A driver’s license suspension of 185 days for a first DUI (though it may be possible to drive right away with an ignition interlock device) and
- A 7-year waiting period to seal the DUI criminal record
The sentence grows harsher with each successive DUI conviction within a 7-year period. A DUI causing serious injury or death is a category B felony, carrying $2,000 to $5,000 in fines and 2 to 20 years in Nevada State Prison.
Defenses
Three of the several possible arguments to fight charges of “DUI of prescription drugs” include:
- The blood tests were inaccurate.
- You did not ingest the drugs until after you stopped driving.
- The police lacked probable cause to stop you.
Note it is not a defense that:
- you had a valid and current doctor’s prescription,
- the drug is FDA-approved, or
- you had an unexpected physiological reaction to the drug.
On this page, our Las Vegas DUI attorneys discuss:
- 1. What is DUI of prescription drugs?
- 2. Can I go to jail?
- 3. Can I get the charge reduced or dismissed?
- 4. Will I lose my license?
- 5. How do I fight the charges?
- 6. When can I seal the case?
- 7. Can I be deported?
- Additional reading
Anyone in Clark County suffering from prescription drug abuse is encouraged to reach out to Southern Nevada Area Narcotics Anonymous.
Nevada law treats driving under the influence of prescription drugs the same as driving under the influence of alcohol.
1. What is DUI of prescription drugs?
It is a crime in Nevada to drive under the influence of prescription drugs. Even if you were prescribed the drug, operating a motor vehicle (including motorcycles) while intoxicated by prescription drugs is just as illegal as driving while intoxicated by alcohol.1
Example: Greg is an insomniac who has a prescription for Ambien to help him sleep. One evening he takes a pill just before getting a call from his boss instructing him to rush to the Henderson office for an emergency meeting. He makes himself some strong coffee in an effort to fight off his sleep deprivation and hops into the car.
But on the way to the office the Ambien kicks in, and he begins nodding off and swerving erratically. If a police officer catches him, Greg could be arrested and booked at the Henderson Detention Center for driving under the influence of a prescription drug.
In the above scenario, it is irrelevant that Greg is not a drug addict. Nor does it matter that he tried to counteract the sedative with caffeine. Just his action of taking the wheel while being affected by sleeping pills qualifies as DUI in Nevada.
Prescription drugs that impair driving
Three main categories of prescription drugs may cause you to be impaired. These include:
| Type of Prescription Drug that may impair driving | Examples |
| Sedative-hypnotics |
See our related article on DUI of Ambien and Lunesta in Nevada. |
| Anti-anxiety | |
| Narcotic analgesics (painkillers) |
See our related article on DUI of prescription painkillers. |
While prescription medicines can be lifesavers, they can slow your body’s functions and inhibit your ability to drive safely. Common side effects of prescription medications include:
- Fatigue and drowsiness
- Lightheadedness, dizziness, or fainting
- Weakness
- Breathing difficulties
- Nausea or gastric distress
- Prolonged reaction times
- Lack of coordination
- Unsound judgment and delayed cognition
- Sleep driving, where the driver is literally unconscious while driving and cannot remember having driven when you wake up
Sometimes, doctors and pharmacists fail to inform you that a certain drug could impair your driving. So, if you are on a prescription medication, you are advised to consult with your provider and inquire as to whether it is safe to drive after taking the drug.
Note that some over-the-counter (OTC) medications may also be hazardous to take before driving, such as Unisom. Driving under the influence of an OTC drug still subjects you to DUI prosecution. So, always read the drug’s label and warnings before taking the wheel.
DUI of amphetamines and marijuana in Nevada
It is also “DUI of prescription drugs” in Nevada to drive with unlawful amounts of prescription marijuana (only for 3rd-or-successive DUI cases) or amphetamines (such as Adderall) in one’s blood (for any DUI cases).
| Prescription drug |
Illegal blood content while driving (in nanograms per milliliter) |
| Amphetamine | 100 |
| Marijuana (only for 3rd-or-successive DUI cases) | 2 |
| Marijuana metabolite (only for 3rd-or-successive DUI cases) | 5 |
Therefore, if you have too much amphetamine in your blood, you may be convicted of DUI even if you are driving safely.2 It does not matter if you have a valid and current prescriptions for amphetamines.
Driving impaired by marijuana is illegal no matter how much marijuana is in your blood. If you have two or more past DUIs, then you can be arrested for DUI just for having illegal amounts of marijuana in your blood – even if you are not impaired.
Blood tests for “DUI of prescription drugs” cases in Nevada
When a Nevada police officer pulls you over on suspicion of driving under the influence, the officer will ask you to take a preliminary breath test (PBT) and to perform the following field sobriety (FTS) tests:
If you take the tests and pass them, the officer may suspect that you are under the influence of not alcohol but rather drugs. (You can refuse to submit to the PBT and FTSs, but officers interpret a refusal as evidence you have something to hide. Plus, refusing to take the PBT will cause the police to confiscate your license under NRS 484C.150.)
At this point, an officer with special training in drug recognition evaluation (DRE) may be called to take over the investigation. If the officers decide to arrest you for DUI of drugs, you will be required to submit to a DUI blood test.
Under Nevada law, all drivers arrested for DUI give “implied consent” to submit to a chemical test (such as a blood test). If you refuse to take the blood test, the officers must get a warrant. Then the officers may use “reasonable force” to constrain you to get the blood sample.3
Note that you may at your own expense choose a phlebotomist of your own choosing to administer the blood draw.4
Also, note that refusing to take a DUI blood test can be used as evidence against you at trial. The Nevada DMV will also revoke your license for one (1) year.5
2. Can I go to jail?
The standard punishments for “DUI prescription drugs” in Nevada are the same as for drunk driving and driving under the influence of illegal narcotics.
The sentence gets harsher with each successive DUI within the past seven (7) years.6 Plus a DUI incident that causes a victim to sustain substantial bodily harm is an automatic felony:7
| “DUI of prescription drugs” offense in Nevada | Penalties |
| DUI 1st (in 7 years) | Misdemeanor:
Learn more about DUI first penalties. |
| DUI 2nd (in 7 years) | Misdemeanor:
Learn more about DUI second penalties. |
| DUI 3rd (in 7 years) | Category B felony:
Learn more about DUI third penalties. |
| DUI causing serious injury or death | Category B felony:
Learn more about felony DUI penalties. |
Note that if you have three (3) or more previous DUI convictions, then a DUI incident causing death will be prosecuted as vehicular homicide.8 The prison term for vehicular homicide is either:
- 25 years with the possibility of parole after 10 years; or
- Life with the possibility of parole after 10 years
Learn more in our article on Nevada DUI penalties.
3. Can I get the charge reduced or dismissed?
In some circumstances, your defense attorney may be able to persuade the D.A. to reduce a charge of “DUI prescription drugs” down to reckless driving. There are three advantages to having a conviction for reckless driving rather than for DUI prescription drugs:
- Reckless driving carries less of a social stigma than DUI, and it does not look as troubling to employers on background checks.
- Reckless driving convictions can be sealed from your criminal record only one (1) year after the case is closed. In contrast, DUI convictions may not be sealed until seven (7) years have passed from the time the case was closed.9
- The penalties for DUI get worse with each successive conviction. So, if you can get a first-time DUI charge reduced to reckless driving, then your next DUI arrest (if there is one) will be prosecuted as only a first-time DUI as opposed to a second.10
Note that Nevada law prohibits prosecutors from outright dismissing DUI charges unless they have significant problems with their evidence. Depending on the case, getting DUI charges dropped may still be possible.11
Also, note that there is always the option to take the DUI case to trial. If the judge or jury returns a “not guilty” verdict, then you get acquitted and can pursue a record seal right away.
DUI Court
If you are addicted to prescription drugs, you may be eligible for Nevada DUI Court, an intensive rehabilitation program that allows you to avoid lengthy jail sentences. Upon successful completion of DUI Court, your DUI conviction may be reduced to a lesser charge.
If you are facing a first- or second-time DUI, you may be eligible for DUI Treatment Court.12 If you are facing a third-time DUI, you may be eligible for Felony DUI Treatment Court.13
4. Will I lose my license?
If you are arrested for DUI of prescription drugs, you keep your driver’s license during the several weeks it takes the police to test your blood. If the results come back positive for drugs, the Nevada DMV notifies you by mail that your license will be revoked. The length of the revocation depends on your DUI history:
| DUI offense (in any state) | Length of Nevada driver’s license revocation |
| DUI 1st (within 7 years) | 185 days, though it may be possible to drive right away with an ignition interlock device |
| DUI 2nd (within 7 years) | 1 year, though it may be possible to drive right away with an ignition interlock device |
| Felony DUI, including a DUI 3rd (within 7 years) | 3 years, though it may be possible to drive right away with an ignition interlock device |
Recall that if you are arrested for DUI of prescription drugs, you are required to take a blood test and not a breath test. Breath tests cannot detect drugs, only alcohol.14
DMV hearings
When the DMV notifies you that your license will be revoked, you have seven (7) days to request a DMV Hearing to contest the revocation. If you do not request this hearing, the revocation begins after the seventh day. If you do request it, the revocation is postponed pending the outcome of the hearing.
A DMV hearing is like a mini-trial, except it is civil rather than criminal. There is an administrative judge presiding, and you and your attorney get to present evidence and make arguments that you were not under the influence.
DMV hearings are harder to win than criminal trials. The reason is that the DMV needs far less evidence than a criminal judge to find against you. However, these hearings are still worth doing if you can show that the state’s evidence was problematic. You always win DMV hearings if the arresting officer fails to appear.15
5. How do I fight the charges?
Common defenses to “DUI of prescription drugs” are similar to typical drunk driving defense strategies:
- Defective blood testing equipment or mishandling of blood samples. Blood results should not count as evidence if the testing equipment was faulty, or if the lab technician contaminated the samples. Even showing that the drug tester’s certification was expired may be sufficient to get the DUI charge dropped.16
- You did not ingest the drugs until after you stopped driving the car. Perhaps you did not pop any pills until after the police pulled you over, and you took the medicine to calm down and focus. If the D.A. cannot demonstrate that you were under the influence of a prescription before the traffic stop, the case should be dismissed.
- Lack of probable cause for traffic stop. Police are not allowed to pull you over on suspicion of DUI without “probable cause” (unless you are going through a DUI checkpoint). If your defense attorney can show that the officer did not see you breaking any traffic laws or driving erratically before the police stop, the judge should throw out the case.17
Note that it is not an affirmative defense to “DUI of prescription drugs” charges that you had an unexpected reaction to the drug.
6. When can I seal the case?
It depends on what charge you were ultimately convicted of:
| “DUI of prescription drugs” offense in Nevada | Record seal wait time |
Felony DUI
|
May never be sealed |
Misdemeanor DUI
|
7 years after the case ends |
| Misdemeanor Reckless Driving | 1 year after the case ends18 |
| Dismissal of the entire DUI case | No wait time19 |
7. Can I be deported?
Driving under the influence is usually not a deportable crime. Though if you are a non-citizen charged with possessing prescription drugs without a valid and current prescription, you could face deportation for committing an aggravated felony.20
Therefore, you should seek experienced legal counsel as soon as possible to try to get the case dismissed or reduced to a non-deportable offense, if necessary.
Additional Reading
For more in-depth information, refer to these scholarly articles:
- Drunk versus drugged: How different are the drivers? – Drug and Alcohol Dependence.
- Repeat DUI Offenders Who Have Had a Drug Diagnosis: Are They More Prone to Traffic Crashes and Violations? – Traffic Injury Prevention.
- The use of psychoactive prescription drugs among DUI suspects – Drug and Alcohol Dependence.
- Driving under the Influence of Prescription Drugs Used Nonmedically: Associations in a Young Adult Sample – Substance Use and Addiction Journal.
-
Prescription drugs, drugged driving and per se laws – Injury Prevention.
Legal References
- NRS 484C.110 Unlawful acts; affirmative defense; additional penalty for violation committed in a work zone (excerpt) 2. It is unlawful for any person who: (a) Is under the influence of a controlled substance; (b) Is under the combined influence of intoxicating liquor and a controlled substance; or (c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle, to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. The fact that any person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this State is not a defense against any charge of violating this subsection. 5. A person who violates any provision of this section may be subject to the additional penalty set forth in NRS 484B.130.
- Id.
- Birchfield v. North Dakota, 136 S. Ct. 2160, 579 U.S. 438 (2016); NRS 484C.160.
- NRS 484C.180.
- NRS 484C.240; NRS 484C.210.
- NRS 484C.400.
- NRS 484C.430.
- NRS 484C.440.
- NRS 179.245.
- NRS 484C.400.
- NRS 484C.420.
- NRS 484C.320; NRS 484C.330.
- NRS 484C.340.
- NRS 483.460.
- Id.
- NRS 484C.640.
- NRS 484C.420.
- NRS 179.245.
- NRS 179.255.
- 8 U.S. Code § 1227.