NRS § 484C.130 – Vehicular Homicide – Affirmative Defense

Nevada Revised Statute § 484C.130 defines vehicular homicide, which is when a driver with three or more prior DUI convictions commits DUI again – and this last incident results in someone dying. Even if the driver felt sober at the time, vehicular homicide charges will attach as long as his/her blood alcohol level (BAC) was 0.08% or higher.

The full text of the statute reads as follows:

NRS 484C.130. 1. A person commits vehicular homicide if the person:
(a) Drives or is in actual physical control of a vehicle on or off the highways of this State and:
(1) Is under the influence of intoxicating liquor;
(2) Has a concentration of alcohol of 0.08 or more in his or her blood or breath;
(3) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his or her blood or breath;
(4) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;
(5) 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; or
(6) Has a prohibited substance in his or her blood or urine, as applicable, in an amount that is equal to or greater than the amount set forth in subsection 3 or 4 of NRS 484C.110;
(b) Proximately causes the death of another person while driving or in actual physical control of a vehicle on or off the highways of this State; and
(c) Has previously been convicted of at least three offenses.

2. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under subparagraph (3) of paragraph (a) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after driving or being in actual physical control of the vehicle, and before his or her blood or breath was tested, to cause the defendant to have a concentration of alcohol of 0.08 or more in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

3. As used in this section, “offense” means:
(a) A violation of NRS 484C.110, 484C.120 or 484C.430;
(b) A homicide resulting from driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by this section or NRS 484C.110 or 484C.430; or
(c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

Legal Analysis

NRS 484C.130 defines the Nevada crime of vehicular homicide as when a person:

1. Is committing DUI involving alcohol or drugs; and
2. Causes a lethal collision while DUI; and
3. Has at least three prior DUI convictions

The only difference between vehicular homicide and DUI causing death is that vehicular homicide defendants have three prior DUI convictions. And it does not matter how long ago – or where – those three prior DUIs occurred.¹

A potential defense to all drunk driving charges – including vehicular homicide – is that the defendant drank after he/she stopped driving. The defense would be that this drinking caused the ensuing blood- or breath test to register an illegal BAC. And since the drinking occurred after the driving, no DUI occurred.²

Note that vehicular homicide is a totally different crime from vehicular manslaughter. Vehicular manslaughter occurs when a motorist’s simple negligence – not intoxication – causes a fatal car accident.³

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Legal References