If you are in Las Vegas this holiday season, here are the TEN REASONS TO RETAIN AN ATTORNEY OVER THE HOLIDAYS –
It’s that time of year again. The holiday season is upon us. We certainly hope your holidays are filled with joy, and that you and everyone you care about has a safe and happy holiday season.
Of course, it can be a stressful time, too. Although the list above is meant to be light-hearted, some of those items can hit a little too close to home for some. When tensions flare when the whole family gets together, it can lead to domestic violence. Road-rage on the highways or in the store parking lots can lead to physical altercations. Ditto for trying to find that one popular toy all the kids want this year.
There’s also celebrating the holidays with friends and family, and perhaps even the company holiday party. Finally, happier times!. Remember though, drinking a bit too much (or even at all!) at the company holiday party or while celebrating at a friend’s house could lead to a DUI.
The police are aware the holidays are often times of increased alcohol consumption, and often set up sobriety checkpoints at holiday times. There are specific guidelines that must be followed by the police in setting up these checkpoints. The DUI checkpoint must be established at a point on the highway clearly visible to approaching traffic at a distance of not less than 100 yards in either direction.
The entrance of the checkpoint must contain:
You do not have to proceed through the checkpoint if there is a legal route around it (for example, a right turn is available just past the sign warning of the checkpoint). However, once at the entrance to the checkpoint, you will have to stop. Failure to stop is at least a gross misdemeanor, punishable by up to 364 days in jail, a fine of up to $2,000, or both. A failure to stop that results in substantial bodily harm or death to another person, or causes more than $1,000 in property damage, is a Class B felony punishable by 1-6 years imprisonment, a fine of up to $5,000, or both.
Once you stop at the checkpoint, the police will typically ask some questions to try and determine whether or not you are sober. If they suspect you are intoxicated, they will ask you to perform a field sobriety test and/or to submit to a breathalyzer test. If as a result of this they determine you are intoxicated, you will be arrested for DUI.
Of course, the police can also pull you over if they witness you driving erratically or in some manner that makes them suspect you may be intoxicated. In Nevada, it is illegal for a person to drive (or be in actual physical control on publicly accessible premises if: 1) they are under the influence of intoxicating liquor; 2) they have a concentration of alcohol of 0.08 or more (0.02 if under the age of 21, or 0.04 if a commercial vehicle driver) in their blood or breath; or 3) they are found to have a concentration of alcohol of 0.08 or more within two hours of driving. Should it be proven by a preponderance (is preponderance the right standard? What statute does it say that?) of the evidence that a person has a concentration of alcohol of 0.08 or more in their blood or breath within two hours of driving, it is an affirmative defense that the alcohol was consumed after driving and before his or her blood or breath was tested.
In addition to alcohol, there are also other substances that can lead to a DUI. These substances include amphetamines, cocaine, heroin, morphine, marijuana, methamphetamine, and Phencyclidine (PCP). Driving under the influence of any of these substances is illegal in Nevada, even if you are otherwise entitled to use the drug under Nevada law. In other words, simply having a medical marijuana card will not save you if you get stopped by the police after deciding to take the car to 7-11 to satisfy your munchies after toking up.
So you’re at the checkpoint, or you’ve been pulled over, and here it comes – the breathalyzer test. Nevada has an “Implied Consent” law which states that any person who drives on any premises where the public has access is deemed to have given consent to a preliminary test of his or her breath to determine the concentration of alcohol in his or her breath when the test is administered at the direction of a police officer at the scene of a vehicle accident or collision or where the police officer stops a vehicle, if the officer has reasonable grounds to believe that the person to be tested was driving under the influence of alcohol or another controlled substance. Refusal to take the test will result in the officer seizing your driver’s license, (you will lose it for a year in addition to the 90 days for testing over the limit) cite the statute and you will be arrested and subjected to an evidentiary test. The results of the preliminary test cannot be used in a criminal action, except to show the officer had reasonable grounds for the DUI arrest.
This “Implied Consent” also applies to evidentiary tests. The evidentiary test may be a test of blood, breath, or urine to determine whether alcohol or another controlled substance has been consumed. You may have a choice of which test to take in certain situations. Likewise, the police may dictate which test you are to take in certain situations. However, if you refuse to take the test, the police will need to get a warrant (cite McNealy vs Missouri and the Byars, NV case may use reasonable force to obtain blood samples from you.
In order for the results of an evidentiary breath test to be valid, two consecutive samples must be taken, and the difference between the two samples must be less than or equal to 0.02. If the difference between the results is greater than 0.02, a third breath sample is taken, and the difference between that sample must be less than or equal to 0.02 of the result of either of the first two samples. If the results are still greater than 0.02 apart, then a fourth evidentiary test will be taken, this time by blood (unless you have a condition such as hemophilia). Should you refuse to submit a second or third sample or take the fourth evidentiary test, then the results of the first sample alone can be used as evidence of the concentration of alcohol in your breath. The police may also use reasonable force to obtain a second or third sample or administer a fourth evidentiary test.
If the results of a preliminary or evidentiary test reveal a concentration of alcohol in your blood or breath of 0.08 or more, your license will be revoked for 90 days. You can appeal this revocation through the DMV Office of Administrative Hearings. However, regaining your license is not automatic, even if criminal charges are dropped.
The punishments for a DUI in Las Vegas conviction can be pretty severe. A first DUI offense that does not result in death or severe bodily injury is a misdemeanor, punishable by:
If the concentration of alcohol in the person’s blood or breath is 0.18 or more, the court will also order the person to attend a substance abuse treatment program.
The court will also order you to attend a Victim Impact Panel, which is a presentation by people who have been affected by drunk drivers. According to MADD (Mothers Against Drunk Driving), “The panel presents a unique perspective to the offender that is often overlooked or simply cannot be taught by the courts and the DUI offender schools. The program was created with one purpose in mind: to show offenders first-hand about the trauma, physical pain, emotional suffering and devastation, financial loss, anger and frustration that is commonly experienced by innocent victims and their family members resulting from a DUI-related crash.” You must present evidence to the court that you attended the meeting for its entirety.
Additional penalties include a civil penalty of $35 payable to the DMV, and a $60 chemical analysis fee.
If the person’s concentration of alcohol was less than 0.18, the court may also order installation of a device in the offender’s vehicle which will prevent the vehicle from starting if the device detects a concentration of alcohol of 0.02 or more in his or her breath. The device will be installed at the person’s own expense, for a period of between 3 to 6 months.
If the concentration of alcohol is 0.18 or greater, the court will order such a device to be installed in the offender’s vehicle, for a period of between 12 to 36 months. However, there are ways to get around tit.Punishment for tampering with the device is imprisonment of between 30 days to 6 months, or residential confinement of between 60 days to 6 months and a fine between $500 and $1,000. Neither probation or a suspended sentence is an option in such a case.
Subsequent arrests, or incidents that result in death or severe bodily injury, lead to more severe punishments, such as longer jail terms or community service commitments, and greater fines.
We hope you have a safe and joyous holiday season. If you do celebrate the holidays with a few drinks (or too many drinks, or way too many drinks), we hope you use a designated driver or call a cab. Remember that ride services such as Uber and Lyft are also available in Nevada. Sure, you may have to pay for a ride home, but it will certainly be cheaper than a DUI arrest!
But if you do find yourself facing a DUI charge in Las Vegas, we can help. Call Mace Yampolsky and Associates at 702-385-9777 for more information regarding Nevada laws, or if you feel your rights have been violated. We are here for you!
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