Misdemeanor & Felony DUI in Nevada

In Nevada, a DUI can be charged as either a misdemeanor or a felony. Misdemeanors are less serious than felonies because the maximum punishment for a misdemeanor is 6 months in jail, whereas a felony can result in a substantial prison sentence.

Misdemeanor DUI charges are far more common than felony DUI charges. What makes a DUI a misdemeanor or a felony? First offense DUI and second offense DUI are misdemeanors, whereas third offense DUI and DUI causing death or substantial bodily harm are felonies.

Misdemeanor DUI can be charged in either the Justice Courts (e.g. Las Vegas Justice Court, Henderson Justice) or the Municipal Courts (e.g. Las Vegas Municipal Court, North Las Vegas Municipal Court).

When you are charged with a DUI, two separate cases are opened: a criminal case and an administrative case. The criminal case is brought in local Justice Courts or Municipal Courts. Criminal DUI charges are prosecuted by the Clark County District Attorney or the local City Attorneys (e.g. the Las Vegas City Attorney, the Henderson City Attorney, etc.).

The administrative case is handled by the DMV. Generally speaking, the criminal case can result in the most serious penalties, including fines and jail time, whereas the administrative (DMV) case can result in the loss of your driver’s license.

Potential penalties for misdemeanor DUI also vary based upon whether the charged DUI is a first or second offense within any seven year period. Read below to learn about the potential penalties (both criminal and administrative) for first and second offense DUI.

• Attend the “Victim Impact Panel” (a one-time live presentation about victims of DUI accidents); [https://www.stopdui.org/aboutus_history.htm]
  
  
• Complete DUI School;
  
  
• Complete Traffic School;
  
  
• Jail time of 2 days minimum, 6 months maximum OR performance of not less than 48 hours and not more than 96 hours of community service; and
  
  

Pay a fine that is between $400 to $1,000 plus additional court costs.

The standard administrative penalty for a first misdemeanor DUI is a 90-day suspension of your driver’s license and a $35 civil penalty fee. If you request a DMV hearing, you can also obtain a temporary license that will allow you to continue driving until the date of your administrative hearing. Once you have your administrative hearing, they will either reinstate your license if you win, or your suspension period will begin if you lose. Assuming your license is suspended, you may apply for a restricted license 45 days into your suspension assuming you can demonstrate a real need (transportation to and from work is one of the most common needs cited).

• Attend and pay for a Victim Impact Panel;
  
  
• Complete and pay for DUI School;
  
  
• Complete and pay for Traffic School;
  
  
• Incarceration for not less than 10 days and not more than 6 months OR residential confinement for not less than 10 days and not more than 6 months;
  
  
• Pay a fine that is between $750 to $1,000 plus additional court costs OR perform an equivalent amount of community service;
  
  
• Complete an alcohol/drug dependency evaluation; and
  
  
• Complete an alcohol/drug treatment program.
  
  

Where a person’s prior DUI convictions took place is irrelevant. If the person had a DUI in Florida 6 years ago, it will still count toward the total amount of DUIs that person has committed. The only issue with prior DUI convictions is when they occurred. If a person has prior DUI convictions but they all occurred over 7 years ago, the person’s new DUI will be charged as a DUI first offense.

The standard administrative penalty for a second misdemeanor DUI is a 1-year suspension of your driver’s license, a 5-day suspension of your registration, and a $35 civil penalty fee. If you request a DMV hearing, you can also obtain a temporary license that will allow you to continue driving until the date of your administrative hearing. Once you have your administrative hearing, they will either reinstate your license if you win, or your suspension period will begin if you lose.

In addition to the other criminal penalties listed above, if you are found to have a blood alcohol concentration (BAC) that is over twice the legal limit (0.18 or higher), additional penalties may apply. These can include the following:

• Submitting to an “alcohol evaluation” and any recommended follow-up treatment, including participating in an alcohol treatment program;
  
  
• Wearing a “SCRAM bracelet” (a device that is worn around the ankle and can detect whether the person wearing it drinks alcohol);
  
  

Installing a “Breath Interlock Device” in your vehicle for 12 to 36 months. This device prevents a vehicle from being started without someone first blowing into the device and testing under the legal alcohol limit.

Misdemeanors are, generally speaking, less serious offenses. But misdemeanor DUI can have very serious consequences, including mandatory jail time. So if you have been charged with a misdemeanor DUI, you should talk to a criminal defense lawyer about your case. I have helped many people charged with misdemeanor DUI in Las Vegas and throughout Clark County, Nevada. If you want to discuss your case, call or text me at the number listed above for a free consultation.

In Nevada, a DUI is charged as either a misdemeanor or a felony. Misdemeanor DUIs are more common and require that a person be driving or in actual physical control of a vehicle while under the influence of drugs or alcohol. Felony DUIs include all of the same elements as a misdemeanor DUI, but also require additional elements. A DUI will be charged as a felony instead of a misdemeanor when one of the following also exists:

• The person has been convicted of at least two previous DUIs in the past 7 years;
  
  
• The person was previously convicted of a felony DUI. Once you have a felony DUI conviction, all future DUIs will be charged as felonies; and
  
  

The DUI involved the death or substantial bodily harm of a third party.

The government can use two different theories in order to prove a DUI. The first is considered a per se offense, meaning that the government need only show that a person was operating or in actual physical control of a vehicle while that person had equal to or greater than the prohibited amount of alcohol or drugs in his system.

The other way in which the government can proceed is under what is called an “impairment theory”. This allows the government to prosecute a person for a DUI even if the person had less than the prohibited amount of alcohol or drugs in his system so long as they can prove that the person displayed an impaired ability to operate the motor vehicle while in the officer’s presence.

When you are charged with a felony DUI, two separate cases are opened. One is criminal and is handled by the court. The other is administrative and is handled by the DMV.

When a person is arrested for a third DUI within 7 years, the DUI is charged as a category B felony and they are subject to the following penalties:

• Incarceration in prison for not less than 1 year and not more than 6 years;
  
  
• Pay a fine that is between $2,000 to $5,000;
  
  
• Complete an alcohol/drug dependency evaluation;
  
  
• Complete an alcohol/drug treatment program; and
  
  
• Attend and pay for a Victim Impact Panel.
  
  

Where a person’s prior DUI convictions took place is irrelevant. If the person had a DUI in California 5 years ago and another DUI in Ohio 2 years ago, both will still count toward the total amount of DUIs that person has committed. The only issue with prior DUI convictions is when they occurred. If a person had prior DUI convictions but they all occurred over 7 years ago, the person’s new DUI will be charged as a DUI first offense.

If you are found to have a BAC that is twice the legal limit or more (0.18 or higher), additional penalties may apply. These can include having to wear a SCRAM bracelet and having a Breath Interlock Device installed in your vehicle for 12 to 36 months.

The standard administrative penalty for a third offense felony DUI is a 3-year suspension of your driver’s license, a 5-day suspension of your registration, and a $35 civil penalty fee.

When a person causes either the death or serious bodily injury of a third party while driving under the influence, that person will be charged with a Category B felony. The punishments for this type of felony DUI include incarceration in prison for not less than 2 years and not more than 20 years and a fine ranging from $2,000 to $5,000.

Vehicular Homicide has all of the same elements as a DUI Causing Death (causing a person’s death while driving under the influence) with the added element that the person must also have had at least three prior DUIs. Vehicular Homicide is a Category A felony. The punishment for this felony is either a definite term of incarceration of 25 years or a life sentence, both with the possibility of parole after the person serves a minimum of 10 years of his sentence.

A person convicted of a felony DUI is not eligible for probation, which means that a prison sentence is mandatory. However, it is possible to avoid having to go to prison in some instances if that person applies for and participates in what is called the Serious Offender Program.

The Serious Offender Program requires that a person be diagnosed as an alcoholic or drug abuser by either a drug and alcohol abuse counselor or a physician who is properly licensed and certified. The counselor or physician will then prepare a report for the court that makes recommendations for what type of treatment is most appropriate for the person.

If the court approves the person’s application, they will, without entering a judgment of conviction, suspend further proceedings and place the person on probation for a minimum of 3 years and a maximum of 5 years. One of the conditions of probation will be the successful completion of whatever treatment program that was recommended by the counselor or physician. The treatment program may include being confined in an institution.

The person has to agree to participate in any treatment that is recommended by that counselor or physician and must pay to the extent he is able for the costs associated with the treatment. Additionally, the court may order additional conditions for your probation. At minimum, these conditions must include:

• The person must serve not less than 6 months of residential confinement;
  
  
• The person must, at his own expense, install in his vehicle a breath interlock device for no less than 12 months;
  
  
• The person may not drive any other vehicles unless they too are equipped with a breath interlock device;
  
  
• The person must agree to be tested for alcohol or controlled substances; and
  
  
• The person must agree to any other conditions that the court deems necessary.
  
  

If the person successfully completes his probation, he may be convicted of a DUI 2nd instead of a DUI 3rd and will not have to do any additional prison time. If, however, the person does not successfully complete the treatment program or violates any other conditions of his probation, the court will enter a judgment of conviction for a DUI 3rd and may impose the corresponding prison sentence. The person will receive credit for any time he served in jail prior to beginning treatment.

Certain people are not eligible for the Serious Offender Program. In particular, people who have already previously applied for the Serious Offender Program are ineligible. Furthermore, people who have been previously convicted of certain offenses are also ineligible for the Serious Offender Program. These offenses include:

• DUI 3rd;
  
  
• DUI causing death or substantial bodily harm; and
  
  
• Vehicular homicide.