DUI's in Nevada range from a misdemeanor to a felony charge depending on the facts. Nevada uses a 7 year offense enhancable window to determine if you will be charged with a DUI misdemeanor 1st, misdemeanor 2nd or a felony 3rd. Depending on when the priors occured, it is possible to receive more than 3 DUI convictions and not be charged with a felony DUI, so long as you are not in the 7-year window and there is no substantial bodily harm or death. If charged with a felony DUI 3rd there may be diversion programs to keep you out of prison and prevent you from being a felon, such as the Serious Offender's Program/ Felony DUI Program.
One may be charged with a felony DUI regardless of the number of offenses and the 7-year period, this occurs if you are charged with a DUI and there is substantial bodily harm or a death resulting from the DUI, or you already have a DUI felony conviction on your record in any state.
Typically, DUIs occur when you have a BAC (blood alcohol content) of .08, .02 if under 21 years of age and .04 if driving on a commercial driver's license, at the time of driving or within two hours of driving. It is also possible to be charged with a DUI even if the BAC is below .08 under the impairment theory. Prohibited substances or drugs may also trigger a DUI charge in Nevada.
A DUI 1st is a misdemeanor offense and carries a minimum of 2 days jail and up to 6 months jail, or 48 hours of community service by statute. You may be ordered to attend the Victim Impact Panel (VIP), DUI school, coroner's program, stay out of trouble and pay a fine up to $1000. If your BAC is .18 or higher, the court may impose additional treatment and restrictions on you. Your Driver's license will be suspended for 90 days as well.
A DUI 2nd offense is a second DUI within 7 years of the first and is still treated as a misdemeanor. It carries a minimum 10 days jail and up to 6 months jail, or house Arrest if granted. You may be ordered to attend DUI school, Victim Impact Panel (VIP), Coroner's Program and pay a fine up to $1000. Your Driver's license will be suspended for 1 year. If you have a high BAC this may trigger harsher penalties.
If you receive a 3rd DUI offense in 7 years, this may be charged as a category B felony and it will carry a minimum 1-year prison term and not more than 6 years in prison. Furthermore, a 3rd DUI it is not probational. Your Driver's license will be suspended for a minimum 3 years by the DMV.
As you can see even a misdemeanor DUI can be used to enhance a simple DUI to felony status in the future.
If you have a prior felony DUI conviction or receive a DUI and cause substantial bodily harm to someone or the DUI results in a death you will be charged with a felony DUI from the beginning, regardless of your priors.
If you are arrested for a DUI and the officer knows your BAC, typically from a intoxilyzer breath test, the officer will fill out an Officer Certification of Cause and suspend/revoked your Driver's license. If you did a blood test, the revocation may come later and you will be notified by the DMV via mail. Once you are notified you have 7 days to request a DMV hearing and a temporary Driver's license. The DMV hearing is an administrative hearing to determine if there is reasonable grounds to believe you were operating a motor vehicle while under the influence. Your temporary Driver's license is good until the DMV hearing results in a decision, if you lose the DMV hearing your license will then be suspended/revoked for a period of time. If you win, it will be fully reinstated as it was before. However, even if you win th DMV hearing, if you are criminaly convicted of the DUI, the DMV gets a second chance to revoke your license from the conviction. The outcome of the DMV hearing has no impact on your criminal case, the DMV hearing is a much lower burden than the criminal case.
There may be multiple issues that your attorney can use as a defense, other times, one single issue might be enough. You and your attorney need to decide whether to focus on multiple issues with your case to build a defense or to focus one on single issue. If you have one single issue that may be you best defense since that one issue may be critical and impossible to overlook. Multiple issues may confuse a judge or jury allowing them to overlook the reasonable doubt you may be trying to build for your case. However, if you case is riddled with defenses your attorney may still want to address these at trial.
At trial the burden is on the prosecutor to prove his or her case, your defense attorney needs to poke holes in the case to create reasonable doubt or to prove you are innocent and not guilty.
You have to be driving or in physical control of your vehicle while under the influence of alcohol or a controlled substance. Your attorney needs to look to see if the prosecution can or can not prove each element. Some common defenses are:
You were not driving or in control of your vehicle;
Your BAC was not obtained within 2 hours of driving;
Your BAC was not reliable because of operator error;
Your BAC was not reliable because of a physical condition such as GERD (Gastro-Esophageal Reflux Disorder);
Chain of custody issues with your blood work;
Improper testing; and
Breathalyzer was not properly calibrated.
There may be issues with the stop or the search. Illegal searches and seizures may be grounds for your attorney to file a motion to suppress evidence, such as your blood results, if your rights were violated. A good defense attorney will start with looking at whether the stop or police contact was even lawful from the beginning of the investigation.
You should always hire an attorney to go through the facts and discovery with you to see if there are any defenses.