DUI Process in Las Vegas
The Stop and Field Sobriety Test
This is probably the most important event in your case and the most traumatic. Luckily, this traumatic event is over and now you can focus on obtaining legal representation and building your case. Many pretrial motions will be based on what transpired during the stop. Furthermore, this is where law enforcement built probable cause and gathered evidence to arrest you and use at trial to try to prove that you were driving under the influence. This is also where your attorney will build your defense and possibly suppress any evidence obtained illegally during the encounter. See Traffic Stops and Your Rights and Standardized Field Sobriety Test . It is important to schedule a consultation as soon as possible while your memory is fresh to aid your counsel in your defense. See Attorney Consultations .
Once law enforcement believes they have probable cause, you will be arrested. You will also have to submit to a Breathalyzer/Intoxilyzer machine or blood draw from a nurse at the police station. If you refuse both, they will take your blood by force. It is recommended that your request the Breathalyzer/Intoxilyzer machine and not the blood draw. See Standard Field Sobriety Test. Keep in mind that law enforcement needs to have probable cause to arrest you, without this, your arrest would be unconstitutional. If this is the case, then a pretrial motion may be filed to suppress evidence and/or dismiss the case.
Blood Alcohol Level
If you do blow into the Breathalyzer/Intoxilyzer machine which results in blood alcohol content (BAC) of .08 or above, then you will be booked for a DUI. Nevada has a “per se” DUI statute that presumes you are intoxicated if your blow a (BAC) of .08 or greater. You can also be charged with a DUI if you are driving impaired, even if your (BAC) is below .08. If a blood draw test was performed, then you will have to wait several months to determine if you had a BAC of .08 or greater. Nevada’s DUI law also applies to prohibited substances. Prohibited substances/controlled substances are tested by blood draw test only, which will result in certain number of nano-grams per milliliters (Ng/ml) of blood. See DUI Prohibited Substances. If law enforcement believes you are under the influence of a prohibited or even prescribed medication, then they may force you to give a blood test to determine if you meet any “per se” prohibited substance levels or to prove impaired driving. Depending on what your BAC or Ng/Ml is, your license may be revoked. See DMV License Suspension.
This is probably one of the more confusing aspects of getting a DUI because it is a separate procedure from the criminal matter and it involves the DMV administration hearing. Your license is a privilege and this privilege to drive is determined by the DMV. Once it is shown that you have a BAC of .08 or greater, or a certain level of Ng/Ml of blood with a prohibited substance, your license will be revoked. If you did a Breathalyzer/Intoxilyzer and it results in .08 BAC or higher, your driver’s license will be taken immediately. You will be given a pink slip of paper which is your temporary 7-day driver’s license and you or your counsel must request a DMV DUI hearing before your 7-day license expires. If you did a blood draw test, then it will take two to five months to get a DMV letter stating that your license will be suspended. Then you or your counsel must immediately request a temporary license and a DMV DUI hearing. See DMV License Suspension.
Let’s face it, no one wants to go to jail, but it typically is only temporary when one is arrested for a DUI. Depending on the offense and your case, one can post bail, be released on your Own Recognizance (O.R.) without bail, or an attorney can file a motion to release you on your Own Recognizance. Just remember, do not make any statements about any incident while in jail, making statements to law enforcement will NOT help you avoid jail or get out sooner. Law enforcement does and can lie. Deals and plea bargains are not done by law enforcement; this is something your attorney will negotiate with the District Attorney. Always invoke your right to remain silent and request your attorney to be present.
Bail and Own Recognizance
In many cases, you will be given a bail amount that you will need to post in order for release. Depending on the type of charge against you and risk of flight, bails may vary. In some circumstances bail may be extremely high or even denied. One can post bail with their own money or go to a bail bondsman for assistance. An Attorney may also file a motion to reduce bail and/or for you to be released on your own recognizance (O.R.). See Bail.
The arraignment will be your first court appearance, in most cases, if you retained an attorney, he or she can appear on your behalf without your presence. Typically, the state will provide you or your attorney with the complaint/indictment showing your criminal charges. At this time you or your attorney will enter a plea of NOT guilty and a pretrial or preliminary hearing date or trial date will be set.
Depending on the court and the charge, you may have another appearance before you get to trial. If charged with a misdemeanor in Municipal Court, you will have a Pre-Trial hearing. This Pre-Trial hearing gives the attorneys an opportunity to negotiate the case before trial or raise any discovery issues. If you are charged with a gross misdemeanor or felony, you will have a preliminary hearing where the judge will decide if there is enough evidence to go forward with trial. Think of this as a mini-trial where the judge decides if there is slight or marginal evidence that a crime was committed and the person accused is the person who allegedly committed the crime.
Depending on the charge and if one pleads NOT guilty, one will either have a bench trial or a 12 juror jury trial. If you are charged with a misdemeanor, which is punishable not more than 6 months in jail, then you will have a bench trial. A bench trial is where the judge will decide your guilt or innocence on law and the facts of the misdemeanor case. If you are charged with a gross misdemeanor or felony, there will be a jury trial, where the jury will decide you guilt or innocence.
Depending on your sentence or plea, there may be requirements that you will have to fulfill per the court’s orders. Such as, DUI school, fines, counseling, and community service. You will be given a date and time to come back before the court and present proof of your requirements to the judge. Once you complete and provide proof to the judge, your case will be closed. If you have completed all of your requirements, your attorney can make this appearance for you. Think of this as due date for when your homework is due, but with much higher consequences. If you fail to do the court requirements and/or get in further trouble with the police, you could be facing up to 180 days in jail.
Luckily in Nevada, you are able to seal your record with court approval. There is a catch though, depending on the type of crime you were charged with, you will have to wait 2 or more years. A misdemeanor has a 2 year waiting period, but if it was a misdemeanor DUI or domestic battery, you will have to wait 7 years. See Record Seal. If your case was dismissed or you were found not guilty, then one can immediately start the record sealing process. This process can take up to 8 months sometimes, so it is best not to delay once eligible.
If you requested a DMV hearing within 7 days of having your license taken or suspended, you will be given a hearing where the DMV will determine if you committed a DUI. Your attorney can be present at this hearing. The burden of proof for the DMV to find that you committed a DUI in very low, so do not take this as an indication that you will lose your criminal case. Unlike the DMV hearing, your criminal case has a much higher burden of proof and you have various rules of evidence and constitutional protections. Even though a DMV hearing is a hard case to win, it is possible and provides your attorney with insight into what may later be brought before your criminal case. This enables your attorney to build a better case for you.