There are various ways to attack a DUI charge. Our office will look at every angle and give your case the attention it needs.
Was the Stop legal?
We will look at whether your “stop” or the reason you were pulled over was legal. A police officer must have a reasonable suspicion that a crime was committed or that you are driving under the influence (DUI). A reasonable suspicion could mean you were swerving or you got into an accident. If the officer can not articulate this reason, your DUI may be dismissed.
Was the Arrest legal?
Before a police officer can arrest you for DUI, the officer must have probable cause to believe that you were in actual physical control (or driving) while under the influence of an intoxicating substance or alcohol. The police officer makes this “probable cause” determination on various factors:
- You tell the officer you have been drinking and how many drinks you had – By the way, telling the officer that you “just had two beers” is NOT a good idea. Two beers may be enough for you to be over the legal limit.
- The officer will likely look at you carefully and is trained to spot a drunk driver. He/she will smell for any “odor” of alcohol on your breath or person. He/She will look at your eyes and see if they are “watery and bloodshot” and whether your pupils are dilated. To a police officer these are clear signs of intoxication.
- You were not in control of your vehicle when you were stopped. Another term that it used is that you did not “maintain proper lane control” or you were swerving.
- The police officer will likely do various Field Sobriety Tests (FST) on you before you are arrested.
o HGN or the Horizontal Gaze Nystagmus Test – This happens when an officer asks you to follow with your eyes the tip of his finger or a tip of his pen.
o Walk and Turn test – The officer asks you to walk on a line (imaginary or real) for a certain number of steps and then turn and walk back.
o The One Leg Stand – The officer asks you to stand with a certain leg in front of you for a certain amount of time.
o PBT (Pre-Breath Test) – When an officer requests you blow into a hand-held device to test the alcohol content in your breath. If you are found above .08, this may give an officer probable cause to arrest you. THIS TEST CAN NOT BE USED AGAINST YOU AS EVIDENCE OF BEING UNDER THE INFLUENCE– it is only a presumptive test. In other words they can use this test to show why you were arrested, but it can not it be used to convict you of DUI. In Nevada, every driver has impliedly consented to a PBT. Failure to comply will lead to an immediate confiscation of your driver’s license and the officer will take you to the police station to take an evidentiary test.
There are several other tests but these are the most common. Each of these FSTs are designed to test your motor control skills and function. It is a myth that a police officer must perform and you must fail all of these tests before they arrest you. It does not matter that you passed one test, but failed three. As long as he/she has probable cause, a police officer will arrest you!
If the officer determines that you are driving under the influence, he will take you to the police station where you will likely either take an evidentiary blood or breath test. It the results of this test that will be used against you at your trial.
Why must I submit to an Evidentiary (blood, breath) test?
In Nevada, every driver (including non-residents) has impliedly consented to submitting to a test, generally, blood or breath, to see whether you are under the influence. While other states may allow you to opt out of the test, in Nevada, you must take a test. If you refuse, the police can use reasonable force to take a blood test.
If you are arrested for being under the influence of alcohol, you will have a choice of between blood and breath. If you choose breath, your results will be instantaneous. If you choose blood the results may take a few days or even weeks. If you are arrested for being under the influence of a controlled substance, you will likely have to take a blood test.
Why did they confiscate my driver’s license?
If you are a Nevada resident with a valid Nevada driver’s license and you are arrested for DUI and fail your evidentiary breath test, your license will be confiscated and your privilege to drive will be revoked for a period of 90-days. The police must confiscate your driver’s license and issue you 7-day temporary license.
If you choose blood, because your results are not readily available, your license will not be confiscated. After your blood test results are determined, you will be notified in the mail from the DMV if and when your driving privileges has been revoked.
In either case, you will be advised that you are entitled to an administrative hearing before the Department of Motor Vehicles’ Administrative Law Judge (ALJ). You can either accept that DMV’s decision or contest the 90-day revocation, in writing. If you contest the 90-day revocation in writing, the DMV will issue you a temporary license for the period from your request to the time of the ALJ’s decision. Be aware, once you have served the 90-day revocation, you can not go back and contest it. You MUST contest it, in writing, during the 90-day period.
If you are a non-resident of Nevada, it is unlikely that your license will NOT be confiscated. This does not mean, however, that you are off the hook. You still will lose your privilege to drive in the State of Nevada. Under the Federal Real ID legislation enacted in 2005, all states must share their driver’s license information to all other states. In other words, your State may be notified of your DUI arrest and you may have deal with the consequences. We advise you contact an attorney from your area to understand your rights.
What happens at the Administrative Hearing?
The administrative hearing before the ALJ is separate and apart from your criminal court matter. This is very important to understand. The Administrative Hearing is legally considered a civil matter. You do not have the same Constitutional rights that you would have as in your criminal case. You are not entitled to a court-appointed attorney. In fact, it is often the case that you may get your criminal case either reduced or dismissed, but your 90-day revocation of your driving privilege will still stand.
While in criminal trials, facts must be proven beyond a reasonable doubt. In the administrative process all that is necessary to be proven is that the officer had reasonable grounds to believe that you were driving while under the influence and that you were over the .08 legal limit. Did you know you can appeal the ALJ’s decision? This is often referred to as judicial review.
While most people do not even bother with the administrative process. Losing one’s ability to drive if you are a commercial driver, pilot, or messenger can mean losing your livelihood.
Being arrested for a DUI is a very serious matter. We understand the process and we are here to help. Please call us immediately if you have any questions regarding this daunting process at 702-405-0001 or fill out our contact form. All initial consultations are FREE.