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 cannot articulate an acceptable reason for initiating your traffic stop, 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.
For example, 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. Not only is “two beers” the most common answer (lie) police officers all over the country hear when they ask a driver if he or she has been drinking, but admitting that you had two beers may be enough for you to be over the legal limit.
The officer will likely look at you very carefully. Police officers are trained to spot a drunk driver. He/she will smell for any “odor” of alcohol on your breath or person. He/she will also 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.
The officer will also take note of whether or not you were in proper control of your vehicle when you were stopped. This is often referred to as failure to “maintain proper lane control” or “swerving.”
The police officer will likely do various Field Sobriety Tests (FSTs) on you before you are arrested. The most common FSTs are:
• Horizontal Gaze Nystagmus Test (HGN) – This happens when an officer asks you to follow with your eyes the tip of his finger or a tip of his pen. This test is almost always administered during a DUI traffic stop, because according to the National Highway Traffic Safety Administration (NHTSA) this is the most effective of the FSTs. But in order to be effective, the test must be performed according to the NHTSA standardized training guidelines. And although this test may look or seem simple to perform, the science behind this test is actually very complex. There are numerous ways an officer can fail in administering this test, and an improper administration of this test can be a strong basis for defeating a DUI charge.
• Walk and Turn Test – The officer asks you to walk on a line (imaginary or real) taking nine heel-to-toe steps and then turning around and taking nine more heel-to-toes steps back to where you started the test.
• The One Leg Stand – The officer asks you to stand with a certain leg in front of you for a certain amount of time.
• PBT (Pre-Breath Test) – 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. A PBT is only a presumptive test. In other words, police can use this test to show why you were arrested, but it cannot be used to convict you of DUI. It is important to note that 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. 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. The results of this test 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 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, (i.e., marijuana) 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 have 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 the 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 cannot go back and contest it.
Even if you are a non-resident of Nevada, you will still 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 with all other states. In other words, your state may be notified of your DUI arrest and you may have to deal with the consequences of your Nevada DUI arrest in your home state. If you are a non-resident and are arrested for DUI here in Nevada, we advise you contact an attorney from your area to understand your rights and what implications an out of state DUI arrest may have on your driving privileges in your home state.
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 will have 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 stand.
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.
Most people do not even bother with the administrative process. This is a mistake! The Nevada DMV does not charge for an administrative hearing, and even though DMV administrative hearings are very difficult to win, they can be very worth-while for two reasons:
1.) If the police officer fails to show up, you generally win by default! More times than you might think, an officer will fail to show up at an administrative hearing. If the officer fails to show up, the judge will immediately dismiss the DMV case and you can keep your driver’s license.
2.) These hearings are a great opportunity for one of our skilled DUI attorneys to cross examine the arresting officer. This can be an invaluable opportunity to lock a police officer into testimony regarding mistakes in the investigation or incorrect FST administration. Even if this doesn’t carry the day at the administrative hearing, it can be invaluable during the criminal court matter.
What are the Penalties if Convicted of DUI?
As of October 1, 2018, the penalties for all DUIs in Nevada have been increased. The most notable change is that every DUI, even first offense DUIs, will now result in you being required to install an Ignition Interlock Device on your vehicle. (For more information about Ignition Interlock Devices, read our latest blog HERE
In addition to the Ignition Interlock Device requirement, first offense DUIs carry a fine of $400 to $1,000, DUI school, attendance at a Victim Impact Panel, 2 day to six months in jail, and your driver’s license will be suspended for 185 days (though a restricted license is available after 45 days). Prior to October 1, 2018, a first offense DUI resulted in a license suspension of only 90 days. During the first 45 days, you will not be allowed to drive, for any reason. There are no exceptions.
Second offense DUIs carry a minimum 10 days (and up to six months) in jail, a fine of $750-$1,000, a court-ordered rehabilitation program, attendance at a victim impact panel, and your and driver’s license will be suspended for one year.
Third offense DUIs carry a minimum of 1 year in prison (and up to six years in prison), $2,000 to $5,000 in fines, attendance at a victim impact panel, alcohol/drug dependency evaluation and treatment if warranted, and your driver’s license will be suspended for 3 years (though you may be eligible for a restricted license after 1 year).
I’ve Been Arrested for DUI. What Should I do Now?
Remember too that losing one’s ability to drive if you are a commercial driver, pilot, or messenger can mean losing your livelihood. Why wouldn’t you take every opportunity to fight to keep your driving privileges?
Being arrested for a DUI is a very serious matter. We understand the process and we are here to provide you with the best possible DUI defense. We’ve helped others, now let us help you. Call us now at (702) 405-0001 to arrange a consultation.