Las Vegas DUI Arrest

How can the police arrest me if I'm on private property?

In Nevada, it is possible to be arrested and charged with DUI if you were driving on private property. Under Nevada law, a person can be arrested and charged with DUI when they are driving or in “actual physical control” of a vehicle on a highway, or a road “to which the public has access.” If there is a road, accessible to the public, that leads to your parking garage, business or a neighborhood, you can be arrested there. Private property in Nevada equals a driveway or a true private road in which the public has no access.

I wasn't driving the car, but I was still arrested for a DUI. How can this happen?

A person can be arrested for driving under the influence, even if the car is not actively being driven, even if the person is sleeping, under certain circumstances where it is deemed that the person is in “actual physical control.” Recent changes in Nevada law, designed to encourage intoxicated individuals not to drive, but rather to “sleep it off.” Under previous Nevada law a driver could be charge with DUI even if asleep in the backseat of the vehicle. After the signing of AB67 into law, the definition of “physical control” of a vehicle specifically excludes” a person who is sleeping, not in the driver's seat, has the engine turned off, is in a lawfully parked vehicle and the driver, for the observable facts, could not have driven to the location already intoxicated. This change in Nevada law is both wise from a public policy perspective but also may provide a viable defense to those accused of DUI.

What happens if I wasn't read my Miranda rights?

People often believe they can't be arrested or prosecuted if they aren't “read their rights” as we often see in the movies or on television. This is a common misconception. Miranda rights are required when the suspect is in police custody, and the police officer is about to interrogate the suspect, but only for purposes of the admissibility of the statement of a Defendant at a later hearing or Trial. The police are not required to ever read Miranda warnings and it certainly isn't a prerequisite to arrest. In fact, Police officers routinely ask questions to suspects prior to arrest. If the police officer has probable cause to pull over a person for DUI, the police officer will always as ask the driver questions without having to recite Miranda rights. These questions relate to the identity of the person, the reason for the stop and the intent of the driver to travel somewhere else. These are thought to be questions not designed to invoke a “testimonial response.” Miranda rights, or warnings, are only given as a means to advise a suspect of his right to remain silent or to a lawyer, before those statements are admissible in Court. 

Was I arrested so that the police officer could meet his monthly quota?

While there are certainly initiatives to “crackdown” on certain types of crimes in certain locations at certain times, DUI roadblocks are a well-documented example, there are no “quotas” or number requirements related to the amount of arrests for DUI offenses by Las Vegas police officers or Nevada highway patrol troopers. There is a requirement under the law however, to arrest and remove drivers believed to be DUI from Nevada roads.

What is a legal limit? What is the legal limit in Nevada?

While many people do not realize it, you can be arrested and/or charged with DUI in Nevada for any amount of drugs or alcohol in your system. The question is, whether under the circumstances, a law enforcement officer believes a person to be “under the influence” to a level where they cannot safely drive. In Nevada, like most other jurisdictions, there is a presumption, that a person is too impaired (under the influence) to drive when their blood or breath alcohol is 0.08% or higher. This is because the law presumes any person at that level is too impaired to safely drive. This is called a per se violation. Under Nevada law, it is illegal for any person to drive with a blood or breath alcohol concentration or is higher than 0.08%.

A person's alcohol concentration is determined by blood test or breath test. The amount of alcoholic beverages it takes to get to this amount varies for each individual and depends factors such as the type of alcohol consumed, the genetic make-up of the person consuming it and external factors such as amount and type of food consumed while drinking and environmental factors.

It is also important to know that the per se legal limit for a driver under 21 years of age is 0.02%, and if the driver has a commercial driver's license and is transporting a commercial load, the legal limit is 0.04%.

Can I have a lawyer before participating in a field sobriety test or breath test?

While it is technically possible that you can have a lawyer prior to a field sobriety test, it is unlikely that you would be given opportunity to contact a lawyer, let alone be given time for an attorney to travel to your location and speak to you prior to tests being administered. Should such a request be made, it is likely that the police or law enforcement officer would make an arrest without the benefit of the field sobriety tests.

Do I have to participate in the field sobriety test?

An individual cannot be forced to provide field sobriety tests. Field sobriety tests are most often used simply as a method whereby law enforcement and police officers build probable cause leading to arrest so that a forensic blood or breath sample can be obtained. Field sobriety tests are difficult to pass for most people, even when completely sober and unimpaired.

What are the limits to a police roadblock?

Roadblocks designed to stop and investigate DUI drivers are legal in Nevada. They are sometimes referred to as DUI Checkpoints. The rules for the implementation of roadblocks in Nevada are laid out in NRS 484B.470. There are many regulations that must be followed related to roadblocks. These include being established at a point clearly visible to approaching traffic of at least 100 yards in either direction, a sign placed near the center line of the highway which says “Stop” in letters visible to at least 50 yards, at least one red flashing light visible to 100 yards, warning signs on the side of the highway, warning of a “police stop” among others. 

When a police officer asks how much I've had to drink, do I have to respond?

You do not need to respond to any of the officer's questions. Upon being pulled over, it is legally required and recommended to provide the police officer with your name and identification, proof of insurance and registration. However, you do not have to answer any of the police officer's questions. You certainly do not have to indicated to law enforcement whether or not you have drinking. If you choose to invoke your right to not speak to police, it is recommended you politely advise the police officer you respect the job that he or she is doing, but that you will not be answering any questions.

Is it in my best interest to do the field sobriety test?

Field sobriety tests are usually not reliable, and in many instances, subjective to the police officer's discretion. While the one-legged stand test, walk and turn test, and horizontal gaze nystagmus test are used to establish probable cause, they are optional and you may refuse to do a field sobriety test. In some cases, where a driver is definitely not under the influence and has consumed no drugs or alcohol, there is probably no harm in completing the tests, even if the outcomes are adverse. Many times however, someone who is borderline impaired, will believe that he or she can pass the field sobriety tests and consent to them, only to find out that they did not pass and are being arrested.

What are the common reasons for a person being pulled over for suspicion of a DUI? 

Police officers pull drivers for all sorts of moving and non-moving violations. These can include driving patterns that are illegal and indicative of impairment, such as weaving lanes, straddling or crossing lanes without signaling and/or swerving. They can also include driving patterns not indicative of impairment such as speeding or non-moving violations such as improper or expired tags. If a police officer believes that an accident has occurred or that a driver has almost collided with another vehicle or object, the police officer may then pull the person over. If the driver is driving too slow, or too fast, or is driving without headlights, or driving in oncoming traffic a police officer may pull the car over.

If the officer was out of his jurisdiction, does that make my arrest illegal?

A law enforcement officer from one municipality can make and arrest outside of his home jurisdiction. For instance, if an officer from North Las Vegas were to be following a suspected impaired driver and the pursuit crosses over into Las Vegas or Henderson, the police officer can certainly make the arrest in the neighboring area. Likewise, Nevada Highway Patrol troopers can also make arrests on any road in Nevada, not limited to highways or freeways such as the 15, 95 or 215.

Will one drink make me “drunk”?

The amount of alcohol that makes a person intoxicated or impaired depends on the individual. An inexperienced drinker of slight build on an empty stomach is likely to feel the effects of alcohol in as little as one drink. A larger person who has eaten and has experience drinking, may not feel any effect after several drinks. However, the law presumes all people to be too impaired to drive at the requisite blood or breath alcohol content of 0.08%. The amount of alcohol it takes to get to this level varies from person to person and include factors such as genetics, body weight, and alcohol tolerance.

Why do I have a DUI and not a DWI? 

The terms drunk driving, DUI (driving under the influence), DUIL (driving under the influence of liquor), DWI (driving while intoxicated), OMVI (operating a motor vehicle while intoxicated), OWI (operating while intoxicated), and OUI (operating under the influence) are all terms for the same general principal, namely driving while impaired. Nevada law recognizes a person driving under the influence as a “DUI” which is the correct terminology in Nevada.

Can I be arrested for DUI after smoking weed? 

Although marijuana, commonly referred to as weed, is now legal for personal use in Nevada, you can still be arrested for DUI under the influence of marijuana. This is similar to alcohol in many respects. For instance, a person must be 21 years old to legally consume marijuana and alcohol. Additionally, it is illegal to drive while high, after smoking marijuana or with a certain amount of THC or marijuana metabolite in your blood. A person can be arrested if the police officer has probable cause that the driver is driving under the influence of marijuana.

Can I be arrested for DUI after taking my prescribed medication? 

Under Nevada law, it is against the law to drive while under the influence of any substance, including lawfully prescribed medication. A person who is arrested for driving while under the influence of prescribed medication faces the same repercussions as an individual charged with a DUI by alcohol. A person can be found to be impaired even if they take their medication pursuant to a doctor's orders in a prescribed amount. In fact, many prescription medications can cause lack of coordination, unsound judgment, sleep driving, or fainting. For these reasons it is best to not drive after taking medications which can be attributed as having these adverse effects on driving ability.

What is a sentence enhancement? What does this mean? 

A sentence enhancement means that a sentence, or requirement given by the Court, will be higher than it would without it. For instance, a person in an enhanced sentence may have to pay higher fines, take additional classes, or spend more time in jail. Issues that can enhance a person's sentence include prior DUI convictions, and having a child in the car with them at the time of the arrest.

Am I charged with a misdemeanor DUI or a felony DUI? How will I know?

The level of offense depends on the circumstances of that arrest. A misdemeanor is any crime that is punishable by less than a year in jail. A felony is defined as any crime punishable for incarceration for more than one year. In Nevada, first and second DUI offenses are misdemeanors. There are several different types of felony DUI related offenses.

If a person is charged with a misdemeanor DUI, the court may be prosecuted in a municipal court or a justice court. In Las Vegas Municipal Court, which handles misdemeanor DUI offenses, the case number will start with a “C”, typically have seven numbers, and will end with an “A”, “B”, or “C” depending on the number of offenses charged.

In the Henderson Municipal Court, the case number will start with the last two numbers of the year, so if a person was arrested in 2018 the case number will start with “18”, followed by CR and five numbers. The Henderson Municipal Court also only handles misdemeanor offenses.

The North Las Vegas Municipal Court handles misdemeanor DUI offenses. The case number will start with CR, followed by five numbers. There will be a dash with the last two numbers of the year. If a person was arrested in 2018, the case number in North Las Vegas Municipal Court will be CR000000-18.

The Henderson, North Las Vegas, and Las Vegas Justice Courts handle both the probable cause portion of a Felony DUI offense and misdemeanor DUI offenses through conclusion. In Las Vegas Justice Court, the case number will tell you if your case is charged as a Felony or Misdemeanor. In Las Vegas Justice Court if there is a “M” or a “F” in the case number, the “M” means misdemeanor, and the “F” means felony (or Gross Misdemeanor).

I still have more questions, can attorney Josh Tomsheck help me?

Absolutely! Please click here to set up a time to talk to Mr. Tomsheck or one of his assistants to schedule you for an appointment to discuss your matter with him. Mr. Tomsheck is a nationally board certified criminal trial attorney who is registered as a specialist in criminal law with the State Bar of Nevada. Mr. Tomsheck has handled thousands of DUI charges in his career on both sides, as an ex chief deputy district attorney and as a private defense counsel. He is happy to discuss your case and the defense of your charges today. 

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