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What happens if I drive high? How is that determined?

Posted by Joshua Tomsheck | Oct 05, 2018 | 0 Comments

Nevada has legalized the recreational use of marijuana, for individuals twenty-one years old and older, similar to alcohol. Marijuana can be consumed legally in a private home. It is illegal to smoke marijuana while driving, in a hotel room, or in public areas. After smoking marijuana, it is illegal to drive under the influence, or “driving high.” If a person is pulled over for suspicion of driving under the influence of marijuana, he or she can be arrested and charged for driving under the influence of marijuana.

Under Nevada law, specifically NRS 484C.110, drivers with two nanograms of active THC in their system or five nanograms of marijuana metabolite are presumed to be under the influence of marijuana, similar to how a blood alcohol content or breath alcohol content of 0.08 presumes that all people are under the influence of alcohol. Marijuana metabolites stay in the system even though marijuana's effect has ended. Law enforcement officers are also authorized to base arrests on the observed impairment. Nevada law does not care if the marijuana in a person's system was recreational or medicinal. Any detection of marijuana or marijuana metabolite will result in a person's arrest, and being charged with a DUI.


To determine how much THC or marijuana metabolites are in a person's system, a blood test (or sometimes a urine test) will be done. There is no breath test for determining whether or not a person has smoked or ingested marijuana. The results of these tests can take a while to get back, so it may be up to one year before a person is formally charged with a DUI offense. The test results will go to the prosecuting agency, as well as to the DMV. The DMV has the power to suspend or revoke a person's driving privileges if arrested for driving under the influence. However, a Marijuana DUI Defense Attorney can attend the DMV Hearing on your behalf, which may result in the driver being able to keep his or her driving privileges. 


Nevada law does not differentiate in the punishment for a person convicted of an alcohol DUI from a person convicted of a marijuana DUI. A first DUI offense is a misdemeanor in Nevada. If convicted, the defendant faces mandatory two (2) days, up to six (6) months in jail, twenty-four (24) hours to ninety-six (96) hours of community service at a non-profit organization, attendance and completion of a Nevada DUI School and Nevada Victim Impact Panel, fines that can range from $400 to $1,000, plus courts costs, fees, and assessments. The defendant will be ordered to stay out of trouble until their case is closed. In addition to these penalties, the DMV may suspend a person's driver's license for ninety (90) days upon notification of the Court that the Defendant has been convicted of a DUI.


If a person has previously been convicted of a DUI within the last seven years, the punishments are enhanced. The first DUI Conviction can be for marijuana, alcohol, or any other type of prescription drug or illegal drug. The second DUI offense is a misdemeanor offense. Upon being found guilty, the Judge can sentence the Defendant to spend between ten (10) days to six (6) months in jail or on house arrest, fines between $750 to $1,000, attendance and completion of a Nevada Victim Impact Pane, and an alcohol/drug dependency evaluation. In addition, the DMV can revoke the defendant's driver's license for one (1) year upon conviction. In some cases, the Defendant may be eligible to be admitted into a court mandated alcohol or drug abuse treatment program, called Misdemeanor DUI Court.


A third or subsequent offense within seven years of the first DUI Arrest is treated as a felony, meaning the Defendant faces mandatory prison time. The Defendant faces one (1) to six (6) years in the Nevada Department of Corrections, fines of up to $5,000, attendance and completion of a Nevada Victim Impact Panel, an alcohol and drug evaluation, as well as having their driver's license revoked for three (3) years. The Defendant will then be a convicted felon, which can lead to difficulties in obtaining employment, finding housing, and the Defendant will no longer have the right to vote, or possess a firearm.


It is very important to hire a knowledgeable and experienced Las Vegas DUI Defense Attorney as soon as possible. In some cases, it may be possible to prevent charges from ever formally being filed against an individual. Las Vegas DUI Defense Attorney Joshua Tomsheck is a member of the National College for DUI Defense and the DUI Defense Lawyers Association. With over a decade of legal experience, he will be able to help you every step of the way. As a former prosecutor, Mr. Tomsheck knows what prosecutors look for when deciding to charge a person with crime and proceed to trial. This gives him a unique advantage of knowing what the prosecution will say, and how to defense against their theories. The legal system can be complicated and confusing. With a marijuana DUI arrest, the person faces consequences not only with the court, but also with the DMV. Mr. Tomsheck has handled thousands of DUI Cases. Many of which have been dismissed entirely or reduced to a lesser offense, like reckless driving. For more on his case results, please click here. Contact him here today for your free consultation.

About the Author

Joshua Tomsheck

DUI Attorney Josh Tomsheck is a Partner in the firm of Hofland & Tomsheck, and has committed to the representation of those charged with Crimes, focusing his practice on Drunk Driving/DUI/DWI defense.

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