Yampolsky & Margolis Criminal Defense Las Vega

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Yampolsky & Margolis Criminal Defense Las Vega


Unfortunately, Miranda does not attach until an individual is under arrest and in a so-called custodial setting. Many laypeople, and even some lawyers, find this a legal fiction at best, given that the detained driver on the roadside is not “free to leave,” by any stretch of the imagination. The distinction that has been drawn by courts in the United States is that a breath or blood test is not uttered or provided in response to interrogation; is called for by the implied consent statutes of the various jurisdictions; and promote the general welfare of the community by ensuring that impaired drivers are not permitted to run amuck, causing havoc, mayhem, injuries, and deaths.  Whatever I may think of the wisdom of the conclusion drawn, there can be no dispute that the United States Supreme Court, in Pennsylvania v. Muniz, 496 U.S. 582 (1990), does not consider roadside chemical tests to be testimonial invoking Miranda protections, and has explicitly stated as much, “Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination.” Id. In recent years, the playing field has muddied some and the bright line rule that was announced in Muniz has come under scrutiny.  In Birchfield v. North Dakota, 579 U.S. ___; 136 S. Ct. 2160; 195 L. Ed. 2d 560, the Supreme Court held that statutes that criminally punish individuals for refusing a blood test were unconstitutional but upheld criminal refusal statutes regarding breath tests. Much of the reasoning in the majority’s opinion stemmed from a shallow perception of the invasion that breath tests pose to individual privacy interests. Justice Sotomayor’s dissenting opinion noted that where search warrants are reasonably available, a state’s governmental interest in collecting evidence and promoting safety is lower than the individual privacy interests at stake. As a practitioner, this signals to me that this issue is far from settled, that we will see additional challenges piggybacking on Justice Sotomayor’s dissenting opinion finding the distinction between the invasiveness of a breath test vis-à-vis a blood test to be merely semantics and a distinction with no real difference. 
Due to the existence of implied consent statutes in Nevada (and almost everywhere else) most if not all drivers cannot refuse to submit to a chemical test (of their breath or blood) legally. While the consequences in the conduct of the criminal prosecution are more nebulous, the effect of a refusal on your driver license are less circumspect. The consequences are swift, harsh, and most often, irrevocable.  Refusal of a chemical test in Nevada will result in an ADDITIONAL revocation and/or suspension of your driver’s license for a minimum of 1 year and as many as 3 years, depending upon your existing driving history. The more demerit points, prior DUIs, prior Reckless Driving dispositions, and periods of suspension or revocation in your driving record will become very relevant. More often than not, refusing the chemical test will do you more long term harm than good, unfortunately.
A DUI conviction for a commercial driver can mean financial ruin, and the BAC applicable to commercial drivers is exceedingly low - .004 %. This means that commercial drivers can be convicted of a DUI with half the level of impairment. This is not an accident and is very purposeful in the law. While cars are dangerous implements if driven recklessly or dangerously, semi-trucks and full size big rigs carry dangers exponentially greater to public safety when operated by impaired drivers. If you are a commercial driver cited with DUI, you need an attorney, every case, no matter how low you may believe your BAC to have been. Simply put, the consequences of conviction are simply too great for you to roll the proverbial dice, lifelong Las Vegas resident or not, this is a gamble not worth making.
There are a few categories of DUI offenses that subject Nevadans to felony punishment, are charged as “B” felony offenses, and carry a statutory penalty of 1-6 years in the Nevada Department of Corrections. A third DUI conviction within any seven-year timeframe will be charged as a felony DUI in Nevada, even if the prior DUI convictions occurred elsewhere. What’s more, any DUI which results in an accident and also causes a death or substantial bodily harm will be charged as a B felony offense. NRS 484C.400.
As I regularly tell my clients, in each and every there is a reasonable range of potential outcomes. In short, the greater and wider that range of outcomes is, the more likely a trained, knowledgeable criminal defense attorney can be of help in mitigating the consequences. I often tell clients that if your BAC is under .012 (i.e., within “shouting distance” of the legal limit) then you need a criminal defense attorney. Similarly, if your BAC is greater than .018, more than likely you will want to consult a criminal defense attorney because your enhanced BAC level subjects you to potentially more severe and advanced penalties by statute, including an Alcohol and Substance Evaluation.  Where the outcome is most in doubt, a criminal defense attorney can make the difference between a set of requirements you can live with and an onerous set of burdens you’ll be ill-equipped to complete, setting you up for failure. The good news is most DUIs are misdemeanors but the bad news is DUIs are amongst the most serious of all misdemeanor offenses and, unlike most other misdemeanor criminal offenses, DUIs carry enhanced penalties for subsequent convictions within a specified term of years.
A painful increase in auto insurance rates is generally anticipated when you are convicted of DUI. In most jurisdictions, and certainly in Nevada, most insurance companies will not insure a driver within 7 years of a DUI conviction without that individual securing what is known as an SR-22.  Drivers need an SR-22 to reinstate their suspended licenses following a Nevada DUI and certain other traffic violations. An SR-22 is a “certificate of financial responsibility” statement issued by a driver's auto insurance company. After a DUI, an SR22 is required for three (3) years following a license suspension.
The penalty for a first-time offense of driving on a revoked/suspended license is a flat time sentence of 30 days in the Clark County Detention Center and/or Las Vegas, Henderson, or North Las Vegas City Jail, depending upon the Court from which your case originates. A second time offense carries a penalty of up to 6 months in jail. The bottom line, especially today in lieu of the recent change in the law, the safest course of action is simply not to risk it. To the extent that driving is NECESSARY for you—endure the expense and hardship of having an IID device installed. A Breath Ignition Interlock Device is worth its weight and cost in gold provided it keeps you out of jail and behind the wheel of your car—legally.
Preliminary breath tests are not always accurate and no machine, nor operator of a machine, is beyond error. There are several ways in which a BAC test may give an artificially higher reading as the machine’s measurements can be rendered inaccurate by failure to calibrate the machine properly and timely. Similarly, some dental fillings have been demonstrated to increase erroneously the BAC result the machine provides. In short, all is not lost with a BAC result in excess of the legal limit. The inquiry simply cannot end there.  Various other seemingly innocuous things can affect the reading of the machine, such as a low carb diet (Atkins/Keto); the machine reading and registering mouth alcohol and concluding an inaccurately high reading; GERD and/or acid reflux disease (the “gurgles” as we called it when were kids); and too many others to list here. If any of the above arguably apply in your case, there may be some play in the numbers.
The State of Nevada, much like every other state in the United States, has an implied consent law which effectively states that by virtue of availing oneself of the roads, freeways, traffic signals, and so forth, an individual IMPLIEDLY consents to a test of their breath and/or blood upon reasonable suspicion of impairment by a law enforcement officer.  There are some caveats, such as challenging whether or not you were in “actual physical control” of the vehicle at the time the suspicion arose, but the long and short of it is that refusing a Breathalyzer test often carries with it consequences, including a potentially longer period of revocation of your driver’s license.  
FSTs are employed by law enforcement officers primarily to obtain additional evidence of impairment should there ultimately be a trial or contested hearing in the case. Common FSTs include the One Leg Stand; the Walk and Turn Test; and the Horizontal Gaze Nystagmus. Alcohol intoxication brings about a significant slowdown of mental and physical processing in the intoxicated person—a depressant, alcohol has the effect of impairing motor function, impeding hand-eye coordination, and limiting the balance of the individual. As a result, the FSTs often are an impossible task for even the slightly “buzzed” driver.  For the One Leg Stand, the suspected DUI driver is required to stand on one leg and count to 30. The more often the individual sways, hops, puts the other foot down on the ground, or uses their arms to maintain their balance, will all be used as indicia of impairment.  For the Walk and Turn Test, the suspected DUI driver is required to walk a straight and narrow line—taking nine or ten heel to toe steps—any time the heel doesn’t touch the toe, the walker steps off the line, or uses their arms to maintain their balance, the officer will use this as a clue indicative of impairment and will place these missteps in the report of arrest to buttress the conclusion that the driver was too impaired to operate the vehicle safely.  Finally, for the Horizontal Gaze Nystagmus Test, the officer will use a pen or other similar object, and move this object in front of the suspected drunk driver’s eyes, determining the degree to which the suspected drunk driver is able to maintain focus and track the pen’s movements. When an individual has consumed some quantity of alcohol, the eves will not track pen’s movement as well—it will begin to drag, you might say. This is more pronounced the higher that an individual’s BAC becomes. Of all the FSTs, this is probably the most accurate and the most damaging in terms of import.  Our advice at Yampolsky & Margolis Criminal Defense Las Vegas is to forego FSTs. With a little liquid courage we are all convinced that we are “fine” and that when given the golden opportunity to demonstrate our sobriety in FSTs, many of us are entirely too confident in our ability to “nail it”. What’s more, even if you as a suspected drunk driver do perform admirably on the FSTs, your judge and jury as to that performance is an officer that has probably spent the better part of an hour on your DUI arrest. I hate to put it this bluntly, but the tie is not going to be granted to the driver in close FST evaluations, if you catch my drift. 
Yampolsky & Margolis Criminal Defense Las Vegas

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