Yampolsky & Margolis Criminal Defense Las Vega

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Yampolsky & Margolis Criminal Defense Las Vega


For many, many years, the short answer to this question was “no.” However, here in Nevada, times have changed to the degree that this is not necessarily the case anymore. A recent change in the law allows those facing a driver license revocation for a pending DUI conviction to install what is known as Breath Ignition Interlock Device into their vehicle. In so doing, the defendant driver will be permitted to drive during the period wherein their license would formally be revoked. This is a relatively new development and one that, for the most part, our clients seem to want to avail themselves of, assuming finances permit. The installation and maintenance of the Breath Ignition Interlock Device will cost anywhere from $75-$150 for installation, and there will be similar monthly maintenance costs associated with use of the device.
Pursuant to statute, the penalties for a first time DUI in Nevada involve 2 days to 6 months in jail; a fine ranging from $400.00 up to $1,000.00; DUI class; a Victim Impact Panel, and the defendant must generally “stay out of trouble” (i.e., avoid any new arrests, adverse contact with law enforcement, small moving and traffic violations exempted). In the Justice Courts, the customary fine is presently $685. In the Municipal Courts within Clark County, Nevada, the customary fine is $805. Penalties for subsequent offenses for DUI are greater. DUI, along with Misdemeanor Battery Domestic Violence (hereinafter “DV”), are considered amongst the most serious misdemeanor criminal offenses that there are. As such, the statutory sentencing scheme in Nevada, as in every other state of the union, more severely punishes subsequent convictions for DUI with what are known as “enhanced” penalties. Subsequent DUI convictions within a 7 year period will be treated more harshly—for a second time DUI, the range of potential jail time increases from 2 days to 6 months all the way up to a minimum of 10 days in jail, with a maximum custodial sentence of 6 months. For a third time DUI, the potential jail time isn’t actually “jail” time anymore at all—at this point, the defendant is treated more like a criminal than most DUI defendants and will be charged with a B Felony offense carrying a specified term of imprisonment in Nevada State Prison (not jail) for a term of 1-6 years.
By statute, the punishment for conviction of a first time DUI requires a minimum of two (2) days in the Clark County Detention Center (or in the corresponding City Jail if charged by the cities of Las Vegas, North Las Vegas, Henderson, etc.).  In practical reality, many persons arrested and charged with DUI will serve anywhere from a handful of hours to a day in jail—first time DUI arrestees with no prior criminal record are often granted an “O.R.,” or an “own recognizance release,” for which no bail must be posted, at the time when their impairment has faded away.  When DUI cases are resolved in Court, more often than not, prosecutors will negotiate in such a way so that credit time served will be granted for any remaining “mandatory” jail time prescribed by statute.
BAC is a term of art in DUI law which refers to “blood alcohol concentration”. The BAC is a seemingly objective measurement of the number of grams of alcohol present in the bloodstream of the alleged drunk driver. For most drivers, in most states throughout the United States, the presumptive level of per se impairment in DUI cases is reached at a concentration of 0.08 parts per ml. For those with commercial driver licenses and/or operators of commercial vehicles, the BAC for presumptive impairment drops down to 0.04 parts per ml. Finally, for those under legal drinking age, the operative BAC threshold becomes 0.02 parts per ml.
Drinking and driving is illegal pursuant to NRS 484C.010 and NRS 484C.020 whenever EITHER of the following two conditions precedent occur: (a) the person driving or in what’s known as actual, physical, control of the vehicle is found to have a concentration of alcohol in their blood in excess of the legal limit of 0.08 grams per ml of whole blood tested (NRS 484C.020) or a concentration of a prohibited controlled substance, or drug, in excess of those limits specified in the DUI-Drugs portion of the statute (NRS 484C.010); OR (b) the person driving or in actual physical control of the vehicle is found to be impaired to some degree—however slight—which renders him or her incapable of operating the vehicle safely.

It would be considered a DUI if the person was driving, meaning they were in actual physical control of a vehicle when their blood alcohol was 0.08 or more, or if they had any prohibited controlled substances in their blood.

They could also be convicted of a DUI if they were driving under the influence of alcohol to any degree, however slight, if it rendered them incapable of driving safely. This means people could be convicted of a DUI even if their blood alcohol level was lower than a 0.08.

The blood alcohol test results would be inadmissible if the test was taken two hours after the person had been driving, although it appears that the state gets two bites of the apple. In addition to the criminal case, there is a DMV hearing. The administrative law judge (ALJ) decides whether there is “Clear and Convincing evidence” that you were driving under the influence of alcohol or drugs. This is a lesser standard of proof beyond a reasonable doubt that is used in a criminal case. The DMV does not care about the 2-hour rule. So you could resolve your DUI case as a non-DUI disposition and STILL lose your license for 90 days based on the ruling of the ALJ.

Stereotypical DUI Defendant In Nevada

Anyone can get a DUI; it could be a man, a woman, someone young or someone old, although most of DUI clients are generally male.

Around 80% of DUI cases involve males. It is interesting because if a man and a woman, who weigh the same, drank the exact same amount of alcohol, the woman’s blood alcohol level would be higher because women’s bodies generally carry more fat, and because of that, the alcohol stays in the fat longer and the Blood Alcohol Concentration (BAC) will be higher.

Prescription Drug DUI In Nevada

Another thing people do not realize is that they could be under the influence of a prescription drug even if they had a valid prescription. Hydrocodone and many other legally prescribed drugs can affect a person’s perception. However, if there are no other drugs or alcohol in your system, and the prescription drug is in the therapeutic range, we are usually able to resolve your case so it is not a DUI. Nevada law has something called a rebuttable presumption, meaning that if someone had a controlled substance in their blood at certain levels then it would be presumed the person was driving under the influence. These levels are very low for marijuana and a lot of other drugs.

It is rebuttable because if the person had a prescription for 40mg of Hydrocodone every day, but they only had 20mg in their system when they were pulled over, then that would be within the therapeutic range and it would defeat the presumption.

Unfortunately, sometimes the person might have consumed much more than prescribed. For example, around 200mg of Hydrocodone, which is five times the limit prescribed per day so this would not rebut the presumption that the person was under the influence. Sometimes the prosecutors would be more flexible even if the person was over the prescribed limit of medication, than if they were under the influence of marijuana, cocaine, heroin or something like that.

DUI involving death or substantial bodily harm (SBH) is a felony. The penalty is 2 to 20 years in the Nevada State Prison. The sentence is non-probationable. If you are convicted of DUI with death or SBH, you will go to prison. If you were in an auto accident and killed someone, or injured someone really badly so they had to go to the hospital or there was a broken bone and you have alcohol in your system, you will be charged with DUI with death or SBH.

The interesting thing about a misdemeanor DUI is that if the driver was in an accident even if it was not his fault could be convicted. It would not matter if the accused was rear ended. If the police determined that a driver had consumed alcohol then they would have probable cause to arrest him no matter who caused the accident.

There would need to be proximate cause that the accused caused the accident to be convicted of DUI with death or SBH. For example, the driver would be the proximate cause of the accident if they rear ended someone going 90 miles per hour and that person was killed.

The accused would not be considered the proximate cause of the accident, and they could not be convicted of DUI with death or substantial bodily harm in a situation in which they were driving correctly but then someone on the other side of the road crossed the median and it resulted in a head on collision and that person died.

The accused could be convicted of some other offense such as failure to use due care or something like that, but they would not be looking at mandatory prison time.

I recently handled a case involving my client and his friend who were out drinking. They were both over the limit. My client was about a .12, whereas the other person was a .34. My client was driving and they had a car accident which resulted in a rollover. The passenger did not have his seatbelt on so he was killed. It may seem that the reason he was killed was because he did not have his seatbelt on. However, that issue has been litigated and just because someone does not buckle their seatbelt doesn’t mean that he or she was responsible for their own death.

In this particular case, my client was driving around a curve and driving properly. He was in a little two seater Mercedes. He told the passenger to put his seat belt on. The passenger was in the process of putting it on when he hit the steering wheel and they had the accident. It was a rollover. My client had a concussion and he was injured, but he was wearing his seatbelt, whereas the passenger died because he was not wearing his seatbelt.

My client was charged with DUI involving death and SBH because his blood alcohol was over the limit, 1.2. The legal limit is .08. It looked pretty bad. I believed the probable cause of the accident was the fact that the passenger had hit the steering wheel. When a vehicle is in an accident, the seatbelt freezes where it is. If the seatbelt was not used at all, it would freeze in the opening position, whereas if it was buckled, it would freeze there.

In this particular case, the seatbelt was frozen halfway. It was close to the steering wheel. This corroborated my client’s testimony. I hired an accident Reconstructionist who examined everything and believed, as I did, that the passenger’s behavior when he hit the steering wheel; caused my client to lose control of the vehicle. That was the proximate cause of accident.

I was able to get my client a non-DUI disposition for felony reckless driving. He did not go to prison.

People should be proactive. They should not drink and drive. They also shouldn’t smoke, overeat or speed, but it happens. People attend parties and although there is nothing illegal about consuming alcohol, sometimes they drink a bit too much. They could be convicted of a DUI, if they were drinking and driving and over the legal limit.

Drivers are typically pulled over for DUI because they have committed some traffic offense. The officer would need to have reasonable suspicion that a traffic offense had occurred. This is not a very high standard. If someone was weaving between lanes or if they blew through a stop sign or they were speeding or committing a traffic violation of that nature, then the officer would have the right to pull them over.

Interestingly enough, certain kinds of driving would not be considered traffic offenses, for example if someone was weaving within one lane. It would also not be considered a traffic offense. Or if the driver made a turn without using their turn signal but there was absolutely no traffic that is not a traffic offense.

In case a traffic offense had occurred, the officer would come over and ask the person to roll down their window. He would ask to see the person’s license, registration and proof of insurance. If officer suspected that the driver had been drinking, he would first be looking for signs of impairment i.e. whether the person was able to do this without any problems. If he or she was fumbling, uncoordinated or confused, the officer would take this as a sign of being under the influence. They always ask the person whether he or she had been drinking. Usually there is an odor if the person had been drinking. Although some people claim there is no odor when drinking straight vodka. I disagree.

Most people who come to me say they were not actually drunk and they were doing fine. The way the statute is written, you do not need to be falling down drunk to be deemed under the influence of alcohol. People generally think they did the roadside tests, field sobriety tests (FSTs) fine. But often they don’t know how they actually performed. Alcohol affects people’s judgment. Their recollection may not be the way it really happened. People often say the police had no reason to pull them over because they were driving fine. Sometimes they are right, often they are not.

Many people have the mindset that it is “only” a DUI, not a criminal case. People need to understand that a DUI is actually a criminal case, although if we were able to resolve it as a non-DUI disposition, like reckless driving that is much less serious than a DUI, then it would be considered a traffic offense instead of a criminal case.

People also have the misconception that their case would be dismissed if they were pulled over and made to do all these tests but no one had read them their Miranda rights. Miranda protects people from making incriminating statements when they are already in custody, whereas the law in Nevada and in most states says that DOING THE FIELD SOBRIETY TESTS IS NOT TESTIMONIAL.

If they did not read the person their Miranda rights, they would not be able to use the person’s actual statements, if they made any incriminating statements while in custody. But, they would still be able to use other evidence such as witness statements, blood analysis and the officers’ observations.

Let us suppose someone was pulled over, arrested for a DUI and were on their way to jail. In this situation they would be considered as being in custody. If the officer had not read the Miranda rights, even if the person made incriminating statements i.e. that they were driving, they had a lot to drink and rammed into a parking meter. These statements are incriminating, we would be able to get those statements suppressed.

I advise them to say as little as possible. Some people just roll their window down about an inch, give the license, registration and proof of insurance and not say anything. This would really annoy the police, but if the person was able to do this, they would have a really good chance of beating the DUI.

Someone who was arrested for a DUI and did not agree to a chemical test (breath or blood) at the police station would still lose their license for an additional year whether or not they were convicted of a DUI. The best idea is to use a designated driver or just call Uber, instead of drinking and driving.

Even if the police officer was very nice and said the person was really cooperative, it usually doesn’t matter. If there was evidence the person was driving under the influence because they failed the field sobriety tests, the officer had probable cause to arrest them, no matter how cooperative they were. I often say, “What do a criminal defendant and a fish have in common? If they hadn’t opened their mouth they would not have been hooked.”

Yampolsky & Margolis Criminal Defense Las Vegas

Call For A Free Legal Consultation
(702) 385-9777

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