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Yampolsky & Margolis Attorneys at Law


In Nevada the legal limit is a 0.08, so someone who the police can prove was driving or in actual physical control whose blood alcohol concentration was over a 0.08 could be convicted of a DU. However, the breath test has an error factor of up to 10%, meaning it could be 10% higher, or 10% lower. So if someone is a .09 or less, we would use that in our argument that the prosecution would not be able to prove that the blood alcohol level was 0.8 or more beyond a reasonable doubt. This is a very high standard that is used in all criminal cases.

We would typically resolve this kind of case as a stay of adjudication. The client would actually plead guilty to a DUI, but the court would “stay the adjudication”. The guilty plea would NOT be entered into the record. So if anyone checks, your case would still be pending. Then you would need to complete certain requirements; usually attend and complete a DUI school, attend a Victim Impact Panel (VIP) which is basically a seminar in which people tell you how their life has been adversely affected by a drunk driver (i.e. My sister was rear ended by a drunk drive and she broke her arm), pay a fine, stay out of trouble and possibly do some community service. If you successfully complete these requirements your case would end up as reckless driving. This is NOT a DUI conviction. But the flip side is, if you do not successfully complete, you will be convicted of a DUI.

If a client took a blood test and the blood alcohol level was 0.085, then he or she could have the blood retested because it sometimes might come back lower. Some clients have a much higher blood alcohol level. According to Nevada law, if the blood alcohol level was in fact over a 0.18, then in addition to the other penalties we would need to get a chemical dependency assessment.

The person would be interviewed by a psychologist to determine whether or not the person had an alcohol problem or what other requirements they may need as part of their sentencing. They would typically want people to go to AA once a week or maybe even twice a week depending on the blood alcohol level and the history of the individual’s driving record and previous incidents involving alcohol.

Blood Tests Are Only Valid If Taken Within A Certain Time Frame

The chemical test for alcohol would need to be done within two hours from the time of driving. The alcohol test would not be admissible in court if it was not done within those two hours. The 2 hour time limit does not apply to drugs.

I handled a case involving a motorcycle in which my client actually came back to the scene of the accident because his friend wiped out on his motorcycle. When the officer arrived, my client was standing with his motorcycle. He was not driving and by the time they took the blood alcohol level it had been over two hours.

There was another witness for this incident, who had seen both motorcycles. She said the other motorcyclist passed unsafely, whereas my client did not. I asked whether there had been any bad driving by my client, and she said no.

They were not able to convict my client of a DUI because the blood alcohol level was not admissible because it was taken more than 2 hours from driving. I went to trial on this. I spoke to the officer ahead of time and told them they would not be able to prove their case. All I wanted was for the DA to reduce it to a reckless driving conviction. The cop would not agree. So we went to trial and I won.

Roadside tests are also known as “field sobriety tests” FSTs. I call them roadside tests because they are generally taken on the road side and most people may not understand the term field sobriety test. Three tests are usually given.

Horizontal Gaze Nystagmus Test (HGN)

The first test would be the horizontal gaze nystagmus test abbreviated as HGN. In this test the officer would stand in front of the client and move his finger or a pen from right to left in front of the client’s eyes to a distance of about two feet each way. The person would be instructed to follow the finger with their eyes without turning their head.

In this test, the officer would be looking for nystagmus, which is an involuntary jerking of the eye. It would be an evidence of nystagmus if the person followed the officer’s finger and their eye jerked prior to the officer stopping his finger. That would be considered evidence that the person was under the influence. It would also be considered nystagmus if the person had involuntary jerking of their eyes prior to fortyfive degrees.

How The Breath Test Can Overrule Other Field Sobriety Tests?

The officers would probably have a portable breath tester (PBT) with them, so the person could blow into it and it would show a reading of their blood alcohol level. The actual reading itself would not be admissible in court, but it would be a factor in determining whether there was probable cause to arrest them.

The officer would sometimes feel the person did okay on the field sobriety test, but then they would give the portable breath test which would come back over a .08 so they would decide to arrest the person based on that. There is no requirement that you need to take a PBT at the scene.

Nevada’s Law Regarding Refusing Sobriety Tests

Whatever the person does, they should not consent to any roadside tests. The law in Nevada used to state there was no right to refuse, so if the person refused to take the test, a group of officers would hold them down and take a blood sample whether they liked it or not. But now you can insist that the police get a warrant.

Yampolsky & Margolis Attorneys at Law

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

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