Driving Under the Influence

Marijuana DUI Charges Can Have Serious Consequences

December 12, 2016 | Hofland & Tomsheck

In a previous entry on this Blog, I wrote about the passage of new Nevada State laws legalizing personal use marijuana and the possession of less than 1 oz. of marijuana – – – and further discussed the difference between “impairment” vs. “per se” DUI laws.

Nevada, unlike many states, has passed “per se” DUI laws setting acceptable levels of the presence of a drug in one’s system, over which the law presumes the driver is too impaired to drive safely. In many states a driver who is alleged to be under the influence of marijuana typically can’t be convicted of a “per se” DUI. In those states, drivers are usually charged with a theory of impairment – – – wherein the prosecutor has to point to documented evidence that the driver cannot perform driving related tasks safely. The law requires prosecutors in these jurisdictions to show that marijuana consumption had an effect on the driver and not simply prove up the presence of a specific amount of THC in the driver’s system. Nevada commonly charges the “impairment” theory as their first theory of criminal liability in a DUI case. In Las Vegas and throughout the State of Nevada, prosecutors have the burden of proving the person charged (the Defendant) is impaired “to a degree that rendered him incapable of safely driving or exercising actual physical control of a vehicle.” (NRS§ 484C.105 (2016)). In the States that ONLY charge the impairment theory of Marijuana DUI there has been no need to take action in changing their DUI laws following the recent trend towards the decriminalization of marijuana.

Nevada is the exception to this general rule however. Nevada is one of the small number of states that have legislation on the book utilizing the “per se” DUI theory to DUI of marijuana. In Nevada a driver can be convicted of DUI simply by driving with a minimum concentration of the active agent in marijuana (“THC”) or the breakdown metabolite of THC in their system as detected through a blood test.

Changes to Nevada Marijuana Laws Likely to Cause Increase in Marijuana DUI Arrests

December 5, 2016 | Hofland & Tomsheck

The selection of a new President of the United States was not the only big decision made by Nevada voters on Super Tuesday in Early November. Nevada voters, along with those in three (3) other states, Maine, California and Massachusetts, decidedly permitted ballot measures which served to do away with criminal eligibility for personal or recreational use of marijuana.

Eventually, when these newly enacted laws are cemented in place, the total number of States which have legalized Marijuana, will grow to Eight (8). This is in addition to our nation’s capital, Washington D.C., where citizens of legal age are permitted to legally possess and marijuana, even absent a prescription. These States are in addition to those which have enacted legislation allowing for the approved use of marijuana for medical purposes.

The creation of these new allowances under the law gives rise to many areas of conversation, from the legalities of farming and distribution to taxation and the like. The Clark County District Attorney’s office recently announced they would no longer prosecute possession of marijuana cases which would fall under the new law, even BEFORE it technically goes into effect.

As a Las Vegas DUI Defense lawyer however, the passage of this ballot initiative into law creates a whole new set issues within the Las Vegas community that most local drivers are not even aware of. It is my prediction that the passage of this law will either lead to a change in legislation as it pertains to Driving Under the Influence of Marijuana law in Nevada – – – or we will see a marked (if not drastic) increase in DUI Marijuana charges.

You may be asking, how does the legalization of personal use Marijuana affect Nevada DUI laws? The answer is really simple… most State’s, Nevada included, have changed their law of the possession and usage of small amounts of marijuana, but have made no fundamental change to the law related to driving under the influence. The fact is exceptionally important to know for Nevada drivers who intend to use small amounts of marijuana under the new law, even otherwise law abiding licensed drivers.

Here is how – – – in Nevada, as in almost every other state jurisdiction in the US, charges Driving Under the Influence (“DUI”) under two (2) very different theories. These different legal theories of liability are commonly referred to as the “impairment” theory and “DUI per se.” This difference in a criminal charge is the same as it is in the most commonly charged type of DUI, namely an allegation of being under the influence of alcohol.

Changes in Nevada DUI laws can impact your case

September 26, 2016 | Hofland & Tomsheck

The laws in Nevada are constantly being amended or changed, both by courts and lawmakers. It is imperative, that when you are charged with a DUI in Nevada, you have a lawyer who is up to date on changes in the law. In order to have the best lawyer for your DUI charge, you must have an attorney who is aware of the current state of DUI law and how best to use those laws to build your defense.

A good example of a change in the law that those charged with a DUI should be aware of is Assembly Bill 67 (AB67). This new law was voted into place unanimously and has many significant changes for those charged with a DUI in Nevada.

One main component of the bill is that removes the antiquated legal principle of “implied consent” to allow law enforcement to take a forensic blood or breath sample. While a Nevada driver can still consent to either test, if a driver refuses to voluntarily to take a test, a warrant is now required before the blood can be taken. Moreover, if a driver refuses to submit to a test, his or her license is subject to revocation for a period of one (1) year following the refusal.

Additionally, prior to AB 67, a legal document known as an “Affidavit” allowed to be submitted in trial to attempt to prove a DUI charge unless the Defendant established a “substantial and bona fide” dispute as to the facts in the Affidavit prior to Trial. Following AB 67, and Affidavit to prove facts at Trial is not admissible if the Defendant (or his lawyer) objects 10 or more days prior to Trial. This requires the prosecutor to bring in the witness, instead of a sheet of paper, to prove their case and allows for a defense attorney to thoroughly cross examine the witness on the content of their testimony.

“Driver beware: DUI Checkpoint ahead”

April 15, 2016 | Hofland & Tomsheck

As outlined in previous posts to this blog, DUI checkpoints remain a commonly used and effective way for the police to stop you and investigate DUI allegations. For instance, the LVMPD has just announced that they will be conducting a DUI Checkpoint between 7:00 P.M. on Tuesday, April 19, 2016 through 3 A.M. on Wednesday, April 20, 2016.

While the general public may not be aware that within the last six (6) months, the intersection of Rampart and Charleston has had 87 traffic incidents and two fatal accidents. The Las Vegas Metropolitan Police Department took note of that and will be having a sobriety checkpoint at that intersection as outlined above.

A driving under the influence checkpoint or roadblock involves the stopping of all vehicles traveling on a street or highway. A police officer, or many police officers, may be seen signaling for cars to pull over to the side of the road or being stopped in the middle of the road. The Las Vegas Metropolitan Police Department usually conducts check points during the hours of 6 P.M. – 2 A.M. on a given date, quite often a holiday or time when it is believed impaired driving will be prevalent. Typically, police checkpoints in Las Vegas, Henderson, North Law Vegas or the surrounding communities will occur on busy, well-traveled streets. Law enforcement will keep records on checkpoints and previous checkpoints done by the Las Vegas Metropolitan Police Department have resulted in as many as 1,500 plus vehicles passing through such a road block. For example, on Super Bowl Sunday 2015, 1,523 vehicles passed through the pre noticed LVMPD checkpoint. Each year, DUI checkpoints account for hundreds of arrests for allegation of Driving Under the Influence in the Las Vegas Valley.

“DUI Checkpoints in Nevada: Can the Police do that?”

December 15, 2014 | Hofland & Tomsheck

It is no secret that one of the most aggressively investigated and charged crimes in Nevada is Driving Under the Influence, also known as “DUI.” One of the more commonly used techniques to identify and arrest alleged drunk drivers is the “DUI checkpoint.”

When the topic of DUI arrests and DUI checkpoints is brought up to me in conversation, one of the more common questions I am asked is “wait a second…how are DUI checkpoints legal?” And, “are these DUI check points even constitutional?”

While there are lots of variables and the individual facts of each case are unique, in most situations, if a member of law enforcement desires to stop a vehicle driving on a roadway, that law enforcement officer needs to have “probable cause” … or a belief that it is likely that a crime has been committed and that the driver of that vehicle committed that crime. The most common example is when a police officer conducts a traffic stop and pulls someone over for the commission of a moving violation, or “traffic offense” in the officer’s presence. This gives the officer “probable cause” to stop the driver.

In the case if a DUI checkpoint however, the situation is different. While law enforcement does stop drivers at checkpoints, this method of stopping drivers does not require probable cause as does the typical traffic stop. Continue reading ›

Hiring a DUI Defense Attorney – Questions you should ask

October 6, 2013 | Hofland & Tomsheck

In previous posts to this Blog we have discussed things to consider when selection the “best” lawyer for your individual DUI or Drunk Driving case in Las Vegas. In this post, we offer you some insights as to the types of questions you should ask your potential Nevada DUI Defense Attorney when you meet with him or her for the first time. While this list is not meant to be all inclusive, the following can be very helpful:

What areas of law do you focus on?

Many people think that “all lawyers are the same.” This is simply not the case. Every lawyer has different training and experience. More importantly, there are HUNDREDS of various areas of specialization within the law. While a person may be the best real estate lawyer in your State, he or she may be the worst at litigating a case in Court. There are literally 100’s of stellar civil litigators in Nevada, many of them don’t know the first thing about defending a criminal case and know NOTHING about the best way to defend a DUI charge. Choosing a lawyer is no different than choosing a doctor – – If you had a stomach ache, you likely wouldn’t go to dentist. DUI charges are unique and require focused training and experience. While an attorney may tell you when you ask “Yea, I handle DUI cases” – – make sure the lawyer you select focuses a large portion of his or her practice (at least ¼ of the cases he or she handles on a regular basis) on Drunk Driving/Driving Under the Influence/DUI and related charges.

How to hire the “best” DUI Lawyer — things you should consider

October 1, 2013 | Hofland & Tomsheck

Some of the questions that are often asked to Nevada lawyers are “who is the best lawyer” or “How do I find the best attorney.” These questions are often asked by those who have been arrested for Driving under the Influence or are curious about what they should do if they are.

While it is impossible to know who “the best” lawyer is for any individual case and there are likely several individual attorneys or firms who rank among the elite in their practice area, there are certainly several things a person should consider before hiring a lawyer for their DUI case.

Among the things to consider are the following:

Don’t focus on television or radio ads. While many good lawyers DO advertise in today’s information driven age, the presence of an ad on television means nothing about a lawyer’s ability or work ethic. Instead of snappy ads, focus on things like the organizations a lawyer belongs to, what certifications and specialized training he or she has received, ratings from independent rating agencies or referrals from other members of the legal community.

Interview more than one attorney. While there are some situations where you would want to hire the first person you talk to, such as an ironclad referral from someone knowledgeable that you implicitly trust, in most cases it is good to talk to more than one individual attorney. This allows you get different perspectives from different professionals and to develop a sense of comfort in the relationship with attorney you are talking with. This is very important given the fact that you must trust the person who is standing up for you in Court while you fight your DUI charge.

When Driving Under the Influence Becomes a matter of Life and Liberty – – DUI Resulting in Substantial Bodily Harm or Death.

September 22, 2013 | Hofland & Tomsheck

Accidents involving motor vehicles are a very common occurrence in the Las Vegas Valley. Most of us have come to accept fender benders on our streets and highways as a way of life and rarely give them a second thought nowadays. When the accident is alleged to have been caused by someone under the influence of drugs or alcohol however, the consequences become much more severe for the person causing the accident.

A 21-year-old Los Angeles woman was severely injured recently and admitted to the hospital in critical condition after being part of a two vehicle accident, allegedly caused by a person driving under the influence of alcohol.

The Las Vegas Metropolitan police department reported that this accident occurred shortly after 1:00 in the morning on September 21, 2013 in the vicinity of Las Vegas Boulevard and Siren’s Cove Boulevard near the Treasure Island Hotel and Casino.

A full summary of the accident can be found here.

According to witnesses and the review of evidence located at the scene, a BMW was turning left from Siren’s Cove Boulevard to northbound Las Vegas Boulevard. The driver of the BMW, who appears to be from Las Vegas, lost control of his vehicle and struck as which was abiding by traffic laws at a light signal. All three individuals in the taxi cab were injured and taken to an area hospital. One passenger in the taxi suffered severe injuries which are considered to be life threatening.