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

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.

Most people don’t realize that you can actually be charged with a DUI with virtually any traceable amount of alcohol present in your blood or breath. The law allows the prosecutor for the State to charge a DUI by simple alleging the person driving is “under the influence, however slight.”  A person can be pulled over and arrested with a BAC of .05% for instance, if, through evalution, law enforcement and the prosecution believe the person was “under the influence” or “impaired.”  The difference with an “impairment theory” DUI and a “per se” DUI is simply the level of the person’s blood or breath alcohol detected through a forensic test (either an Intoxilyzer ® breath sample or a blood draw).

With a “per se” DUI, the state or city prosecution simply needs to show that the person’s blood or breath alcohol percentage was over a certain level where the law presumes that all drivers are too impaired to drive.  In Nevada, that level is .08% or more.  The thought behind the law is that any person who is at that level is impaired or under the influence to a point they cannot safely drive.  While this may or may not be true for most people (for instance a very experienced drinker who has built up a tolerance to the effects of alcohol may be able to function normally at a .08% such that the average person would not notice any exhibition of alcohol consumption symptoms) the presumption under the law is that no person can safely drive at that level and thusly, they are “per se” under the influence.

In my next blog entry I will discuss how the new law referenced in this article will have a great impact on driving under the influence allegations in Nevada.

If you have questions about DUI Laws in the State of Nevada or if you or someone you care for has been arrested for a DUI in Las Vegas, help is only a phone call away. At the Las Vegas DUI Defense firm of Hofland & Tomsheck, we have a wealth of experience dealing with changes in the law and the defense of DUI charges. Attorney Josh Tomsheck is a Nationally Board Certified Criminal Defense Attorney who has been recognized by the Nevada State Bar as a Specialist in Criminal Trial law and strives to constantly stay on the cutting edge of legal, scientific and constitutional issues to help his clients through this most difficult situation. Contact Las Vegas DUI Attorney Josh Tomsheck today.