Articles Posted in Constitutional Law and DUI

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.

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.

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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.

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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.

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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

Being arrested for a DUI (Driving under the Influence) is perhaps the most commonly charged criminal offenses in all of Las Vegas.  The reason this crime is so commonly charged is two-fold.  First, law enforcement actively pursues arrests in this type of offense.  While there are no “robbery or rape patrols” there are DUI patrols with special units of officers dedicated to only the arrest of drivers who have been drinking.  Secondly, while most individuals are generally law abiding, there are not many among us who couldn’t have been arrested for driving under the influence at some point in our lives.

So, what happens when you are arrested for DUI?  When law enforcement pulls over a driver and determines that the person behind the wheel is impaired, they are immediately arrested.  In Nevada, when someone is arrested for DUI pursuant to a breath test sample in excess of .08%, the person is not only arrested, but their Nevada Driver’s License is immediately confiscated by the arresting officer and the driver is handed what is commonly called a “pink sheet,” or more precisely a “Officer’s Certification of Cause and Notice of Revocation or Suspension” form.  This paper means two (2) things.  First, it means that the Officer has determined that there is probable cause to arrest the driver, in the form of a breath test in excess of .08%, meaning that (in the officer’s opinion) the driver should lose his or her privilege to drive.   Secondly, this paperwork serves as the driver’s license (remember that the police officer will physically take the driver’s license) for a period of only seven (7) days before the driver’s license is revoked by the DMV.

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