DUI and the Constitution. How Driving under the Influence is different than every other crime.

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.

Most drivers in this position are arrested and given a date to appear for Court following this example.  What many drivers don’t realize however is that this arrest triggers two (2) very difference procedures.  Obviously, this kind of arrest leads to a criminal case in a Court of law… meaning that the driver will face charges and needs a qualified lawyer to represent them in Court.  What many drivers fail to realize however, is at the precise same time (and in most cases earlier) the Department of Motor Vehicles (DMV) will initiate an administrative procedure to revoke the driver’s privileges and ability to drive.

In other words, unlike almost every single other criminal violation, the driver, even though he or she only drove once, is not only prosecuted in the Courts, but he or she is “prosecuted” for driving with a breath alcohol concentration in excess of .08% by the DMV.

While Nevada law dictates that a driver who loses his or her
driving privileges in an administrative DMV proceeding cannot have his or her driving privileges revoked a second time after being convicted criminally for a DUI offense (note that there is a 90 day administrative DMV revocation for a .08% violation for DUI as well as a 90 days revocation for conviction under the criminal statute – – however the driver cannot be revoked twice for both offenses, just one single time) the driver still will face a substantial punishment in the form of classes, victim impact panels, mandatory fines, even jail time.

While in virtually every other situation the constitutions of both the United States and Nevada dictate that a person can only be prosecuted for a single crime once and the 5th amendment of the United States constitution explicitly states that no person shall “be subject for the same offense to be twice put in jeopardy of life and limb,” when it comes to DUI, the constitutional protections of citizens are generally thrown out and ignored by the legislature.

In addition, the laws as they related to DUI offenses in Nevada (and virtually every other state) dictate that when a person is over .08% in their blood or breath, they are “per se” intoxicated.  In Nevada, a person can be arrested, charged and even convicted if their blood or breath sample is over the legal limit, even if they have exhibited no signs of impairment.  However, the driver can still be convicted without ANY forensic sample, from blood, breath or urine showing any level of alcohol in the body.  Unlike almost every other type of criminal allegation, the law says it’s “OK” to prosecute a driver under both theories at the same time.

This dichotomy of allowing a State to punish a driver by two (2) different methods (the DMV proceeding and the Court proceeding) as well as the State’s ability to bring charges in Court by more than one theory, is unique to DUI law.  These difficult issues of law require expert defense.

Because the area of DUI law presents this, and many, many other unique circumstances – coupled with the fact that an arrest and conviction for DUI can lead to permanent consequences for the person convicted, you need to consult with a knowledgeable and experienced DUI Defense attorney right away.  In some cases you only have a week from when you are arrested to save your right to drive and fight your DMV revocation.  Act now and contact us today.  While no criminal case outcome can be guaranteed, at the law firm of Hofland & Tomsheck we have a long track record of achieving positive outcomes for our clients including the reduction and altogether dismissal of DUI charges.  Contact us today and let us start fighting for you.



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