Las Vegas DUI Attorney Blog
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.