When you think of Nevada you most likely think of Las Vegas, and when you think of Las Vegas, certain things always come to mind: the blur of the neon lights, the monstrous scale of the strip, and the cacophonous, smoke filled casino's where day is night and night is day and the alcohol is free for anyone who gambles long enough. Las Vegas may be just one of many Nevada cities, but the people who come to play and stay in Las Vegas may be at a higher risk for DUI than people visiting, say, the Hoover Dam.
With more than enough out of state tourists, Nevada uses harsh DUI laws to crack down on anyone caught drinking and driving within its borders. Although many states' DUI laws are very similar, Nevada breaks the mold when it comes to blood alcohol testing, using harsh laws to ensure that a person arrested for possible DUI is always given a test to determine what his blood alcohol level was at the time of arrest.
Many states give the arrestee the right to refuse blood alcohol testing, albeit at his own peril. In those states evidence of a refusal to take a blood, breath, or urine test may be introduced at the criminal trial as evidence of the arrestee's guilty conscience. In Nevada, a person arrested for DUI has no right to refuse a blood alcohol test. The state police are authorized to use force if necessary to administer a blood alcohol test.
Now, you may be thinking, "How can they do that? Can they just force me to take a test that could incriminate me? That seems awfully unfair." While it may seem unfair at first glance, rest assured that the Nevada police are acting with the full force of the law behind them.
A doctrine called "implied consent" makes it possible for the state to literally imply the consent of anyone who decides to drive a car within its borders. The basic idea is that driving is a privilege granted by a state, and a person who accepts the privilege of driving within Nevada has also impliedly consented to be tested for abuse of that privilege, namely for driving under the influence within the state's borders.
If you are arrested for DUI in Nevada, in addition to being tested for blood alcohol, you will also face two proceedings. The first will be an administrative proceeding with the department of motor vehicles. This proceeding may result in the suspension of your license or other less strident restrictions on your driving privileges. The second proceeding is the criminal court case, where the results of that blood alcohol test may come into play.
In the criminal case, the prosecution may proceed using either a per se theory or a common law theory of driving while under the influence. Under the per se approach, if the arrestee's blood alcohol level was above the legal limit, or .08%, the court will find him per se guilty of driving under the influence. Where the test results are clear and reliable, a test result of .08% or more will seal the deal, so to speak, on a conviction. However, where test results are less than .08% or are unreliable for some reason, the common law theory may be used to obtain a conviction.
Under the common law theory of liability, the court may look to evidence of the arrestee's appearance, demeanor, and behavior in deciding whether or not to convict. General appearance, smell of alcohol, driving pattern, speech pattern, and performance on field sobriety tests may all be used as evidence of intoxication under the common law theory of liability.
For a first offense, a person convicted under either theory can expect fines up to one twelve hundred dollars and jail time up to six months. These are serious punishments and a DUI charge is a serious issue. As always, the best way to avoid the problem is to use a designated driver, or if you are in Las Vegas, just stay on the strip. It's better to wake up married to someone you hardly know than in a jail cell, waiting for the charges and court dates for your DUI hearing.
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