If charged with Driving Under the Influence, “DUI” for a second time within seven years of a previous DUI conviction, you would be charged with a DUI 2nd offense. A DUI 2nd in Las Vegas, Nevada is a Misdemeanor. The prosecution has three theories that they can use to prosecute an individual for a DUI 2nd offense. First, is the “per se” theory, if they can prove beyond a reasonable doubt that you were driving and/or in actual physical control of a motor vehicle and a blood or breath test was taken within two hours of you driving, and your blood alcohol content “BAC” was .08 or above, you are “per se” under the influence. The second theory is .08 BAC or above “at the time of driving”, if the prosecutor can prove your BAC was .08 or above at the time you were actually driving the vehicle you would be deemed under the influence. Lastly, the “impaired driving theory”, here prosecutors are not required to present any evidence of your BAC or drug toxicity levels. For example, if Tyler causes an accident, the police arrive, and he smells of alcohol, fails all his field sobriety tests, and admits to drinking, the prosecution could argue that regardless of what his BAC was, he was under the influence of alcohol “to any degree, however slight” which rendered him incapable of safely driving, and therefore deemed under the influence.
The consequences of a conviction for a DUI 2nd offense are severe. If convicted, the Judge is required to sentence you anywhere from 10 days up to 6 months of jail, a fine of up to $1,000, and DUI educational courses, such as, a Victim Impact Panel, DUI Class and a Coroner’s Visitation Course. Additionally, if your BAC is .18 (double the legal limit) or above, you are required to have a court ordered drug and alcohol evaluation by a licensed substance abuse counselor, who will assess you for drug and/or alcohol abuse. This substance abuse counselor will then create an evaluation which will be presented to the Judge. The Judge will use this evaluation in determining what additional counseling may be necessary, such as, a breath interlock device being placed in your vehicle, an alcohol monitoring device placed on your body, known as a “SCRAM” device, and group or individual counseling for up to one year, with the potential of be placed in the Moderate Offenders Program “MOP”, which is a court ordered yearlong DUI offenders program. If these penalties weren’t harsh enough, if convicted of a DUI 2nd offense you are not eligible to seal your criminal record until seven years after your case is closed.
Unfortunately, DUI’s are very common in the Las Vegas Valley, and all local police agencies are instructed to make an arrest if they have reasonable suspicion that you are under the influence of drugs and/or alcohol, while driving or being in actual physical control of a motor vehicle on a public roadway. Once arrested, the Police Officer or Nevada Highway Patrol Trooper will take you to jail, and because you have previously been convicted of a DUI, you are not given an option to take a breath test, and therefore will be forced to submit to a blood test, which will be used as evidence against you in your criminal case and DMV Administrative Hearing.
DUI offenses are vigorously prosecuted and a conviction can have dire consequences. A Driving Under the Influence Offense is the only crime on the books in Las Vegas, Nevada, where a prosecutor must have “legal cause or reason” to negotiate a DUI charge down to anything less than a DUI, such as a Reckless Driving. Meaning, a prosecutor can’t, and won’t, offer to drop your case, just because you are a good person. That among many other reasons is why it is vital to hire Las Vegas DUI Defense Attorney Michael A. Troiano. With his extensive knowledge and experience in DUI Defense on your side, he will discuss all defenses available for your specific case and keep you well informed of the entire process of your DUI 2nd criminal case in addition to the DMV Administrative Hearing and your driver’s license privileges.