DUI When Not Driving?

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Believe it or not, in Nevada, you do not actually have to be driving a vehicle to be convicted of a DUI charge. You can be charged with a DUI if you are found sleeping in your vehicle with alcohol or drugs in your system. In fact, you can still be convicted of a DUI in this circumstance if you never even drove the vehicle, but merely went to sleep in the driver seat prior to ever even starting the car.

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DUI When Not Driving


In order to charge you with a DUI, pursuant to NRS 484C.ll 0, it must be found that you were in actual physical control of the vehicle in a public area while intoxicated. Actual physical control means that while a person may not be driving the car, he had the ability to drive the car. As such, you could be found to have been in actual physical control of the vehicle if you are found sleeping in it. The factors that a court looks to in determining whether someone was in actual physical control of the vehicle include: where and in what position the person is found in the vehicle; whether the vehicle’s engine is rmming or not; whether the occupant is awake or asleep; whether the vehicle’s lights are on; the location of the keys; whether the person was trying to move the vehicle or moved the vehicle; whether the property on which the vehicle is located is public or private; and whether the person must, of necessity, have driven to the location where he was apprehended.

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For example, if you are found sleeping in the drive thru of a fast food restaurant, it can be assumed that you were in actual physical control because most likely, the car is running and it can be presumed that had you not driven the car could not have gotten there. However, sleeping on the side of the road in an attempt to “sleep it off’ before driving home could also have the same implications.

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Forced Blood Draw and DUIs

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Recently, the United States Supreme Court provided another victory for defense counsel when it comes to defending DUIs. In Missouri vs. McNeely, the court held that police officers cannot force a blood draw without a warrant.

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In the opinion, the Court affirmatively held that the normal dissipation of alcohol in the blood stream is insufficient to create a per se exigent circumstance allowing police officers to forego the warrant requirement. Basically, the position asserted by the police and prosecuting agencies is that the dissipation of alcohol equated to the destruction of evidence. And therefore, this potential loss of evidence created an exigent circumstance that negated the need for a warrant.

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This does not mean in every case the police officers will be required to obtain a warrant prior to forcing a blood draw. However, the Supreme Court held that this must be determined on a case by case basis. And, that there must exist additional circumstances beyond that of a routine DUI stop to justify a police officer dispensing with the need to obtain proper warrant prior to the forced blood draw. Some of these factors my include whether a person was seriously injured or killed as a result of a DUI that resulted in an accident.

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This appears to be a clear victory for defense counsel at the moment. And it makes sense. Sticking a needle in someone’s arm by force to obtain a blood draw seems to be a clear 4th amendment violation. However, how the Nevada courts interpret and apply this case law remains to be seen.

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Medical Marijuana & DUI in Las Vegas

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And obtaining the drug through a state-authorized medical marijuana dispensary is not a crime. However, this does not spell the end of all potential legal problems for medical marijuana users. If not careful, medical marijuana users could find themselves charged with a DUI.

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Nevada Revised Statute 484C.120(3) states the following: It is unlawful for any person to drive or be in actual physical control of a commercial motor vehicle on a highway or on a premise to which the public has access with an amount of a prohibited substance in his or her blood or urine that is equal to or greater then: (g) Marijuana – 2 Nanograms per milliliter of blood and (h) Marijuana metabolite 5 Nanograms per milliliter of blood. Which means that a medical marijuana user who legally uses the substance to treat an illness could still face criminal charges if caught driving a vehicle while under the influence.

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This issue is far from over and is going to require a substantial amount of work in order to address all of the different concerns at play here. Obviously, the primary concern for law enforcement and prosecutors will be public safety. Many will argue that marijuana should be treated the same as any other prescription drug, which requires prosecutors to prove actual impairment to get a conviction. There is no automatic standard. Like many other o f the recent changes with DUI laws (the illegalities of forcible blood draws without a warrant), my guess is that Nevada courts will see extensive litigation on many of these issues before any definitive answers are reached.

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