Las Vegas Drunk Driving Accidents Victims Attorneys

NEVADA REVISED STATUTES
TITLE 43--PUBLIC SAFETY; VEHICLES; WATERCRAFT
CHAPTER 484 TRAFFIC LAWS
RULES OF THE ROAD
DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR CONTROLLED OR
PROHIBITED SUBSTANCE

COPR. © 2005 The text of the Nevada Revised Statutes appearing in this

database was produced from data provided by The Nevada Legislative Council

Bureau and is subject to a claim of copyright by the State of Nevada.

Current through the 2005 Regular Session and 22nd Special Session
of the 73rd Legislature

NRS 484.3795 Penalty if death or substantial bodily harm results; exception; segregation of offender; plea bargaining prohibited; affirmative defense; aggravating factor.

[Effective until the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State.]

1. Unless a greater penalty is provided pursuant to NRS 484.37955, a person who:

(a) Is under the influence of intoxicating liquor;

(b) Has a concentration of alcohol of 0.08 or more in his blood or breath;

(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in his blood or breath;

(d) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;

(e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him incapable of safely driving or exercising actual physical control of a vehicle; or

(f) Has a prohibited substance in his blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 484.379,

and does any act or neglects any duty imposed by law while driving or in actual physical control of any vehicle on or off the highways of this State, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, a person other than himself, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and must be further punished by a fine of not less than $2,000 nor more than $5,000. A person so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

. A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other reason unless he knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 may not be suspended nor may probation be granted.

3. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after driving or being in actual physical control of the vehicle, and before his blood or breath was tested, to cause him to have a concentration of alcohol of 0.08 or more in his blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

4. If the defendant was transporting a person who is less than 15 years of age in the motor vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.

(Added to NRS by 1973, 447; A 1979, 1484; 1981, 1926; 1983, 1073; 1985, 818, 1015; 1989, 1111; 1991, 220, 489, 498, 837; 1995, 312, 1300, 2473; 1997, 644; 1999, 2452, 3422; 2001, 172; 2003, 1492, 2560; 2005, 144)

<General Materials (GM) - References, Annotations, or Tables>

NOTES, REFERENCES, AND ANNOTATIONS

NRS CROSS REFERENCES.

Drivers' licenses, mandatory revocation or suspension, NRS 483.460, 483.461

C.J.S. Motor Vehicles §§ 1336, 1352, 1380, 1382-1394, 1414-1419, 1451-1452, 1484, 1503, 1510, 1539.

NEVADA CASES.

Owner of vehicle criminally and civilly liable for allowing intoxicated person to drive vehicle. Where the owner of an automobile was riding in the automobile when his intoxicated friend backed into and killed a woman, the owner was criminally and civilly liable, because he permitted one who was intoxicated to operate the automobile, under sec. 3, ch. 13, Stats. 1923 (cf. NRS 484.3795), providing that any person who drives a vehicle while intoxicated or by reason of such intoxication does any act causing the death of a person shall be punished as for a felony. Ex parte Liotard, 47 Nev. 169, 217 Pac. 960 (1923), cited, State v. Lewis, 59 Nev. 262, at 274, 91 P.2d 820 (1939)

Section properly included in act to "regulate traffic." Ch. 166, Stats. 1925 (cf. NRS 484.3795), which is entitled "An Act to regulate traffic on the highways of this state, to provide punishment for the violation thereof, and other matters properly connected therewith," properly includes as part of the subject matter of the act a provision making it a felony to injure or kill any person as a result of operating a motor vehicle under the influence of alcohol. State v. Mills, 52 Nev. 10, 279 Pac. 759 (1929)

Elements of offense; information defective where duty imposed by law, and alleged to have been violated by defendant, not specified. In prosecution for a felony drunk driving, where defendant hit the rear of another automobile as the driver of that automobile was attempting to turn left and the collision caused injury to the driver of the other automobile, information which charged the defendant with a violation of the provisions of former NRS 484.040 (cf. NRS 484.3795) without specifying the act or duty imposed by law that the defendant allegedly violated while driving under the influence of intoxicating liquor and the subsequent conviction of the defendant based upon that charge were defective. In order to convict a person of a felony drunk driving, the State must establish beyond a reasonable doubt that the defendant drove the vehicle on a public highway, that he was then and there under the influence of intoxicating liquor, that he did some act forbidden by law or neglected a duty imposed by law in driving such a vehicle and that such an act or neglect proximately caused bodily injury to a person other than himself. Here information failed to allege and proof at trial failed to show what act forbidden by law the defendant committed in addition to driving a vehicle on a public highway while under the influence of intoxicating liquor. Anderson v. State, 85 Nev. 415, 456 P.2d 445 (1969), cited, State v. Johnston, 93 Nev. 279, at 281, 563 P.2d 1147 (1977), distinguished, Logan v. Warden, 86 Nev. 511, at 512, 471 P.2d 249 (1970)

Sufficiency of information upheld where allegations of information, together with evidence adduced at preliminary hearing, sufficient to apprise defendant of crime charged. Where sufficiency of information charging a felony drunk driving in violation of the provisions of former NRS 484.040 (cf. NRS 484.3795) was first challenged after conviction, information which charged the defendant had driven the vehicle in such a negligent manner as to cause death, together with information contained in the transcript of the preliminary hearing relating to the specific forbidden act committed, was sufficient to provide adequate notice of the crime charged to enable the defendant to plead or defend. Logan v. Warden, 86 Nev. 511, 471 P.2d 249 (1970), cited, Vincze v. State, 86 Nev. 546, at 549, 472 P.2d 936 (1970), Patrick v. Sheriff, Washoe County, 86 Nev. 849, at 850, 477 P.2d 594 (1970), Brimmage v. State, 93 Nev. 434, at 440, 567 P.2d 54 (1977), State v. Jones, 96 Nev. 71, at 76, 605 P.2d 202 (1980), see also Collura v. State, 97 Nev. 451, 634 P.2d 455 (1981), State v. Eighth Judicial Dist. Court, 116 Nev. 374, at 377, 997 P.2d 126 (2000), Jennings v. State, 116 Nev. 488, at 491, 998 P.2d 557 (2000), distinguished, Simpson v. Eighth Judicial Dist. Court, 88 Nev. 654, at 661, 503 P.2d 1225 (1972), State v. Johnston, 93 Nev. 279, at 282, 563 P.2d 1147 (1977), Barren v. State, 99 Nev. 661, at 669, 669 P.2d 725 (1983)

Indictment must allege specific act or neglect of duty causing injury. An indictment predicated on a violation of NRS 484.3795 which alleged only that the defendant was driving under the influence of intoxicating liquor was properly dismissed by trial court because it did not allege a specific act or neglect of duty which was the proximate cause of injuries. State v. Johnston, 93 Nev. 279, 563 P.2d 1147 (1977), cited, Albitre v. State, 103 Nev. 281, at 284, 738 P.2d 1307 (1987) (dissenting opinion)

Evidence sufficient to support finding of substantial bodily harm where victim's nose was crushed, face lacerated and wrist broken. In a prosecution for causing substantial bodily harm to another while driving under the influence of intoxicating liquor under NRS 484.3795 where the victim's nose was crushed, his face lacerated and wrist broken, evidence supported the jury's finding that she suffered "substantial bodily harm" where that term was defined as: (1) bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of function of any bodily member or organ; or (2) prolonged physical pain. Gibson v. State, 95 Nev. 99, 590 P.2d 158 (1979), cited, Levi v. State, 95 Nev. 746, at 748, 602 P.2d 189 (1979), Hardaway v. State, 112 Nev. 1208, at 1211, 926 P.2d 288 (1996)

To have his conviction reversed for loss of evidence, an appellant must show: (1) bad faith or connivance on the part of the government; or (2) that he was prejudiced by the loss of the evidence. Where an appellant who was convicted of felony drunk driving (see NRS 484.3795) after striking and killing a bicyclist argued that he was deprived of due process of law (see also Nev. Art. 1, § 8) when the State allegedly suppressed evidence prejudicially by discarding the bicycle owned by the decedent, the supreme court held that where an appellant seeks to have his conviction reversed for loss of evidence he must show either: (1) bad faith or connivance on the part of the government; or (2) that he was prejudiced by the loss of the evidence. Williams v. State, 95 Nev. 527, 598 P.2d 1144 (1979), cited, Crockett v. State, 95 Nev. 859, at 865, 603 P.2d 1078 (1979), Wood v. State, 97 Nev. 363, at 366, 632 P.2d 339 (1981), see also Howard v. State, 95 Nev. 580, at 582, 600 P.2d 214 (1979), State v. Havas, 95 Nev. 706, at 710, 601 P.2d 1197 (1979) (dissenting opinion), Boggs v. State, 95 Nev. 911, at 912, 604 P.2d 107 (1979), Baccari v. State, 97 Nev. 109, at 111, 624 P.2d 1008 (1981), Rogers v. State, 101 Nev. 457, at 463, 705 P.2d 664 (1985), Milligan v. State, 101 Nev. 627, at 634, 708 P.2d 289 (1985), Haynes v. State, 103 Nev. 309, at 318, 739 P.2d 497 (1987), Sparks v. State, 104 Nev. 316, at 319, 759 P.2d 180 (1988), Orfield v. State, 105 Nev. 107, at 109, 771 P.2d 148 (1989), Daniels v. State, 114 Nev. 261, at 267, 956 P.2d 111 (1998), Chapman v. State, 117 Nev. 1, at 6, 16 P.3d 432 (2001), Randolph v. State, 117 Nev. 970, at 987, 36 P.3d 424 (2001), Klein v. Warden, Ely State Prison, 118 Nev. 305, at 313, 43 P.3d 1029 (2002), Buchanan v. State, 119 Nev. 201, at 220, 69 P.3d 694 (2003), distinguished, Leonard v. State, 114 Nev. 639, at 655, 958 P.2d 1220 (1998)

Harm to multiple victims gives rise to multiple offenses. On appeal from a conviction of two felony counts of driving under the influence of intoxicating liquor, causing death (see NRS 484.3795), defendant could not successfully contend that a violation of the drunk driving law results in only one offense, i.e., causing of injuries, regardless of the number of victims. Appellate court ruled that the State is concerned with minimizing both the causing and receiving of injuries, and where defendant's course of conduct resulted in harm to multiple victims it gave rise to multiple charges of the offense. Galvan v. State, 98 Nev. 550, 655 P.2d 155 (1982), cited, Albitre v. State, 103 Nev. 281, at 284, 738 P.2d 1307 (1987), LaMotte v. Slansky, 661 F. Supp. 573, at 575 (D. Nev. 1987), Woods v. State, 114 Nev. 468, at 477, 958 P.2d 91 (1998), Firestone v. State, 120 Nev. 13, at 18, 83 P.3d 279 (2004) (dissenting opinion)

Fine for violation of section not to be converted to imprisonment automatically where defendant indigent. The State could impose a mandatory fine for a violation of NRS 484.3795 (causing the death of another by driving a motor vehicle while under the influence of intoxicating liquor) but under the equal protection clause of the U.S. Constitution could not automatically convert the fine into imprisonment (see NRS 176.065) solely because the defendant was indigent and unable to pay the fine in full. Before a defendant may be imprisoned for nonpayment of fine, a hearing must be held to determine his financial ability. If he is indigent, sentencing court must permit discharge of fine by alternative means (see NRS 176.085). To the extent that NRS 176.085 permits imprisonment for nonpayment before a hearing has been held, it is constitutionally insufficient. Gilbert v. State, 99 Nev. 702, 669 P.2d 699 (1983), cited, AGO 93-6 (4-9-1993), Warner v. Second Judicial Dist. Court, 111 Nev. 1379, at 1384, 906 P.2d 707 (1995)

Expansion of punishment for conduct prohibited by section is for Legislature; defendant not guilty of second degree murder for deaths caused by driving while intoxicated. In criminal prosecution, where defendant, while driving under the influence of intoxicating liquor, collided with another automobile and two of its passengers were killed, the court would not extend liability for murder of the second degree under NRS 200.030 to deaths resulting from driving while under the influence of intoxicating liquor on the ground that such driving was inherently dangerous and naturally tended to destroy human life, because expanding punishment established by the Legislature for killing or seriously injuring another while driving under the influence of intoxicating liquor (see NRS 484.3795) would constitute impermissible judicial excursion into the Legislature's domain. Sheriff, Douglas County v. LaMotte, 100 Nev. 270, 680 P.2d 333 (1984), cited, Johnston v. State, 101 Nev. 94, at 95, 692 P.2d 1307 (1985), see also Labastida v. State, 115 Nev. 298, 986 P.2d 443 (1999)

Absent showing of intent to kill, driver not properly convicted of murder with use of deadly weapon; section provides exclusive punishment. In a criminal prosecution, where defendant, while driving a motor vehicle under the influence of intoxicating liquor, drove the vehicle into a wooden electrical pole which fell and killed a deliveryman, defendant was improperly charged and convicted of murder with the use of a deadly weapon under NRS 193.165, 200.010 and 200.030 because, absent the showing of an intent to kill, statutory punishment contained in NRS 484.3795 was exclusive punishment for a homicide which occurred. Johnston v. State, 101 Nev. 94, 692 P.2d 1307 (1985)

Prosecutorial misconduct. On trial for driving under the influence of intoxicants in violation of NRS 484.3795, prosecutor's announcement to the jury "that we don't try people that we believe are innocent" and his demeaning of defendant's expert witness as "one who goes to highest bidder" constituted prosecutorial misconduct but it was not of a magnitude warranting reversal. Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987)

Convictions of involuntary manslaughter and felony reckless driving were redundant to conviction of causing death by driving under the influence. Where a defendant was convicted of two counts of causing the death of another by driving a vehicle while under the influence of intoxicants in violation of NRS 484.3795, two counts of involuntary manslaughter and two counts of felony reckless driving, conviction of two counts of causing the death of another by driving a vehicle while under the influence of intoxicants was proper, but the remaining four felony convictions were redundant to the legitimate counts and were reversed. Although charging to the limit may be justified to cover developing nuances of proof, failure to give the jury an instruction limiting the number of alternatives of conviction was error. Albitre v. State, 103 Nev. 281, 738 P.2d 1307 (1987), cited, Jenkins v. Fourth Judicial Dist. Court, 109 Nev. 337, at 340, 849 P.2d 1055 (1993), Johnson v. State, 111 Nev. 1210, at 1215, 902 P.2d 48 (1995), State v. Koseck, 113 Nev. 477, at 479, 936 P.2d 836 (1997), Skiba v. State, 114 Nev. 612, at 615, 959 P.2d 959 (1998), Dossey v. State, 114 Nev. 904, at 908, 964 P.2d 782 (1998), State v. Eighth Judicial Dist. Court, 116 Nev. 127, at 136, 994 P.2d 692 (2000), Braunstein v. State, 118 Nev. 68, at 79, 40 P.3d 413 (2002), Williams v. State, 118 Nev. 536, at 549, 50 P.3d 1116 (2002), see also Servin v. State, 117 Nev. 775, at 790, 32 P.3d 1277 (2001), Salazar v. State, 119 Nev. 224, at 227, 70 P.3d 749 (2003), Crowley v. State, 120 Nev. 30, at 33, 83 P.3d 282 (2004), Ebeling v. State, 120 Nev. 401, at 404, 91 P.3d 599 (2004)

Meaning of "under the influence." The phrase "under the influence" in NRS 484.3795 applies to each harmful act or neglect of duty specified in NRS 484.3795, and its meaning embraces only a person who ingests any substance mentioned in the statute to a degree that renders him "incapable of safely driving or exercising actual physical control of a vehicle." Whether the driver has been so influenced by an ingested substance will, except for "per se" violation of driving under the influence of intoxicating liquor when a person has over the statutory-prescribed percentage by weight of alcohol in his blood, always be a question of fact to be considered in light of such variable circumstances as the person's resistance to the substance, the amount ingested and the type and time of ingestion. The giving of jury instruction containing an erroneous meaning of the qualifying phrase "under the influence" was reversible error. Cotter v. State, 103 Nev. 303, 738 P.2d 506 (1987), cited, Bostic v. State, 104 Nev. 367, at 369, 760 P.2d 1241 (1988), Almond v. State, 105 Nev. 904, at 908, 785 P.2d 217 (1989), Long v. State, 109 Nev. 523, at 529, 853 P.2d 112 (1993), Donald v. State, 112 Nev. 348, at 351, 913 P.2d 655 (1996) (dissenting opinion), State v. Eighth Judicial Dist. Court, 116 Nev. 127, at 138, 994 P.2d 692 (2000)

Routine disposal of respondent's blood sample by State after 1 year did not violate his due process rights or unduly prejudice his case. The respondent was charged with violating NRS 484.3795 by causing substantial bodily injury while driving under the influence of intoxicating liquor. The police chemist who conducted a gas chromatograph blood-alcohol test of the respondent's blood routinely disposed of the blood sample after 1 year. Respondent's arguments that his due process rights were violated and his case unduly prejudiced by the State's loss of the blood sample were rejected because: (1) the State was not acting in bad faith when it disposed of the blood sample; (2) the gas chromatograph blood testing method is considered to be one of the most reliable methods of blood-alcohol testing; (3) respondent failed to present any evidence to indicate that the method of testing was faulty or likely to lead to inaccurate results; (4) other statutes exist which protect a defendant from the admission of inaccurate test results (see NRS 484.389 and 484.393); and (5) alternative means exist to impeach the accuracy of the test results in addition to retesting the sample itself. State v. Hall, 105 Nev. 7, 768 P.2d 349 (1989), cited, State, Dep't of Motor Vehicles & Public Safety v. Tilp, 107 Nev. 288, at 292, 810 P.2d 771 (1991), Sheriff, Clark County v. Warner, 112 Nev. 1234, at 1240, 926 P.2d 775 (1996), Mortensen v. State, 115 Nev. 273, at 283, 986 P.2d 1105 (1999), Williams v. State, 118 Nev. 536, at 552, 50 P.3d 1116 (2002), see also Klein v. Warden, Ely State Prison, 118 Nev. 305, at 313, 43 P.3d 1029 (2002), Buchanan v. State, 119 Nev. 201, at 220, 69 P.3d 694 (2003)

Probable cause supported warrantless taking of blood sample and detaining of driver of vehicle. Where a passenger in a truck driven by defendant fell from the hood and was seriously injured when struck by the truck, several hours elapsed before defendant sought medical assistance and reported the incident, and the facts clearly indicated that the officer had a justifiable basis for detaining defendant who was obviously intoxicated, probable cause existed at the time the blood sample was taken to believe defendant had violated NRS 484.3795, the blood sample was lawfully taken pursuant to NRS 484.383 without a warrant first being obtained, and placing defendant under civil protective custody was appropriate pursuant to NRS 458.270. Almond v. State, 105 Nev. 904, 785 P.2d 217 (1989)

Sentence of 5 years in prison and fine of $5,000 not abuse of discretion by trial court. In a prosecution for a felony drunk driving under NRS 484.3795, imposition of a sentence of 5 years in prison and a fine of $5,000 by trial court was not abuse of discretion despite the fact that trial court disregarded sentencing recommendations of both the Department of Parole and Probation (now the Division of Parole and Probation of the Department of Public Safety) and the Department of Prisons (now the Department of Corrections). Courts have wide discretion to impose sentences, and recommendations of either the Department of Parole and Probation (see NRS 176.145) or the Department of Prisons are not binding on courts. Absent a showing that the court relied on impalpable or highly suspect evidence, the sentence imposed was not an abuse of discretion and was well within the statutory limits of NRS 484.3795. Etcheverry v. State, 107 Nev. 782, 821 P.2d 350 (1991)

Dismissal of lesser charges in exchange for plea of no contest to charge of involuntary manslaughter would have violated section and was not allowed. A criminal defendant was charged with three alternative offenses within one count: (1) driving while intoxicated resulting in the death of another person; (2) reckless driving causing the death of another person; and (3) involuntary manslaughter. The district attorney agreed to the dismissal of the remaining charges against defendant, as well as one charge against the codefendant, in return for the defendant's plea of no contest to one count of involuntary manslaughter. Defendant entered a plea of no contest to one count of involuntary manslaughter, but the court refused to dismiss the remaining charges against him. The ruling of trial court was upheld by the Supreme Court because NRS 484.3795 prohibits the State from plea bargaining with defendants charged with a felony driving under the influence and, despite the district attorney's arguments to the contrary, the arrangement between the district attorney and defendant was, at a minimum, a de facto plea bargain. Jenkins v. Fourth Judicial Dist. Court, 109 Nev. 337, 849 P.2d 1055 (1993), distinguished, Woods v. State, 114 Nev. 468, at 476, 958 P.2d 91 (1998)

Provisions of section relating to person incapable of safely driving or exercising actual physical control of vehicle are to be read in disjunctive. The provisions of NRS 484.3795, which prohibit driving while under the influence of drugs or alcohol to the degree which renders a person incapable of safely driving or exercising actual physical control of a vehicle, are written in disjunctive. Thus, the district court properly instructed the jury on the meaning of the section where the court approved instruction that did not include the phrase "exercising actual physical control of vehicle" but rather instructed the jury to determine whether the person was "incapable of safely driving" as a result of drinking liquor. Anderson v. State, 109 Nev. 1129, 865 P.2d 318 (1993), cited, AGO 99-16 (5-12-1999)

Provisions of section do not contemplate whether defendant, due to mechanical malfunction, lost control of his vehicle. The provisions of NRS 484.3795 which refer to "exercising of actual physical control of vehicle" do not contemplate whether defendant, due to a mechanical malfunction, lost control of his vehicle, but rather refer to such factors as whether a person is actually within the car, whether the engine has been started, whether the person is awake and whether the lights are on. Therefore, where an appellant who had been convicted of three counts of driving while under the influence of intoxicating liquor argued on appeal that his vehicle malfunctioned and, therefore, he was not exercising actual physical control of his vehicle when the fatal accident occurred, the Supreme Court concluded that, because the section does not involve the issue of whether the appellant lost control of his vehicle due to a malfunction, and because testimony at trial indicated that the appellant clearly drove the vehicle and exerted actual physical control over the vehicle, the district court did not err in approving a jury instruction that did not include the language "exercising actual physical control of vehicle." Anderson v. State, 109 Nev. 1129, 865 P.2d 318 (1993)

Sufficient evidence of guilt was presented under the circumstances. In the prosecution of defendant for three counts of driving while under the influence of intoxicating liquor, the prosecution presented evidence sufficient to support the jury's finding of guilt where: (1) the firefighter testified that the defendant appeared to be intoxicated, dazed and "real spacey;" (2) the highway patrol trooper testified that when he contacted the defendant in the hospital after a vehicle accident, he detected a strong odor of alcohol emanating from the defendant; (3) the defendant admitted to consuming three or four beers before the accident occurred; and (4) the forensic chemist testified that, after testing blood samples taken from the defendant shortly after the accident and extrapolating backwards in time, he estimated the defendant's blood-alcohol level to have been more than 0.128 at the time of the accident. (See NRS 484.3795.) Anderson v. State, 109 Nev. 1129, 865 P.2d 318 (1993)

Administrative revocation of a driver's license does not constitute punishment for purposes of double jeopardy. Trial court determined that defendant could not be prosecuted for driving under the influence (see NRS 484.379 and 484.3795) because defendant already had been punished for the DUI offense by having his driver's license revoked for 90 days by the Department of Motor Vehicles and Public Safety (now the Department of Motor Vehicles). (See NRS 484.384 and 484.385.) Applying the two-part test from Hudson v. United States, 118 S.Ct. 488 (1997), Supreme Court held that defendant could be prosecuted for the DUI offense because the earlier administrative revocation of his driver's license did not constitute punishment for purposes of double jeopardy. (See U.S. 5th amendment and Nev. Art. 1, § 8.) Legislature clearly intended administrative proceedings relating to the revocation of a driver's license to be civil proceedings, not criminal proceedings. Furthermore, while administrative revocation of a driver's license may have certain punitive effects, such punitive effects are outweighed by the State's important nonpunitive goal of maintaining safety on public roads, and neither a minimum 90-day revocation (see NRS 484.384) or a maximum 5-year revocation (see NRS 483.460) is excessive in relation to that goal. Therefore, the earlier administrative revocation of defendant's driver's license did not constitute punishment because such revocation served a remedial or civil deterrent purpose, rather than a retributive or criminal purpose. State v. Lomas, 114 Nev. 313, 955 P.2d 678 (1998), cited, Desimone v. State, 116 Nev. 195, at 198, 996 P.2d 405 (2000)

Defendant was not entitled to withdraw guilty plea to multiple counts of driving under the influence. As part of a plea bargain, defendant pled guilty to two counts of driving under the influence causing death or substantial bodily harm (see NRS 484.3795). Defendant moved under NRS 176.165 to withdraw his guilty plea on the basis that his plea was not voluntarily, knowingly and intelligently entered, and that his plea violated the restrictions in NRS 484.3795 concerning plea bargains. Supreme Court held that defendant was not entitled to withdraw his guilty plea because: (1) district court's canvass of defendant before it accepted his guilty plea was "textbook perfect"; (2) district court personally engaged defendant regarding the elements of the offenses; (3) there was no discrepancy between the canvass and the written plea memorandum; (4) district court was entitled to deference in its determination that defendant's reactions during the canvass were not "robot-like"; (5) defendant did not assert a credible claim of factual innocence; (6) district court properly considered the totality of the circumstances and the entire record; and (7) the restrictions in NRS 484.3795 concerning plea bargains were not implicated because defendant was not escaping a felony DUI conviction for a lesser charge. Woods v. State, 114 Nev. 468, 958 P.2d 91 (1998), cited, Crawford v. State, 117 Nev. 718, at 721, 30 P.3d 1123 (2001)

Restrictions in this section concerning plea bargains were not intended for the benefit of criminal defendants. The restrictions in NRS 484.3795 concerning plea bargains were not intended for the benefit of criminal defendants, and criminal defendants are estopped from using those restrictions as a shield to challenge the validity of an otherwise lawful plea agreement. Woods v. State, 114 Nev. 468, 958 P.2d 91 (1998)

Freely entered and voluntary plea was not knowingly entered as a result of discrepancies in language of plea agreement. Where a defendant, in relevant part, pled guilty (see NRS 174.035) to two counts of causing substantial bodily harm while driving under the influence of a controlled substance (see NRS 484.3795), the Supreme Court held that although the pleas were freely entered and made on a voluntary basis, discrepancies in the language of the plea agreement deprived the defendant of the ability to understand the consequences of his pleas. Specifically, different pages of the plea agreement contained language upon which a reasonable person could conclude either that the maximum sentence would be 20 years or 40 years. As a result, under the totality of the circumstances, the defendant's pleas were not made knowingly. Hudson v. Warden, Nevada State Prison, 117 Nev. 387, 22 P.3d 1154 (2001)

Act abolishing insanity defense and authorizing plea of "guilty but mentally ill" is unconstitutional. The provisions of Senate Bill No. 314 of the 1995 Legislative Session (see ch. 637, Stats. 1995), which abolished exculpation by reason of insanity and authorized a plea of "guilty but mentally ill" in criminal proceedings, are unconstitutional. "Legal insanity," pursuant to which a person is not culpable for a criminal act if he cannot form the necessary mens rea, is a fundamental principle under the due process clauses of both the U.S. and Nevada Constitutions (see Nev. Art. 1, § 8). Furthermore, although certain provisions of the 1995 act could be construed in a constitutional fashion, they cannot be severed without defeating the whole scope and object of the law, and thus the provisions of Senate Bill No. 314 of the 1995 Legislative Session must be rejected in their entirety. (N.B., case decided before amendment of NRS 484.3795 in 2003.) Finger v. State, 117 Nev. 548, 27 P.3d 66 (2001), cert. denied, 122 S.Ct. 1063 (2002), cited, O'Guinn v. State, 118 Nev. 849, at 852, 59 P.3d 488 (2002)

Person may be punished pursuant to section either for driving while under the influence of a controlled substance or for driving while having a prohibited amount of certain substances in blood or urine. Where the defendant was convicted of multiple counts of driving with a certain amount of a prohibited substance in her blood or urine and she was punished pursuant to NRS 484.3795, she argued that her conviction violated the double jeopardy clause (see Nev. Art. 1, § 8) because she was charged under both the provision of NRS 484.3795 that punishes driving while under the influence of a controlled substance and the provision of NRS 484.3795 that punishes driving while having a prohibited amount of certain substances in the blood or urine, and the district court treated the alternative theories as separate offenses. The defendant argued that acquittal under the first theory precluded conviction under the second theory. The Supreme Court concluded that the two theories of punishment set forth in NRS 484.3795 constitute alternative means of committing an offense. Thus, the Court held that the defendant's acquittal under one theory and her conviction under the alternate theory did not violate the double jeopardy clause. In addition, the Court concluded that the argument presented by the defendant was without merit because she was subjected to only one prosecution and one punishment for each charge of driving under the influence. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002)

Marijuana metabolite is a prohibited substance. While not classified as a schedule I or II controlled substance pursuant to NRS 453.166 or 453.176, marijuana metabolite is a prohibited substance for purposes of NRS 484.1245, 484.379 and 484.3795 because it is clear from the plain language and legislative intent of NRS 484.1245 and 484.379 that marijuana metabolite is a prohibited substance. State v. Williams, 120 Nev. 473, 93 P.3d 1258 (2004)

FEDERAL AND OTHER CASES.

No denial of due process based upon confinement at institution of medium security. Defendant who was convicted of causing the injury or death of another by driving a motor vehicle while under the influence of intoxicating liquor in violation of NRS 484.3795 was not denied due process of law when he was confined in an institution of medium security, because the statute did not require that defendant be placed in an institution of minimum security, but provided the Department of Prisons (now the Department of Corrections) with discretion to classify offenders. Maison v. Sumner, 636 F. Supp. 595 (D. Nev. 1986)

Confinement of offender. On application for writ of habeas corpus, where the provision of NRS 484.3795 for segregation of intoxicated drivers from violent offenders gave the Department of Prisons (now the Department of Corrections) discretion in assigning convicted intoxicated drivers to facilities for confinement, the offender convicted of intoxicated driving and voluntary manslaughter under NRS 200.070 and assigned to maximum or medium security had no constitutionally protected interest in liberty. Writ was denied. Mattern v. Sumner, 637 F. Supp. 527 (D. Nev. 1986)

Multiple conviction and consecutive sentences not double jeopardy. Multiple convictions and consecutive sentences for violations of NRS 484.3795 rising from a single act do not violate the double jeopardy clause of the U.S. 5th amendment, because a single act may form the basis for the prosecution of two distinct statutory offenses whenever a conviction for each offense requires proof of fact that the other does not. LaMotte v. Slansky, 661 F. Supp. 573 (D. Nev. 1987)

ATTORNEY GENERAL'S OPINIONS.

Offender who receives suspended sentence followed by mandatory period of probation is not precluded from consideration for parole after completing mandatory period of confinement. Because NRS 484.3795 is a penal statute, it must be construed in favor of the offender to permit such a person who has received a suspended sentence followed by mandatory probation to be considered for parole after completing the mandatory 1-year period of confinement. AGO 93- 27 (12-31-1993)