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 484.379 Unlawful acts; affirmative defense; additional penalty for violation committed in work zone.

[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. It is unlawful for any 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; or

(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,

to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.

2. It is unlawful for any person who:

(a) Is under the influence of a controlled substance;

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

(c) 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,

to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. The fact that any person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this State is not a defense against any charge of violating this subsection.

3. It is unlawful for any person to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access with an amount of a prohibited substance in his blood or urine that is equal to or greater than:

Urine Blood

Nanograms Nanograms

Prohibited substance per milliliter per milliliter

(a) Amphetamine 500 100

(b) Cocaine 150 50

(c) Cocaine metabolite 150 50

(d) Heroin 2,000 50

(e) Heroin metabolite:

(1) Morphine 2,000 50

(2) 6-monoacetyl morphine 10 10

(f) Lysergic acid diethylamide 25 10

(g) Marijuana 10 2

(h) Marijuana metabolite 15 5

(i) Methamphetamine 500 100

(j) Phencyclidine 25 10

4. 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.

5. A person who violates any provision of this section may be subject to the additional penalty set forth in NRS 484.3667.

(Added to NRS by 1969, 1485; A 1971, 2030; 1973, 587, 1277, 1501; 1975, 788; 1981, 1924; 1983, 1068; 1993, 539; 1999, 2451, 3415; 2001, 172; 2003, 2559, 3245)

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

NEVADA CASES.

Factors to be considered in determining if there is interrogation. Where defendant, after striking a motorcycle with his truck, was beaten by the husband of the victim and hospitalized, and, without being advised of his right to remain silent, admitted to a police officer sent to the hospital to investigate the battery that he had consumed some alcohol before the accident, the statements were not a product of custodial interrogation and were admissible in the trial of the defendant for felony driving while intoxicated in violation of NRS 484.379. "Interrogation" consists of express questioning and other acts designed to elicit incriminating statements. The police officer was investigating battery on the defendant, did not know the defendant was a suspect in the other crime and therefore, could not have intended to elicit incriminating responses. Pendleton v. State, 103 Nev. 95, 734 P.2d 693 (1987)

Jurisdiction over crimes committed on land owned by the Federal Government. Where an incident for which the defendant was accused of felony driving while intoxicated (see NRS 484.379) occurred on land owned by the Federal Government, the courts of this State had jurisdiction to try the case because NRS 171.010 gives district court jurisdiction over crimes committed in a county except where the United States has exclusive jurisdiction, the Nevada Admission Acts revealed no retention of jurisdiction by the United States over the land in question, there was no affirmative cessation of jurisdiction by Nevada and affirmative acceptance by the United States and NRS 328.110 requires recording in the office of the county recorder to effectuate cessation of jurisdiction. Pendleton v. State, 103 Nev. 95, 734 P.2d 693 (1987)

Person charged with misdemeanor driving under the influence has no right to a jury trial. In consolidated appeals and petitions arising from denial of jury trials by municipal courts of the cities of Las Vegas and North Las Vegas for persons charged with driving under the influence of alcohol (see NRS 484.379), the court held that the right to trial by jury guaranteed by Nev. Art. 1, § 3 is coextensive with that guaranteed by the U.S. Constitution and that the U.S. 6th amendment right to trial by jury does not extend to every criminal proceeding. The court concluded that no constitutional right to trial by jury attaches to a first time driving under the influence offense where the maximum penalty is a misdemeanor (see NRS 484.3792). Blanton v. North Las Vegas Mun. Court, 103 Nev. 623, 748 P.2d 494 (1987), cited, State v. Ninth Judicial Dist. Court, 104 Nev. 91, at 92, 752 P.2d 238 (1988), Pettipas v. State, 106 Nev. 377, at 379, 794 P.2d 705 (1990), Barrett v. Baird, 111 Nev. 1496, at 1501, 908 P.2d 689 (1995), Parsons v. State, 116 Nev. 928, at 937, 10 P.3d 836 (2000), Aftercare of Clark County v. Justice Court, 120 Nev. 1, at 12, 82 P.3d 931 (2004) (dissenting opinion), see also McLean v. Moran, 963 F.2d 1306, at 1311 (9th Cir. 1992)

Affirmed, Blanton v. City of N. Las Vegas, 109 S.Ct. 1289 (1989)

Person charged in justice court with misdemeanor driving under the influence has no right to a jury trial. When charged as a misdemeanor, driving under the influence of alcohol in violation of NRS 484.379 is a petty offense for which trial by jury is not constitutionally mandated, regardless of whether the defendant is charged in municipal court or justice court. State v. Ninth Judicial Dist. Court, 104 Nev. 91, 752 P.2d 238 (1988)

Implied consent statute and driving under the influence statute are separate and distinct and should be enforced independently of one another. The respondent was arrested for driving under the influence of alcohol and because he refused to take an evidentiary blood-alcohol test pursuant to the implied consent law (see NRS 484.383), his driver's license was revoked for the statutory 1-year period. The respondent argued that when he pleaded guilty to the offense of driving under the influence of intoxicating liquor (see NRS 484.379), the revocation of his license no longer served a purpose. The court held that although the implied consent statute is clearly intended to promote enforcement of the statute relating to driving under the influence, the statutes are separate and distinct and, in the absence of any evidence of legislative intent to the contrary, should be enforced independently of one another. State, Dep't of Motor Vehicles & Public Safety v. Brown, 104 Nev. 524, 762 P.2d 882 (1988), cited, State, Dep't of Motor Vehicles & Public Safety v. Frangul, 110 Nev. 46, at 49, 867 P.2d 397 (1994)

Court erred by refusing to give instruction of respondent's statutory duty to remain off the highway while intoxicated while giving instruction relating to appellant's driving under the influence. On appeal from a judgment against the appellant in a civil action arising out of the collision of a motorcycle with a pedestrian, where evidence showed that respondent had been negligent as a matter of law by virtue of being an intoxicated pedestrian in a traveled portion of the highway, trial court erred in refusing to instruct the jury on the respondent's statutory duty as a pedestrian to remain off the highway while intoxicated (see NRS 484.331), while at the same time giving comparable instruction on the unlawfulness of appellant's driving while under the influence (see the provisions of former NRS 484.381; cf. NRS 484.379). Because the evidence clearly showed that the respondent's negligence contributed to the collision, the judgment of the trial court was reversed. Meyer v. Swain, 104 Nev. 595, 763 P.2d 350 (1988)

"Actual physical control" defined; facts to consider in making a determination. A person is in "actual physical control" of a vehicle pursuant to NRS 484.379 when he has an existing or present bodily restraint, directing influence, domination or regulation of the vehicle. In deciding whether, at the time of his apprehension, a person had actual physical control of a vehicle, a court must consider: (1) where and in what position he was found in the vehicle; (2) whether the vehicle's engine was running; (3) whether he was awake or asleep; (4) if he was apprehended at night, whether the vehicle's lights were on; (5) the location of the vehicle's keys; (6) whether he was trying to move or had the moved vehicle; (7) whether the vehicle was located on public or private property; and (8) whether he must, of necessity, have driven to the location where apprehended. Rogers v. State, 105 Nev. 230, 773 P.2d 1226 (1989), cited, Bullock v. State, Dep't of Motor Vehicles & Public Safety, 105 Nev. 326, at 328, 775 P.2d 225 (1989), Isom v. State, 105 Nev. 391, at 393, 776 P.2d 543 (1989), State, Dep't of Motor Vehicles & Public Safety v. Torres, 105 Nev. 558, at 561, 779 P.2d 959 (1989), Anderson v. State, 109 Nev. 1129, at 1134, 865 P.2d 318 (1993), Barnier v. State, 119 Nev. 129, at 131, 67 P.3d 320 (2003)

Defendant was in actual physical control of vehicle under the circumstances. Where defendant (1) was found asleep in the driver's seat with the engine running, (2) was on private property but had driven there on a public highway and could have returned to the highway at any time, and (3) when awakened by a police officer, attempted to restart the car and drive off, the defendant was in actual physical control of the vehicle pursuant to NRS 484.379. Isom v. State, 105 Nev. 391, 776 P.2d 543 (1989), cited, State, Dep't of Motor Vehicles & Public Safety v. Torres, 105 Nev. 558, at 561, 779 P.2d 959 (1989)

Defendant was not competent to testify regarding what he believed his blood-alcohol level was at the time of the accident. Where defendant was charged with a felony for a third offense of driving under the influence (see NRS 484.3792), trial court did not err in finding that he was not competent to testify regarding what he believed his blood-alcohol level was at the time of the accident (see the provisions of former NRS 484.381; cf. NRS 484.379). Slinkard v. State, 106 Nev. 393, 793 P.2d 1330 (1990)

Under the unique facts of a case, refusal of defendant to submit to evidentiary test of breath or blood until after examination by a doctor constituted grounds for revocation of driver's license. Defendant was arrested for driving under the influence of alcohol (see NRS 484.379), transported to jail, allegedly bumped head while getting out of the police car, began a breath test but said it was making him dizzy and that he did not want to take the test. A police officer asked defendant if he wanted to take the blood test at the jail before being examined at the hospital and defendant said he wanted to wait until he was first examined by a doctor. Approximately 5 hours after his arrest, defendant was examined by a doctor who found no injury. Defendant's driver's license was revoked pursuant to NRS 484.385 for failure to submit to an evidentiary test. Under the unique facts of this case, the Supreme Court held that failure by defendant to submit to the test before examination by a doctor constituted a refusal to submit to the required evidentiary test pursuant to subsection 3 of NRS 484.386, but stressed that the holding does not apply to those situations where a person is injured or ill and in need of medical attention. State, Dep't of Motor Vehicles & Public Safety v. Brough, 106 Nev. 492, 796 P.2d 1089 (1990)

Section may be violated either by driving while under the influence of intoxicating liquor or by driving while having a prohibited percentage of alcohol in his blood. Under the plain language of NRS 484.379, a person driving a vehicle may violate the section either by driving while under the influence of intoxicating liquor or by driving while having 0.10 percent or more by weight of alcohol in his blood. If either is proved beyond a reasonable doubt, it is unnecessary for the State to prove the other. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Long v. State, 109 Nev. 523, 853 P.2d 112 (1993), cited, Blume v. State, 112 Nev. 472, at 474, 915 P.2d 282 (1996), Dossey v. State, 114 Nev. 904, at 909, 964 P.2d 782 (1998), Williams v. State, 118 Nev. 536, at 549, 50 P.3d 1116 (2002)

Possible charges under section. Where an alleged violation of NRS 484.379 occurs, the State may logically charge a defendant with: (1) driving while under the influence of intoxicating liquor; (2) driving while having 0.10 percent or more by weight of alcohol in his blood; or (3) driving while under the influence of intoxicating liquor or while having 0.10 percent or more by weight of alcohol in his blood. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Long v. State, 109 Nev. 523, 853 P.2d 112 (1993), cited, Williams v. State, 118 Nev. 536, at 549, 50 P.3d 1116 (2002), explained, Dossey v. State, 114 Nev. 904, at 909, 964 P.2d 782 (1998)

Person arrested for driving under the influence does not have the right to speak to an attorney before submitting to chemical testing of blood. Where appellant was arrested for driving under the influence of intoxicating liquor in violation of NRS 484.379 and did not inform the police officer that the appellant desired an independent chemical testing of her blood, appellant was not denied her right to counsel by failure of the police officer to contact appellant's attorney so as to arrange an independent chemical testing of appellant's blood. A person who is arrested for driving under the influence does not have the right to speak to an attorney before submitting to chemical tests required by the implied consent law (see NRS 484.383) and, absent a request for independent testing, police are not obligated to facilitate such testing. Robertson v. State, 109 Nev. 1086, 863 P.2d 1040 (1993)

Certified documentation from a court of conviction of driving under the influence is not required in order to revoke a driver's license. The Department of Motor Vehicles and Public Safety (now the Department of Motor Vehicles), in accordance with NRS 483.460, revoked the respondent's driver's license on the ground that the Department's records indicated that the respondent had been convicted of violating NRS 484.379 (driving under the influence) twice within 7 years. The revocation was upheld by an administrative hearing officer, but was reversed by district court on the ground that documents presented at the administrative hearing as evidence of convictions were not properly certified copies of documents issuing from the courts of record, but were only certified copies of documents in the possession of the Department. On appeal, the Supreme Court reversed the decision of district court and held that there is no requirement, statutory or otherwise, that the Department receive certified documentation of a person's convictions for driving under the influence from the courts in which the convictions were entered in order to revoke the person's driver's license. State, Dep't of Motor Vehicles & Public Safety v. Madrigal, 110 Nev. 1005, 879 P.2d 746 (1994)

Defendant charged with driving while under the influence of intoxicating liquor was entitled to jury instruction on reckless driving as a lesser-related offense under the circumstances. While defendant was charged with driving under the influence of intoxicating liquor (see NRS 484.379), district court committed a reversible error when it refused defendant's requested jury instruction on reckless driving (see NRS 484.377) as a lesser-related offense because: (1) the offense of reckless driving was closely related to the offense of driving under the influence where facts sufficiently reflected an aspect of recklessness that would support the finding of reckless driving, (2) the defense theory that defendant was not driving under the influence with blood-alcohol content that was 0.10 percent or more was not inconsistent with the conviction for reckless driving, and (3) the fact that defendant had been drinking an alcoholic beverage while driving at a high rate of speed and that he had been driving with a revoked license constituted an arguable basis for a finding of reckless driving. Further, jury instruction for reckless driving as a lesser-related offense was warranted because results of a breath test, which was the only evidence presented to prove that defendant's blood-alcohol content was 0.10 percent or more, had a margin of error which could have erroneously elevated defendant's blood-alcohol content to a level that was higher than 0.099 percent. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Johnson v. State, 111 Nev. 1210, 902 P.2d 48 (1995)

Prior convictions in California for driving under the influence were properly considered for the purpose of enhancing a sentence for a Nevada offense. Four prior convictions in California for driving under the influence were properly admitted into evidence for the purpose of enhancing the sentence of the defendant who entered a guilty plea to a charge of driving under the influence (see NRS 484.379 and 484.3792), notwithstanding that the percentage of alcohol in a person's blood required for conviction of the California offenses was only 0.08 percent, because: (1) for the purposes of NRS 484.3792, "offense" includes a violation of NRS 484.379 and a violation of a law of another jurisdiction which prohibits the same or similar conduct; (2) a person may violate NRS 484.379 either by driving under the influence or by driving while having 0.10 percent or more by weight of alcohol in his blood; and (3) driving under the influence in California, even though the required level of alcohol in the blood is 0.02 percent lower than in Nevada, constitutes the same or similar conduct as driving under the influence in Nevada, since "same" need not mean "identical," but can refer to conduct of kind or species. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Blume v. State, 112 Nev. 472, 915 P.2d 282 (1996)

Revocation of driver's license is based upon dates of violations within 7 years, not upon dates of resulting convictions. Revocation of driver's license pursuant to subsection 1 of NRS 483.460 is based upon the dates of the driver's violations of NRS 484.379 within 7 years, not upon the dates of the resulting convictions for the violations. State, Dep't of Motor Vehicles & Public Safety v. Paul, 113 Nev. 481, 936 P.2d 834 (1997)

Appeal of conviction for driving under the influence of alcohol was not moot even though defendant had completed the sentence. Even though at the time of appeal the defendant presumably completed the sentence for a conviction for driving under the influence of alcohol (see NRS 484.379), the appeal was not moot because the defendant's conviction for driving under the influence could affect any sentences that she may receive in the future (see NRS 484.3792). Angle v. State, 113 Nev. 757, 942 P.2d 177 (1997), cited, Knight v. State, 116 Nev. 140, at 143, 993 P.2d 67 (2000)

Where redacted videotape of defendant's booking was relevant evidence, refusal by district court to admit the videotape into evidence constituted a reversible error under the circumstances. Where the defense counsel, during the trial of a defendant charged with driving under the influence of alcohol (see NRS 484.379), sought to introduce a redacted version of a videotape of the defendant's booking, in which an admission by the defendant to a previous conviction for driving under the influence of alcohol was redacted out of the tape, district court erred in refusing to admit the redacted version of the videotape into evidence. The videotape was relevant to the issue of whether the defendant was intoxicated (see NRS 48.025) and the admission of the previous conviction, which was not relevant to the instant crime and whose prejudicial value outweighed its probative value (see NRS 48.035), could have easily been redacted from the videotape. Further, even if the judge gave a limiting instruction if the unredacted tape was introduced, the limiting instruction would have been insufficient to remove the prejudicial impact of the admission. Therefore, the judgment of conviction was reversed and the case was remanded for a new trial. Angle v. State, 113 Nev. 757, 942 P.2d 177 (1997)

Prohibition against having a certain percentage of alcohol in the blood within 2 hours after driving was not unconstitutionally vague. The provisions of NRS 484.379 which make it unlawful to have a blood-alcohol level of 0.10 percent or more within 2 hours after driving a vehicle were not unconstitutionally vague on the ground that ordinary persons would be unable to anticipate the level of alcohol in their blood 2 hours after driving where the defendant failed to suggest any alternative interpretations of the statutory language as evidence of vagueness. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Sereika v. State, 114 Nev. 142, 955 P.2d 175 (1998)

Prohibition against having a certain percentage of alcohol in the blood within 2 hours after driving was not unconstitutionally overbroad. NRS 484.379 was not unconstitutionally overbroad on ground that a person with a blood-alcohol level of 0.10 or more within 2 hours after driving a vehicle is presumed to have had a similar blood-alcohol level at the time of driving because NRS 484.379 does not require the use of the blood-alcohol level of a defendant at the time of testing to infer the blood-alcohol level at the time the defendant was driving a vehicle, but makes it per se unlawful to have a blood-alcohol level of 0.10 percent or more within 2 hours after driving. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Sereika v. State, 114 Nev. 142, 955 P.2d 175 (1998)

Prohibition against having a certain percentage of alcohol in the blood within 2 hours after driving did not violate the constitutional right to due process or equal protection of the law. The provisions of NRS 484.379 which make it unlawful to have a blood-alcohol level of 0.10 percent or more within 2 hours after driving a vehicle were not overbroad on the ground that they violated a defendant's constitutional right to due process of law (see U.S. 14th amendment and Nev. Art. 1, § 8) or equal protection of the laws (see U.S. 14th amendment and Nev. Art. 4, § 21) because the provisions are rationally related to a legitimate state interest of preventing a person from driving after ingesting any substance that would render him incapable of driving safely during the hours following the ingestion of that substance. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Sereika v. State, 114 Nev. 142, 955 P.2d 175 (1998), cited, Gaines v. State, 116 Nev. 359, at 371, 998 P.2d 166 (2000), Tarango v. State Indus. Ins. Sys., 117 Nev. 444, at 455, 25 P.3d 175 (2001), see also Williams v. State, 118 Nev. 536, at 542, 50 P.3d 1116 (2002)

Supreme Court refused to address the issue of whether the section was unconstitutionally overbroad absent evidence that it was enforced in the allegedly unconstitutional manner. The Supreme Court refused to address the issue of whether the provisions of NRS 484.379 which make it unlawful to have a blood-alcohol level of 0.10 percent or more within 2 hours after driving a vehicle were unconstitutionally overbroad on the ground that a person might not ingest alcohol until after driving and reach the prohibited level of blood alcohol within the 2-hour period where the defendant: (1) provided no evidence to indicate that the provisions had ever been enforced in the manner suggested by the defendant; and (2) lacked standing to bring the issue to court because the provisions were not applied to him in that manner. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) Sereika v. State, 114 Nev. 142, 955 P.2d 175 (1998)

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 may not be convicted of multiple counts of driving under the influence based on a single act. Where defendant, based on a single act, was charged with one count of driving under the influence, one count of driving while having a prohibited blood-alcohol content, and one count of having a prohibited blood-alcohol content within 2 hours of driving, trial court erred by failing to instruct the jury that it could convict defendant of only one count under NRS 484.379. Given the plain language of the statute, the Legislature intended NRS 484.379 to define alternative means of committing a single offense, not separable offenses permitting a conviction of multiple counts based upon a single act. Because defendant had committed a single act, he could be convicted of only one count, and convictions on remaining two counts had to be vacated. Dossey v. State, 114 Nev. 904, 964 P.2d 782 (1998), cited, State v. Eighth Judicial Dist. Court, 116 Nev. 127, at 137, 994 P.2d 692 (2000), 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)

It is constitutional for justices of the peace who are not attorneys to preside over misdemeanor driving under the influence trials. Where the defendant was charged with felony driving under the influence (see NRS 484.379 and 484.3792) and he argued that one of his prior misdemeanor driving under the influence convictions was invalid because it was before a nonlawyer justice of the peace (see also NRS 4.370) which he argued violated the spirit of constitutional principles, the Supreme Court noted that: (1) the Nevada Constitution requires the Legislature to determine the qualifications of justices of the peace (see Nev. Art. 6, § 8); (2) the Legislature has decided that justices of the peace in certain rural areas are not required to be lawyers (see NRS 4.010); (3) justices of the peace are required to receive instruction in court procedure and substantive law; and (4) a criminal defendant may appeal from a judgment in Justice Court to a district court. The Court concluded that because it is not a matter of federal constitutional concern whether justices of the peace who preside over criminal trials are attorneys and because the Nevada Constitution is not offended by the practice, it is constitutional for nonlawyer justices of the peace who are instructed pursuant to the statutory mandates to preside over criminal misdemeanor trials. Goodson v. State, 115 Nev. 443, 991 P.2d 472 (1999)

Conviction for a charge of driving under the influence in violation of the section is not necessarily redundant to a conviction for a general traffic violation. Where: (1) the State charged each real party in interest with driving under the influence in violation of NRS 484.379 (DUI violation) and with at least one general traffic violation under chapter 484 of NRS or a local ordinance; (2) certain lower courts allowed each real party in interest to plead guilty to a general traffic violation and dismissed the charge for the DUI violation because the courts concluded that the charges were impermissibly redundant; and (3) the State filed petitions for writs of mandamus challenging the lower courts' decisions, the Supreme Court held that a conviction for a DUI violation pursuant to NRS 484.379 would not necessarily be redundant to a conviction for a general traffic violation because the gravamen and purpose of each charge is not the same. The Court noted that the gravamen of a DUI charge pursuant to NRS 484.379 is that the defendant was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor. In contrast, the gravamen of a charge pursuant to chapter 484 of NRS or a local ordinance concerning the rules of the road is that the defendant was operating a vehicle in a particular manner that is prohibited by the relevant statute or ordinance, without regard to whether the defendant was intoxicated. State v. Eighth Judicial Dist. Court, 116 Nev. 127, 994 P.2d 692 (2000), cited, Servin v. State, 117 Nev. 775, at 790, 32 P.3d 1277 (2001)

Provisions concerning person with certain amount of prohibited substance in system constitutional on equal protection and substantive due process grounds. Where the defendant argued that the provisions of NRS 484.379 prohibiting a person from driving with a certain amount of a prohibited substance in his blood or urine unconstitutionally treated drivers with proscribed levels of prohibited substances in their systems differently from others in violation of the equal protection clause and in violation of her rights to substantive due process, the Supreme Court applied the rational basis standard for reviewing the provisions because neither driving nor using an illicit drug constitutes a fundamental right. The Supreme Court concluded that the government has a legitimate interest in maintaining safe highways and in deterring illicit drug use. Thus, the Court upheld the provisions of NRS 484.379 against the equal protection and substantive due process challenges based on its conclusion that the provisions were rationally related to a legitimate state interest. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002)

Provisions concerning person with certain amount of prohibited substance in system not void for vagueness. Where the defendant was convicted of driving with a prohibited substance, marijuana and its metabolite, in her blood or urine pursuant to NRS 484.379 and she argued that the relevant provisions of the statute were void for vagueness because she could not tell what part of the marijuana plant or which marijuana metabolites were prohibited or when she had reached the levels proscribed by the statute, the Supreme Court first noted that a statute which does not implicate constitutionally protected conduct, such as NRS 484.379, is void for vagueness only if it is vague in all of its applications. The Court then explained that a statute is deemed to have given sufficient warning concerning the proscribed conduct if the words used to prohibit the conduct have a settled and ordinarily understood meaning when viewed in the context of the entire statute. The Court held that NRS 484.379 provides adequate notice that is unlawful for a person to drive with clearly defined levels of marijuana or marijuana metabolite in his bloodstream, and therefore that the relevant provisions of the statute were not void for vagueness, because: (1) a person of ordinary intelligence has adequate notice of the meaning of the term "marijuana" and that "marijuana metabolite" is the metabolite which results from ingesting marijuana; (2) the defendant appeared to have clearly understood the common meaning of the term "marijuana"; and (3) a person of average intelligence could reason that the use of marijuana, a substance which a person is prohibited from using or possessing, could result in the amount proscribed in NRS 484.379 being in his blood or urine. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002), see also Sheriff, Washoe County v. Burdg, 118 Nev. 853, at 857, 59 P.3d 484 (2002), In re T.R., 119 Nev. 646, at 652, 80 P.3d 1276 (2003), Nevada Comm'n on Ethics v. Ballard, 120 Nev. 862, at 868, 102 P.3d 544 (2004)

Provisions concerning person with certain amount of prohibited substance in system not unconstitutionally overbroad. Where the defendant was convicted of driving with a prohibited substance, marijuana and its metabolite, in her blood or urine pursuant to NRS 484.379 she argued that the relevant provisions of the statute were unconstitutionally overbroad because: (1) the provisions failed to recognize the lawful use of the parts of the marijuana plant that are excluded from the definition of marijuana set forth in NRS 453.096 which led to the use of all marijuana being punished and captured legal conduct; and (2) marijuana is not precisely defined in NRS 484.379. The Supreme Court rejected these arguments and first noted that an overbreadth challenge may only be made if a statute infringes upon conduct that is protected by the Constitution. The Court concluded that the defendant's arguments were without merit because the statute being challenged by her conduct, driving with marijuana and its metabolite in her system, does not affect constitutionally protected conduct. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002)

Evidence of county's negligence irrelevant. Where the defendant who drove her vehicle off the road and struck and killed six teenagers who were placed on the median by the county was convicted of multiple counts of driving with a certain amount of a prohibited substance in her blood or urine in violation of NRS 484.379, she argued that the district court erred in excluding evidence of the purported negligence of the county because the decision to exclude the evidence improperly shifted the burden of proof to the defense on the issue of proximate cause. The Supreme Court rejected this argument and concluded that the district court did not abuse its discretion by excluding the evidence of negligence as irrelevant pursuant to NRS 48.025 because the negligence could not exculpate the defendant. The court held that the decision to exclude the evidence did not shift the burden of proof because the State was still required to prove beyond a reasonable doubt that the defendant was the proximate cause of the deaths. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002)

District court acted within its discretion in refusing to conduct evidentiary hearing on motion to suppress evidence. Where: (1) the defendant was convicted of driving with a prohibited substance, marijuana and its metabolite, in her blood or urine pursuant to NRS 484.379; (2) the defendant's blood samples had not been refrigerated and the State introduced blood evidence 6 days before this information became known; (3) the district court considered the defendant's motion to suppress but denied it on the basis that it was not timely; (4) the district court allowed both sides to examine the defendant's expert outside the presence of the jury, and then ruled that both sides would be allowed to examine the witness in the presence of the jury concerning the blood evidence; and (5) NRS 174.125 requires motions to suppress evidence to be made before trial unless the moving party was unaware of the grounds for the motion before trial, the Supreme Court held that while the district court could have considered the motion during trial because the defendant was unaware of the grounds for filing the motion before trial, the district court's decision to not stop the proceedings in order to immediately conduct an evidentiary hearing was within the discretion of the district court. Williams v. State, 118 Nev. 536, 50 P.3d 1116 (2002)

Good cause not shown without specific evidence. On appeal of an order of the district court granting a postconviction petition for a writ of habeas corpus, supreme court rejected petitioner's assertion that she could not have raised her claim that marijuana metabolite was not a prohibited substance under NRS 484.379 at trial or on direct appeal from her conviction for six counts of driving with a prohibited substance in her blood or urine because the claim was indiscernible due to its highly complex, esoteric and scientific nature. The court reasoned that petitioner did not establish good cause for failing to raise such claim earlier because she presented no specific evidence to demonstrate or explain why this claim could have not have been raised at trial or on direct appeal. Thus, petitioner was procedurally barred pursuant to NRS 34.810 from bringing such claim in a habeas corpus proceeding. State v. Williams, 120 Nev. 473, 93 P.3d 1258 (2004)

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.

Right to jury trial of person charged with driving while intoxicated. Notwithstanding provisions of NRS 266.550 which prohibit a trial by jury in municipal courts, a person charged with driving while intoxicated in violation of NRS 484.379 has a constitutional right to a trial by jury because under Nevada law the offense is serious in that (1) NRS 484.3792 provides that penalties upon conviction include a mandatory term in jail, payment for and attendance at an educational course on substance abuse and a maximum fine of $1,000, provides a system for increasing the minimum punishments for subsequent convictions, and prohibits probation, suspension of sentence and plea bargaining and (2) collateral consequences include the loss of a driver's license (see NRS 484.384), and driving is nearly imperative to the ability of many people to a earn a living. Bronson v. Swinney, 648 F. Supp. 1094 (D. Nev. 1986)

No right to trial by jury for driving under the influence. Based on the severity of the maximum authorized penalty as the major criterion, there is no constitutional right to a trial by jury for a person charged under Nevada law with driving under the influence of alcohol (see NRS 484.379) since: (1) with the maximum prison term being 6 months (see NRS 484.3792), a presumption exists that the Nevada Legislature views it as a "petty" offense for purposes of the U.S. 6th amendment (cf. Nev. Art. 1, § 3 and NRS 266.550), and (2) the defendant did not demonstrate that additional statutory penalties (see NRS 483.460, 484.3792 and 484.384) reflect a legislative determination that the offense in question is a "serious" one. Blanton v. City of N. Las Vegas, 109 S.Ct. 1289 (1989), cited, Westmoreland v. Demosthenes, 737 F. Supp. 1127, at 1129 (D. Nev. 1990), McLean v. Moran, 963 F.2d 1306, at 1311 (9th Cir. 1992)

Convictions of driving under the influence, obtained without a jury trial, may be used to enhance the penalty for subsequent convictions. Previous convictions for driving under the influence pursuant to NRS 484.379, where defendant was not provided with a jury trial, may be used to enhance the penalty for subsequent convictions pursuant to NRS 484.3792. Westmoreland v. Demosthenes, 737 F. Supp. 1127 (D. Nev. 1990)

Former presumption concerning the alcohol content of a defendant's blood was unconstitutional as applied. Where a judge, during a bench trial of a defendant charged with driving under the influence of alcohol in violation of NRS 484.379, applied a presumption created in the provisions of former NRS 484.381 (the amount of alcohol shown by a chemical analysis of blood is presumed to be no less than the amount present at the time of the alleged violation) as a mandatory conclusive presumption, the court of appeals ruled that the provisions of former NRS 484.381 were unconstitutional as applied. Absent a statutory presumption, the evidence presented at the trial may have failed to establish beyond a reasonable doubt that the defendant's blood-alcohol content at the time of driving was at least 0.10 percent, and therefore, the defendant's constitutional right of due process (see U.S. 14th amendment and Nev. Art. 1, § 8) to have the State prove every element of the crime beyond a reasonable doubt was violated by the conclusive presumption applied by the judge. The court declined to address the facial constitutionality of the statute. (N.B., case decided before blood alcohol content (BAC) threshold lowered to 0.08 in 2003.) McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992), cited, Sereika v. State, 114 Nev. 142, at 146, 955 P.2d 175 (1998)

Jurisdiction of state court where defendant arrested on an Indian reservation. Appellant was arrested while driving an automobile on an Indian reservation and subsequently convicted of driving under the influence of intoxicating liquor in violation of NRS 484.379. Appellant filed a petition for a federal writ of habeas corpus, challenging his state conviction on the grounds that Nevada district court lacked jurisdiction because the alleged offense occurred entirely within the boundaries of the reservation. In affirming the federal district court's denial of the petition, the court of appeals held that appellant had failed to overcome a presumption of correctness attached to the state trial court's determination that the offense occurred at least in part on streets of the City of Reno. Brown v. Burns, 996 F.2d 219 (9th Cir. 1993)

Admissibility of evidence of a drug recognition evaluation. In a prosecution for operating a motor vehicle under the influence of drugs (see NRS 484.379), where a drug recognition examiner concluded that the defendant was under the influence of marijuana after conducting a drug recognition evaluation of the defendant, the evaluation protocol and the conclusions drawn therefrom were admissible into evidence upon the appropriate foundation being laid and to the extent that the examiner could testify as to probabilities based upon his observations and clinical findings. Although the examiner could testify as to specialized knowledge which would assist the trier of fact to understand the evidence, he could not testify, by way of scientific opinion, that the conclusion was an established fact by any reasonable scientific standard. (See also NRS 50.275 and 484.393.) United States v. Everett, 972 F. Supp. 1313 (D. Nev. 1997)