ogata dui guide rev...

DISCLAIMER: This guide is for information purposes only and is not legal advice. Nor does this guide create an attorney-‐client relationship. Always seek the advice of a licensed attorney. Nevada’s laws do change so it is important to talk to a licensed attorney in person.

A simple and practical guide to understanding Nevada’s DUI laws and the Criminal Justice System.

First Edition

The Law Offices of Garrett T. Ogata

3841 W. Charlerston Blvd Ste 205

Las Vegas, NV 89102


FOREWARD

Regardless of all the legal training, law school, attorney-‐client relationships, and trials, the “one” constant struggle I have observed after 14 years of practicing law in the State of Nevada is that DUI law and the justice system is an intimidating and confusing process, thus making it hard for attorneys and clients to navigate through. This is what motivated me to write a simple and easy to understand DUI guide that hopefully someone who has never been charged with a crime or received any legal training can read and reference, and therefore be more informed.

I have found that besides the actual criminal charge(s) one may be facing, the “unknown” of what is to come is probably the biggest cause of worry and stress on a person charged with a DUI.

Hopefully, with the use graphics and short explanations contained in my guide, one can gain an insight into Nevada’s DUI laws and our criminal justice system. And with this knowledge, your journey will be a less stressful and worrisome.

I hope you find my guide informative and easy to understand. Save it, print it and share it.

Sincerely,

Garrett T. Ogata, Esq.


BIOGRAPHY

Garrett T. Ogata (Attorney at Law)

Garrett T. Ogata attended The University of Maryland – School of Law in Baltimore, Maryland. He began his career as a law clerk for Judge Michael Douglas in Clark County, Nevada. He focuses his practice in DUI defense and criminal defense and is licensed to practice law in Nevada, California and Utah.

National Organizations

Nat 'l Assoc. of Criminal Defense Lawyers Nat 'l Criminal Defense College [NCDC] American Trial Lawyers Association National College DUI Defense [NCDD] Instructor – Nat’l Highway Traffic Safety Admin [NHTSA SFST]

NORML Legal Committee

Nevada Associations

Nevada Trial Lawyers Association Clark County Bar Association State Bar of Nevada Co-‐Founder of Las Vegas DUI Center

California Associations

State Bar of California

Utah Associations

State Bar of Utah

Education

California State University, Los Angeles

University of Maryland School of Law (Juris Doctorate)


INDEX

FOREWARD………………………………………………………………………………………………………………………………...i

BIOGRAPHY………………………………………………………………………………………………………………………………..ii

DUI PROCESS……………………………………………………………………………………………………………………………..1

DUI STOPS AND FIELD SOBRETY TEST…………………………………………………………………………………………1

ARREST………………………………………………………………………………………………………………………………………2

BLOOD/BREATH ALCOHOL LEVEL…………………………………………………………………………………….………...2

JAIL…………………………………………………………………………………………………………………………………………….3

BAIL AND OWN RECOGNIZANCE………………………………………………………………………………………………..3

ARRAIGNMENT………………………………………………………………………………………………………………………….3

PRELIMINARY HEARING/PRETRIAL………………………………………………………………………………………..……4

TRIAL/BENCH………………………………………………………………………………………………………………………..……4

STATUS CHECK……………………………………………………………………………………………………………………………5

RECORD SEAL…………………………………………………………………………………………………………………………….5

LICENSE REVOCATION…………………………………………………………………………………………………………….5-‐6

DMV HEARING……………………………………………………………………………………………………………..……………7

TRAFFIC STOPS & YOUR RIGHTS…………………………………………………………………………………..…………….7

STANDARDIZED FIELD SOBRIETY TEST ………………………………………………………………………….……………9

PRELIMINARY BREATH TEST……………………………………………………………………………………..………………11

BREATH v. BLOOD…………………………………………………………………………………………………….………………12

ATTORNEY CONSULTATION……………………………………………………………………………………………………..13

DUI PROHIBITED SUBSTANCE…………………………………………………………………………………………………..15

MEDICAL MARIJUANA AND DUI……………………………………………………………………………………………….16

DMV LICENSE SUSPENSION……………………………………………………………………………………………………..18

BAIL…………………………………………………………………………………………………………………….…………………..20


RECORD SEAL………………………………………………………………………………………………………………..…………20

DUI FIRST………………………………………………………………………………………………………………………..……….21

DUI SECOND…………………………………………………………………………………………………………………….………22

DUI THIRD…………………………………………………………………………………………………………………………..……23

COMMERCIAL DRIVER’S LICENSE…………………………………………………………………………………………..…24

FELONY DUI CHARGES………………………………………………………………………………………………………………26

VEHICULAR HOMOCIDE……………………………………………………………………………………………………………27

DUI FEDERAL LAND………………………………………………………………………………………………….………………28

DUI SCHOOLS……………………………………………………………………………………………………………..……………29

SR22……………………………………………………………………………………………………………………………..………….30

CANADA AND DUI………………………………………………………………………………………………………….………..31

DOWNLOAD GUIDES…………………………………………………………………………………………………….………….36


DUI PROCESS

THE STOP AND FIELD SOBRIETY TESTS

This is probably the most important event in your case and the most

traumatic. Luckily, this traumatic event is over and now you can focus on

obtaining legal representation and building your case. Many pretrial

motions will be based on what transpired during the stop. Furthermore,

this is where law enforcement built probable cause and gathered evidence to arrest you and use at trial

to try to prove that you were driving under the influence. This is also where your attorney will build

your defense and possibly suppress any evidence obtained illegally during the encounter. See Traffic

Stops and Your Rights, p. 7 and Standardized Field Sobriety Test p. 9. It is important to schedule a

consultation as soon as possible while your memory is fresh to aid your counsel in your defense. See

Attorney Consultations p. 13.


ARRESTED FOR DUI

Once law enforcement believes they have probable cause, you will be

arrested. You will also have to submit to a Breathalyzer/Intoxilyzer

machine or blood draw from a nurse at the police station. If you refuse

both, they will take your blood by force. It is recommended that you

request the Breathalyzer/Intoxilyzer machine and not the blood draw. See Standard Field Sobriety Test,

p. 9. Keep in mind that law enforcement needs to have probable cause to arrest you; without this, your

arrest would be unconstitutional. If this is the case, then a pretrial motion may be filed to suppress

evidence and/or dismiss the case.

BLOOD/BREATH ALCOHOL LEVEL

If you do blow into the Breathalyzer/Intoxilyzer machine which results in

blood alcohol content (BAC) of .08 or above, then you will be booked for a

DUI. Nevada has a “per se” DUI statute that presumes you are

intoxicated if you blow a (BAC) of .08 or greater. You can also be charged

with a DUI if you are driving impaired, even if your (BAC) is below .08. If a blood draw test was

performed, then you will have to wait several months to determine if you had a BAC of .08 or greater.

Nevada’s DUI law also applies to prohibited substances. Prohibited substances/controlled substances

are tested by blood draw test only, which will result in certain number of nano-‐grams per milliliters

(Ng/ml) of blood. See DUI Prohibited Substances, p. 15. If law enforcement believes you are under the

influence of a prohibited or even prescribed medication, then they may force you to give a blood test to

determine if you meet any “per se” prohibited substance levels or to prove impaired driving. Depending

on what your BAC or Ng/Ml is your license may be revoked. See DMV License Suspension, p. 18.


JAIL

Let’s face it, no one wants to go to jail, but it typically is only temporary

when one is arrested for a DUI. Depending on the offense and your case,

one can post bail, be released on your Own Recognizance (O.R.) without

bail, or an attorney can file a motion to release you on your Own

Recognizance. Just remember, do not make any statements about any incident while in jail, and making

statements to law enforcement will NOT help you avoid jail or get out sooner. Law enforcement does

and can lie. Plea negotiations are not done by law enforcement; this is something between your

attorney and the District Attorney. Always invoke your right to remain silent and request your attorney

to be present.

BAIL/OWN RECOGNIZANCE (O.R)

In many cases, you will be given a bail amount that you will need to post in order to

be released. Depending on the type of charge against you and risk of flight, bails

may vary. In some circumstances bail may be extremely high or even denied. One

can post bail with their own money or go to a bail bondsman for assistance. An

Attorney may also file a motion to reduce bail and/or for you to be released on your

own recognizance (O.R.). See Bail, p. 20.

ARRAIGNMENT

The arraignment will be your first court appearance and that can be done

by video if you’re still in custody or in person. In most cases, if you

retained an attorney, and are out of jail he or she can appear on your

behalf without your presence. Typically, the state will provide you or


your attorney with the complaint/indictment showing your criminal charges. At this time you or your

attorney will enter a plea of NOT guilty and a pretrial or preliminary hearing date or trial date will be set.

PRELIMINARY HEARING/PRE-‐TRIAL

Depending on the court and the charge, you may have another

appearance before you get to trial. If charged with a misdemeanor in

Municipal Court, you will have a Pre-‐Trial hearing. This Pre-‐Trial hearing

gives the attorneys an opportunity to negotiate the case before trial or

raise any discovery issues. If you are charged with a gross misdemeanor or felony, you will have a

preliminary hearing where the judge will decide if there is enough evidence to go forward with a jury

trial. The preliminary hearing is a mini-‐trial where the judge decides if there is slight or marginal

evidence that a crime was committed.

TRIAL/BENCH TRIAL

Depending on the charge and if one pleads NOT guilty, one will either

have a bench trial or a 12 person/juror jury trial. If you are charged with a

misdemeanor, which is punishable not more than 6 months in jail, then

you will have a bench trial. A bench trial is where the judge will decide

your guilt or innocence on law and the facts of the misdemeanor case. If you are charged with a gross

misdemeanor or felony, there will be a jury trial, where the jury will decide your guilt or innocence.


STATUS CHECK

Depending on your sentence or plea, there may be requirements that you

will have to fulfill per the Court’s orders: DUI school, court fines,

counseling, stay out of trouble, and community service. You will be given

a date and time to come back before the court and present proof of your

requirements to the judge. Once you complete and provide proof to the judge, your case will be closed.

If you have completed all of your requirements, your attorney can make this appearance for you. Think

of this as due date for when your homework is due, but with much higher consequences. If you fail to

do the court requirements and/or get in further trouble with the police, you could be facing up to 180

days in jail.

RECORD SEAL

Luckily in Nevada, you are able to seal your record with court approval.

There is a catch though depending on the type of crime you were charged

with, you will need to wait 2 or more years. A misdemeanor has a 2 year

waiting period, but if it was a misdemeanor DUI or domestic battery, you

will need to wait 7 years. See Record Seal, p. 20. If your case was dismissed or you were found not

guilty, then one can immediately start the record sealing process. This process can take up to 8 months

sometimes, so it is best not to delay once eligible.

LICENSE REVOCATION


This is probably one of the more confusing aspects of getting a DUI

because it is a separate procedure from the criminal matter and it

involves the DMV administration hearing. Your license is a privilege

and this privilege to drive is determined by the DMV. Once it is

shown that you have a BAC of .08 or greater, or a certain level of Ng/Ml of blood with a

prohibited substance, your license will be revoked. If you did a Breathalyzer/Intoxilyzer and it

results in .08 BAC or higher, your driver’s license will be taken immediately. You will be given a

pink slip of paper which is your temporary 7-‐day driver’s license and you or your counsel must

request a DMV DUI hearing before your 7-‐day license expires. If you did a blood draw test,

then it will typically take 2 to 5 months to get a DMV letter stating that your license will be

suspended. Then you or your counsel must immediately request a temporary license and a

DMV DUI hearing. See DMV License Suspension, p. 18.


DMV HEARING

If you requested a DMV hearing within 7 days of having your license taken

or suspended, you will be given a hearing where the DMV will determine

if you committed a DUI. Your attorney can be present at this hearing.

The burden of proof for the DMV to find that you committed a DUI is very

low, so do not take this as an indication that you will lose your criminal case. Unlike the DMV hearing,

your criminal case has a much higher burden of proof and you have various rules of evidence and

constitutional protections. Even though a DMV hearing is a hard case to win, it is possible and provides

your attorney with insight into what may later be brought before your criminal case. This enables your

attorney to build a better case for you.

TRAFFIC STOPS AND YOUR RIGHTS

Sadly, most people do not know their rights and it is up to you to invoke these rights. Most Nevadans do not know what their rights are when stopped or how to respond to law enforcement while invoking these rights. One of the most common situations where you will be stopped and confronted by law enforcement is a traffic stop. These could be a result of a simple traffic violation or even a DUI/DWI check point. However, no matter why the police stopped you, you still have rights that need to be invoked by you whether you are innocent or guilty. We all know the saying, “you have the right to remain silent,” but rarely does a person stay silent. If you are driving, Nevada law requires you to have your driver’s license, registration, and insurance. You will need to show these three things. You do not need to answer any questions. Once you start opening your mouth or responding to law enforcement’s questions you are putting yourself at risk and not affording yourself the protections of the 5th Amendment. You have the right to remain silent and a right to an attorney. It is perfectly fine for you to say, that you will not make any statements, nor will you do any Field Sobriety Tests. Silence alone even after your Miranda rights have been read does not indicate you are invoking your rights and law


enforcement will continue to question you hoping that you will eventually break and make a statement. You must state, “I’m invoking my 5th Amendment rights and I will not answer any questions until I have spoken to my attorney.” Until you have clearly stated that you are invoking your 5th Amendment rights, law enforcement will say anything to get you to speak or make a statement even after you say you will not answer any of their questions and want your attorney. They may even get angry, make promises or threats; but do not give in, even if they decide to arrest you. This may be a likely scenario if you refuse to answer questions regarding drinking and driving or what medications you are taking. In Nevada, you can refuse to do field sobriety tests and preliminary breath test (a small handheld Breathalyzer machine done at the arrest site). Your refusal will not please law enforcement and can lead to more questions and threats. Without making statements, admissions or doing field sobriety tests, the police may not have enough probable cause to arrest you for a DUI/DWI. However, law enforcement still may arrest you even though they do not have enough probable cause; this is why you fight against such unreasonable searches and seizures in court. If they suspect that you are under the influence of a prohibited substance or controlled substance, then this may lead to a search of your body via a blood test. Law enforcement typically suspects this when someone answers the officer’s questions regarding doctor’s care and what medications they are taking. Even if you are taking legally prescribed medication, the officer’s knowledge of this may lead to your arrest and a blood test. Always request a warrant and never consent to a blood test. However, officers may use force to draw your blood if they choose a blood test and you refuse. Do not fight or resist officers at this point for your own safety. Do demand a warrant and state you do not consent. If officers do obtain a warrant then you must comply, but never verbally consent. Once you are arrested, you should request a Breathalyzer test over a blood test to be done at the police station. Your choice should be a Breathalyzer test. See Breath v. Blood, p. 12. You may also hear law enforcement ask if they may search your car. If they ask, say “I do not consent to any searches.” The 4th Amendment protects people from unreasonable searches and seizures, but if law enforcement gets your permission to search your vehicle, belongings, or person, then you give up your 4th Amendment protection. Do not sign a consent to search form. An example of someone invoking their rights during a traffic stop with law enforcement can be found at http://www.youtube.com/watch?v=ILqc0DMh84k. However, how law enforcement reacts may vary and this is a good example of law enforcement respecting, after a few tries,


your rights and allowing you to go on your way. In fact, you should search the web for traffic stops to get an idea what it is like to interact with law enforcement. Visit www.FlexYourRights.org for more information on police encounters and your rights. Here is a list of things to know if arrested or questioned by law enforcement: 1. Always be polite and respectful to the police officers. 2. If detained for a DUI, politely REFUSE to do ANY field sobriety test or on scene breath test (this is the small portable device, NOT to be confused with the Breathalyzer machine at the jail or in the van). 3. DO NOT answer any questions about alcohol consumption. It is best to stay silent about any and all facts of your case. 4. DO NOT answer any questions about doctor’s care or any medications you are on, even if you have a medical marijuana card or doctor’s prescription. 5. NEVER consent to any search of your vehicle, home or person. 6. While in custody, DO NOT discuss your case with anybody in the jail; they may be informants. 7. When you are released, NEVER make any contact with the police, District Attorney or Investigator without first consulting your attorney. These people are not here to help you. 8. DO NOT try to make any deals with the police. They can and will lie to get you to confess to a crime with the promise that your case will be dropped and/or that you will be released from jail. DO NOT believe them!

Remember, there is no way to predict how law enforcement will react; they might respect your rights or they might threaten you, make promises, or lie to you in order to get you to incriminate yourself. Politely refuse and know that you may be going to jail, one way or another, but at least your constitutionally protected rights will be there to use as a defense.

STANDARDIZED FIELD SOBRIETY TEST (SFST)

Make no mistake about it; you are NOT legally required to submit to a field sobriety test in the state of Nevada. Nor will Nevada’s DMV suspend your license solely on the grounds that you refused to do a field sobriety test. Nevada’s DMV will suspend your license after you have been arrested for a DUI or if you request a DMV hearing after the arrest and then the DMV finds you guilty in their own hearing. See DMV License Suspension, p. 18.

Let’s also make it clear that if an officer has probable cause to believe you are intoxicated, then you MUST submit to a Breathalyzer/Intoxilyzer machine or blood draw from a nurse at the police station. If you refuse both Breathalyzer/Intoxilyzer machine and blood draw, they will take your blood either with your cooperation or take it by force. It is strongly recommended that you request to do the


Breathalyzer/Intoxilyzer machine, and NOT the blood draw. Blood tests are more accurate and generally there are less chances of error. See Breath v. Blood, p. 12.

The purpose of the field sobriety test is to test your coordination and concentration abilities. Police use this test to obtain validated indicators of impairment and to build probable cause against you so they may arrest you for a DUI. Police may still arrest you for a DUI even if you do not perform a field sobriety test if they believe they have probable cause from other facts, such as failing to maintain your lane, bad driving, glazed eyes, slurred speech, or any fact that may suggest you are intoxicated.

If you do happen to do a field sobriety test, you will have to perform several tests, which you will most likely fail, sober or not.

The typical tests one will have to perform in Nevada are:

• Horizontal Gaze Nystagmus (HGN) -‐ This test looks for the involuntary jerking of the eyes as they move side to side. This test is conducted when an officer ask the suspect to track his finger, pen, or light from left to right. The officer is looking for exaggerated eye jerking at lesser angles, such as looking straight ahead, in both eyes. The officer will also be looking for difficulty tracking his finger side to side because this may imply impairment. The officer is looking for 3 indictors of impairment in each eye: if one cannot follow the moving object smoothly; if jerking is distinct when the eye is at the maximum deviation; and if the angle of onset of jerking is prior to 45 degrees of center. If the officer, between the two eyes, observes 4 or more clues, then this is considered to show that one has a BAC of .08 or greater. There can be non-‐alcoholic related reasons for failing this test and there may be issues with the officer not properly conducting the test. Depending on your case, this may be used as a defense in pretrial or trial. See Video.

• Walk-‐and-‐Turn (WAT) – This test looks to see if the suspect can follow directions and perform some physical actions. The Walk-‐and-‐Turn requires the suspect to take 9 heel-‐to-‐toe steps in a straight line and then return in the same manner. The officer conducting this test looks for 8 indicators of impairment: suspect cannot keep balance while listening to instructions; begins before the instructions are finished; stops while walking to regain balance; does not touch heel-‐to-‐toe; steps off the line; uses arms to balance; makes an improper turn; or takes an incorrect number of steps. If two or more indictors are found, then this allegedly tends to show impairment. There are numerous reasons why someone who is completely sober can fail this test. Shoes, uneven walking surface, lighting, age, weight, prior injuries, or any other physical conditions can cause one to fail. In fact, the suspect should not perform this test in Nevada if over 65 years of age or 50 pounds overweight. See Video.

• One Leg Stand-‐Video (OLS) – This is another test that tests the suspect’s ability to follow directions and one’s physical ability. One will be instructed to stand with 1 foot approximately 6 inches off the ground and count aloud by thousands until told to put foot down (e.g. up to one thousand thirty). The suspect will be timed for 30 seconds and the officer will look for 4 indicators of impairment: swaying while balancing; using arms to balance; hopping to maintain


balance; and putting the foot down. The officer will consider just 2 indicators as a sign of impairment. Various physical and environmental factors can cause someone who is not even impaired by alcohol to fail this test. See Video.

You can see why it is important to NOT do any field sobriety tests; they are difficult for the average person and various non-‐alcoholic factors will cause people to fail. Politely decline to do any of these tests, even if threatened with arrest because it is better not to incriminate yourself with these tests and be arrested than to fail them and be arrested. See Traffic Stops and Your Rights Link, p 7.

PRELIMINARY BREATH TEST (PBT) DEVICE

NRS 484C.150 and NRS484C.160

The Preliminary Breadth Test (PBT) is a small portable handheld device that law enforcement carries with them to test a person’s breath alcohol content if they have reasonable grounds to believe that a person was driving or in actual control of a vehicle while under the influence of alcohol. This device only test for alcohol.

Do not confuse this with a Breathalyzer/Intoxilyzer machine or a blood draw that is used to test your blood alcohol content (BAC) with a Preliminary Breath Test (PBT) device. The Breathalyzer/Intoxilyzer machine test must be done by a certified technician, usually a police officer, while the Preliminary Breath Test (PBT) device can be done by any officer that stops you at the scene.

The Preliminary Breath Test (PBT) device does not have to be operated by a certified technician or be calibrated. The Breathalyzer/Intoxilyzer machine must be operated by a certified trained technician and calibrated to ensure it is operating properly. The blood withdraw will also have procedural safeguards that must be followed. If you are arrested and taken before a Breathalyzer/Intoxilyzer machine or a blood draw nurse, and if you refuse to give your breath or blood, you will be held against your will and a nurse will take a blood sample by force with the help of several police officers.

If you do submit to a Preliminary Breath Test (PBT) handheld device conducted by an officer at the scene, the PBT results are not admissible in any criminal action to prove you were driving under the influence. However, it may be used to show there were reasonable grounds to make an arrest.


Nevada’s Implied Consent statute NRS 484C.150 states that you have implicitly consented to a test, whether by Breathalyzer/Intoxilyzer machine or blood draw when you were given a Nevada driver’s license.

However, the implied consent statute does not circumvent the requirement of having probable cause to make an arrest under the 4th Amendment. For an officer to force you to give an evidentiary test, such as the Breathalyzer/Intoxilyzer machine or blood draw by a nurse, he or she must have probable cause, or voluntary consent from you, or implied consent if you have been arrested, or when a driver is dead, unconscious, or in a condition rendering him incapable of being arrested. See Davis v. State, 99 Nev. 25, 656 P.2d 855 (1983). However, the Supreme Court held in Missouri v. McNeely, that law enforcement must obtain a warrant to conduct a blood withdrawal.

If you refused to perform a Standardized Field Sobriety Test and the Preliminary Breath Test device (PBT), then the arresting officer has less evidence to prove probable cause to justify your arrest. If an officer does not have probable cause then it is an unconstitutional search and seizure.

BREATH v. BLOOD

When it comes to testing a person’s alcohol concentration (BAC), most people are aware of several options to test this. Typically, the tests used in Nevada are either a Breathalyzer/Intoxilyzer machine or a blood withdrawal. It should be noted that urine is a possibility, but rarely used.

When faced with the two tests both are substantially different, yet both seek a common goal (finding your BAC); the question then becomes, which one does one choose?

Each test has its own advantages and disadvantages making the choice a confusing matter.

Some feel that blood is more accurate and therefore the better choice, while others are scared of needles and will chose a Breathalyzer/Intoxilyzer over the blood test.

Truthfully, the main difference is how a criminal defense attorney will build a defense and attack the evidence. Furthermore, it also will determine the time frame when one receives a notice from the DMV suspending one’s license. See DMV and License Suspension, p. 18.


Breathalyzer/Intoxilyzer Testing

A Breathalyzer/Intoxilyzer test tends to be the most error prone test of them all and an experienced Attorney will know this and build a defense around this. There can be issues with the machine not working properly, operator error in obtaining the results, not obtaining results within 2 hours of driving, the test subject’s own conditions that may impact the results and more. A breath test machine allows for a “hat trick” of sorts of an attack on the machine, operator, and test subject.

Blood Testing

This tends to be a more accurate of the testing methods; after all it is testing the “B” in BAC (Blood Alcohol Content). If your goal is to have an accurate test then this would be the route to go, but it gives your Attorney less areas to focus his or hers defense on. There are defenses of course. An attorney can challenge the blood by having it retested, chain of custody issues, the lab technician not trained and certified, test was not within 2 hours of driving, retrograde extrapolation defenses, and if the blood was taken without a warrant. Do not consent to a blood draw. Keep in mind, if one has blood retested, the prosecution may have it retested for any other prohibited/controlled substance as well which can lead to a per se prohibited substance violation or impaired driving.

It is ultimately up to the individual to choose what test is right for them. However, from years of experience we have found Breathalyzer/Intoxilyzer test results provide for a better defense.

ATTORNEY CONSULTATIONS

Being arrested or charged with a crime is one of the most stressful and fearful things one can experience. Ignoring it will not make things better or go away. It is important to immediately seek out an experienced attorney to help guide you through this ordeal and fight for you all the way.

The first thing you need to do is consult with an attorney. Not all attorneys are the same and you may need to consult with several attorneys before you decide who will represent you.

A consultation with an attorney is very important and helps you understand your case and the law. A qualified attorney should have no problem discussing the facts of your case, the law, and possible defenses during your consultation whether or not you decide to hire that attorney.

When you consult with an attorney there are several things that you need to discuss.

The Facts


Start from the very beginning. An attorney needs to know what happened leading up to the arrest. Your defense starts before the actual arrest. Law enforcement needs reasonable suspicion to stop you and probable cause to arrest you. You should go through all the events leading up to your arrest. Where you were, what were you doing, who was with you, when did this occur, and why did this occur all sounds very basic, but can be critical to your defense.

Contact with law enforcement needs to be discussed thoroughly with the attorney. Who, what, when, where, and why needs to be discussed. What officers were involved, what they said to you, what did they make you do and what did you do and say are just some of the basic, but critical facts that need to be discussed with the attorney. Typically, once law enforcement stops you, they are trying to gather probable cause to arrest you and their investigation of possible crimes has started.

An experienced attorney will help guide you through your case. It may be helpful for you to write down everything you remember as soon as possible to refresh your memory if needed.

The Law

An attorney should be able to explain the charges you are facing or may be possibly facing depending on the facts of your case. Although statutes are there to provide notice to citizens as to what is illegal, it can be very confusing for people to understand.

During your consultation, the attorney should explain the law and any questions you may have.

Possible Defenses

An attorney should discuss possible defenses depending on the facts of your case and the nature of the crime. Some common things that should be discussed are defenses raised by legal procedure and possible trial strategies. You should feel that the attorney has a grasp about your case and the law.

The Process

The legal system can be very complicated and time consuming. An attorney should explain the process from beginning to end with you. You should feel that you know what to expect going forward.

Possible Outcomes

There are various possible outcomes to your case. An attorney should explain these possible outcomes and the consequences.

Fees

Attorneys charge various fees and for good reasons, but make sure you know what you are paying for. Your attorney will need to make numerous appearances for you; make sure that you know what you will be paying for and how much. Remember the rule of thumb: that a good lawyer is probably not cheap, and a cheap lawyer is probably not the best.


The Decision

Many Attorneys will do free consultations so take advantage of these but make sure you discuss your case and feel informed. Trust your gut. It is completely acceptable to visit more than one attorney and an attorney should understand this. You are about to enter into an attorney-‐client relationship. So take your time, weigh your options and make a decision you feel comfortable with since you and your attorney will have a close working relationship.

DUI PROHIBITED SUBSTANCE AND IMPAIRMENT NRS 484C.110

Many people would be surprised to know that you do not need to have any alcohol in your system to be charged with a DUI. Being under the influence of marijuana or other prohibited substances can also lead to a DUI charge.

A person who cannot safely drive or assert actual physical control of a vehicle due to the use of marijuana, prohibited substances, chemicals, organic solvents, compounds, or controlled substances can be charged with a DUI. This would be what is known as driving under the influence of a controlled substance for impaired driving. Prosecutors would have to prove from the totality of the circumstances that the substance(s) rendered you incapable of safely driving or exercising actual physical control of the vehicle. See Cotter v. State, 738 P.2d 506 (Nev. 1987).

Unfortunately for many people you can also be charged with a DUI related to marijuana use even if you are not too intoxicated to drive safely. This is known as a “per se” violation. A per se violation occurs if a person’s blood or urine has a certain concentration of marijuana or other prohibited substances even if he or she is fully capable of driving safely.

Your medical marijuana card does not protect you from getting a DUI. In fact, it may unfairly lead the police to believe you are impaired and warrant a blood test.

• If a person’s urine contains ten (10) nano-‐grams or more of marijuana per milliliter then they have committed a per se violation.

• A person with a concentration of two (2) nano-‐grams per milliliter in their blood has also committed a per se violation.

• If a person has a concentration of marijuana metabolite equal to or greater than fifteen (15) nano-‐grams in their urine or five (5) nano-‐grams in their blood they have also violated Nevada’s prohibited substance per se DUI statute.


Other prohibited substances to name a few include, cocaine, heroin, and meth, which all have a per se limit as well. Furthermore, a controlled substance such as pain medications or antidepressants like Xanax, even if legally prescribed by your doctor, if found in your blood may be used to prove you were impaired.

Driving under the influence of a prohibited substance is determined by a certain number of nanograms per milliliter of blood, just as a DUI alcohol has a “per se” violation level of .08 BAC or more.

A simple traffic stop may lead to a DUI if law enforcement decides to ask questions regarding any medication you may be taking. This is why it is important to exercise your 5th Amendment right to remain silent.

Nevada Revised Statute (NRS) 484C.110 has stringent and sometimes difficult to understand language concerning marijuana, prohibited, and controlled substances related to DUIs. Due to this complexity it is very important to obtain a lawyer to fully explain the legal issues.

MEDICAL MARIJUANA AND DUI

NRS 453A AND NRS 484C.110

If one possesses marijuana in the State of Nevada, one is either possessing marijuana legally or illegally. The only way to legally have possession of marijuana is to have a valid medical marijuana card. If you have a valid marijuana card or are thinking about getting one, there are issues to be aware of when it comes to operating a motor vehicle.

Let’s be clear, having a marijuana card is not a defense to a DUI and one should not drive while under the influence or impaired.

It is true that having a valid medical marijuana card is not to be used as probable cause to search a person or the person’s property.

The main issue is one of privacy. If one has a medical marijuana card, then the DMV will become involved in the issuance and registry of the medical marijuana card. With DMV involvement comes the stark fact that there is now a record that you have a license to use medical marijuana.

This record now shows up on your “scope,” similar to a concealed firearm permit or a criminal record. Police may now have notice of what you may legally have prescribed to you.

If someone with medical marijuana card was pulled over for a simple speeding infraction, the officer may then become aware of his or her medical marijuana license. This then can lead to a question of, “are you on any medication?” If one answers for example, “yes, I have Glaucoma and I used marijuana


yesterday morning for treatment purposes,” then one has just given the officer reason to suspect you are driving under the influence of a prohibited substance under NRS 484C.110.

This is why one should be aware of their rights and always invoke them. See Traffic Stops and Your Rights, p. 7.

If this stop does lead to one’s arrest for a DUI, then a blood test will be given to determine THC or Metabolite levels for purposes of Nevada’s prohibited substance per se DUI.

If you have used marijuana legally and your blood has been tested, chances are you may fail the per se DUI limit for marijuana or you may have something else in your system and depending on the facts that may still lead prosecutors to pursue driving while impaired even if your levels are below the per se limits.

Nevada’s prohibitive substance levels for marijuana are extremely low:

• Marijuana per se limit is only 2 nanograms per milliliter of blood • Marijuana metabolite is only 5 nanograms per milliliter of blood

As you can see, these levels are extremely low and place all legal users of marijuana at risk. Until the State takes a hard look at the science behind marijuana and impairment, and this does not seem likely, chances are many medical marijuana users are driving “under the influence” of marijuana and will fail a blood test.

Unfortunately, the scenario above is all too common.


DMV License Suspension

NRS 484C.220 and 484C.230

DUI charge brings several negative consequences with it. If all of the fines and possible jail time weren’t enough, your license is also suspended due to the charge. License suspension can be detrimental to a person’s livelihood. Unfortunately the DMV can suspend your license even if the DUI charges against you are dropped.

Nevada Revised Statutes (NRS) 484C.220 and 484C.230 relate to DUIs and the license suspension that follows one. There are two ways that a license can be suspended stemming from a DUI.

• Blowing a 0.08 on a breathalyzer administered by a police officer will lead him to take your license and provide you with a seven (7) day temporary license.

• If a blood test is performed you will receive your license back from the officer. In four to six months the blood test results will come back, and if that test shows a 0.08 blood alcohol content or a prohibited substance, the Nevada DMV will once again try to suspend your driving privileges/driver’s license.

Once your license has been taken or suspended you must request a temporary license and an administrative hearing. You have seven (7) days to request this. The hearing is an administrative matter which is not connected with the criminal charges against you. The temporary license will be valid until the day of your DMV hearing. If during this hearing the DMV finds you in violation of the illegal per se law your license will be suspended even if you


were not convicted of a DUI in state criminal court. The burden of proof is much lower in the DMV court so the chances of being found in violation are much higher.

The DMV is a powerful statewide agency that has control over whether you can drive or not. No one should take on any state agency by themselves even if there is no risk of jail time. The inability to drive can hinder many areas of your life so an attorney should work hard to minimize its damaging effects.

In Summary:

• A DUI will trigger a mandatory license suspension.

• Upon blowing a 0.08 or greater on a Breathalyzer, an officer will provide you with a temporary license that is good for 7 days to drive on.

• YOU HAVE 7 DAYS TO REQUEST A TEMPORARY LICENSE AND AN ADMINISTRATIVE HEARING.

• If a blood test has been performed, the officer will give you back your license to drive on, but once the test results comeback, typically in 4 to 6 months and if the test shows 0.08 or greater, or a prohibited substance, you will be notified by the DMV by mail that your license will be suspended in 7 days.

• You have a right to an administrative hearing, separate from the criminal court hearing, and a temporary license if requested in 7 days.

• Your temporary license is valid until the administrative hearing. If the DMV finds you in violation of the illegal per se law, your license will be suspended accordingly; if you are not in violation, then your license will not be revoked.

• DMV hearings are considered administrative in nature; therefore the burden of proof is much lower than in criminal court and driving is a privilege, not a Constitutional right.

• Even if you are not charged with a DUI in criminal court, if the DMV found you in violation of the illegal per se law, your license suspension still remains.

For additional information go to: http://www.dmvnv.com/dlsuspension.htm


Bail

NRS 178.484, NRS 178.4851, and 178.4853

Being arrested is one of the most stressful events a person can ever experience in their lifetime. The Constitution provides several protections for an accused person. Some of these protections are the guarantee of non-‐excessive bail and protection from excessive punishment.

Nevada Revised Statutes (NRS) 178.484, 178.4851 and 178.4853 deal with granting bail to an accused person. In most instances, an arrested person will be given the opportunity to post bail after their arrest. This is not always the case though. The Constitution guarantees non-‐excessive bail, but it doesn’t guarantee a person will always receive bail. Bail can be denied at the discretion of the judge for several reasons:

• The person has absconded from justice before.

• The judge doesn’t feel that any bail amount would guarantee a person’s return for their trial (such is sometimes the case with capital charges).

• Severity of the crimes committed and amount of evidence available against defendant.

• A person has no significant community ties.

• Any other reason a judge may feel that the accused may be considered a flight risk.

It is sometimes possible to have a bail amount reduced or eliminated altogether. In some cases a person may be released on their own recognizance (O.R.) without paying any bail whatsoever. Whether or not bail is lowered or eliminated altogether is based on several of the same factors that a judge considers before denying bail.

Record Seal

NRS 179.245

Anyone who has been charged with a crime can attest to the fact that punitive results don’t end after their trial is over. Any type of conviction can affect a person’s current or future employment opportunities. Being convicted of a crime can unfairly affect you long after you have paid your debt to society. An experienced attorney can help get your records sealed, thus lessening the chances that the record will haunt you forever.


Nevada Revised Statute (NRS) 179.245 deals with the sealing of criminal records. It sets forth who is eligible to have their records sealed and the process they must go through to do so. Sealing records can be a long process and only certain records are allowed to be sealed, and only if approved by the court. Different crimes carry with them different rules about record sealing.

•Those convicted of Category A or B felonies must wait fifteen (15) years after the end of their sentence to seal their records.

•Category C and D felons must wait twelve (12) years after their sentence ends.

•Category E felons must wait seven (7) years.

•Those convicted of gross misdemeanors or misdemeanor domestic battery must wait seven (7) years.

•Any person convicted of any other misdemeanor must wait two (2) years after their sentence ends to have their record sealed (except when specified differently by law).

Unfortunately it is not possible to expunge a criminal record, but sealing it carries several of the same benefits as expungement. The sealing of criminal records is not a quick process, so as soon as the waiting time on your particular case has expired, you should start the process. There are multiple steps involved which can take several months to sometimes a year to complete.

DUI First

NRS 484C.110 and 484C.400

A DUI can carry with it serious implications for a person’s future. Even a first time offense can carry harsh penalties. Typically, one will be charged with a DUI first if their blood alcohol content (BAC) is .08 or greater, the driver had the proscribed limits of a controlled substance/prohibited substance in their blood, or one was under the influence of a mixture alcohol and drugs that rendered one incapable of safely driving or exercising actual physical control of the vehicle. Even if you are below .08 BAC or controlled/prohibited substance limits,


one can still be charged with a DUI under impairment theory; this of course is more fact intensive than a “per se” violation, such as blowing a .08 or greater.

Nevada Revised Statutes (NRS) 484C.400 and 484C.110 cover first time DUI offenders. A first offense is a misdemeanor. For the charge to be considered a first offense it must be the only DUI a person has received in seven years. The first thing many people worry about is how much the charge will end up costing them.

• The statutory fine related to a first DUI penalty cannot be lower than four-‐hundred dollars ($400), but cannot exceed one-‐thousand dollars ($1,000).

• Those facing their first penalty must attend a Nevada DUI school. These prices vary.

• Attending a Nevada Victim Impact Panel is another mandatory penalty. These panels feature victims and family members of victims of DUI related accidents.

• Penalties can be doubled if the crime happened in a work zone.

Fines and costly classes could be the least of many people’s worries. There is a real chance you could do jail time.

• A term of imprisonment can be imposed for two (2) days or up to six (6) months. NRS 484C.320 may allow a first time offender to attend diversion classes instead of being sentenced. Community service of forty-‐eight (48) to ninety-‐six (96) hours may substitute for jail time.

• NRS 484C.430 states that if substantial bodily harm or death occurs due to the DUI then the crime can be charged as a Category B felony. This carries with it imprisonment between two (2) and twenty (20) years and a fine of $2,000 to $5,000.

Whatever penalty a person is given, one may also lose their license for ninety (90) days. See DMV License Suspension p.18. However, one may get a restricted license after forty-‐five (45) days. First time penalties can be very harsh and can put you at risk of harsher penalties if you receive another DUI within seven years.

DUI Second

NRS 484C.400 and 484C.110

Nevada Revised Statutes (NRS) 484C.400 and 484C.110 cover second DUI offenses. For a second offense to apply it must be the second DUI a person has gotten during a seven (7) year


period. This is considered a misdemeanor. There are serious financial implications for a second DUI charge.

• Fines for a second DUI within seven years range from $750 to $1,000, or may be supplemented by community service.

• A Nevada Victim Impact Panel may cost about fifty ($50) dollars. Victims and family members tell of their past losses due to DUI offenders.

• Alcohol and drug dependency evaluation. Cost may vary.

• An alcohol and drug treatment program is necessary. This is a rigorous time-‐consuming program that may cost thousands of dollars.

• Fines can be doubled if the DUI was cited in a work zone.

Jail time can also be a likely outcome of a second DUI. Depending on the sentence and circumstances a person can be confined for a very long time.

• A second DUI can lead to imprisonment from ten (10) days to six (6) months. A person may also receive house arrest for this length of time.

• If substantial bodily harm or death occurs due to a DUI then it can be charged as a Category B felony. NRS 484C.430 allows for a sentence ranging from two (2) to twenty (20) years. This enhancement also carries with it a fine of $2,000 to $5,000.

The suspension of the offender’s license for one year is another possible penalty for a second DUI.

DUI Third

NRS 484C.400 and 484C.110

A person who has received their third DUI within seven years is in a much worse situation than first and second time offenders. A third DUI is charged as a Category B felony.

Nevada Revised Statutes (NRS) 484C.400 and 484C.110 cover third DUI offenses. If you’re charged with a third DUI offense in a seven year period the financial penalties far exceed the penalties you faced on your second and third charge.

• Fines are imposed ranging from $2,000 to $5,000.


• A Nevada Victim Impact Panel must be attended. Victims and family members of DUI related accidents tell how their lives were affected by drunk drivers. This may cost fifty dollars ($50).

• Alcohol and drug dependency evaluation must be undergone. This will cost one-‐hundred dollars ($100) or more.

• Alcohol and drug treatment must also be undertaken. This program can last one (1) year and may potentially cost thousands of dollars.

Prison time becomes a serious concern when a third DUI is charged. NRS 484C.340 may be possible to help a person stay out of jail if they are declared an alcoholic or drug addict by a clinician; otherwise penalties are steep.

• Imprisonment for a third DUI can range from one (1) year to six (6) years.

• NRS 484C.430 states that if serious bodily harm or death occurs due to the DUI then you can be sentenced to a term ranging from two (2) years to twenty (20) years.

A third DUI offense also carries with it a three year suspension or revocation of a person’s license. See DMV hearing p.18. It is also the proverbial “straw that broke the camel’s back:” if the person receives another DUI it will again be treated as a felony even if seven (7) years has elapsed.

DUI and Commercial Driver’s License

NRS 484C.110 and NRSC.120

If you thought a blood alcohol concentration (BAC) of .08 was low, a person operating a commercial vehicle can be charged with a DUI if their BAC is only .04. Of course one can still be charged with a DUI under impairment if lower than .04 and/or under the influence of a prohibit substance/controlled substance.

Nevada defines a commercial vehicle as a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle:


(1) Has a gross combination weight rating of 26,001 or more pounds which includes a towed unit with a gross vehicle weight rating of more than 10,000 pounds;

(2) Has a gross vehicle weight rating of 26,001 or more pounds;

(3) Is designed to transport 16 or more passengers, including the driver; or

(4) Regardless of size, is used in the transportation of materials which are considered to be hazardous for the purposes of the federal Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101 et. seq., and for which the display of identifying placards is required pursuant to 49 C.F.R. Part 172, Subpart F.

The main thing to take away from Nevada’s DUI law regarding operating a commercial vehicle is to not even drink if you will be operating a commercial vehicle. Although criminal penalties are mostly the same as a regular DUI, the main issue will be the loss of one’s commercial driving license, which in most cases may be one’s source of livelihood.

Your commercial driver’s license privileges are treated drastically different than a regular Nevada driver’s license. In addition to facing DMV penalties regarding your regular license, your commercial license will carry harsher restrictions in terms of suspension of your commercial driving privileges. See US Department of Transportation Federal Motor Carrier Safety Administration for Disqualification of Drivers.

For example, if you are operating a commercial vehicle, you will receive a 1 year suspension of your commercial driving privileges if found guilty of a DUI first under Nevada law which prohibits a BAC of .04 while operating a commercial vehicle, or even refusing an evidentiary breath test. This suspension is on top of the 90 day suspension you will receive for your regular driver’s license.

If you are operating a non-‐commercial vehicle and are found guilty of a DUI first, the BAC limit of .04 will not apply, but rather the .08 will. You still will lose your commercial driver’s license for 1 year and your regular license for 90


days. Refusing an evidentiary test will also be grounds for a 1 year suspension of the commercial license as well.

Now to make matters worse, if you were operating a commercial vehicle that was transporting hazardous materials and you get a DUI first, which invokes the .04 BAC limit, or refuse an evidentiary test, you will lose your commercial license for 3 years and your regular license for 90 days.

If you thought that was harsh, if you have a commercial driver’s license and are facing a DUI 2nd, you will lose your commercial driver’s license for life and your regular driver’s license for 1 year.

You can see why it will be important to fight a DUI charge if one has a commercial driver’s license. Your ability to earn a living driving may be suspended for 1 year to life.

Felony DUI Charges

NRS 484C.400, 484C.430, and 484C.130

A third DUI within a 7 year period is charged as a Category B felony. If you have gone through a first and second DUI charges then you know how steep the penalties can be. First and second offense penalties do not come close to preparing a person for the repercussions of a felony DUI.

Felony DUI charges fall under Nevada Revised Statutes (NRS) 484C.400, 484C.430 and 484C.130. If the death of another person is caused by a DUI then the charges and penalties a person faces can increase exponentially. It is absolutely essential to have a good lawyer on your side in these situations.

• A third DUI conviction is charged as a Category B felony. It can carry with it imprisonment of one (1) to six (6) years and fines ranging from $2,000 to $6,000.

• If serious bodily harm or death occurs then sentences can range from two (2) to twenty (20) years.


After a third DUI the stakes are even higher. Any death caused by a person who already has three DUI offenses can be charged as a Category A felony.

• Deaths caused by a fourth or subsequent DUI charge are charged as vehicular homicides.

• A person must be intoxicated, already have had three DUI charges and proximately cause the death of another while in physical control of a vehicle.

• Sentences for vehicular homicide can range from twenty-‐five (25) years to life.

Felony DUIs and vehicular homicides are extremely serious charges. No person should consider facing these charges without a competent lawyer. The death of a person involved in a DUI related accident doesn’t mean the driver is automatically guilty.

Vehicular Homicide NRS 484C.130 and 484C.440

DUI charges carry steep penalties with them. First, second and third DUI offenses all carry with them the possibility of twenty (20) years in jail and fines reaching $5,000 if that DUI causes an accident which results in the death or seriously bodily injury of another person. This is considered a Category B felony. Any DUI charge after a third offense carries with it a serious risk.

If a death occurs due to a DUI and the alleged offender already has three DUI charges against them then the charge becomes a Category A felony. We at the Law Offices of Garrett T. Ogata cannot stress how serious this charge is. Nevada Revised Statutes (NRS) 484C.130 and 484C.440 set forth serious penalties for vehicular homicide.

• If convicted a person can expect a sentence of twenty-‐five (25) years to life.

• Parole is an option, but not anytime soon. A person convicted of vehicular homicide is only eligible for parole after serving at least ten (10) years.


• Even when parole becomes an option there is no guarantee that it will be granted. This means a conviction of vehicular homicide can literally keep a person in prison for life.

For a vehicular homicide charge to apply there are three facts that the state must prove. The driver must have been over the legal alcohol limit for driving during the accident. A person must also have three prior DUI charges. Finally, the driver must have proximately caused the death of another while in physical control of a vehicle.

These charges are very serious so it is important for you to contact an attorney immediately.

Getting a DUI on Federal Land

While on federal land, you may be subject to various laws that will affect where and what DUI charges will be filed against you.

If you are charged with a DUI/DWI, the location and type of land, federal or state, will determine who has jurisdiction and what charges you may be facing.

The most common offenses occur at national parks, such as Lake Mead and military bases. If you have been charged with a DUI/DWI that took place on National Park Service Land, such as Lake Mead National Recreational Area, or a military base, you will be charged under federal law. This means you will need to go to federal court and fight federal DWI charges.

For example, federal DUI/DWI law for National Park Service land is found in the Code of Federal Regulations, Title 36, Chapter 1, Part 4, Section 4.23. This is a typical impairment and per se statute. However, there are important differences from state’s DUI/DWI laws that an experienced attorney will know.

Federal DWI charges can be more severe. For example, being charged with driving under the influence under federal law is a Class B Misdemeanor and includes:

• A fine up to $5,000


• Up to 6 months in federal prison

• Five (5) years probation

There are also factors that can increase the penalties depending on the circumstances of your case.

If you are charged with a DUI/DWI while on federal land that is not part of the National Park Service or a military base, you will still go to federal court but you will be charged under the state’s DUI/DWI law where the federal land is located and may be subject to federal penalties.

It is important that you contact an experienced DUI lawyer to handle the complexities of DUI/DWI charges.

DUI Schools, Requirements and Status Checks

If you are required to pay fines and/or complete DUI school, Victim Impact Panel (VIP), Coroner’s Visitation Program, and/or Alcoholics Anonymous as part of your plea deal or sentencing, it is important not to put this off until the last minute. If you fail to do your requirements you risk losing your deal.

The judge may schedule a status check set at a future date to see proof of your completed requirements.

In Justice Court, typically you will have 3 months to complete your requirements.

In Municipal Court, typically you will have 6 months to a year to complete your requirements.

An attorney may make the status check appearances on your behalf until you have met all your requirements. If for any reason you need more time to fulfill your court requirements, you must notify your attorney immediately.

You can check http://www.dmvnv.com/dlschoolsdui.htm to find a list of approved DUI schools. The price varies and some offer online classes.


Some requirements, such as VIP, require you to attend in person and do not permit an online version unless you qualify and the judge grants permission.

Below you will find a list of DUI schools that our past clients have attended.

DUI SCHOOLS

www.duicourseonline.com www.onlineduischool.com www.lrssystems.com

VICTIM IMPACT PANEL (VIP)

New Beginnings Counseling Center http://newbeginningscounselingcenters.com/home

LRS www.lrssystems.com (in person)

Stop DUI VIP http://www.stopdui.org/

Do not put off your requirements. It is important to communicate with your attorney and the court regarding the status of your requirements.

If you have not performed any of your requirements, or are having difficulty completing your requirements, contact an attorney immediately.

SR22

SR-‐22 is a certificate of financial responsibility and is required if your license was revoked due to a DUI. A SR-‐22 is issued by your insurance company to prove you have the minimum liability coverage required by law. Currently, it is $15,000 for bodily injury or death of one person in any one accident; $30,000 for bodily injury or death of two or more persons on any one accident; and $10,000 for injury to or destruction of property of others in any one accident.


If you are required to maintain SR-‐22 certification, you will need to maintain this for 3 years. It is important not to let your insurance lapse because penalty fees will be assessed and your SR-‐22 coverage period may start all over again, even if you have complied for almost 3 years. On top of this the DMV will be notified and your license will be suspended.

More information can be found at http://www.dmvnv.com/dlsuspension.htm

Unfortunately, even if you were found not guilty of a DUI in criminal court, you may still need to file a SR-‐22 if the DMV revokes your license. All the DMV needs is an arrest for a DUI, not a DUI conviction at criminal court to revoke you license. This is because a driver’s license is a privilege to drive and not a Constitutional right.

You will need to contact your insurance provider and request a SR-‐22. This will come with added fees and possibly higher insurance rates. The DMV will not notify you when the 3 years of coverage has been completed so it is important to contact the DMV to verify this before terminating your SR-‐22 coverage.

DUI / Criminal Record and Entering Canada

Canada is known for having very strict laws and getting into Canada may be an issue if one has a criminal record. Even a DUI on your record may prevent you from entering Canada, let alone lesser crimes because Canadian Customs and Immigration officers will have the final say.

Persons who will be considered inadmissible into Canada include people charged with:

• Misdemeanor offenses, such as DUIs, Reckless Driving, Petit Larceny, Assault, etc.

• Gross Misdemeanors

• Felonies


• Indictable Criminal Offenses

Under Canadian law, a DUI/DWI may be a felony and an indictable offense and punishable up to 5 years. Regardless if you are charged with a misdemeanor DUI/DWI in your home state, Canada considers this a reason to deny you entry. Even a misdemeanor reckless driving may cause custom and immigration officials to deny you.

Basic traffic violations will typically not prevent you from entering Canada. Juvenile convictions most likely will not prevent someone from entering Canada as well, but if one could have been tried as adult, it may be grounds for exclusion. It is at the Custom and Immigration Official’s discretion, so something minor may still cause a problem for some.

If you have been denied entry into Canada there are several ways one may gain entry if they qualify:

• One can apply to be Deemed Rehabilitated at a Canadian port of entry.

• One can apply for Streamlined Rehabilitation at a Canadian port of entry.

• One can apply for a Minister’s Approval of Rehabilitation.

• One can apply for a Temporary Resident Permit.

• Those convicted of an offense IN Canada and who wish to return to Canada will first have to apply for a Pardon from the Clemency and Pardons Division of the National Parole Board. If unable to do so, one may still apply for a Temporary Resident Permit.

Deemed Rehabilitated at port of entry requirements:

• One conviction in total.

• At least 10 years elapsed since the sentence was completed (the case was adjudicated closed).


• The offense would NOT be considered serious criminality in Canada (most felony convictions may be serious).

• The conviction did not involve serious property damage, physical harm to any person, or any type of weapon.

Streamlined Rehabilitation at port of entry requirements:

• Two or less convictions in total.

• At least 5 years have elapsed since the sentence was completed.

• The offense would not be considered serious criminality in Canada.

• The offenses did not involve any serious property damage, physical harm to any person, or any type of weapon.

• A fee of $200.

Even if one qualifies for Deemed Rehabilitation or Streamlined Rehabilitation, approval is not guaranteed. However, if you do qualify then this will be the easiest route to take to get admission into Canada. One will have to show up at the Canadian port of entry during regular business hours (Mon – Fri and 8am – 5pm) and provide Custom officials with the following:

• Passport or birth certificate with photo identification (passport may be required).

• A copy of court records for each conviction and proof of completed sentence.

• Recent FBI identification record.

• Recent police certificates from the state of the conviction and from any state where the person lived in the past 6 months or longer in the last 10 years.

• A $200 fee for Streamlined Rehabilitation.


• It is wise to check with the authority ahead of time to confirm if any other documents will be needed.

Regardless of what route one takes to try to get into Canada, Customs and Immigration Officials have discretion. It is always recommended that you come prepared with the proper documents in hand to aid the permission process and remember to be polite and patient.

If 5 years has elapsed since completion of a sentence, but one is not eligible for rehabilitation due to number of the offenses or nature of the offense, then one may try to apply for Approval of Rehabilitation through a Canadian Consulate in the United States.

Approval of Rehabilitation requires:

• Applying directly to a Canadian Consulate’s visa office.

• Having waited 5 years since the completion of your sentence.

• A completed application for criminal rehabilitation.

• The same documentation as was needed for Deemed Rehabilitation and Streamlined Rehabilitation and possibly more.

One will need to contact their nearest Canadian Consulate to complete the Approval of Rehabilitation. It is best to contact the Consulate first and verify what forms and documents will be needed. Remember, it is still up to the Consulate to approve your admission into Canada. Merely applying does not guarantee you will be admitted. The Canadian Consulate General is located in:

• Buffalo, NY

• New York, NY

• Detroit, MI

• Los Angeles, CA


• Seattle, WA

• Various Other Locations

If one is not eligible for the above mentioned ways to gain admission to Canada, such as, it has been less than 5 years since the completion of your sentence; one will need to apply for a Temporary Resident Permit. This is the hardest route to take because of the time it takes and the fact that the criminal offense was committed recently.

The Temporary Resident Permit requires:

• One to submit the same documents required for Deemed, Streamlined, and Approval of Rehabilitation at their nearest consulate’s visa office.

• An Application for Criminal Rehabilitation, but checking the box in Section A(2) “For Information Only.”

• Any other forms, documents, or fees required.

Again, it is always best to contact the visa office at the nearest consulate first to make sure one has all the required documents. This is still another case-‐by-‐case process where Canadian officials will use discretion in approval. They will typically be looking at the nature of the crime, number of offenses, length of time since completion of the sentence, and other factors.

Always plan in advance; depending on which consulate, it may take at least 6 months to a year to process your Approval of Rehabilitation or Temporary Resident Permit. There are no guarantees when it comes to entry, but one does have several, albeit time consuming ways to try to enter Canada.

Helpful Links:

• Consulates

• Application for criminal rehabilitation form

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