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How Does Blood Alcohol Level Affect DUI Cases?


In Nevada the legal limit is a 0.08, so someone who the police can prove was driving or in actual physical control whose blood alcohol concentration was over a 0.08 could be convicted of a DU. However, the breath test has an error factor of up to 10%, meaning it could be 10% higher, or 10% lower. So if someone is a .09 or less, we would use that in our argument that the prosecution would not be able to prove that the blood alcohol level was 0.8 or more beyond a reasonable doubt. This is a very high standard that is used in all criminal cases.

We would typically resolve this kind of case as a stay of adjudication. The client would actually plead guilty to a DUI, but the court would “stay the adjudication”. The guilty plea would NOT be entered into the record. So if anyone checks, your case would still be pending. Then you would need to complete certain requirements; usually attend and complete a DUI school, attend a Victim Impact Panel (VIP) which is basically a seminar in which people tell you how their life has been adversely affected by a drunk driver (i.e. My sister was rear ended by a drunk drive and she broke her arm), pay a fine, stay out of trouble and possibly do some community service. If you successfully complete these requirements your case would end up as reckless driving. This is NOT a DUI conviction. But the flip side is, if you do not successfully complete, you will be convicted of a DUI.

If a client took a blood test and the blood alcohol level was 0.085, then he or she could have the blood retested because it sometimes might come back lower. Some clients have a much higher blood alcohol level. According to Nevada law, if the blood alcohol level was in fact over a 0.18, then in addition to the other penalties we would need to get a chemical dependency assessment.

The person would be interviewed by a psychologist to determine whether or not the person had an alcohol problem or what other requirements they may need as part of their sentencing. They would typically want people to go to AA once a week or maybe even twice a week depending on the blood alcohol level and the history of the individual’s driving record and previous incidents involving alcohol.

Blood Tests Are Only Valid If Taken Within A Certain Time Frame

The chemical test for alcohol would need to be done within two hours from the time of driving. The alcohol test would not be admissible in court if it was not done within those two hours. The 2 hour time limit does not apply to drugs.

I handled a case involving a motorcycle in which my client actually came back to the scene of the accident because his friend wiped out on his motorcycle. When the officer arrived, my client was standing with his motorcycle. He was not driving and by the time they took the blood alcohol level it had been over two hours.

There was another witness for this incident, who had seen both motorcycles. She said the other motorcyclist passed unsafely, whereas my client did not. I asked whether there had been any bad driving by my client, and she said no.

They were not able to convict my client of a DUI because the blood alcohol level was not admissible because it was taken more than 2 hours from driving. I went to trial on this. I spoke to the officer ahead of time and told them they would not be able to prove their case. All I wanted was for the DA to reduce it to a reckless driving conviction. The cop would not agree. So we went to trial and I won.

The Police Need A Search Warrant For Taking Your Blood If You Don’t Agree

A US Supreme Court case, Missouri vs. McNeely held that the police are not allowed to take the person’s blood without their consent or a warrant. This is federal law.

I would assert this in many State DUI cases because there was no Nevada case on point, but in 2014 “The Byars Case”, essentially codified the federal law, saying under Nevada law the person would not need to take a test unless there was a search warrant.

In order to get a search warrant, the officer would have to get a judge to approve it. Obviously, there would be no judge riding around with the officers so they would usually get a telephonic search warrant, meaning they could call the judge and record it. The officer would be sworn in, and would state that they had suspicion to believe John Doe had been driving under the influence so they wanted to take his blood. Since he had not consented, the officer would request that the judge would authorize swear out a warrant to search the blood.

The blood test would be taken, although what often happens is, without consent, the blood would be taken after two hours, and that would then not be admissible in the criminal case. The Nevada legislature recently decided if a suspect wanted to exercise their constitutional right and not to give blood, then they would punish them. So if you will not voluntarily give blood and make the police get warrant, you will lose your license for a year (in addition to the 90 days that you will lose your license if you are convicted of a DUI or lose the DMV hearing.

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