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How Does Blood Alcohol Level Affect DUI Cases?

  • By: Mace J. Yampolsky, Esq.
  • Published: June 22, 2018

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.

Mace J. Yampolsky, Esq.

About the Author Attorney Mace Yampolsky has been achieving successful outcomes
during pre-trial negotiations as well as in the courtroom, defending
clients on nearly all types of criminal defense cases.

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