Felony DUI Based on Multiple Convictions in Nevada: Explained by Las Vegas DUI Defense Attorneys

In Nevada, a DUI offense can escalate from a misdemeanor to a felony, provided the driver has prior convictions of either:

• A felony DUI; or

• A minimum of two prior DUI convictions in the span of the last 7 years.

This article provides an overview of felony DUI based on previous convictions and addresses common questions on the topic.

What constitutes a felony DUI based on prior convictions in Nevada?

According to Nevada law, the penalties for DUI increase with each conviction that comes after another.

A first-time DUI offense without fatalities or injuries is typically treated as a misdemeanor, often resulting in no jail time. A 2^nd time DUI offense within seven years of the first one is also considered a misdemeanor, although a judge usually orders a 10-day jail sentence. However, a 3^rd time DUI within the span of 7 years is deemed as a category B felony, automatically, even if there were no fatalities or injuries in that specific incident.

If an individual has previously been convicted of a felony DUI, all subsequent DUI charges will also be treated as felonies, regardless of whether harm or casualties were involved. Once a person has a felony DUI conviction, any future DUI offenses will be classified as felonies.

For instance, let’s consider the case of Noel, who was convicted of felony DUI twenty years ago. If Noel is pulled over and arrested for DUI in Las Vegas without causing harm or fatalities, he will face felony DUI charges due to his previous conviction, even though it occurred more than seven years ago.

It’s important to note that a DUI that causes significant injury or death is always charged as a felony in Nevada, regardless of the driver’s past convictions. This applies whether the incident involved a car crash or harm to pedestrians.

Are out-of-state convictions counted as prior convictions?

Yes, out-of-state DUI convictions are considered when determining whether to bring DUI charges in Nevada. Prosecutors check the databases of national criminal records to identify any past DUI convictions.

For example, let’s consider the case of Sharon, who is guilty of DUI in Las Vegas. The Clark County District Attorney discovers that Sharon has two separate misdemeanor DUI convictions from California and Maryland within the last seven years. Based on these two out-of-state convictions, the District Attorney charges Sharon with felony DUI.

However, if either of the past DUI convictions occurred more than seven years ago, Sharon would only face a misdemeanor DUI charge in Nevada.

The penalties in Nevada for felony DUI

Typically, DUI offenses in Nevada are treated as misdemeanors if no bodily injuries or harm occurs. However, DUI incidents are charged as felonies under the following circumstances:

1. The suspect has two previous convictions on account of DUI within the span of seven years.
2. The suspect already has a DUI conviction.

The consequences for a third offense of driving under the influence (DUI) may be comparatively milder compared to the penalties for a DUI after being convicted of a felony DUI. It is important to note that in Nevada, any DUI incident resulting in a fatality or severe physical harm is classified as a felony, regardless of the driver’s previous criminal history.

Penalties for a third-time DUI offense within seven years include:

• A prison term ranging from 1 to 6 years.
• Fines between $2,000 and $5,000.
• An alcohol and drug evaluation.
• A $35 civil penalty fee, a five-day registration suspension, and a three-year license revocation or suspension.
• Mandatory installation of a breath interlock device on the offender’s vehicle for 3 years after they are released from prison.
• Attendance at a victim impact panel.

Depending on the circumstances, the defendant may or may not be eligible for DUI Court, which allows participation in rehabilitation programs instead of or in addition to prison time.

A DUI that follows a felony DUI conviction is also categorized as a felony in Nevada and carries the following penalties:

• A prison term ranging from 2 to 15 years.
• Fines between $2,000 and $5,000.
• Mandatory use of a breath interlock device as a condition to reinstating driving privileges for 3 years after they are released from prison.

The state of Nevada imposes severe consequences for DUI cases involving injuries or fatalities. These penalties are not influenced by any previous DUI convictions. Such offenses are categorized as Class B felonies and carry the following punishments:

• A prison sentence in Nevada ranging from 2 to 20 years.
• Monetary fines between $2,000 to $5,000.
• Mandatory use of a breath interlock device as a condition to reinstating driving privileges for 3 years after they are released from prison.

Please note that having 3 previous DUI convictions results in any future fatal DUI accident being charged as a vehicular homicide. Vehicular homicide in Nevada is classified as a category A felony and carries a prison sentence of 25 years to life. There will not be a chance of parole until after 10 years of the sentence has been served.

Additional Penalties

Additional penalties to consider are as follows: If a felony DUI is committed while transporting a child under 15 years old, it is considered an “aggravating” factor during sentencing. More information on this topic can be found in our article on DUI while driving with a child. In Nevada, individuals imprisoned for felony DUI are typically held in a minimum-security facility and separated from violent offenders. Upon probation, these defendants may be required to wear SCRAM bracelets to monitor alcohol consumption.

What defenses are the best?

Felony DUI charges offer various defense strategies that depend on the specific circumstances of the case. Here are some possible defenses to fight felony DUI charges in Nevada:

Invalid past convictions: If an individual is facing a felony DUI solely because of their previous record pertaining to DUI, the attorney of defense may attempt to demonstrate that the prior conviction(s) were invalid. This could involve showing that the defendant was coerced into pleading guilty or that there was a clerical error. If your defense attorney can prove that the defendant did not have any valid previous DUI conviction(s), the current felony DUI charge may be reduced to a misdemeanor.

Lack of probable cause: Law enforcement officers are required to have probable cause before pulling someone over, indicating a traffic violation or another crime. If your defense attorney demonstrates that the police did not have sufficient probable cause, the felony DUI case may get dismissed completely.

Police misconduct, equipment malfunctions, or erroneous test results: Errors in administering chemical tests or field sobriety tests by law enforcement are not uncommon. If your defense attorney can show that the actions of the police officer in conducting the test failed to meet minimum standards, the case could either be reduced to a lesser charge or may even be dismissed completely.

Necessity: In certain emergency situations that were not caused by the driver, Nevada law shows some leniency and may allow driving a car under the influence of intoxication. To know more about the necessity defense, click here.

Is it possible to reduce a felony DUI down to a misdemeanor?

Yes, it is possible, depending on the circumstances of the case. The penalties for Misdemeanor DUI typically include the following:

• Imprisonment of up to six months (usually a suspended sentence for a first-time DUI, or 10 days for a second-time DUI)
• A MADD lecture (Victim Impact Panel)
• Fines of up to a thousand dollars plus court costs
• Up to 1-year driver’s license suspension and a $35 civil penalty fee
• DUI Court or DUI School

Reducing a felony DUI down to a misdemeanor is also possible in the case that the defense attorney convinces the prosecutor that they are lacking enough evidence to prove the defendant guilty beyond a reasonable doubt. In such an event, the District Attorney may be open to reducing the case to reckless driving or dismissing it completely.

If you or anyone that you know has gotten arrested in Nevada for “felony DUI on the basis of past convictions,” please don’t hesitate to get in touch with our highly experienced and knowledgeable lawyers at Bourassa Law Group for a consultation. We are more than capable of carrying out negotiations with the prosecutor to achieve highly favorable results for you that keep you out of jail. We are also prepared to take the case to trial if required and fight for a “not guilty” verdict.

Legal References:

NRS 484C.400

individuals who violate the regulations stated in NRS 484C.120 or 484C.110 will be subjected to penalties as follows:

1st Offense in the span of 7 years:

It is considered a misdemeanor unless NRS 484C.430 or 484C.440 specifies a higher penalty.

Unless the person is eligible for treatment as outlined in NRS 484C.320, the court will:

• Require the individual to attend an approved educational course on substance abuse and alcohol, instructed by the Department. The course must be completed within the specified timeframe, and the Department should be notified if the individual fails to comply.

• Impose a sentence of imprisonment lasting between 2 days and 6 months in prison, or assign 48 to 96 hours-community service, during which the person must wear distinctive clothing indicating their violation of NRS 484C.120 or 484C.110.

• Impose a fine ranging from $400 to $1,000.

• If the person’s blood or breath alcohol concentration is found to be 0.18 or higher, the court will order them to attend a treatment program for alcohol or drug abuse in accordance with NRS 484C.360.

2nd Offense in the span of 7 years:

It is considered a misdemeanor until and unless the penalty is reduced under NRS 484C.330.

The court will sentence the individual to either:

• Imprisonment for a period between 10 days and 6 months in jail, or
• Residential confinement for a period between 10 days and 6 months, following the procedures described in NRS 5.0755 to 5.078 or 4.376 to 4.3766.
• Impose a fine ranging from $750 to $1,000 or require the individual to take part in community service for an equivalent number of hours while wearing distinctive garb that identifies their violation of NRS 484C.120 or 484C.110.
• Require the person to attend a treatment program for alcohol or drug abuse as outlined in NRS 484C.360.

* An individual who willingly fails or refuses to successfully complete a period of a treatment program or residential confinement as ordered in this paragraph commits a misdemeanor offense.

In cases where a third offense occurs within a span of 7 years, except as stated in NRS 484C.340, the offender is guilty of a felony in the B category.

• The punishment includes imprisonment in state prison for at least a year up to a term of six years,
• along with a fine ranging from $2,000 to $5,000.
• If incarcerated under this provision, the offender should, as much as possible, be separated from violent offenders and placed in a minimum-security facility or institution.

An offense committed within 7 years before or after the primary offense adds up to a prior offense under this section. It is considered a prior offense regardless of the order or sequence of convictions. The details related to a prior offense should be mentioned in the information, indictment, or complaint. However, they should not be presented to the jury or proved during the trial. Instead, they must be proven during sentencing. If the principal offense is a felony, the prior offense should also be presented to the grand jury or shown at the time of the preliminary examination.

A confinement term inflicted in accordance with the discussed section can be served in intervals at the justice of the peace or the judge’s discretion. However, a person convicted of a subsequent or second offense within the span of seven years has to be confined for a minimum of one segment encompassing 48 consecutive hours. The exercise of this discretion should take into account all details surrounding the offense, as well as the offender’s family and employment situation. Any sentence that is equal to or less than 30 days needs to be served within the span of 6 months from the date of conviction. If the sentence was suspended and subsequently revoked under NRS 484C.320 or 484C.330, it must be served within 6 months from the date of revocation. The duration of confinement should consist of at least 24 consecutive hours.

If jail sentences are imposed concurrently under this section and NRS 485.330, 484C.410, 483.560, or 482.456, they must be served consecutively.

In cases where the defendant had a person who was under the age of 15 inside their motor vehicle during the violation, the court should consider it as an aggravating factor when determining the defendant’s sentence.

To determine if one offense occurred within the span of seven years of a secondary offense, any period during which the offender was on probation, on parole, confined in a treatment facility, serving residential confinement, or imprisoned, or for any such offense should be excluded.

In this section, the term “offense” refers to (unless the context states otherwise):

• A violation of NRS 484C.430, 484C.120, or 484C.110;

• A homicide that results from being in control of a vehicle or driving a vehicle while being under the influence of drugs or alcohol, or one that results from any other action that is prohibited by NRS 484C.430, 484C.130, or 484C.110;

• A violation of law from another jurisdiction that disallows a similar or the same conduct as described in paragraph (a) or (b).

NRS 484C.410

All penalties when the offender has previously been convicted of homicide or certain felonious conduct; aggravating factor; consecutive sentences; intermittent confinement; segregation of the offender.

In cases where NRS 484C.440 does not specify a higher penalty, an individual who has a prior conviction for any of the following offenses will be charged with a category B felony if they violate the provisions of NRS 484C.120 or 484C.110:

(a) A felony offense as defined in (c) paragraph of subsection one of NRS 484C.400, involving a breach of NRS 484C.120 or 484C.110.

(b) A violation pertaining to NRS 484C.430.

(c) Causing a homicide while being in control of a vehicle or driving while intoxicated or engaging in other prohibited conduct outlined in NRS 484C.430, 484C.130, or 484C.110.

(d) Committing an offense in another jurisdiction that disallows a similar or the same conduct as described in (a), (b), or (c) above.

(e) Committing a breach of NRS 484C.120 or 484C.110 that got reduced from a felony to a misdemeanor under NRS 484C.340, as specified in paragraph (b) of subsection one of NRS 484C.400.

1. For such violations, the person will face a minimum prison term of 2 years and upto a maximum term of 15 years, along with a fine ranging from $2,000 to $5,000. Efforts will be made to segregate the offender from violent criminals and assign them to a minimum-security institution as far as possible.
2. Any offense stated in paragraphs (a) to (e) of subsection 1, whether it occurred before or after the principal offense, will be considered a prior offense under this section if there is a conviction. The chronological order of convictions and offenses does not affect this determination. The facts related to a prior offense must be mentioned in the information, indictment, or complaint but need not be presented to the jury or proved during trial. Instead, they must be proven during sentencing and, if the primary offense is a felony, at the grand jury or preliminary examination.
3. The judge or justice of the peace may, at their discretion, allow the intermittent serving of a confinement sentence imposed according to this section. However, if a person is convicted of a subsequent or second offense within 7 years, they must serve at least a single segment with a time span of at least 48 consecutive hours. The exercise of this discretion should consider all details surrounding the offense, as well as the offender’s family and employment situation. For sentences of 30 days or less, they must be served within 6 months from the date of conviction or within 6 months from the date of revocation if the sentence suspension under NRS 484C.320 or 484C.330 was revoked. Each period of confinement must consist of at least 24 consecutive hours.
4. Jail sentences imposed under this section, as well as NRS 485.330, 484C.400, 483.560, or 482.456, must be served consecutively.
5. When a defendant is found to have an individual under the age of 15 in their vehicle during the violation, the court will consider this as an aggravating factor when determining the defendant’s sentence.
6. In the determination of whether one offense occurred within the span of seven years of another offense, a time period during which, for any of those offenses, the offender is on probation, on parole, confined in a treatment facility, on residential confinement, or imprisoned, will not be included.
7. In this section, unless the context requires otherwise, “offense” refers to (a) Violations of NRS 484C.430, 484C.120, or 484C.110; (b) Homicides resulting from driving while intoxicated or any other action that NRS 484C.430, 484C.130, or 484C.110 prohibit, or (c) Violations of laws in other jurisdictions that prohibit similar conduct as described in (a) or (b).

NRS 484C.420

Probation restrictions; sentence suspension and plea-bargaining limitations; mandatory orders for nonresident individuals.

• A person convicted of violating NRS 484C.120 or 484C.110 cannot be released on probation, and the sentence for these violations cannot be suspended, except as provided in NRS 4.373, 5.055, 484C.320, 484C.330, and 484C.340, for the portion of the sentence that exceeds the mandatory minimum. A prosecuting attorney may not let go of a charge of violating NRS 484C.120 or 484C.110 in exchange for a nolo contendere plea, guilty but mentally ill, or guilty, to a charge that is less serious or for any other reason, without it being evident that the charge lacks probable cause or cannot be proven at trial or without the attorney knowing.

• If the person violating NRS 484C.120 or 484C.110 possesses a driver’s license from a state other than Nevada and does not reside in Nevada, the court must, in implementing NRS 484C.400(a)(1), take the following actions: (a) Order the person to complete an approved educational course on alcohol and substance abuse in their state of residence and provide evidence of completion within the specified time, or (b) Order the person to complete a correspondence course on alcohol and substance abuse approved by the Department within the specified time. Furthermore, if the person fails to complete the assigned course within the given timeframe, the court must notify the Department.

NRS 484C.430

Penalties for causing substantial bodily harm or death; exception; offender segregation; limitations on plea bargaining, sentence suspension, and probation; aggravating factor; affirmative defense. [Effective until the federal law requisites states to deem it unlawful for an individual to drive or physically control a motor vehicle while having an alcohol concentration in blood of 0.08% or higher as a condition to receive federal funding for highway construction in Nevada, is repealed.]

1. Unless NRS 484C.440 provides for a greater penalty, a person who: (a) Drives under the influence of alcohol; (b) Has a blood or breath alcohol concentration of 0.08 or higher; (c) If a person is found within 2 hours after being in control of or driving a vehicle, to have a blood or breath alcohol concentration of 0.08 or higher as measured by a test; (d) If a person is affected by a controlled substance or a combination of a controlled substance and intoxicating liquor; (e) If a person renders themselves incapable of exercising control of or safely driving a vehicle by inhaling, ingesting, applying, or using chemicals, poisons, organic solvents, or any combination thereof; (f) If a person’s urine or blood has a prohibited substance in it in an amount equal to or greater than the threshold specified in subsection 3 of NRS 484C.110,

*and the person commits any act or fails to fulfill any duty required by law while control of or driving a vehicle on or off the highways of this State, and such act or failure proximately causes the substantial bodily harm or death of another person, they shall be charged with a category B felony. The punishment for this offense includes imprisonment in the state prison for a minimum term of 2 years and a maximum term of 20 years, as well as a fine ranging from $2,000 to $5,000. Additionally, the convicted person shall, to the extent feasible, be separated from violent offenders and assigned to a minimum-security institution or facility.

• A prosecuting attorney is prohibited from dismissing a charge of violating the provisions stated in subsection 1 in exchange for a plea of nolo contendere, guilty but mentally ill, or guilty, or for any other reason unless the attorney has knowledge or it is evident that the charge lacks probable cause or cannot be proven during the trial. Furthermore, a sentence imposed under subsection 1 cannot be suspended, and probation cannot be granted.

• If it can be proven by a predominance of evidence that a person consumed alcohol in a quantity that is deemed sufficient after being in control of or driving the vehicle but before their breath or blood was tested, resulting in a blood or breath alcohol concentration of 0.08 or higher, it is an affirmative defense under paragraph (c) of subsection 1. In order to present this defense at a preliminary hearing or a trial, the defendant must file a written notice of intent, stating their intention to offer this defense, to the prosecuting attorney at least 14 days prior to the hearing or the trial or within a timeframe set by the court.

• The court will take into account the presence of a passenger under the age of 15 in the vehicle at the time of the violation as an aggravating circumstance when determining the defendant’s sentence.

NRS 484C.440

This statute outlines the penalties for vehicular homicide, including the following provisions:

1. Vehicular homicide committed under NRS 484C.130 is classified as a category A felony, and the offender will be sentenced to imprisonment in the state prison. The options for the length of imprisonment are (a) Life with the possibility of parole, eligible for parole after serving a minimum of 10 years; or (b) A definite term of 25 years, eligible for parole after serving a minimum of 10 years.
2. To the extent possible, the person serving imprisonment under subsection 1 should be separated from offenders convicted of violent crimes and preferably placed in a minimum-security institution or facility.
3. The prosecuting attorney is prohibited from dismissing a charge of vehicular homicide in exchange for a guilty plea, a plea of guilty but mentally ill, a plea of nolo contendere to a lesser charge, or any other reason unless there is a clear lack of probable cause or inability to prove the charge during trial. Subsection 1 does not allow for the suspension of the imposed sentence or the granting of probation.

1. If the defendant was transporting a passenger under the age of 15 at the time of the violation, this fact would be considered an aggravating factor when determining the defendant’s sentence.