Nevada Law and Penalties for DUI of Prescription Painkillers

Driving Under the Influence of Prescription Painkillers in Nevada – Definition

In Nevada, driving any vehicle (including a motorcycle) under the influence of prescription painkillers is considered a criminal offense, even if the driver has a physician’s prescription. An individual must not drive when they’re impaired by prescription painkillers. The offense is treated as seriously as driving while inebriated.

Example: Greta has chronic back pain and has a prescription from her physician for Percocet to help her get through her day. One morning, Greta takes 2 of the prescribed pills instead of 1. The extra dosage affects her driving, and she finds it hard to stay in her lane. A policeman notices this, arrests her and takes her to the Clark County Detention Center for driving under the influence of prescription painkillers.

Looking at the above example, it’s clear that the driver didn’t take an excess dosage of painkiller on purpose, but since it affected her driving, it falls under DUI for prescription drugs.

Some other prescription painkillers that can impair driving include:

Codeine
OxyContin
Acetaminophen and Hydrocodone (Lortab and Vicodin)
Demerol
Celebrex
Medical Marijuana

Defenses

The defenses typically used for fighting DUI prescription painkiller charges in Nevada include:

The blood tests were conducted incorrectly
The driver took the painkiller after they stopped driving
Lack of probable cause for the police officer to stop the vehicle

Penalties

The offense is prosecuted as a misdemeanor if there was no result of bodily harm during a first-time or second-time DUI for prescription painkillers. Standard penalties for DUI include:

Suspension of jail time for first-time DUI and 10 days jail time for second-time DUI,
Fines up to $1000,
Victim impact panel, and
Suspension of the driver’s license for 185 days for first-time DUI (defender may get a restricted license for 90 days with the installation of an ignition interlock device), and suspension of driver’s license for 1 year for second-time DUI.

Third-time DUI or DUIs that causes death or injury are treated as felonies. The penalties for such an offense include:

$2,000 and $5,000 in fines, and
Jail time in Nevada State Prison for 1 to 6 years for a third-time DUI and 2 to 20 years in the case of DUI with injury or death.

DUI of Medical Marijuana

Driving under the influence of marijuana or driving with 2 or more nanograms/ml of marijuana or 5 or more nanograms/ml of marijuana metabolite is considered a DUI of medical marijuana.

Patients who take medical marijuana can be convicted of DUI for medical marijuana even if there’s nothing irresponsible about their driving, but the quantity of marijuana in their blood is high.

Example: Enid is registered as a medical marijuana patient in Nevada. A policeman notices that the registration tag on her license plate is expired while she is driving to work, and he asks her to pull over. When the police officer comes close to Enid, he smells marijuana, giving the police officer a probable cause to suspect that Enid is driving under the influence of marijuana. Enid is made to perform the field sobriety test, which she passes. The cop arrests her anyway and books her at the Mesquite Detention Center for a blood test. The blood test results show that Enid had marijuana in her system, which was more than the legal limit, and that’s when she was charged with DUI.

Although Enid was a registered and lawful user of medical marijuana and she passed the field sobriety test, she was still charged with DUI because her blood marijuana content exceeded the 2 nanograms/ml limit, which resulted in the DUI conviction to sustain.

DUI Prescription Painkiller Cases Blood Tests

Every time a police officer in Nevada pulls over a driver suspecting a DUI, the driver is asked to submit to the preliminary test (breath test) and other field sobriety tests. If the driver refuses, the officer has reasonable grounds to believe that the driver was under the influence or engaged in other prohibited conduct. The officer can apply for a warrant or court order to require the driver to submit to testing. The officer may request the driver submit to a blood test as well.[1]

If the police officer arrests the driver for DUI of drugs, the driver is legally bound to take a blood test, provided that the officer has a warrant or court order. If the driver refuses to take the blood test, the police officer has the authority to use reasonable force and constrain the arrestee to draw a blood sample. If the arrestee refuses to submit to the DUI blood test, this can be used as evidence during the trial.

Suspension of Driver’s License in DUI of Prescription Painkillers Cases

When a driver is arrested for drunk driving after they fail the DUI breath test, the police officer will revoke their driver’s license immediately. But if the situation involves drugged driving where the police must conduct a blood test, Nevada DMV won’t suspend the driver’s license until the blood test results come back positive and advise the driver that they have a right to a temporary license. This can take weeks or months after the arrest.

Usual Defenses in DUI of Prescription Painkillers Cases

Usual defenses in DUI of Prescription Painkillers cases are similar to those in drunk driving cases:

The blood testing equipment was broken, or the blood sample was contaminated: Blood tests don’t qualify as evidence if the testing equipment was defective, and the samples were mishandled in the lab. Additionally, f the defender can prove that the tester’s certification was expired when the test was administered, the DUI charges will be dismissed.
The driver took the painkillers after they stopped driving: The driver may not have swallowed the painkillers until after driving and being pulled over by the police officer. The case will be dropped if the prosecutors fail to prove that the driver was under the influence of prescription painkillers while driving or being in control of the motor vehicle.
There was no probable cause for a traffic stop: Police officers can’t pull over drivers without probable cause. Probable cause is when the officer has reasonable suspicion of a DUI, unless the driver is passing through a DUI checkpoint. If the defense attorney can prove that the police officer did not witness any behavior that would point to reasonable suspicion of driving under the influence before they were pulled over, the judge will dismiss the DUI charges.

The driver experiencing a reaction to the prescription drug isn’t a valid DUI defense case in Nevada. The D.A. may consider dropping or reducing the DUI charges if the driver can prove that they weren’t given a warning that the painkiller may impair their driving.

DUI for Prescription Painkillers – Penalties

The penalties for DUI for prescription painkillers in Nevada aren’t different than those for drunk driving. The penalties for this offense become harsher with successive DUIs within 7 years. The penalty is also greater if the incident resulted in someone being substantially harmed or killed.

First-Time DUI within a Period of 7 Years

County jail time for 2 days to 6 months. In most cases, the court usually penalizes the defendant with suspended jail time of 6 months.
An alcohol driving education program. The defendant pays for the program. The program can be completed online or in person.
Fines from $400 to $1,000, not including additional court costs. In Las Vegas Justice Court, the defendant must pay a fine of $685. In Las Vegas Municipal Court, the fine is $810.
Attending a victim impact panel, which is a meeting that MADD sponsors. The defendant pays for it, and it’s done in person.
Suspension of driver’s license for 185 days. The defendant may also get a restricted license for 90 days with the installation of an ignition interlock device to go to and from work, a driving program, or medical care.

The sentence can be doubled if the DUI occurred in a work zone.

Second-Time DUI within a Period of 7 Years

County jail time for 10 days to 6 months
Fines between $750 and $1,000
Attend a victim impact panel
Have an ignition interlock device installed in all vehicles
Drug/ alcohol dependency evaluation (costs $100)
Revocation of driver’s license, permit, or privilege to drive

Misdemeanor DUI Court: an intensive abuse treatment program for drug or alcohol instead of jail time.

There’s a possibility of the sentence doubling if the DUI occurred in a work zone.

Third-Time DUI within a Period of 7 Years

Jail time in Nevada State Prison for 1 to 6 years
Fines between $2,000 and $5,000
Attend a victim impact panel
Suspension of driver’s license for 3 years (restricted license possible after 1 year)
Installation of an ignition interlock device
A drug/alcohol dependency evaluation (costs $100)
Possible eligibility for Felony DUI Court. Felony DUI Court is an intensive drug or alcohol abuse treatment program a driver may attend instead of jail time

DUI Cases Involving Injury or Death

Jail time in Nevada State Prison for 2 to 20 years
Fines between $2,000 and $5,000
Installation of an ignition interlock device.

If the past record of the defendant shows 3 DUI convictions, then a case that involves death will be considered and charged as vehicular homicide. The imprisonment time for vehicular homicide in Nevada is:

25 years in prison. There’s a possibility of parole after 10 years, or
Life in prison. There’s a possibility of parole after 10 years.

Plea Bargains

Depending on the circumstances, a defense attorney may convince the D.A. to reduce the DUI prescription painkiller charges to reckless driving. Having the charges reduced have 3 benefits:

Charges for reckless driving are less socially stigmatizing compared to being charged with DUI. Employers don’t consider reckless driving charges as serious as DUI.
Courts in Nevada can seal the conviction for misdemeanor reckless driving from the driver’s criminal record after 1 year from the date when the case was closed. DUI convictions may not be sealed until 7 years from the date the case was closed.
Punishment for DUI is harsher with every successive conviction. If the charges are reduced to reckless driving, the next DUI arrest will be charged as a first-time DUI.

Nevada law precludes district attorneys from dropping DUI charges unless they’ve got problems with their evidence. Getting DUI charges dismissed is still possible, depending on the circumstances.

Call us for Help

If you’ve been charged with driving under the influence of prescription painkillers in Nevada, call us for legal help from our DUI defense attorneys in the Las Vegas office. We can help you get your charges reduced and even dropped.

Legal Resources

I.NRS 484C.110: Unlawful Acts; Affirmative Defense; Additional Penalty for Violation Committed in Work Zone.

2. It’s not lawful for any person who:

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

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

(c) ingests, inhales, or applies or otherwise uses any poison, chemical, or organic solvent, any compound, or combination of any of these, to an extent that it renders the person incapable of driving safely or keeping actual physical control of a vehicle.

– to drive or be in physical control of a vehicle on premises or on a highway which can be accessed by the public. Just because the person charged with violating this subsection has been entitled to use a drug under the state laws doesn’t form a defense against charges of violation.

3. It is not lawful for any person to drive or be in actual physical control of a vehicle on premises or on a highway that can be accessed by the public with enough amount of the prohibited substance in their blood or urine, which is equal or greater than:

	Urine	Blood
	Nanograms	Nanograms
Prohibited substance	per milliliter	per milliliter

(a) Amphetamine	500	100
(b) Cocaine	150	50
(c) Cocaine metabolite	150	50
(d) Heroin	2,000	50
(e) Heroin metabolite:
(1) Morphine	2,000	50
(2) 6-monoacetyl morphine	10	10
(f) Lysergic acid diethylamide	25	10
(g) Marijuana (Pot)	10	2
(h) Marijuana metabolite	15	5
(i) Methamphetamine (Meth)	500	100
(j) Phencyclidine	25	10

6. A person who violates any provision laid out in this section may be subject to additional penalties as set forth in NRS 484B.130.

II. NRS 484C.240 Admissibility of evidence of refusal to submit to evidentiary test; availability of results of test; admissibility of evidence from test.

1.If a person refuses to take the required chemical test provided for in NRS 484C.150 or 484C.160, it can be used as evidence in any administrative or criminal action that arises from acts alleged to have been committed when the person was, (a) in actual physical control of the vehicle or driving while under the influence of a controlled substance or intoxicating liquor with a prohibited substance in their urine or blood, (b) engaging in any conduct that is prohibited by NRS 484C.110, 484C.120, 484C.130, or 484C.430.

2. A hearing officer or court may not exclude the evidence of a required test or the person’s failure to submit to a test if the police or any other person complied with provisions of NRS 484C.150 to 484C.250, inclusive and 484C.600 to 484C.640, inclusive, except or otherwise provided in subsection 3 of NRS 484C.150.

3. If a person submits to a chemical test as listed in NRS 484C.150 or 484C.160, full information about that test should be made available to the person or their attorney upon request of the person.

4. Evidence of a required test is not admissible in administrative or criminal processing unless it’s shown by the documentary or any other evidence that the law enforcement agency calibrated the device used in breath-testing and otherwise maintained it as required by the regulations of the Committee on Testing for Intoxication.

III. NRS 484C.210: Revocation of license, permit or privilege to drive when test shows concentration of alcohol of 0.10% or more in blood or breath; periods of ineligibility to run consecutively.

1. If a person fails to submit to an evidentiary test as requested by a police officer pursuant to NRS 484C.160, the license, permit or privilege to drive of the person must be revoked as provided in NRS 484C.220, and the person is not eligible for a license, permit or privilege to drive for a period of: (a) One year; or (b) Three years, if the license, permit or privilege to drive of the person has been revoked during the immediately preceding 7 years for failure to submit to an evidentiary test.

2. If the result of a test given under NRS 484C.150 or 484C.160 shows that a person had a concentration of alcohol of 0.08% or a detectable amount of a prohibited substance or controlled substance in their blood or urine for which he or she did not have a valid prescription, as defined in NRS 453.128, or hold a valid registry identification card, as defined in NRS 453A.140 at the time of the test, the license, permit or privilege of the person to drive must be revoked as provided in NRS 484C.220 and the person is not eligible for a license, permit or privilege for a period of 90 days.

3. If a revocation of a person’s license, permit or privilege to drive under NRS 62E.640 or 483.460 follows a revocation under subsection 2 which was based on the person having a concentration of alcohol of 0.10% or more in their blood or breath, the Department shall cancel the revocation under that subsection and give the person credit for any period during which the person was not eligible for a license, permit or privilege.

4. Periods of ineligibility for a license, permit or privilege to drive which are imposed pursuant to this section must run consecutively.

IV. NRS 484C.400 Penalties for first, second and third offenses; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.

1. Unless a greater penalty is provided pursuant to NRS 484C.430 or 484C.440, and except as otherwise provided in NRS 484C.410, a person who violates the provisions of NRS 484C.110 or 484C.120:

(a) For the first offense within 7 years, is guilty of a misdemeanor. Unless the person is allowed to undergo treatment as provided in NRS 484C.320, the court shall:

(1) Except as otherwise provided in subparagraph (4) of this paragraph or subsection 2 of NRS 484C.420, order the person to pay tuition for an educational course on the abuse of alcohol and controlled substances approved by the Department and complete the course within the time specified in the order, and the court shall notify the Department if the person fails to complete the course within the specified time;

(2) Unless the sentence is reduced pursuant to NRS 484C.320, sentence the person to imprisonment for not less than 2 days nor more than 6 months in jail, or to perform not less than 48 hours, but not more than 96 hours, of community service while dressed in distinctive garb that identifies the person as having violated the provisions of NRS 484C.110 or 484C.120;

(3) Fine the person not less than $400 nor more than $1,000; and

(4) If the person is found to have a concentration of alcohol of 0.18 or more in their blood or breath, order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.

(b) For a second offense within 7 years, is guilty of a misdemeanor. Unless the sentence is reduced pursuant to NRS 484C.330, the court shall:

(1) Sentence the person to:

(I) Imprisonment for not less than 10 days nor more than 6 months in jail; or

(II) Residential confinement for not less than 10 days nor more than 6 months, in the manner provided in NRS 4.376 to 4.3766, inclusive, or 5.0755 to 5.078, inclusive;

(2) Fine the person not less than $750 nor more than $1,000, or order the person to perform an equivalent number of hours of community service while dressed in distinctive garb that identifies the person as having violated the provisions of NRS 484C.110 or 484C.120; and

(3) Order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.

– A person who willfully fails or refuses to complete successfully a term of residential confinement or a program of treatment ordered pursuant to this paragraph is guilty of a misdemeanor.

(c) Except as otherwise provided in NRS 484C.340, for a third offense within 7 years, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 6 years, and shall be further punished by a fine of not less than $2,000 nor more than $5,000. An offender who is imprisoned pursuant to the provisions of this paragraph must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

2. An offense that occurred within 7 years immediately preceding the date of the principal offense or after the principal offense constitutes a prior offense for the purposes of this section when evidenced by a conviction, without regard to the sequence of the offenses and convictions. The facts concerning a prior offense must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing and, if the principal offense is alleged to be a felony, must also be shown at the preliminary examination or presented to the grand jury.

3. A term of confinement imposed pursuant to the provisions of this section may be served intermittently at the discretion of the judge or justice of the peace, except that a person who is convicted of a second or subsequent offense within 7 years must be confined for at least one segment of not less than 48 consecutive hours. This discretion must be exercised after considering all the circumstances surrounding the offense, and the family and employment of the offender, but any sentence of 30 days or less must be served within 6 months after the date of conviction or, if the offender was sentenced pursuant to NRS 484C.320 or 484C.330 and the suspension of their sentence was revoked, within 6 months after the date of revocation. Any time for which the offender is confined must consist of not less than 24 consecutive hours.

4. Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.410 or 485.330 must run consecutively.

5. If the defendant was transporting a person who is less than 15 years of age in the motor vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.

6. For the purpose of determining whether one offense occurs within 7 years of another offense, any period of time between the two offenses during which, for any such offense, the offender is imprisoned, serving a term of residential confinement, confined in a treatment facility, on parole or on probation must be excluded.

7. As used in this section, unless the context otherwise requires, “offense” means:

(a) A violation of NRS 484C.110, 484C.120 or 484C.430;

(b) A homicide resulting from driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by NRS 484C.110, 484C.130 or 484C.430; or

(c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

V. NRS 484C.400 Penalties for first, second and third offenses; segregation of offender; intermittent confinement; consecutive sentences; aggravating factor.

1. Unless a greater penalty is provided pursuant to NRS 484C.430 or 484C.440, and except as otherwise provided in NRS 484C.410, a person who violates the provisions of NRS 484C.110 or 484C.120:

(a) For the first offense within 7 years, is guilty of a misdemeanor. Unless the person is allowed to undergo treatment as provided in NRS 484C.320, the court shall:

(3) Fine the person not less than $400 nor more than $1,000; and

(b) For a second offense within 7 years, is guilty of a misdemeanor. Unless the sentence is reduced pursuant to NRS 484C.330, the court shall:

(1) Sentence the person to:

(I) Imprisonment for not less than 10 days nor more than 6 months in jail; or

(II) Residential confinement for not less than 10 days nor more than 6 months, in the manner provided in NRS 4.376 to 4.3766, inclusive, or 5.0755 to 5.078, inclusive;

(3) Order the person to attend a program of treatment for the abuse of alcohol or drugs pursuant to the provisions of NRS 484C.360.

– A person who willfully fails or refuses to complete successfully a term of residential confinement or a program of treatment ordered pursuant to this paragraph is guilty of a misdemeanor.

4. Jail sentences simultaneously imposed pursuant to this section and NRS 482.456, 483.560, 484C.410 or 485.330 must run consecutively.

7. As used in this section, unless the context otherwise requires, “offense” means:

(a) A violation of NRS 484C.110, 484C.120 or 484C.430;

(c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

VI. NRS 484C.130 Vehicular homicide; affirmative defense.

1. A person commits vehicular homicide if the person:

(a) Drives or is in actual physical control of a vehicle on or off the highways of this State and:

(1) Is under the influence of intoxicating liquor;

(2) Has a concentration of alcohol of 0.08 or more in their blood or breath;

(3) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have a concentration of alcohol of 0.08 or more in their blood or breath;

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

(5) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle; or

(6) Has a prohibited substance in their blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 484C.110;

(b) Proximately causes the death of another person while driving or in actual physical control of a vehicle on or off the highways of this State; and

2. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under subparagraph (3) of paragraph (a) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after driving or being in actual physical control of the vehicle, and before their blood or breath was tested, to cause the defendant to have a concentration of alcohol of 0.08 or more in their blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.

3. As used in this section, “offense” means:

(a) A violation of NRS 484C.110, 484C.120 or 484C.430;

(c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b).

VII. NRS 484C.440 Penalties for vehicular homicide; segregation of offender; plea bargaining restricted; suspension of sentence and probation prohibited; aggravating factor.

1. A person who commits vehicular homicide pursuant to NRS 484C.130 is guilty of a category A felony and shall be punished by imprisonment in the state prison:

(a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or

(b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served.

2. A person imprisoned pursuant to subsection 1 must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.

3. A prosecuting attorney shall not dismiss a charge of vehicular homicide in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 may not be suspended nor may probation be granted.

4. If the defendant was transporting a person who is less than 15 years of age in the vehicle at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.

VII. NRS 484C.420 Probation prohibited; suspension of sentence and plea bargaining restricted; mandatory orders when person is nonresident.

1. A person convicted of violating the provisions of NRS 484C.110 or 484C.120 must not be released on probation, and a sentence imposed for violating those provisions must not be suspended except, as provided in NRS 4.373, 5.055, 484C.320, 484C.330 and 484C.340, that portion of the sentence imposed that exceeds the mandatory minimum. A prosecuting attorney shall not dismiss a charge of violating the provisions of NRS 484C.110 or 484C.120 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial.

2. If the person who violated the provisions of NRS 484C.110 or 484C.120 possesses a driver’s license issued by a state other than the State of Nevada and does not reside in the State of Nevada, in carrying out the provisions of subparagraph

(1) of paragraph (a) of subsection 1 of NRS 484C.400, the court shall:

(a) Order the person to pay tuition for and submit evidence of completion of an educational course on the abuse of alcohol and controlled substances approved by a governmental agency of the state of the person’s residence within the time specified in the order; or

(b) Order the person to complete an educational course by correspondence on the abuse of alcohol and controlled substances approved by the Department within the time specified in the order, – and the court shall notify the Department if the person fails to complete the assigned course within the specified time.

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