Criminal Law

DUI - The Basics

In every state, it is a crime for a driver to operate a vehicle while impaired by the effects of alcohol or drugs. DUI laws make it unlawful for a person to operate a car, truck, motorcycle, or commercial vehicle if:

The Nevada DMV's suspension is completely independent of the court proceedings. The former is an administrative procedure, the latter criminal; they have little to do with one another. However, if you plead guilty or "no contest" in court to the criminal charge, the DMV hearing becomes moot: Your license will be suspended.

As of August 2005, all states have DUI laws that deem "per se intoxicated" any driver with a blood-alcohol concentration (BAC) at or above .08 percent. This means that drivers with a BAC at or above .08 are intoxicated in the eyes of the law, and no additional proof of driving impairment is necessary.

• "Zero Tolerance" Blood Alcohol Concentration (BAC) Level: All states carry "zero tolerance" laws that target drivers under the legal drinking age. These laws penalize persons under 21 for operating a vehicle with any trace of alcohol in their systems (a BAC above 0.0), or with negligible BAC levels such as .01 or .02 percent.
• Field Sobriety and Chemical Tests: When a law enforcement officer makes a vehicle stop and suspects that the driver may be intoxicated, the officer will conduct a "field sobriety" test on the driver, and may ask for his or her consent to some form of chemical test for intoxication. Field sobriety tests usually involve a police officer asking a driver to perform a number of tasks that assess any impairment of the person's physical or cognitive ability. Examples of field sobriety tests include having the driver walk a straight line, heel to toe; having he or she recite the alphabet backwards; and the officer's use of the eye and penlight test.
• Refusing a Chemical Test: "Implied Consent" Laws: All states have "implied consent" laws that require vehicle drivers to submit to some form of chemical test, such as breath, blood, or urine testing, if suspected of DUI. The logic behind such laws is that, by assuming the privilege of driving a vehicle on state roads and highways, drivers have effectively given their consent to DUI testing when a police officer reasonably believes the driver is under the influence of alcohol or drugs. If a driver refuses to submit to such testing, implied consent laws carry penalties such as mandatory suspension of a driver's license, usually for six months to a year.

Criminal Process in Nevada The criminal process can be complex and confusing. But it is important to understand your legal rights. The best way to be informed is to contact an attorney in our office as soon as possible for a free consultation to allow you to understand the law as it relates to the crime you've been charged with, and we will be able to help you in making informed decisions as your case moves through the process.

Below is a brief summary of the criminal process:

Stop You may be stopped for questioning by the police. A stop is not the same as an arrest because, although you may be detained, you aren't moved to a different location. During a stop the police officer may ask you questions, but you have the right to refuse to answer.

Search Probable cause to search means that:

• It is more likely than not that the specific items to be searched for are connected with criminal activities
• Those items will be found in the place to be searched

Search Warrants A search warrant authorizes police to conduct a search of a specific place, such as your residence. In order for a warrant to be issued by a judge, "probable cause" is necessary.

Warrantless Searches The general rule is that warrants are required for searches. But search warrants are not required for the following:

• Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.
• Automobile searches: If you're arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.
• Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.
• Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.
• Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches.
• Arrest In order to be arrested, there must be what's called "probable cause." This means that there must be a reasonable belief that a crime was committed and you committed the crime. An arrest warrant is not necessary. After you're placed under arrest, you are protected by constitutional rights. Two important rights to be aware of are the right to remain silent and the right to have an attorney. After your arrest, you aren't required to say anything else to police or investigators, until you have an attorney present. You must be given the opportunity to contact an attorney.

Booking After you're arrested, the police will bring you to the police station for the booking process. You'll be fingerprinted and asked a series of questions, such as your name and date of birth. You'll also be searched and photographed.

What is an Arraignment Once criminal charges are filed, you'll make a court appearance that is known as an "arraignment." If you're incarcerated, this will usually occur within 72 hours of your arrest. During your arraignment, you'll be asked to enter a "plea" to the crime you've been charged with. Possible pleas are:

• Guilty plea: If you plead "guilty," you're admitting to the facts of the crime and the fact that you were the one who committed that crime.
• Not guilty plea: A "not guilty" plea asserts that you did not commit the crime with which you were accused. After your plea, a preliminary hearing, pre-trial or trial date will be set.
• No contest plea: A "no contest" plea indicates that, while you are not admitting guilt, you do not dispute the charge. This is preferable to a guilty plea because guilty pleas can be used against you in later civil lawsuits.

If you plead "guilty" or "no contest," there will not be a trial. You'll then be sentenced. During the arraignment, the court will also:

• Set bail
• Refuse to set bail
• Release you on your own personal recognizance, which means that the court takes your word that you will appear when necessary for later court obligations

Bail/Bond "Bail" is money or property put forth as security to ensure that you'll show up for further criminal proceedings. Bail can be paid:

• In cash
• A pledge of property (if permitted in that court)
• A bail bond. A professional bail bondsman is an individual whose business is to pledge his or her own property or security to guarantee the bail bond to the court. If you are in need of a bail bondsman, our office can assist you in contacting one.

Some Common Criminal Offenses:

Assault A defendant may commit criminal assault by either: (1) attempting to commit a battery, or (2) intentionally causing the victim to fear an immediate battery.

Battery Criminal battery is the intentional or reckless (or criminally negligent), unlawful application of force to the person of the victim.

False Imprisonment It is the intentional unlawful confinement of one person by another.

Larceny It is the trespassory taking and carrying away of the tangible personal property o another person with the intent to permanently deprive that person of the property.

Solicitation It is a crime to advise, encourage, request or command another to commit a felony or any misdemeanor involving breach of the peace.

Burglary It is the entering of a protected structure with the intent to commit a felony.

Forgery It is the fraudulent making of a false writing with apparent legal significance, and intent to make wrongful use of the forged document.

False Pretenses It is the acquisition of title to the property of another by means of a representation of fact, that the defendant knows to be false at the time the property is acquired.

Receiving Stolen Property A defendant commits this crime by acquiring property that defendant knows is stolen, with the intent to permanently deprive the owner.

Murder It is the unlawful killing of a human being with malice aforethought.

What is Insanity If the defendant is insane at the time of a homicide, no criminal liability will be imposed.

Robbery It is larceny where the property is taken from the victim’s person or presence by force or threat of force.

Speedy Trial You have a right to a speedy trial under the Sixth Amendment of the United States Constitution, which requires that trials be held within a certain time frame after a person has been charged with a crime.

Is Miranda Warning required A Miranda warning is required when a police officer is present and an arrest is required to be made. There has to be custody for the validity of Miranda warning.

What is Miranda Warning A Miranda warning is the basic constitutional rights of all US citizens which are required to be read before an arrest is made. An officer would tell that a person has the right to remain silent, right to an attorney, and if anything is said, can be used against the accused person.

What is Eighth Amendment It is a constitutional amendment to the US constitution which stops unusual and cruel punishment. In Nevada, you have a right to a trial within 60 days after you have been charged with a crime, unless you postponed the trial by filing an application with the court.

Trial Many prosecutors will consider "plea agreements," although it's not legally required. If you don't reach a plea agreement with the prosecutor, your proceedings will move toward the trial stage. Usually, if you are charged with a crime punishable by six or more months of imprisonment, you have the right to a jury trial. This right may be waived by (a) Pleading guilty or (b) Choosing a bench trial (a trial in front of a judge only). If you request a bench trial, the judge will perform the fact-finding function that is usually performed by the jury.

Felony A crime usually punishable by imprisonment for more than one year. A misdemeanor, on the other hand, is usually punishable by a fine or a year or less of incarceration.

Appeals After conviction and sentencing, you have the opportunity to file an appeal of your sentence. If you were convicted based on a guilty plea, you may need to ask for "leave" or permission to appeal your conviction. If you were convicted after a trial, you have an absolute right to appeal. An appeal is not a retrial of the case, but it is an examination of the trial record to ensure that the proceedings were conducted in a fair manner. There are always time deadlines by which you must file an appeal. There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error."