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By: Lipp Law LLC

How Does Blood Alcohol Level Affect DUI Cases?

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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.

Lipp Law LLC

2580 Sorrel St, Las Vegas, NV 89146

(702) 745-4700

FAQs: How Does Blood Alcohol Level Affect DUI Cases?

1. What is a stay of adjudication in DUI cases?

    A stay of adjudication allows a person to plead guilty to DUI, but the conviction isn’t entered into the record if they meet court-ordered requirements.

2. What requirements are typically involved in a stay of adjudication?

    Requirements may include:

  • Attending DUI school.
  • Completing a Victim Impact Panel.
  • Paying fines.
  • Avoiding further legal trouble.

3. How can a borderline BAC result impact a DUI case?

    A borderline BAC result might be challenged if it’s close to the legal limit due to possible test inaccuracies and a high burden of proof in criminal cases.

4. What options are available if a breath or blood test shows a close to limit BAC?

    The defense may argue test inaccuracy or use secondary tests, potentially reducing or negotiating charges.

5. What is the Victim Impact Panel, and why is it required?

    The Victim Impact Panel involves individuals affected by impaired driving sharing their experiences, required to increase offender awareness.

6. When is a chemical dependency assessment required?

    If a DUI offender’s BAC is significantly high, they may need to undergo an assessment to determine possible treatment or AA meeting requirements.

7. What happens if DUI requirements in a stay of adjudication aren’t met?

    Failing to meet all requirements results in a DUI conviction being formally entered and additional penalties.

8. Is retesting possible if the initial BAC reading seems inaccurate?

    In some instances, retesting may be permitted, especially if initial results are close to the legal limit.

9. What’s the significance of the two-hour window for BAC testing?

    BAC tests are valid if conducted within two hours of driving; results outside this timeframe are inadmissible for alcohol, although not for drugs.

10. How does an initial DUI charge potentially become reckless driving?

     If requirements are fulfilled in a stay of adjudication, the DUI charge may be converted to reckless driving, avoiding a DUI conviction on record.