LV DUI Defense Center

One of the most commonly charged crimes in the State of Nevada, and specifically in the Las Vegas valley, is Driving under the Influence, or “DUI.” This number has grown increasingly in recent years, as law enforcement have increased patrols and efforts to minimize the presence of impaired drivers on local roadways. A DUI arrest is oftentimes a convoluted and complex situation which can result not only in criminal charges, but collateral consequences such as the revocation of a person’s driver’s license, increasing insurance costs and professional licensing restrictions. This situation can be a great source of stress and anxiety for the person charged. Because of these issues, it is absolutely critical that any person arrested or accused for a DUI related offense meet with, or speak to, an experienced Las Vegas DUI attorney as soon as possible.

Josh Tomsheck is a dedicated DUI lawyer with a practice based in downtown Las Vegas in close proximity to Las Vegas Municipal Court, Clark County Justice/District Court and United States District Court for the District of Nevada. Mr. Tomsheck has knowledge of how to effectively investigate and defend against allegations of DUI and its many related offenses. Mr. Tomsheck is a member of the National College for DUI Defense and the DUI Defense Lawyers Association, the top 2 national organizations dedicated to the improvement of the criminal defense bar, the dissemination of information to the public about DUI Defense Law as a specialty area of law practice, as well as educating practicing lawyers in the science and education of DUI Defense. Prior to starting his private Criminal Law and DUI Defense practice, Mr. Tomsheck was a Chief Deputy District Attorney in the Clark County District Attorney’s Office. Mr. Tomsheck’s vision for his practice is that he does everything in his power to continuously work to develop the best techniques and strategies to help those who have been arrested or accused for DUI and related allegations in the Las Vegas area.

A “typical” DUI case begins when the police or law enforcement encounters a vehicle, either parked, in a traffic stop or an accident situation. The officer must have a reasonable suspicion that the driver is impaired or probable cause a violation has been committed. It is important to know that a violation related to a stop does not have to be one that is association with poor or impaired driving. It is just as likely that an officer pulls over a driver for a non-moving violation or an equipment violation such as overly tinted windows or expired registration. In the State of Nevada, law enforcement officers must have reasonable suspicion or probable cause to believe that the driver of a motor vehicle is in violation of the law before they can legally stop a vehicle. There are some very specific exceptions to this rule however, such as a pre-defined DUI checkpoint where the police stop and briefly detain all drivers at a manned checkpoint where they attempt to determine if they are driving impaired of under the influence of drugs or alcohol.

In the majority of instances, the officer will approach the vehicle after initiating a traffic stop or coming upon an accident. The police officer or trooper will attempt to have verbal communication with the alleged driver and will be attempting to identify symptoms, or clues, of intoxication. Among the commonly articulated indicia of intoxication are: bloodshot and watery eyes, slurred speech or an odor of an unknown alcoholic beverage. These descriptions find their way onto almost every police report detailing a drunk driving arrest. In most cases, law enforcement will directly ask the driver if he or she has been drinking. Many individuals answer this question. Unfortunately, this response almost always gives sufficient cause for the police officer to remove the driver from the vehicle and ask them to participate in field sobriety tests. These field sobriety tests are argued to be a good indicator of impairment by checking a person’s biological response, balance, motor skills and ability to remember and follow instructions.

While not present in every case, the officer may ask the driver to take a breath test using a small hand held device called a “preliminary breath test” or “PBT.” While many drivers think they cannot say no, this PBT test is not a mandatory one. Moreover, this test isn’t even admissible in court for proof of blood or breath alcohol concentration. Instead, it is nothing more than a further attempt by law enforcement to articulate probable cause for an arrest and further forensic testing.

Once the officer feels he or she has built enough probable cause to believe that a driver is impaired with drugs or alcohol, the driver will be arrested, placed in handcuffs and transported to the city or county detention center. Under Nevada law and existing United States Supreme Court law, a driver cannot be forced to give a blood or breath sample without a valid search and seizure warrant. However, any refusal to submit to a forensic blood or breath test will result in a revocation of the persons driving privileges for a period of one (1) year from the date of arrest.

If the driver consents to a breath test, it will typically be done at the detention center on a machine, usually an Intoxilyzer 8000 model. The test results from a breath test happen in real time and the test taker will know the results immediately. Drivers who consent to a blood test, or whose blood is taken pursuant to a search warrant if they refuse to consent to testing, will have their blood drawn by a medical professional, usually a nurse, at the detention center. Because blood testing takes time and a laboratory setting, the results of a blood test are usually not received for weeks, or months. In the event the testing is done to determine the presence of impairment for drugs other than alcohol, the only test available and used in Nevada is a blood test.

The arresting law enforcement agency will refer paperwork, in the form of a submission packet, to the appropriate prosecutorial agency, usually the District Attorney’s office or the City Attorney’s office. That office will then screen the charges and either approve, amend or deny the submission. One thing that is often overlooked in the charging process is that an arrest for a crime is not the same as being charged. The term charge comes from the filing of formal criminal charges. The presence of an adept and experienced Las Vegas DUI lawyer during the pre-filing stage is important. In some cases, such a lawyer can intervene on behalf of the accused prior to the filing of any charges and avoid ever having to fight it out in court.

If the prosecutor elects to file formal charges, the case will proceed to Municipal or Justice Court if the offense happens within the jurisdiction of the city or the state. (In the Federal system the charge will be in front of a Magistrate Judge). In cases that involve DUIs for alcohol and/or drugs, most people in the State of Nevada will be charged under NRS 484C.110. In cases of alcohol with a blood or breath alcohol over 0.08%, the prosecutor will likely charge three (3) separate theories of legal liability, namely 1) that the driver was under the influence, 2) the driver was driving with a BAC over 0.08%; or 3) that the driver was driving with a BAC of 0.08% by a blood or breath test within 2 hours of driving. Because the defenses related to these allegations are so different and technical, including scientific and expert testing and analysis, having an experienced Las Vegas DUI Attorney on your side can make a monumental difference in the outcome of your case.

One of the fastest increasing source of charges in Nevada is the prosecution of an individual fro a DUI involving drugs. While commonly charged, not all DUI Drug cases involve illicit “street” drugs, such as cocaine, heroin, ecstasy and methamphetamine. The fastest growing type of DUI charges have to do with allegations of driving under the influence of legal, prescription drugs. Many people believe they are legal to drive if taking prescription medication pursuant to a doctor’s orders. It is however, illegal to drive while under the influence of prescribed medications, even if they are taken pursuant to that prescription. The question is rather whether the driver is deemed to be impaired. The types of drugs that cause impairment, and can lead to a DUI charge even when taken pursuant to prescription by a licensed medical provider include Opioids (Vicodin, Percocet and Hydrocodone), Benzodiazepines, (Xanax, Valium and Ativan) and Nonbenzodiazepine (sleep aids such as Ambien and Lunestra). It is important to know that a lawful prescription for a medication which can cause impairment is not recognized as a defense to the charge of DUI. Moreover, many believe that because Nevada has recently legalized Marijuana, they don’t have to worry about its use any longer. The fact remains that a person can be charged with a DUI Marijuana charge even if they ingested the substance legally.

There are literally hundreds of issues which can be raised in the defense of your DUI case in Nevada. Defenses include the lack of reasonable suspicion or probable cause. In those circumstances the search, stop or testing may be suppressed. There are procedural and constitutional defenses to the forensic testing, whether it be blood or breath. There are defenses related to admissibility of several aspects of a DUI investigation or arrest. There are medical defenses; defenses related to improperly conducted field sobriety testing, defenses related to actual physical control issues and failure of law enforcement and prosecutors meeting required deadlines. In many cases, an experienced Las Vegas Criminal Defense Attorney can force the prosecutor to dismiss or substantially reduce your charge to a non-DUI disposition, such as reckless or careless driving.

The penalties for a DUI conviction can vary depending on the facts of the case, the drivers history and other related issues. For each subsequent conviction within a seven (7) year period, a Nevada DUI conviction becomes more severe as an enhanceable offense. A first conviction requires a mandatory 2 days in jail; a second offense, while still a misdemeanor offense, requires a minimum of ten (10). For a third offense within seven (7) years it becomes a Felony offense, punishable by mandatory prison time, meaning the driver cannot receive probation.

If a DUI involves an injury or death the incident is substantially more severe, as it becomes a mandatory 2-20 year sentence with no judicial discretion for probation. In Nevada, once a driver is convicted of a Felony for DUI, all subsequent arrests are treated as felonies, no matter what time has passed since the arrest. This is called the “once a felon, always a felon” rule.

There are many additional components to the allegation of DUI which are not related to incarceration. Most notably is the loss of ones driving privileges. For a first time DUI, Nevada drivers will lose their driving privileges for a 90 day revocation period. For a second offense this goes up to a full year. A third offense triggers a revocation of three (3) years after the release from custody.

A DUI charge or conviction has many non-judicial collateral consequences including those related to professional licenses (doctors, lawyers, nurses, securities and insurance, etc.) and can prevent receiving credit or qualifying for housing.

Las Vegas DUI lawyer Josh Tomsheck has a strong reputation among prosecutors, judges, and the defense bar alike as an experienced and effective Trial lawyer. Mr. Tomsheck has experience in understanding how the police investigate a case and how a DA makes charging decisions. Having the experience of a Board Certified Criminal Trial Lawyer like Mr. Tomsheck can be the difference between spending time in jail or the loss of employment, driving privileges or professional standing. Mr. Tomsheck knows how best to investigate, negotiate and litigate your DUI case to the best possible result.

For more information on DUI laws in Las Vegas and Nevada, contact Las Vegas DUI lawyer Josh Tomsheck to schedule a fee in person or telephone consultation today.