In a previous entry on this Blog, I wrote about the passage of new Nevada State laws legalizing personal use marijuana and the possession of less than 1 oz. of marijuana – – – and further discussed the difference between “impairment” vs. “per se” DUI laws.
Nevada, unlike many states, has passed “per se” DUI laws setting acceptable levels of the presence of a drug in one’s system, over which the law presumes the driver is too impaired to drive safely. In many states a driver who is alleged to be under the influence of marijuana typically can’t be convicted of a “per se” DUI. In those states, drivers are usually charged with a theory of impairment – – – wherein the prosecutor has to point to documented evidence that the driver cannot perform driving related tasks safely. The law requires prosecutors in these jurisdictions to show that marijuana consumption had an effect on the driver and not simply prove up the presence of a specific amount of THC in the driver’s system. Nevada commonly charges the “impairment” theory as their first theory of criminal liability in a DUI case. In Las Vegas and throughout the State of Nevada, prosecutors have the burden of proving the person charged (the Defendant) is impaired “to a degree that rendered him incapable of safely driving or exercising actual physical control of a vehicle.” (NRS§ 484C.105 (2016)). In the States that ONLY charge the impairment theory of Marijuana DUI there has been no need to take action in changing their DUI laws following the recent trend towards the decriminalization of marijuana.
Nevada is the exception to this general rule however. Nevada is one of the small number of states that have legislation on the book utilizing the “per se” DUI theory to DUI of marijuana. In Nevada a driver can be convicted of DUI simply by driving with a minimum concentration of the active agent in marijuana (“THC”) or the breakdown metabolite of THC in their system as detected through a blood test.
The portion of this law that should be noted by Nevada drivers is that a blood draw can detect criminal levels of THC and THC metabolite even if the driver is exhibiting no outward sign of impairment. The law in Nevada for per se marijuana DUI has been in existence for years, long before the decriminalization of personal possession/use of marijuana in the November 2016 election. Nevada’s DUI marijuana law makes it a crime to get behind the wheel with two (2) or more nanograms of THC per milliliter of blood or five (5) or more nanograms of THC metabolite per milliliter of blood. NRS§ 484C.110 (2016)). By any evaluation, this is a very low amount of THC.
This might not seem like a big deal until you consider that the amount of THC metabolite builds up in the system of the person ingesting it over time. An example I often give my clients is of the responsible marijuana user who ingests a small amount of personal use marijuana each night for the treatment of an ailment, often with the advice and permission of a physician. This person chooses to partake in marijuana only at home and only at night, right before bed. This person NEVER drives while under the influence. In fact this person only drives after a good night’s sleep, making sure never to get behind the wheel of his or her vehicle while impaired. Under Nevada law, that driver could get into an accident on the streets of Las Vegas the following morning at 10:00 am on their way to a doctor’s appointment. Under Nevada law, a blood draw is done in every accident involving injury. Further, under Nevada’s per se marijuana DUI laws, this person is on the hook for a DUI charge because their use of marijuana over time has caused them to exceed the statutory allowable amount of THC and/or THC metabolite in their blood sample. This is exponentially more serious in the situation where the accident involves substantial bodily harm or death to another person. In that circumstance, the driver who has a measly 2 nanograms per milliliter of THC (or 5 nanograms per milliliter of THC metabolite) in their system is charged with a non-probationable felony DUI — meaning a conviction for the charge would label our driver a felon who must go to prison.
This is a very scary proposition. Even more so when you realize that, pursuant to Nevada law, the accident doesn’t even have to be the fault of our driver! You read that correctly. Even if the driver in our example was driving sober at 10:00 am on the way to their doctors appointment and they are struck by another driver who is injured in the collision, under Nevada’s per se DUI marijuana law, our driver will be charged with a felony DUI. Future entries to this blog will detail some of the more effective defenses to the charge of DUI under Nevada DUI marijuana law.
The consequences of a DUI conviction are always serious and in many cases life altering. If you have been arrested for or charged with a DUI allegation in Las Vegas or throughout Southern Nevada, reach out to an experienced DUI lawyer as soon as possible. The sooner a DUI defense lawyer gets involved in your Las Vegas case the better the result is likely to be. Our Board Certified criminal law specialist Josh Tomsheck is a member of the National College for DUI Defense and makes it his mission to fight for the defense of those accused of the serious allegation of driving under the influence. Contact us today and allow us to get to work fighting for you right away.