In Nevada, a person is guilty of DUI if he or she is found to be (1) driving with a certain level of a prohibited substance or metabolite in blood of urine (per se law), OR (2) driving while under the influence of a controlled substance. Nev. Rev. Stat. § 484.397 (West 2010).

(1) Driving with a certain level of a prohibited substance or metabolite in your blood or urine. Id. § 484.397(3).

This is a per se offense – impairment is not an element of the offense. The mere presence of cannabis metabolites above the threshold constitutes a crime.

Affirmative Defense

The fact that the driver is or has been entitled by Nevada to use marijuana is not a defense for this type of DUI. Id. § 484C.110(2)(c).

(2) Driving while under the influence of a controlled substance. Id. § 484.397(2).

The focus of this subsection is the effect of the substance on the driver, rather than the amount consumed. To successfully prosecute under this subsection state must prove driver was under the influence of a controlled substance to a degree which renders the driver incapable of safely driving or exercising actual physical control of a vehicle. In Cotter v. State, the court held that whether a driver is under the influence will "always be a question of fact, to be considered in the light of such variable circumstances as the individual's resistance to the substance, the amount ingested and the type and time of ingestion. Cotter v. State, 738 P.2d 506(1987).

Affirmative Defense

The fact that the driver is or has been entitled by Nevada to use marijuana is not a defense for this type of DUI. Nev. Rev. Stat. Ann. § 484C.110(2)(c) (West 2010).

Implied Consent

• Any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath or to determine whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present. Id. § 484C.160(1).
• If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance. Id. § 484C.160(7)(a).
• If a person refuses to submit to a required chemical test evidence of that refusal is admissible in any criminal or administrative action arising out of acts alleged to have been committed. Id. §484C.240(1).

Penalties

• First offense misdemeanor - offender must complete a course on the abuse of alcohol and controlled substances; imprisonment of not less than 2 days, nor more than 6 months; OR perform not less than 48 hours of community service, or not more than 96 hours; fine not less than $400, nor more than $1000. Id. § 484C.400(1)(a)(1); Id. § 484C.400(1)(a)(2); Id. § 484C.400(1)(a)(3).
• Second offense (offense within 7 years) misdemeanor -imprisonment of not less than 10 days, nor more than 6 months; fine of not less than $750, nor more than $1000.(or order person to perform an equivalent number of hours of community service); offender required to attend a program of treatment for the abuse of drugs. Id. § 484C.400(1)(b)(1)(I); Id. § 484C.400(1)(b)(2); Id. § 484C.400(1)(b)(3).
• Third and subsequent offense (within 7 years) class B Felony - imprisonment for minimum of 1 year; maximum impsisonment of not more than 6 years; fine of not less than $2,000, nor more than $5,000. Id. §484C.400(1)(c); Id. §484C.400(1)(c).

Penalty Enhancers & Other Penalties

• The Department can also seize or revoke your driver's license, even without a DUI prosecution. A different standard is used to determine license revocation: if the driver had a detectable amount of a prohibited substance in his blood or urine (Zero Tolerance Per Se Law). Id. § 484.385.
• In addition to the criminal prosecution, there is also a civil penalty of $35 for a DUI in Nevada. Id. § 484.3791. There can also be a $60 fee for chemical analysis of blood and urine tests. Id. § 484.3798.
• DUI while driving a commercial vehicle. Id. § 484.379778;
• DUI while in a construction/work zone. Id. § 484.3667;
• DUI while there is a child under 15 in the car. Id. § 484.3792(8); an
• DUI causes substantial bodily harm, death, or vehicular homicide. Id. §§ 484.3795 - 484.37955.

Sobriety Checkpoints

In Nevada, sobriety checkpoints are authorized by statute.

The police officers in this State may establish roadblocks to warn and protect the traveling public, but administrative roadblocks established by police officers must be established at a point on the highway clearly visible to approaching traffic at a distance of not less than 100 yards in either direction, and display that a sobriety checkpoint is ahead at least ¼ mile before actual checkpoint. Id. § 484B.570.

Case Law

Cotter v. State, 738 P.2d 506 (1987) -- Holding that aside from per se DUI cases, the state must show more than consumption of a controlled substance and subsequent driving. Furthermore, the State must show impairment as "to a degree which renders him incapable of driving safely or exercising actual physical control of the vehicle."

Sheriff, Clark County v. Burcham, 198 P.3d 326 (2008) -- Holding that aside from per se laws, whether a driver is under the influence will "always be a question of fact, to be considered in the light of such variable circumstances as the individual's resistance to the substance, the amount ingested and the type and time of ingestion.