“DUI of Prescription Painkillers” – Nevada Law & Penalties

In Nevada, it is illegal to drive under the influence of prescription painkillers, even if you have a valid prescription. The state prosecutes cases of “DUI of painkillers” as seriously as DUI of alcohol or illegal drugs.

Common Defenses:

Typical defenses to fight “DUI prescription painkiller” charges in Nevada include:

• Incorrect blood tests
• You did not take the pain pills until after you stopped driving
• Lack of probable cause for law enforcement to conduct a traffic stop

Penalties:

If no one sustained substantial bodily harm, a first- or second-time charge of driving under the influence of prescription painkillers is prosecuted as a misdemeanor. Standard DUI penalties are:

• A suspended jail term for a first DUI, and 10 days of jail for a second DUI
• Fines of up to $1,000;
• DUI School;
• Victim impact panel; and
• A driver’s license suspension of 185 days for a first DUI or a suspension of 1 year for a second DUI (though you should be able to drive right away with an ignition interlock device)

Otherwise, third-time DUIs or DUIs resulting in injury or death are felonies. The penalties are:

• Fines of $2,000 to $5,000; and
• 1 to 6 years in Nevada State Prison for a third DUI, and 2 to 20 years for a DUI with injury or death

In this article, our Las Vegas DUI attorneys discuss the Nevada crime of driving while impaired from prescription painkillers. Keep reading to learn more.

Definition of “DUI Prescription Painkillers” in Nevada

It is a criminal offense in Nevada to operate a motor vehicle (including motorcycles) under the influence of prescription painkillers.¹ Despite whether you have a physician’s prescription, taking the wheel while impaired by prescription painkillers is just as unlawful as driving while inebriated.

Example: Greta suffers from chronic back pain and has a prescription for Percocet to get through the day. One morning she mistakenly takes three pills instead of her prescribed two. On her drive to work, the extra dosage takes effect and she has trouble staying in her lane. If a policeman sees this, Greta could be arrested and taken to the Clark County Detention Center for driving impaired by prescription painkillers.

In the above example, it makes no difference that Greta did not take the extra Percocet on purpose. The mere act of driving while under the influence of pain pills amounts to DUI of prescription drugs.

Examples of other prescription painkillers which can result in impaired driving are:

• Hydrocodone and Acetaminophen, which includes Lortab and Vicodin (see our article on DUI of Vicodin)
• Codeine
• OxyContin (see our article on Nevada OxyContin laws)
• Celebrex
• Demerol
• Medical marijuana

DUI of medical marijuana

It is considered “DUI of prescription painkillers” in Nevada to drive under the influence of medical marijuana. If you have at least two DUIs in the last seven years, it is also DUI to drive with a blood content of either:

• 2 or more nanograms per milliliter of marijuana; or
• 5 or more nanograms per milliliter of marijuana metabolite²

Blood tests for “DUI of prescription painkillers” cases

Whenever a Nevada officer pulls you over on suspicion of DUI, the officer will ask you to submit to a preliminary breath test as well as Nevada field sobriety tests. (Note that you are not required to take either test.) If you perform the tests and pass them, the officer may then surmise that you are impaired by not alcohol but rather controlled substances.

If the officer at this point arrests you for DUI of drugs, you are legally required to take a DUI blood test (after the officer secures a warrant). If you do not agree to take the blood test, the officer may utilize “reasonable force” and constrain you to elicit the blood sample. Note that refusing to submit to a DUI blood test can be used as evidence against you if the case goes to trial.³

Driver’s license suspensions for “DUI of prescription painkillers” cases

If you get arrested for drunk driving after failing a DUI breath test, the officer will confiscate your driver’s license immediately. However, in situations involving alleged drugged driving where the officer instead administers a blood test, the Nevada DMV will not suspend your driver’s license until your blood work comes back positive for drugs. Sometimes this does not happen until weeks or months after the arrest.⁴ (Scroll down to the “Penalties” section for information on the length of driver’s license suspensions.)

Defenses to “DUI Prescription Painkillers”

Usual defenses to “DUI of prescription painkillers” are identical to drunk driving defenses:

• Broken blood testing equipment or contamination of blood samples. Blood tests should not qualify as evidence if the testing equipment was defective, or if the lab technician mishandled the samples. Merely demonstrating that the drug tester’s certification was expired may be enough to get the DUI charge dismissed.
• You did not take the painkillers until after you stopped driving. Maybe the driver did not swallow any pills until after the officers pulled you over. If the prosecutors cannot show that you were under the influence of a prescription painkiller prior to the traffic stop, the case should be dropped.
• No probable cause for traffic stop. Police are not permitted to pull you over on suspicion of DUI absent “probable cause” (unless you are traveling through a DUI checkpoint). Suppose your defense attorney can demonstrate that the officer did not observe you violating any traffic laws or driving dangerously before the police stop. In that case, the judge should throw out the DUI charge.

Note that it is not a valid DUI defense to Nevada prescription painkiller charges that you experienced an unusual reaction to the drug. However, the D.A. might be more amenable to reducing or dropping the charges if you can show you were not given any warning that taking the painkiller could impede your driving.

Penalties for DUI Prescription Painkillers

The punishments for “DUI prescription painkillers” in Nevada are no different than those for drunk driving. The penalties grow harsher with each successive DUI within the past seven (7) years. The law also doles out a tougher sentence if the incident caused a victim to die or sustain substantial bodily harm in Nevada.⁵

First-time DUI within 7 years:

• 2 days to 6 months in county jail (the court usually imposes a suspended jail sentence of 6 months);
• Nevada DUI School (an alcohol education program that you pay for and can be done online);
• Fines of $400 to $1,000 plus court costs (In Las Vegas Justice Court, the fine is $685. In Las Vegas Municipal Court, it is $810.);
• Victim impact panel (a meeting often sponsored by MADD that you pay for and usually must be done in person); and
• A driver’s license suspension of 185 days (though it may be possible to get a restricted license with an ignition interlock device),

Note that the sentence can be as much as doubled if the DUI occurred in a work zone. Read more about DUI first penalties.

Second-time DUI within 7 years:

• 10 days to 6 months in county jail;
• Fines of $750 to $1,000;
• Victim impact panel;
• An alcohol/drug dependency evaluation (costs $100);
• Ignition interlock device;
• A driver’s license suspension of 1 year (though you may be able to continue driving with an IID); and
• Possibly Misdemeanor DUI Court, an intensive alcohol or drug abuse treatment program that may be done instead of jail

Note that the sentence can be as much as doubled if the DUI occurred in a work zone. Read more about DUI second penalties.

Third-time DUI within 7 years:

• 1 to 6 years in Nevada State Prison;
• Fines of $2,000 to $5,000;
• Victim impact panel;
• A driver’s license suspension of 3 years (though you may be able to continue driving with an IID);
• Ignition interlock device;
• An alcohol/drug dependency evaluation (costs $100); and
• Possibly Felony DUI Court, an intensive alcohol and drug abuse treatment program that may be done in lieu of prison

Read more about DUI third penalties.

DUI causing injury or death:

• 2 to 20 years in Nevada State Prison; and
• Fines of $2,000 to $5,000; and
• Ignition interlock device

Note that if you have at least three (3) previous DUI convictions, then a DUI incident resulting in death will be charged as vehicular homicide.⁶ The incarceration time for the Nevada crime of vehicular homicide is either:

• 25 years in prison with the possibility of parole after 10 years; or
• Life in prison with the possibility of parole after 10 years

Plea Bargains:

Depending on the circumstances, your defense attorney might be able to convince the D.A. to lessen a charge of “DUI prescription painkillers” down to reckless driving. There are three benefits to having a conviction for reckless driving rather than for DUI prescription painkillers:

1. It is less socially stigmatizing to have a conviction for reckless driving than for DUI, and employers do not look down on reckless driving as much as DUI.
2. Nevada courts can seal misdemeanor reckless driving convictions from your criminal record after only one (1) year from when the case is closed. By contrast, Nevada courts may not seal DUI convictions until seven (7) years after the case gets closed. Read more about sealing criminal records.
3. The punishment for DUI gets harsher with each successive conviction. So if you can get a DUI charge lessened to reckless driving, then your next DUI arrest (if there is one) will be charged as only a first-time DUI and not a second.

Nevada law precludes district attorneys from dropping DUI charges unless they have substantial problems with their evidence. Depending on the circumstance, getting DUI charges dismissed may still be possible.⁷

Additional Reading

For more in-depth information, refer to these scholarly articles:

• Drunk versus drugged: How different are the drivers? – Drug and Alcohol Dependence.
• Repeat DUI Offenders Who Have Had a Drug Diagnosis: Are They More Prone to Traffic Crashes and Violations? – Traffic Injury Prevention.
• The use of psychoactive prescription drugs among DUI suspects – Drug and Alcohol Dependence.
• Driving under the Influence of Prescription Drugs Used Nonmedically: Associations in a Young Adult Sample – Substance Use and Addiction Journal.
• Prescription drugs, drugged driving and per se laws – Injury Prevention.

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