“DUI of Marijuana” – The Laws & Penalties in Nevada

Driving under the influence (DUI) of marijuana is a Nevada crime and is treated much the same as DUI of alcohol. It does not matter that recreational marijuana use is now lawful in Nevada for adults 21 years of age or older.

Penalties

A first-offense DUI of marijuana is a misdemeanor in Nevada. A conviction carries:

• Jail:  2 days to 6 months or 24 to 96 hours of community service;
• Fines:  400 to $1,000 plus court costs;
• Classes:  Nevada DUI School and a Victim Impact Panel at your own expense;
• Driver’s License Revocation:  a 185-day driver’s license suspension (you can usually drive right away with an ignition interlock device); and
• “Stay out of Trouble” Order:  No new arrests while the case is open.

In addition, a DUI conviction must remain on your record for at least seven (7) years before it may be sealed.

Elements

For an ordinary first or second marijuana DUI in Nevada, there is no specific THC concentration that automatically establishes guilt. Prosecutors only need to prove that marijuana impaired you to a degree that rendered you incapable of safely driving or exercising actual physical control of a vehicle.

Different rules apply when the alleged offense either:

• is your third DUI within seven years; or
• is punishable as a felony because you have a prior felony DUI conviction; or
• was a DUI causing death or substantial bodily harm.

In those cases, the prosecution may establish the marijuana-related element by proving that your blood contained at least:

• 2 nanograms per milliliter of marijuana, meaning delta-9-tetrahydrocannabinol; or
• 5 nanograms per milliliter of marijuana metabolite, meaning 11-hydroxy-tetrahydrocannabinol.

The prosecution does not have to prove actual impairment under these per se thresholds.

Defenses

DUI of marijuana charges are often difficult for D.A.s to prove, and a criminal defense attorney may be able to get the charges reduced to reckless driving or dismissed completely through such defenses as:

• Not Under the Influence:  You were not impaired by marijuana.
• Lack of Probable Cause:  Police lacked sufficient evidence to arrest you.
• Faulty Testing Equipment:  For example, the blood sample may have been improperly collected, stored, documented, contaminated, or inaccurately analyzed.

We tell clients that Nevada law treats cannabis much like alcohol: Adults may legally consume it under certain circumstances, but they may not drive or exercise actual physical control of a vehicle when its effects render them incapable of doing so safely. Lawful possession or use—and even having a valid medical marijuana card—does not by itself provide a defense to a marijuana DUI charge.

In this article, our Las Vegas DUI defense lawyers will address the following key issues regarding driving under the influence of marijuana in Nevada.

• 1. Elements
• 2. Arrests
• 3. Blood Tests
• 4. Driver’s License Revocations
• 5. Defenses
• 6. Penalties
• 7. Record Seals
• 8. Immigration Consequences
• Frequently Asked Questions

1. Elements

The legal definition of “DUI with marijuana” in Nevada makes it a crime to drive while you have ingested marijuana

“to a degree which renders the driver incapable of safely driving or exercising actual physical control of a vehicle.”

However, if you had two or more DUIs in the past seven years, or if the current DUI charge is a felony, then you can be convicted for either:

1. being impaired by marijuana, no matter the amount in your blood; or
2. having a blood content of either: 2 nanograms per ml. of marijuana (delta-9-tetrahydrocannabinol), or 5 nanograms per ml. of marijuana metabolite (11-OH-tetrahydrocannabinol).

In short, a first- or second-time DUI in Nevada is based solely on you being impaired from marijuana. It makes no difference how much marijuana is in your blood. However, a third- or successive DUI in a seven-year period – or any felony DUI – can be based on either:

• you being high, or
• you having an unlawful amount of marijuana in your blood even if you are not high (DUI “per se”).¹

Even though Nevada marijuana laws allow adults 21 or older to possess 2.5 ounces of usable cannabis in private, note that smoking marijuana in public is still illegal. Smoking pot in public carries a $600 fine.²

We have found that marijuana DUI cases require a more nuanced analysis than simply comparing a blood-test result with a numerical limit. THC levels do not always correspond neatly with a person’s observable driving ability, particularly because tolerance, consumption method, and the time between driving and the blood draw can affect the evidence.

2. Arrests

Nevada police who observe erratic driving will initiate a traffic stop. After you pull over, the officer will

• ask you questions,
• observe your behavior and
• probably ask you to take a preliminary breath test (PBT).³

If you pass the PBT, the officer may suspect that you have ingested drugs rather than alcohol if:

• you failed the field sobriety tests (FSTs), such as walking in a straight line and standing on one leg;
• your pupils are dilated;
• you smell of pot;
• you are exhibiting short-term memory impairment;
• you have eyelid or body tremors; and/or
• your behavior is especially relaxed and uninhibited

An officer with specialized drug recognition evaluation training (DRE) may also join the investigation. The DRE may try to determine

• your blood pressure,
• your pulse and
• if you have dry mouth.

If the officer believes there is probable cause that you committed DUI with marijuana, the officer will arrest you and take you to the station for a blood test.⁴

Note that if the officer finds pot on your person or in your car, you may also face charges for marijuana possession.⁵

We make the arresting officer’s interpretation of events a central issue in a marijuana DUI investigation. We argue that our clients’ behavior may have been due to nervousness, fatigue, allergies, prescribed medications, medical conditions, or the stress of a traffic stop. All of these innocent excuses may produce signs that resemble cannabis impairment.

3. Blood Tests

If you are suspected of driving under the influence of drugs in Nevada, you may not choose to take a breath test and must submit to a blood test. You are assumed to have given “implied consent” to take a blood test if you are pulled over in Nevada on suspicion of driving under the influence of marijuana.⁶

If you refuse to take a blood test, the police must get a warrant to use “reasonable force” to administer the blood test.⁷ The officer can order

• up to three (3) samples taken
• within a five (5) hour time span following the initial arrest.

The chemical tests in Nevada Marijuana DUI cases measure the amount of THC (delta-9-tetrahydrocannabinol) in your blood. The amount of marijuana in your system depends on

• your personal tolerance to pot,
• how concentrated the THC was, and
• how much you may have ingested, consumed, or smoked.⁸

The reliability of a marijuana blood test depends on far more than the number reported by the laboratory. We examine whether officers obtained valid consent or a lawful warrant, whether qualified personnel collected the samples properly, whether the blood was correctly labeled and preserved, and whether an unbroken chain of custody was maintained.

We also review the laboratory’s testing methods, quality-control records, and the time between the alleged driving and each blood draw. Delays, contamination, documentation gaps, or testing errors may affect the weight or admissibility of the results.

4. Driver’s License Revocations

Whenever you take a blood test in Nevada, you get to keep your driver’s license until the results come back from the lab and show positive for drugs. At this point the Nevada DMV notifies you by mail that your license is being revoked. You then have only seven days to request a DMV hearing to contest the revocation.⁹

The length of the license suspension depends on whether you have previous DUIs:

• A first-time DUI carries a 185-day revocation.
• A second-time DUI carries a one (1) year revocation.
• A third-time DUI carries a three (3) year revocation.¹⁰

You may be able to continue driving immediately with an ignition interlock device.¹¹

Note that if you refused the blood test, the police will confiscate your license immediately. At that point you have only seven days to request a DMV hearing.

Clients are often surprised to learn that the DMV license proceeding is separate from the criminal DUI case and may operate on a much shorter timeline. We review the revocation notice, laboratory results, prior-driving record, and circumstances surrounding the blood test to identify possible grounds for challenging the administrative action.

Because missing the deadline to request a DMV hearing can limit a driver’s options, it is vital to act promptly after receiving notice and to evaluate whether an ignition-interlock privilege may allow continued driving during the revocation period.

5. Defenses

A surprisingly large number of Las Vegas DUI marijuana cases get thrown out or reduced to lesser charges like reckless driving or simple possession. The following are just some defenses we may explore in defending a dope driving case in Nevada.

• You were not under the influence of marijuana: The symptoms of smoking marijuana are very general and can be attributed to various innocent causes such as not having slept, not brushing teeth, being around cigarette smoke from partying, and just being nervous from the officer’s questioning. An attorney may be able to demonstrate that the officer merely mistook your appearance and behavior as indicative of DUI with marijuana when the actual cause had nothing to do with drugs.¹²
• Lack of probable cause: Unless it is part of a coordinated DUI checkpoint, police cannot pull you over without adequate reasonable suspicion that you have broken a law or traffic violation. People who drive while high on marijuana often tend to drive even more carefully than intoxicated people do; therefore, you may have a good argument that the officer ultimately lacked sufficient probable cause to arrest you.¹³
• Faulty testing equipment or administration: A defense attorney should conduct a thorough investigation to determine whether the police or lab technicians could have made any mistakes or contaminated the blood samples. If the attorney can raise a reasonable doubt about the accuracy of the chemical test results, then your marijuana DUI case should be dismissed.

Note that having a valid medical marijuana card is not a defense to DUI with marijuana.¹⁴

In our experience, marijuana DUI cases often turn on details that are not apparent from the police report alone. We compare the officer’s conclusions with body-camera footage, driving observations, field sobriety testing, the timing of cannabis use, blood-draw procedures, and laboratory documentation. Red eyes, dry mouth, fatigue, nervousness, and an odor of marijuana may support an investigation, but they do not necessarily prove that someone was impaired while driving.

By examining each link in the state’s case—from the legal basis for the traffic stop through the handling and testing of the blood sample—we can identify weaknesses that may support suppression of evidence, dismissal, or a reduction of the charge.

6. Penalties

Jail is unlikely for a first-time DUI of marijuana conviction in Nevada. Punishments get harsher

• with each successive DUI conviction or
• if the incident resulted in injury or death.

The standard sentence for a Nevada DUI with marijuana conviction is virtually identical to the penalties for drunk driving:

First DUI with Marijuana (in 7 years)

A first-time marijuana DUI incident within the last seven (7) years is prosecuted as a Nevada misdemeanor as long as no death or serious injury resulted. The punishment includes:

• two (2) days to six (6) months in jail or twenty-four to ninety-six (24 – 96) hours of community service (courts typically order a six (6) month suspended jail sentence);
• Nevada DUI school (at your expense);
• fines of $400 to $1,000 plus court costs;
• Nevada Victim Impact Panel;
• 185-day suspension of your driver’s license; and
• a stay-out-of-trouble order while the case is open (meaning you may not get any further arrests)

Note that fines and jail can be doubled if the alleged DUI occurred in a work zone.

Second DUI with Marijuana (in 7 years)

A second-time marijuana DUI incident within the last seven (7) years is prosecuted as a Nevada misdemeanor as long as no death or serious injury resulted. The punishment includes:

• twenty (20) days to six (6) months in jail or residential confinement;
• fines of $750 to $1,000 or commensurate hours of community service;
• Nevada Victim Impact Panel;
• an alcohol/drug dependency evaluation (which costs $100);
• one (1) year driver’s license suspension or revocation;
• a long alcohol or drug abuse treatment program (called DUI Court, not Nevada DUI School); and
• a stay-out-of-trouble order while the case is open (meaning you may not get any further arrests)

Note that fines and jail can be doubled if the alleged DUI occurred in a work zone.

Third DUI with Marijuana (in 7 years)

A third-time marijuana DUI incident within the last seven (7) years is prosecuted as a category B felony in Nevada as long as no death or serious injury resulted. The punishment includes:

• one to six (1 – 6) years in Nevada State Prison;
• fines of $2,000 to $5,000;
• Nevada Victim Impact Panel;
• three (3) year driver’s license suspension or revocation; and
• an alcohol & drug evaluation¹⁵

DUI with Marijuana Causing Injury or Death

A marijuana DUI incident that causes death or serious injury is a category B felony in Nevada. The sentence includes:

• two to twenty (2 – 20) years in prison if there is only injury;
• two to twenty-five (2 – 25) years in prison if there is death and you have no prior DUIs;
• five to twenty-five (5 – 25) years in prison if there is death and you have one or two prior DUIs; and
• fines of $2,000 to $5,000¹⁶

If the incident was fatal and you already have three (3) or more DUI convictions, the prosecutor will instead charge you with vehicular homicide. It is a category A felony carrying a Nevada state prison sentence of:

• twenty-five (25) years or
• life

with the possibility of parole after ten (10) years.¹⁷

7. Record Seals

In Nevada, misdemeanor DUI convictions can usually be sealed seven (7) years after the case ends. Felony DUI convictions may never be sealed.¹⁸

DUI charges that get reduced to reckless driving or careless driving may be sealed one (1) year after the case ends. Finally, DUI cases that get dismissed (where there is no conviction) may be sealed right away.¹⁹

Clients are often surprised to learn that finishing probation or paying all required fines does not automatically clear a DUI from their criminal record. Record-sealing eligibility depends on the final charge, how the case was resolved, when the case legally closed, and whether any later convictions affect the waiting period.

We review the complete court record before filing because a dismissal, a reduction to reckless or careless driving, and a DUI conviction can each produce a different timeline. Even when a person appears eligible, the record remains publicly accessible until the sealing process is completed.

8. Immigration Consequences

A misdemeanor DUI in Nevada is usually not a deportable offense. Felony DUIs may be deportable, but it is a gray area. Plus, any alien who is convicted of possessing more than thirty (30) grams of marijuana faces removal.²⁰

Non-U.S. citizens who get charged with any criminal offense are advised to retain legal counsel as quickly as possible. If the attorney can get the charges dismissed or reduced to a non-deportable offense, the alien may be able to avoid immigration court.

Immigration consequences can be easy to overlook when you are focused on avoiding jail, fines, or a driver’s license suspension. For a noncitizen, however, the exact wording of a charge, plea agreement, and judgment may matter as much as the sentence itself.

We therefore consider immigration exposure before resolving the criminal case and, when appropriate, coordinate with immigration counsel to evaluate potential plea options. Because immigration law is highly technical and depends on the person’s status and criminal history, no one should enter a plea based solely on the assumption that a misdemeanor or reduced charge is immigration-safe.

Learn more about DUI and deportation in Nevada as well as the criminal defense of immigrants in Nevada.

Frequently Asked Questions

Does Nevada’s marijuana DUI law apply to edibles and vaping?

Yes. A marijuana DUI charge does not depend on how the cannabis was consumed. Smoking, vaping, eating a cannabis-infused edible, or using another cannabis product can lead to a DUI charge if the prosecution alleges that the cannabis impaired the person’s ability to drive or maintain actual physical control of a vehicle safely.

In our experience, people are often surprised to learn that the method of consumption does not control whether they can be charged. Edibles can be especially complicated because their effects may be delayed, while vaping can make it difficult to estimate precisely how much THC was consumed. We examine the timing, amount, type of product, reported symptoms, and other circumstances rather than assuming that cannabis use necessarily proves impairment.

What must prosecutors prove in a Nevada marijuana DUI case?

The prosecution must prove every element of the offense beyond a reasonable doubt. Generally, this means proving that the defendant drove or was in actual physical control of a vehicle on a highway or other premises open to the public while under the influence of marijuana. Evidence may include the person’s driving, statements, physical behavior, field sobriety test performance, observations by officers, and blood-test results.

In the limited circumstances discussed above—such as certain felony or repeat-DUI cases—the prosecution may alternatively rely on Nevada’s applicable THC or marijuana-metabolite blood thresholds. NRS 484C.110 covers highways as well as premises to which the public has access.

In our experience handling DUI investigations, marijuana cases often depend heavily on how officers interpreted a driver’s behavior. Red eyes, nervousness, fatigue, unusual speech, or difficulty following instructions can have causes unrelated to cannabis impairment. We scrutinize the traffic stop, body-camera footage, field sobriety testing, officer reports, blood-testing procedures, and laboratory records to determine whether the evidence actually supports the prosecution’s allegations.

Can someone be charged with marijuana DUI in a parking lot?

Potentially, yes. NRS 484C.110 is not limited to public streets. It also applies on premises to which the public has access, which can include publicly accessible parking lots. In addition, the law covers both driving and being in “actual physical control” of a vehicle. Whether a person had actual physical control depends on the particular circumstances.

In our experience, disputes over “actual physical control” frequently arise when a person was sitting or sleeping in a parked vehicle rather than driving it. Details such as where the person was seated, where the keys were located, whether the engine was running, where the vehicle was parked, and whether the person appeared likely to drive can all matter. These cases require a close review of the complete circumstances rather than an assumption that merely being inside a vehicle establishes DUI.

Is not knowing how marijuana would affect you a defense?

Generally, no. Voluntarily consuming marijuana and then misjudging its effects does not by itself excuse impaired driving. The prosecution must still prove the required elements, including impairment in an ordinary first- or second-offense case, but it generally does not have to prove that the driver intended to become impaired.

In our experience, drivers sometimes explain that they felt normal when they began driving or did not anticipate the delayed effects of an edible. Although that misunderstanding is generally not a complete defense by itself, the timing and progression of the alleged impairment may still be important. We compare the consumption timeline with the driving, officer observations, blood draw, and laboratory findings to test whether the state can prove impairment at the legally relevant time.

Go to our main pages on Nevada DUI Laws and driving under the influence of drugs (DUID).

People suffering from marijuana addiction can join the free, twelve-step program Marijuana Anonymous.

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