488.420 - Penalty if death or substantial bodily harm results; exception; segregation of offender; plea bargaining prohibited; affirmative defense; aggravating factor. [Effective until the date of the
488.420 Penalty if death or substantial bodily harm results; exception; segregation of offender; plea bargaining prohibited; affirmative defense; aggravating factor. [Effective on the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State.]
1. Unless a greater penalty is provided pursuant to NRS 488.425, a person who:
(a) Is under the influence of intoxicating liquor;
(b) Has a concentration of alcohol of 0.10 or more in his or her blood or breath;
(c) Is found by measurement within 2 hours after operating or being in actual physical control of a vessel under power or sail to have a concentration of alcohol of 0.10 or more in his or her blood or breath;
(d) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance;
(e) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely operating or being in actual physical control of a vessel under power or sail; or
(f) Has a prohibited substance in his or her blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 488.410,
Ê and does any act or neglects any duty imposed by law while operating or being in actual physical control of any vessel under power or sail, if the act or neglect of duty proximately causes the death of, or substantial bodily harm to, another person, is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 20 years and shall be further punished by a fine of not less than $2,000 nor more than $5,000. A person so imprisoned must, insofar as practicable, be segregated from offenders whose crimes were violent and, insofar as practicable, be assigned to an institution or facility of minimum security.
2. A prosecuting attorney shall not dismiss a charge of violating the provisions of subsection 1 in exchange for a plea of guilty, guilty but mentally ill or nolo contendere to a lesser charge or for any other reason unless the prosecuting attorney knows or it is obvious that the charge is not supported by probable cause or cannot be proved at the time of trial. A sentence imposed pursuant to subsection 1 must not be suspended, and probation must not be granted.
3. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under paragraph (c) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel under power or sail, and before his or her blood was tested, to cause the defendant to have a concentration of alcohol of 0.10 or more in his or her blood or breath. A defendant who intends to offer this defense at a trial or preliminary hearing must, not less than 14 days before the trial or hearing or at such other time as the court may direct, file and serve on the prosecuting attorney a written notice of that intent.
4. If a person less than 15 years of age was in the vessel at the time of the defendant’s violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant.
(Added to NRS by 1997, 327; A 1999, 2463, 3431; 2001, 172; 2003, 1495, 2564; 2005, 155; 2007, 1460, effective on the date of the repeal of the federal law requiring each state to make it unlawful for a person to operate a motor vehicle with a blood alcohol concentration of 0.08 percent or greater as a condition to receiving federal funding for the construction of highways in this State)