As used in this section, “offense” means: (a) A violation of NRS 488.410 or 488.420; (b) A homicide resulting from operating or being in actual physical control of a vessel while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by this section or NRS 488.410 or 488.420; or (c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b). (Added to NRS by 2005, 153) NRS 488.425 Homicide by vessel: Penalty; 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. A person commits homicide by vessel if he: (a) Operates or is in actual physical control of a vessel under power or sail on the waters of this State and: (1) Is under the influence of intoxicating liquor; (2) Has a concentration of alcohol of 0.10 or more in his blood or breath; (3) 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 blood or breath; (4) Is under the influence of a controlled substance or is under the combined influence of intoxicating liquor and a controlled substance; (5) 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 him incapable of safely operating or exercising actual physical control of a vessel under power or sail; or (6) Has a prohibited substance in his blood or urine in an amount that is equal to or greater than the amount set forth in subsection 3 of NRS 488.420; (b) Proximately causes the death of a person other than himself while operating or in actual physical control of a vessel under power or sail; and (c) Has previously been convicted of at least three offenses. 2. A person who commits homicide by vessel is guilty of a category A felony and shall be punished by imprisonment in the state prison: (a) For life with the possibility of parole, with eligibility for parole beginning when a minimum of 10 years has been served; or (b) For a definite term of 25 years, with eligibility for parole beginning when a minimum of 10 years has been served. 3. A person imprisoned pursuant to subsection 2 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. 4. A prosecuting attorney shall not dismiss a charge of homicide by vessel in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other reason unless he 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 2 may not be suspended nor may probation be granted. 5. If consumption is proven by a preponderance of the evidence, it is an affirmative defense under subparagraph (3) of paragraph (a) of subsection 1 that the defendant consumed a sufficient quantity of alcohol after operating or being in actual physical control of the vessel, and before his blood or breath was tested, to cause him to have a concentration of alcohol of 0.10 or more in his 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. 6. If the defendant was transporting a person who is less than 15 years of age in the vessel at the time of the violation, the court shall consider that fact as an aggravating factor in determining the sentence of the defendant. 7. As used in this section, “offense” means: (a) A violation of NRS 488.410 or 488.420; (b) A homicide resulting from operating or being in actual physical control of a vessel while under the influence of intoxicating liquor or a controlled substance or resulting from any other conduct prohibited by this section or NRS 488.410 or 488.420; or (c) A violation of a law of any other jurisdiction that prohibits the same or similar conduct as set forth in paragraph (a) or (b). (Added to NRS by 2005, 153, 174, 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) NRS 488.427 Penalty for second or subsequent felony; exception; segregation of offender; plea bargaining prohibited; aggravating factor. 1. Unless a greater penalty is provided pursuant to NRS 488.425, a person who violates the provisions of NRS 488.410 and who has previously been convicted of a violation of NRS 488.420 or 488.425 or a violation of the law of any other jurisdiction that prohibits the same or similar conduct as set forth in NRS 488.420 or 488.425 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 15 years, and shall be further punished by a fine of not less than $2,000 nor more than $5,000. An offender 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. The facts concerning a prior violation of NRS 488.420 or 488.425 must be alleged in the complaint, indictment or information, must not be read to the jury or proved at trial but must be proved at the time of sentencing. 3. A prosecuting attorney shall not dismiss a charge of violating the provisions of NRS 488.410 against a person previously convicted of violating NRS 488.420 or 488.425 in exchange for a plea of guilty or nolo contendere to a lesser charge or for any other reason unless he 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. 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 2005, 615; A 2005, 22nd Special Session, 105) NRS 488.430 Evaluation of certain offenders before sentencing. 1. Before sentencing a defendant pursuant to NRS 488.420, 488.425 or 488.427, the court shall require that the defendant be evaluated to determine whether he is an abuser of alcohol or drugs and whether he can be treated successfully for his condition. 2. The evaluation must be conducted by: (a) An alcohol and drug abuse counselor who is licensed or certified pursuant to chapter 641C of NRS to make such an evaluation; (b) A physician who is certified to make such an evaluation by the Board of Medical Examiners; or (c) A psychologist who is certified to make such an evaluation by the Board of Psychological Examiners. 3. The alcohol and drug abuse counselor, physician or psychologist who conducts the evaluation shall immediately forward the results of the evaluation to the Director of the Department of Corrections. (Added to NRS by 1997, 328; A 1999, 1886, 3074; 2001 Special Session, 24

Vegas Law