article published in Review-Journal and several quotes are from the actual decision. The pithy comments, of course, are mine.
Here is a synopsis of the opinion:
Defendant was stopped for speeding and admitted to having smoked marijuana five hours before the stop. Law enforcement officers informed Defendant that they would perform a blood draw, during which
Defendant struggled by striking two officers. The blood draw showed that Defendant had THC in his blood. Defendant was charged with unlawful use or being under the influence of a controlled substance, among other offenses. Defendant was convicted of all counts. On appeal, Defendant argued, among other things, that the warrant-less blood draw violated the Fourth Amendment.
The Supreme Court held (1) the natural dissipation of marijuana in the bloodstream does not constitute a per se exigent circumstance justifying a warrantless search; (2) Nev. Rev. Stat. 484C.160(7), which permits officers to use force to obtain a blood sample from a person, is unconstitutional, and the blood draw in this case was unlawful because Defendant did not submit to it; but (3) (this is the important part of the ruling) because the blood draw was taken in good faith, the exclusionary rule did not apply, and the Fourth Amendment violation therefore did not warrant reversal of the judgment of conviction.
The state’s implied consent law, which permits law enforcement officials to force a motorist to submit to a blood test to determine impairment without a warrant, is unconstitutional. Based on a 2013 U.S. Supreme Court decision called Missouri v. McNeely, the Nevada court said in a unanimous decision that the state’s law violates the Fourth Amendment against unreasonable search and seizure.
The case came out of Churchill County, where Michael Byars was pulled over for speeding on U.S. Highway 50. Byars refused to submit to a blood test, which later found that he had THC, the psychoactive ingredient in marijuana, in his blood.
However, the facts in this case are a bit problematic. Mr. Byars did not look like a shining paragon of virtue and staunch defender of the Constitution at first blush. A Nevada State Trooper read Byars Nevada’s implied consent law and informed Byars that he would perform a blood test. Byars refused to submit to the test, but cooperated with
the Nevada State Trooper until they reached the hospital and the blood draw was actually performed. During the blood draw, Byars struggled, striking the Trooper in the head with his elbow and a sheriff’s deputy in the abdomen and side with his legs. (This is not recommended behavior and certainly does not endear one to a jury.) The blood draw showed that Byars had THC (tetrahydrocannabinol, the psychoactive constituent of marijuana) in his blood.
Despite the ruling on the constitutionality of the search, Byars’ eventual conviction of driving under the influence was upheld by the court, which found the blood draw was taken in good faith. (Of course, the operation was a success, but the patient died! He gave his life so future drivers’ rights would be protected!)
Las Vegas attorney John Watkins, a legal expert on driving under the influence law, hailed the decision. “It is a monumental case because it rules that the state, which does not really have an implied consent statute, is unconstitutional,” he said. “Therefore, now police are going to have to go get a warrant or get true knowing and voluntary consent.” The decision will cover both blood and breath tests, Watkins said.
“It means a person can say, ‘No, I’m not taking your test,’” he said.
Even so, Watkins said the ruling should not end up clogging the judicial system. Police officers can get a warrant telephonically within about 15 minutes, he said. A spokesman for the Metropolitan Police Department said the court’s ruling won’t affect its day-to-day operations. Officers at the department started obtaining warrants for blood after implied consent was struck down by the U.S. Supreme Court last year, according to Deputy Chief Pat Neville.
“We had been anticipating that ruling and made the change shortly after,” Neville said. The additional warrants haven’t been a huge burden on the agency, said Neville, who oversees the traffic bureau.
Most people suspected of impaired driving simply consent to a blood draw, he said (even though this non-consented-to search is in violation of the 4th Amendment. If you won’t let them search your house without a warrant, why would you let them search your body?) “I could count on one hand the number of times someone wouldn’t consent and we had to force it under implied consent,” said Neville.
Lovelock attorney Steve Evenson, who represented the defendant in the case, said he too believes that the ruling means that the state’s implied consent law is now invalid. Evenson said he came to that conclusion after consulting with other attorneys, including prosecutors. “They believe, as I do, that implied consent is done,” he said.
In its decision, the court said that while a number of jurisdictions have upheld implied consent statutes where refusing to submit to a blood test results in criminal or administrative penalties, Nevada’s law does not give drivers a choice between submitting to a test or facing a penalty. Before Byars, if you did not consent to a breath or blood draw, the police could hold you down and take your blood whether you gave them permission or not.
The implied consent statute does not justify a warrantless search where the subject of the search does not have the option to revoke consent, the court said. The state’s argument that consent was valid based solely on a motorist’s decision to drive on Nevada’s roads “is problematic because the statute makes the implied consent irrevocable,” the court said. The state’s argument is essentially that driving is a privilege not a right; therefore it is not covered by constitutional protections.
“A necessary element of consent is the ability to limit or revoke it,” the court said. “The implied consent provision in (Nevada law) does not overcome the statute’s infirmity because the statute does not allow a driver to withdraw consent, thus a driver’s so-called consent cannot be considered voluntary.” (Perhaps it should be called the irrevocable, immutable, permanently etched in stone, consent?)
Beatriz Aguirre, assistant public information officer for the Nevada attorney general’s office, said the office has been following the case and has submitted a bill draft request to the 2015 Legislature “to ensure a balance between the state’s interests and that of individuals against unlawful search and seizure.” I can’t wait to see what that bill says! Hopefully it will codify these constitutional protections and not just attempt an end run around them.
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Mace J. Yampolsky is a Board Certified Criminal Law Specialist, 625 South Sixth St., Las Vegas, NV 89101; He can be reached at: Phone 702-385-9777 or fax 702-385-300. His website is located at: www.macelaw.com.