Supreme Court of Nevada Holds Nevada Implied Consent Law Unconstitutional - Sabrina M. Dolson, Esq.
On October 16, 2014, in Byars v. Nevada, 130 Nev. Adv. Op. 85 (Oct. 16, 2014), the Supreme Court of Nevada ruled that the state’s implied consent law is unconstitutional.
Byars was pulled over for speeding, and was suspected of driving under the influence of a controlled substance. Byars admitted he smoked marijuana five hours before, but refused to submit to a blood draw. At the hospital, the arresting officers and hospital staff performed a forced blood draw, pursuant to Nevada’s implied consent law.
On appeal, Byars relied upon the U.S. Supreme Court’s recent decision in Missouri v. McNeely, 569 U.S. ___, ___, 133 S. Ct. 1552, 1568 (2013) (plurality opinion), finding that a warrantless blood draw constitutes an unreasonable search and seizure under the Fourth Amendment to the United States Constitution. Both the Fourth Amendment and Article 1, Section 8 of the Nevada Constitution, protect individuals from unreasonable searches and seizures. A search without a warrant is reasonable only if it falls within a recognized exception. The state argued that the warrantless blood draw at issue was reasonable based on two exceptions: exigent circumstances and consent.
Exigent Circumstances Exception
The exigent circumstances exception applies where “the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” McNeely, 569 U.S. at ___, 133 S. Ct. at 1558 (quoting Kentucky v. King, 563 U.S. ___, ___, 131 S. Ct. 1849, 1856 (2011)). In McNeely, the U.S. Supreme Court held that the natural dissipation of alcohol from the bloodstream, although a relevant consideration to an analysis of whether exigent circumstances exist, is not a per se exigent circumstance justifying an exception to the Fourth Amendment’s requirement that a warrant be obtained prior to a nonconsensual blood draw in drunk-driving cases. 569 U.S. at ___, 133 S. Ct. at 1558. Rather, the exigent circumstances exception should not apply when an officer can reasonably obtain a warrant prior to performing a blood draw without significantly undermining the efficacy of the search. Id. at ___, 133 S. Ct. at 1561. Whether an officer is required to obtain a warrant is determined on a case-by-case basis considering the totality of the circumstances. Id. at ___, 133 S. Ct. at 1563.
Relying on McNeely, the Supreme Court of Nevada held “that the natural dissipation of marijuana in the blood stream does not constitute a per se exigent circumstance justifying a warrantless search.” The Court concluded that, based on a totality of the circumstances in the instant case, the State was unable to establish exigent circumstances justifying a warrantless blood draw.
Implied Consent Exception
An individual’s consent to a search provides an exception to the probable cause and warrant requirements of the Fourth Amendment. Nevada’s implied consent law allows an officer to take a blood and/or breath sample when an individual provides implied consent by choosing to drive on Nevada roads.
Specifically, Nevada’s implied consent law provides that:
any person who drives or is in actual physical control of a vehicle on a highway or on premises to which the public has access shall be deemed to have given his or her consent to an evidentiary test of his or her blood, urine, breath or other bodily substance to determine the concentration of alcohol in his or her blood or breath or to determine whether a controlled substance, chemical, poison, organic solvent or another prohibited substance is present . . . .
Nev. Rev. Stat. § 484C.160(1). The police officer administering the test must have reasonable grounds to believe that the person to be tested was under the influence while driving or in actual physical control of a vehicle. Id. Nevada Revised Statute § 484C.160(7) permits officers to obtain a blood sample from a person through the use of force when that person fails to voluntarily submit to the test.
The Supreme Court of Nevada reasoned that Nevada’s implied consent law violated the Fourth Amendment because “[a] necessary element of consent is the ability to limit or revoke it,” which Nevada Revised Statute § 484C.160(7) does not allow. See Florida v. Jimeno, 500 U.S. 248, 252 (1991)). Thus, the Court concluded that Nevada Revised Statute § 484C.160(7) “is unconstitutional because it permits officers to use force to take a suspect’s blood without a warrant, valid consent, or another exception to the warrant requirement.”
