According to Nevada’s “implied consent” law, if you are
lawfully arrested by a police officer who has probable cause to believe
that you have been driving under the influence (DUI), you automatically consent to take a blood, breath, or urine test to
determine your BAC level. However, the U.S. Supreme Court had decided
that this is a violation of privacy and against the Fourth Amendment when
a defendant is required to provide his/her blood without consent after
being pulled over.
Missouri v. McNeely
The 2013 ruling by the Supreme Court is based on a case known as Missouri
v. McNeely. In 2010, Tyler McNeely was stopped for speeding in Cape Girardeau
County. After declining to take a breath test to measure his BAC, he was
arrested and taken to a nearby hospital for blood testing. McNeely refused
to consent to a blood test and the arresting officer never attempted to
secure a search warrant.
With the assistance of a lab technician to take the sample, McNeely’s
BAC tested well above the legal limit, resulting in a DWI charge. He moved
to suppress the result from the blood test, arguing that taking his blood
without a warrant violated his Fourth Amendment rights. The trial court
agreed, determining that the exigency exception to the warrant requirement
was not met since the arresting officer did not face an emergency, despite
the natural dissipation of blood alcohol. In the end, the Supreme Court
found no factors suggested that there was an emergency, the nonconsensual
warrantless blood draw violated McNeely’s right to be free from
unreasonable searches of his person.
How Missouri v. McNeely Impacts Nevada’s Implied Consent Law
A year after the Supreme Court’s ruling in Missouri v. McNeely, the
Nevada Supreme Court said the state’s implied consent law is unconstitutional.
The decision covers both blood and breath tests.
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 since the statute makes the implied consent
irrevocable. The implied consent provision does not overcome the statute’s
infirmity because it does not allow a motorist to withdraw consent, thus
a driver’s so-called consent cannot be considered voluntary.
If you have been arrested for a DUI,
request a free consultation with our Las Vegas criminal defense lawyers at
Oronoz, Ericsson & Gaffney today.