Tag Archives: Constitutional Rights

Recent Changes to Nevada’s DUI Laws

Awesome-Whiskey-Keys

Under NRS 484C.160, Nevada’s implied consent law previously allowed a police officer to use “reasonable force” to obtain a warrantless sample of blood from the person who refused to consent.

After the most recent changes in the law, now an officer can only make the request that the driver submit to an evidentiary test if the officer had sufficient reason to believe that the person was driving or in actual physical control of a vehicle or vessel while under the influence of alcohol or a controlled substance.  Should a person not provide their consent to an evidentiary test, the law requires the officer to obtain a warrant signed by a Judge.  However, there are dramatic consequences to your license, that you need to be aware of, should you request a warrant first.

The officer can request different types of evidentiary tests depending on the circumstances. Those evidentiary tests include a blood or breath test to determine the alcoholic content of the blood or breath. A blood or urine test can also be used to test to determine the presence of:

  1. a controlled substance;
  2. chemical;
  3. poison;
  4. organic solvent; or
  5. another prohibited substance.

Knowing that the law allowed warrantless and forced blood draws, officers started pushing the envelop by taking blood by force under circumstances that shocked the public. Officers across the country started conducting “No Refusal Weekends” and conducting forced blood draws during DUI checkpoints.

Since judges were not involved in signing warrants, officers continued to find new ways to take blood. The evening news started showing videos of ordinary citizens being strapped down so that officers could oversee forced blood draws. Public outrage over some of the practices started to mount.

Missouri v. McNeely

Despite the public outrage over forced blood draws, the law enforcement community in Nevada and throughout the county was shocked when the United States Supreme Court decided Missouri v. McNeely, 569 U.S. ––––, ––––, 133 S.Ct. 1552, 1568, 185 L.Ed.2d 696 (2013) (plurality opinion). In McNeely, the Court found that warrantless  forced blood draws violated the Fourth Amendment prohibition on unreasonable searches and seizures.

A warrantless search is reasonable only where it falls within a recognized exception such as consent or exigent circumstances. The McNeely court then rejected the proposition that exigent circumstances resulted merely from the fact that alcohol or drugs would dissipate in the driver’s blood after a DUI arrest.

Prior to the McNeely decision, many judges used the landmark decision in Schmerber v. California, 384 U.S. 757 (1966) to support the proposition that the rapid dissipation of alcohol in the bloodstream, by itself, creates an emergency that justifies a warrantless blood draw.

Under McNeely, the court held that the court must review of the totality of the circumstances, not just the rapid dissipation of alcohol, in determining whether any exigency existed.

The McNeely Court recognized that there is no justification for applying the exigent circumstances exception when “officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search.” Id. at ––––, 133 S.Ct. at 1561.

Although the McNeely Court found that the decision should be made on a case-by-case basis considering the totality of the circumstances, the decision did not provide a list of factors to be considered. Because the totality of the circumstances was not litigated in the case, the Court found there were no exigent circumstances and that the warrantless blood draw was unconstitutional. Id.

Byars v. State

Shortly thereafter, the Nevada Supreme Court held that the consent implied by a person’s decision to drive in this State is not voluntary consent to an evidentiary blood test and, thus, existing laws that allow a police officer to obtain a blood sample from a person without a warrant and without voluntary consent are unconstitutional. Byars v. State, 130 Nev. Adv. Op. No. 85, 336 P.3d 939 (2014)).

Given the U.S. Supreme Court’s decision in McNeely, the Byars Court concluded that the natural dissipation of alcohol or controlled substances did not, standing alone, create exigent circumstances justifying a warrantless blood draw.

The court further concluded that NRS 484C.160(7) was 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.

Nevada’s 2015 Assembly Bill 67

In response to the Byars decision, the Nevada Legislature passed 2015 Assembly Bill 67. The new law made several changes to Nevada’s implied consent scheme.

First, 2015 Assembly Bill 67 eliminated the constitutional defect identified by the Nevada Supreme Court by requiring that if a person refuses to submit to an evidentiary blood test at the request of a police officer:

  1. the officer may apply for a warrant or other court order directing the use of reasonable force to obtain the blood sample; and
  2. the person’s driver’s license must be revoked for a certain period.

NRS 484C.210 now provides that if the subject fails to submit to an evidentiary test as requested by a police officer pursuant to NRS 484C.160, the license, permit or privilege to drive of the person must be revoked as provided in NRS 484C.220, and the person is not eligible for a license, permit or privilege to drive for a period of:

  1. One year; or
  2. Three years, if the license, permit or privilege to drive of the person has been revoked during the immediately preceding 7 years for failure to submit to an evidentiary test.

Secondly, 2015 Assembly Bill 67 authorizes the revocation of a person’s license, permit or privilege to drive if an evidentiary test reveals the presence of a detectable amount of a controlled substance or prohibited substance in his or her blood or urine for which he or she did not have a valid prescription or hold a valid registry identification card.

In those cases, the permit or privilege of the person to drive must be revoked as provided in NRS 484C.220 and the person is not eligible for a license, permit or privilege for a period of 90 days.

A driver should be aware that a person whose license is revoked for refusing to submit to an evidentiary test and is found to have a blood alcohol concentration of .08 or more could be look at a loss of license for the one-year period plus the 90-day period, for a total of 15 months.  Under the current law there is no provision that allows a person to be able to drive for a recognized hardship during the one-year period.

Thirdly, the Nevada legislature corrected an issue that kept being litigated in DUI cases regarding a person asleep in a car when the car had not been driven.  AB 67 states that “a person shall be deemed not to be in actual physical control of a vehicle if:

  1. The person is asleep inside the vehicle;
  2. The person is not in the driver’s seat of the vehicle;
  3. The engine of the vehicle is not running;
  4. The vehicle is lawfully parked; and
  5. Under the facts presented, it is evident that the person could not have driven the vehicle to the location while under the influence of intoxicating liquor, a controlled substance or a prohibited substance.

This allows a person to do the right thing and realize before they drive home under the influence that they can fall asleep in the passenger’s seat and not be assumed to have driven or in actual physical control of the car.  The previous law punished a person who did not drive but fell asleep in the car.  The new law has fixed this issue.

Conclusion

The McNeely and Byars decisions have impacted thousands of DUI cases across the State of Nevada involving a warrantless and non-consensual blood draw.  Even felony DUI cases involving serious bodily injury or death were impacted. Lower courts are making totality of the circumstances decisions in a case by case basis with little guidance from the higher courts.

If your case involves a non-consensual warrantless blood draw, then find out more about how recent decisions will impact the admissibility of the evidentiary blood test in your case. Contact Joel Mann, an experienced criminal defense attorney focused on drunk driving defense. Contact Joel Mann’s office at (702) 474-6266 to schedule a free consultation to discuss the case either over the phone or in the office.

 

Five Tips for Dealing with Las Vegas Police During Traffic Stops

The arrest of Sandra Bland on July 10 and her subsequent death three days later in her jail cell in Waller County, Texas, prompted immediate calls for an investigation into her alleged suicide. However, the case garnered even more nationwide attention when the Texas Department of Public Safety released this video of Bland’s traffic stop last Tuesday.

The video shows Bland being pulled over for a failure to signal, but it also shows Texas State Trooper Brian Encinia quickly escalating the situation because the 28-year-old woman understood her rights under the law. Bland has been somewhat unfairly criticized for her alleged attitude in dealing with Encinia during the stop, but nothing she said justified the state trooper’s inexplicable conduct.

Bland only told the trooper she was understandably irritated after Encinia asked for confirmation of this observation, and she was well within her rights to ask why she should have to honor a request to extinguish the cigarette she was smoking in her own car. It was at this point that the traffic stop spun wildly out of control and the trooper probably exceeded his legal authority.

This past April, the United States Supreme Court ruled in Rodriguez v. United States that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” In Bland’s case, the matter for which the stop was made was essentially at its conclusion as Encinia had written the citation and was preparing to bring it to Bland.

The only grounds for which Encinia might have been able to extend the duration of this stop would have been if he had a reasonable suspicion that Bland had committed some other crime. Of course, smoking in one’s automobile violates no law in Texas, and it is hard to imagine that the cigarette was viewed as a possible weapon since that confrontation was not even mentioned in Encinia’s incident report.

Unfortunately, what this incident really embodies is the way that certain police officers frequently abuse their authority and disregard an average person’s rights with total impunity. However, you should not assume that this type of encounter only happens in Texas. If you are pulled over for any kind of alleged traffic violation in the Las Vegas area, here are five things you should always remember:

  • Keep Your Calm — Any traffic stop can be a stressful experience, but keep in mind that police officers have dangerous jobs. If you are vulgar or loud or confrontational, these types of actions can give any officer reason to feel threatened or challenged. No matter how upset you are about being pulled over, it is critical to keep your emotions in check and avoid lashing out against police.
  • Admit Nothing — Exercise your Fifth Amendment privilege without making a point of saying that you know your rights. You do not have to admit to any wrongdoing. For example, it is in your best interest, when asked if you knew how fast you were going, to tell the officer that you are not going to answer that question.
  • Sign the Ticket — There is a common misperception that refusing to sign a warning or traffic ticket is a refusal of guilt that could later lead to it being thrown out in court. This is incorrect. Signing a citation is an admission of nothing other than you promise to appear in court. Under Nevada Revised Statute § 171.177, an alleged offender must be taken without unnecessary delay before a magistrate if he or she is refuses to give a written promise to appear in court after being issued a misdemeanor citation.
  • Refuse to Consent to Any Search — Exercise your Fourth Amendment rights when police officers ask to look in your automobile. Again, Rodriguez v. United States involved a police stop that exceeded the proper duration when an officer held the alleged offender for several minutes so a second officer with a drug-sniffing dog could conduct a search without reasonable suspicion. Police officers will frequently try to trick people by asking them whether they have something to hide, but the best response in these situations is to always ask, “Are you detaining me or am I free to go?” Try to avoid having any type of overwhelming odors within your car—primarily marijuana, but also air fresheners that are frequently used as covers for marijuana—as these types of scents are often cited by police as probable cause to search vehicles without consent (even when there was no evidence of such smells) and are more difficult to disprove in court.
  • Ask for an Attorney — Exercise your Sixth Amendment right to the assistance of counsel for your defense. You are under no obligation to say anything without a lawyer, and you should be sure to have legal representation any time you are being questioned by police.

If you follow these rules you can keep yourself safe, you can let the officer feel safe doing his/her job and you can protect your rights.  However, should you be arrested, contact an experience criminal defense attorney in order to keep your rights protected.

Know Your Rights Before the Las Vegas DUI Checkpoints Halloween Weekend

Sobriety Checkpoint

Las Vegas is a popular destination during the holidays by tourists and Nevada residents alike. DUI checkpoints during these periods are increasingly common, no matter how hotly their constitutionality and effectiveness are debated. Also called sobriety roadblocks, this police operation is intended to find and arrest drug or alcohol impaired drivers. This year, two checkpoints will be created by the Las Vegas Metropolitan Police Department.

According to KTNV, the first checkpoint will be conducted on October 28th during 7pm and 5am near Valley View and Desert Inn. The second will be on October 29th between 7pm and 3am in the Desert Inn and Paradise area. These areas have reported particularly high levels of drunk driving incidents during the past six months. Please keep in mind that there will be a heavy patrol of police officers throughout Las Vegas, not just near these checkpoints. Law enforcement officials from Boulder City, Las Vegas, Henderson, and the Nevada Highway Patrol will also be saturating the roads.

Are these roadblocks legal? That is the current billion-dollar question. In 1990, the United States Supreme Court ruled that these check points did not violate the 4th amendment’s protection against unreasonable search and seizure. However, these checkpoints must be performed under strict guidelines in order to ensure minimal invasiveness.

Under NRS 484B.570, the requirements for an administrative roadblock (including sobriety checkpoints) are established. This statute states that:

  • The roadblock must be created on a highway location that is visible at least 100 yards in both directions
  • A “stop” sign must be placed at the roadblock that is visible at least 50 yards in both directions
  • At least one flashing light must be placed at the roadblock, visible at least 100 yards to oncoming traffic
  • “Police Stop” warning signs must be placed at least a quarter of a mile from the roadblock at the side of the road
  • A flare, light, or lantern must also be placed by the “police stop” warning to attract attention to the sign

Your Las Vegas DUI attorney can use any lack of adherence to this Nevada statute by the police to your advantage. It’s also important to remember that you do have constitutional rights, whether you are stopped at a checkpoint or pulled over elsewhere by a police officer. The police are currently allowed to stop you briefly as part of the checkpoint process, but they do not have the right to search your vehicle without probable cause or your consent. In this situation, probable cause may include one or more of the following:

  • Visible presence of alcohol/ drugs
  • Odor of alcohol/drugs
  • Gaze nystagmus (involuntary eye movements)
  • Blood-shot eyes
  • Slurred speaking
  • Clumsy physical movements
  • Verbal admission of drug/alcohol use
  • Inconsistency in answers

You do have the right to remain silent after providing identification information and registration. This can help you avoid giving the officer additional ammunition to use against you should the stop lead to arrest. You are not required to submit to any field sobriety test, however you can be required to submit to a blood or breath test under Nevada’s implied consent law. In cases where drug use is suspected, a urine sample may be asked for.

Can you refuse to take a blood or breathalyzer test? Yes, but under the state’s implied consent law, Nevada law enforcement still maintains the discretion to forcibly take a blood sample after obtaining a warrant. With the preparation and foresight that goes into a holiday weekend checkpoint, a paramedic, nurse, or other qualified individuals will be on hand to withdraw the blood sample.

If you do submit to the DUI testing, your criminal defense attorney can still help you pursue a favorable outcome. DUI testing is not infallible. There are a variety of ways in which the results could be excluded from evidence or explained by your attorney. This includes a wide range of items such as medical conditions, interference of radio frequencies, lack of maintenance in testing equipment, improper use of testing equipment, use of mouthwash or medicine containing alcohol, and others. Additionally, lack of probable cause and improper roadblock procedure may also be used in your defense.

Whether you are driving in Las Vegas, Henderson, North Las Vegas, or the surrounding communities this coming Halloween weekend, remember to drive safely. No amount of entertainment is worth the risk of injury to yourself or others. The police will also be out en masse. In the unfortunate event that you do find yourself in the stressful experience of a sobriety checkpoint, remember: you do have rights.

Kentucky v. King, US Supreme Court allows Police to enter without warrants

In the United States Supreme Court’s most recent decision of Kentucky v. King, No. 09-1272 , the Supreme Court has further eroded the value of the 4th Amendment.  The opinion allows for police to enter a person’s home without a warrant based on the suspicion that there is criminal activity going on.  In the Kentucky case the officers followed a suspected drug dealer into a home and then knocked on the door.  Upon knocking the police heard what they believed was movement and destruction of potentian evidence.  The Police then entered without a warrant and saw drugs in plain sight.  The US Supreme Court said this was ok because of exigent circumstances.

Drug cases are often times very much about police procedure and following proper 4th amendment searches. For more information see: http://www.legalmann.com/CriminalDefense/DrugCharges.aspx

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