Nevada’s implied consent law ruled unconstitutional

CARSON CITY — The Nevada Supreme Court on Thursday said 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.

Las Vegas attorney John Watkins, a legal expert on driving under the influence law, called the decision monumental.

“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.

“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.

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.

“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.”

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.”

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.

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.

Review-Journal writer Mike Blasky contributed to this report.