Nevada’s ‘implied consent’ law struck down

CARSON CITY — A state law that allows police to forcibly take blood samples from motorists to determine impairment without a warrant is unconstitutional, the Nevada Supreme Court ruled.

The court, in a unanimous decision handed down Thursday, said the state’s “implied consent” law violates the Fourth Amendment right against unreasonable search.

The court found the law, which assumes anyone who drives in Nevada has automatically consented to testing, is problematic because motorists don’t have the option to revoke or modify their consent.

In other jurisdictions with implied consent laws, drivers may be fined or face criminal or administrative penalties if they refuse to submit to a test, the court noted. Nevada provides no such choice, the court said.

The ruling follows the U.S. Supreme Court’s decision last year in Missouri vs. McNeely that said an officer must get a warrant if a suspected drunken driver refuses a blood draw.

Las Vegas Metropolitan Police Deputy Chief Pat Neville said the state court’s ruling won’t affect its day-to-day operations.

Officers started obtaining warrants for blood tests after last year’s U.S. Supreme Court’s ruling, Neville said.

“We had been anticipating that ruling and made the change shortly after,” he told the Las Vegas Review-Journal (http://bit.ly/108een8 ).

The additional warrants haven’t been a huge burden for the agency, said Neville, who oversees the traffic bureau. Most motorists suspected of impaired driving consent to a blood draw.

“I could count on one hand the number of times someone wouldn’t consent and we had to force it under implied consent,” he said.

The state court’s decision will cover both blood and breath tests, said Las Vegas attorney John Watkins, a legal expert on driving under the influence law.

“It means a person can say, ‘No, I’m not taking your test,’” he told the Review-Journal.

Watkins described the case as “monumental ... Now police are going to have to go get a warrant or get true knowing and voluntary consent.”

The ruling stemmed from a case in Churchill County, where Michael Byars was pulled over for speeding on U.S. 50. Byars refused to submit to a blood test, which later found in his system THC, the psychoactive ingredient in marijuana.

Despite the court’s ruling on the constitutionality of the search, Byars’ conviction of driving under the influence was upheld by the state court, which found the blood draw was taken in good faith.

Information from: Las Vegas Review-Journal, http://www.lvrj.com