Opinion
No. 67506
12-16-2015
PHILLIP CHERRY, Appellant, v. THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, Respondent.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER OF AFFIRMANCE
This is an appeal from a district court denial of a petition for judicial review in a driver's license revocation matter. Eighth Judicial District Court, Clark County; Joseph T. Bonaventure, Judge.
Appellant Phillip Cherry's driver's license was revoked by respondent State of Nevada, Department of Motor Vehicles (DMV) after he failed a breathalyzer test, which he consented to taking after being involved in a single-car accident at the airport. On appeal from the district court's denial of judicial review of that decision, Cherry argues both that the DMV lacked jurisdiction to revoke his license and that the test was unconstitutional. The DMV disagrees. We address these arguments in turn.
With regard to the former argument, Cherry contends that, pursuant to NRS 484C.210(2), the DMV only has jurisdiction to revoke a person's driver's license for driving under the influence of alcohol when the person's blood alcohol concentration is determined to be over the limit by a test administered under NRS 484C.160, which provides that a person who drives on public roads is deemed to have given consent to being tested for alcohol or controlled substances. The version of NRS 484C.160 that was in effect at the time of Cherry's accident did not permit a person to refuse to take a blood alcohol test when directed to do so by an officer who had reason to believe that the person was driving under the influence. See 2015 Nev. Stat., ch. 441, § 12, at ___. In particular, if the person refused and the officer had reason to believe the person was driving under the influence, the statute permitted the officer to use force to obtain a blood sample for testing purposes. See id.
This statute was amended in 2015 to require an officer to apply for a warrant for a blood test when the officer has reason to believe that a person is driving under the influence. See 2015 Nev. Stat., ch. 441, § 12, at ___.
Before Cherry's accident occurred, the United States Supreme Court issued an opinion indicating that the natural dissipation of alcohol in a person's system was not, by itself, an exigent circumstance permitting a warrantless search, which included a breath or blood test to detect the presence of alcohol in a person's system. See Missouri v. McNeely, 569 U.S. ___, 133 S. Ct. 1552 (2013). Thus, the McNeely decision called into question the constitutionality of the provision in NRS 484C.160 broadly permitting a forced blood draw without requiring an officer to obtain a warrant based on probable cause. In an apparent attempt to avoid any constitutional violations, the officer in this case informed Cherry that, under NRS 484C.160, he was deemed to have consented, but also gave Cherry the opportunity to refuse to consent. And the officer told Cherry that if he refused a test, the officer would apply for a warrant to have him tested.
After Cherry's accident occurred, the Nevada Supreme Court held that the provision of former NRS 484C.160 permitting an officer to force a person to take a blood test in the absence of a warrant unconstitutionally authorized officers to conduct warrantless, nonconsensual searches in violation of the Fourth Amendment to the United States Constitution and struck down that portion of the statute. Byars v. State, 130 Nev. ___, ___, 336 P.3d 939, 945-46 (2014).
On appeal, Cherry argues that, because the officer's instructions did not strictly comport with NRS 484C.160, as it was written at the time, the test was not given pursuant to that statute, and thus, the DMV lacked jurisdiction to revoke his license. Although the officer's instruction varied from the statute insofar as the officer gave Cherry the opportunity to refuse a test, we conclude that the test in this case was still given pursuant to NRS 484C.160. In particular, the officer informed Cherry that he was deemed to have consented under Nevada's implied consent law and requested that Cherry therefore submit to the test voluntarily. As the test was given pursuant to NRS 484C.160, Cherry's argument that the DMV lacked jurisdiction to revoke his license is meritless.
Cherry also argues that, to the extent the test was performed under NRS 484C.160, it violated the Fourth Amendment to the United States Constitution's prohibition against unreasonable searches and seizures. Although the provision of NRS 484C.160 that previously permitted an officer to force a blood test without a warrant was unconstitutional, see Byars v. State, 130 Nev. ___, ___, 336 P.3d 939, 945-46 (2014), Cherry's breath test was not given pursuant to that subsection of the statute, as Cherry consented to voluntarily submit to the breath test. Consent "provides an exception to both the Fourth Amendment's probable cause and warrant requirements." See id. at ___, 336 P.3d at 945. Thus, Cherry's contention that the search was unconstitutional lacks merit, and the district court properly denied Cherry's petition for judicial review. Accordingly, we affirm the district court's decision in this regard.
The Honorable Abbi Silver, Judge, voluntarily recused herself from participation in the decision of this matter. --------
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao cc: Hon. David Barker, Chief Judge
Hon. Joseph T. Bonaventure, Senior Judge
Law Offices of John G. Watkins
Attorney General/Las Vegas
Attorney General/Carson City
Eighth District Court Clerk