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State, Dep't of Motor Vehicles v. Torres

September 28, 1989

THE STATE OF NEVADA, DEPARTMENT OF MOTOR VEHICLES, APPELLANT, V. FRANK TORRES, RESPONDENT.


Appeal from an order of the district court reversing a decision of a Department of Motor Vehicles hearing officer to revoke respondent's drivers license. Second Judicial District Court, Washoe County; William N. Forman, Judge.{/History}

Brian McKay, Attorney General, and Cheryl A. Lau, Deputy Attorney General, Carson City, for Appellant.

Calvin R. X. Dunlap, Reno, for Respondent.

Per Curiam:

On August 9, 1986, at approximately 3:26 a.m., Officer Timothy M. Dees of the Reno Police Department was dispatched to a Naugles restaurant on Silverado Boulevard in Reno, in response to a report of a man "passed out" at the wheel of a vehicle in the drive through lane of the restaurant. Upon arriving at the restaurant, the officer observed a Chevrolet Blazer in the drive through lane of the restaurant, one vehicle length short of the order window. The vehicle was blocking access to the order window. Officer Dees approached the drivers side of the vehicle and looked inside. He saw a man in the driver's seat, slumped sideways so that his body was partially on the passenger seat. The man was identified as respondent Frank Torres. The engine was not running, but the keys were in the ignition switch and the switch was in the "on" position. The officer took the keys out of the ignition and called to Torres to wake him up. After receiving no response, Officer Dees awakened Torres by shaking him. The officer asked Torres to produce his drivers license and to step out of the vehicle. At this time Torres identified himself as an officer with Sparks Police Department. As Torres stepped out of his vehicle he stumbled and leaned against the vehicle for balance. Torres had a strong odor of intoxicants on his breath and his eyes were extremely red and watery. Officer Dees placed Torres under arrest for driving under the influence of intoxicating liquor (DUI). Torres agreed to take a chemical intoxication test, and Officer Dees did not ask him to perform a field sobriety test. Officer Dees advised Torres of the Nevada implied consent admonition. A breath test was administered and resulted in alcohol level readings of 0.

[105 Nev. 558, Page 560]

level readings of 0.14 and 0.15 percent. Torres was served with a notice of revocation of his drivers license.

Following an administrative hearing, a hearing officer of the Department of Motor Vehicles and Public Safety upheld the revocation of Torres' drivers license. Torres petitioned for judicial review. The district court reversed the hearing officer's decision, and this appeal followed. The district court found that there was no probable cause for Torres' arrest on a charge of DUI and that Torres was not in actual physical control of his vehicle within the meaning of the DUI statute. 1 We disagree.

Under the circumstances, Officer Dees had reasonable grounds to believe that Torres was under the influence of intoxicating liquor and in actual physical control of his vehicle, and that Torres had driven into the drive up lane of the restaurant while under the influence. Therefore, Officer Dees could direct Torres to submit to a chemical intoxication test without conducting a field sobriety test. See NRS 484.383(1). The hearing officer found that Officer Dees had reasonable grounds to believe that Torres was driving or in actual physical control of his vehicle on a highway or on premises to which the public has access, that Torres had 0.10 percent or more by weight of alcohol in his blood, and that Torres' drivers license should be revoked. The hearing officer's findings are supported by substantial evidence on the record ...


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