MICHAEL DWAYNE BYARS, A/K/A MARCUS JONES, A/K/A JEFFERY ROSHAWE BYARS, Appellant,
THE STATE OF NEVADA, Respondent
[Copyrighted Material Omitted]
Appeal from a judgment of conviction, pursuant to a jury verdict, of prohibited possession of a firearm by an unlawful user of a controlled substance, addict, or felon; using or being under the influence of a controlled substance; and two counts of battery by a prisoner in lawful custody or confinement. Tenth Judicial District Court, Churchill County; Robert E. Estes, Judge.
Steve E. Evenson, Lovelock, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Arthur E. Mallory, District Attorney, and Benjamin D. Shawcroft, Deputy District Attorney, Churchill County, for Respondent.
Parraguirre, J., Gibbons, C.J., Pickering, J., Hardesty, J., Douglas, J., Cherry, J., Saitta, J.
BEFORE THE COURT EN BANC.
In this appeal, we are asked to determine whether the warrantless, forced blood draw on a driver suspected of driving under the influence of a controlled substance violates the Fourth Amendment. In light of the U.S. Supreme Court's decision in Missouri v. McNeely, we conclude that the natural dissipation of marijuana in the blood stream does not constitute a per se exigent circumstance justifying a warrantless search, 569 U.S.
__, __, 133 S.Ct. 1552, 1568, 185 L.Ed.2d 696 (2013) (plurality opinion). We further conclude that despite NRS 484C.160, the state's implied consent statute, the blood draw in this case was unlawful because appellant did not submit to the blood draw, and NRS 484C.160(7), which permits officers to use force to obtain a blood sample from a person, is unconstitutional because it permits officers to conduct a search without a warrant, valid consent, or another exception to the warrant requirement. Nevertheless, we conclude that the blood draw was taken in good faith, thus the exclusionary rule does not apply. We therefore conclude that the Fourth Amendment violation does not warrant reversal of the judgment of conviction.
We do, however, reverse the portion of the judgment of conviction finding the defendant guilty on the count of unlawful user of a controlled substance in possession of a firearm. The district court merged that offense with the felon-in-possession count for sentencing and the State concedes on appeal that the district court should not have adjudicated the defendant guilty on both counts.
On January 12, 2012, Nevada Highway Patrol Trooper William Murwin pulled Michael Byars over for speeding on U.S. Highway 50 in Churchill County. Upon approaching Byars, Trooper Murwin smelled marijuana. Byars admitted to having smoked marijuana five hours before. Trooper Murwin performed field sobriety tests and arrested Byars on the belief that he was under the influence of a controlled substance.
Trooper Murwin and another trooper performed an inventory search of Byars' car and found a handgun in a storage area of the car. Trooper Murwin then read Byars Nevada's implied consent law and informed Byars that he would perform a blood test. Byars refused to submit to the test, but cooperated with Trooper Murwin until they reached the hospital and the blood draw was actually performed. During the blood draw, Byars struggled, striking Trooper Murwin in the head with his elbow and a sheriffs deputy in the abdomen and side with his legs. The blood draw showed that Byars had THC (tetrahydrocannabinol, the psychoactive constituent of marijuana) in his blood.
The State charged Byars with being an unlawful user of a controlled substance in possession of a firearm, a category B felony under NRS 202.360(1); unlawful use or being under the influence of a controlled substance, a category E felony under NRS 453.411(3)(a); two counts of battery by a prisoner in lawful custody or confinement, a category B felony under NRS 200.481(2)(f); and being a felon in possession of a firearm, a category B felony under NRS 202.360(1)(a).
The district court bifurcated Byars' trial for the first four counts and the fifth count, felon in possession of a firearm. During the portion of Byars' trial on the felon-in-possession charge, the State introduced two judgments of conviction for Marcus Jones and then introduced testimony from Byars at a prior justice court appearance that Marcus Jones was his alias and that those convictions were his. The State did not introduce additional evidence identifying Byars as Marcus Jones.
Byars was convicted of all counts, and the district court merged Count 1 with Count 5 for purposes of sentencing, imposing a single
sentence. In addition, Byars was convicted in a prior proceeding of driving under the influence of a controlled substance, a misdemeanor.
On appeal, Byars argues that: (1) the warrantless blood draw violated the Fourth Amendment prohibition on unreasonable searches and seizures; (2) the " unlawful user of, or addicted to, any controlled substance" element of unlawful possession of a firearm under NRS 202.360(1)(c) cannot be satisfied by proving a single use of a controlled substance; (3) the State did not present sufficient evidence to establish the corpus delicti of the felon-in-possession charge; (4) the convictions for misdemeanor DUI and the felony under-the-influence charge violated the Double Jeopardy Clause; (5) the State did not present sufficient evidence to support the battery convictions; (6) Byars was not in custody when the batteries occurred; (7) the district court abused its discretion by denying Byars' motion to sever the charges; and (8) the prosecutor's remarks during closing argument prejudiced Byars' right to a fair trial.
The warrantless blood draw violated the Fourth Amendment
Byars argues that, in light of the U.S. Supreme Court's decision in Missouri v. McNeely, 569 U.S. __, __, 133 S.Ct. 1552, 1568, 185 L.Ed.2d 696 (2013) (plurality opinion), the warrantless blood draw violated the Fourth Amendment prohibition on unreasonable searches and seizures. The Fourth Amendment to the United States Constitution and Article 1, Section 18 of the Nevada Constitution protect individuals from unreasonable searches and seizures. A warrantless search is reasonable only where it falls within a recognized exception. McNeely, 569 U.S. at
__, 133 S.Ct. at 1558. The State argues that the warrantless search in this case was reasonable under either of two exceptions: exigent circumstances and consent.
The exigent circumstances exception to the warrant requirement does not apply
The exigent circumstances exception to the warrant requirement applies where " 'the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." ' Id. at __, 133 S.Ct. at 1558 (quoting Kentucky v. King, 563 U.S.
__, __, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011)). Applying that exception, the U.S. Supreme Court upheld the constitutionality of a warrantless blood draw in Schmerber v. California, where an officer reasonably believed that the delay involved in securing a warrant would result in the dissipation of alcohol in a driver's blood. 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Some courts " interpreted Schmerber as concluding that the naturally rapid dissipation of alcohol in the bloodstream creates an emergency that justifies a warrantless blood draw." State v. Shriner, 751 N.W.2d 538, 546-47 & 547 n.11 (Minn. 2008) (discussing majority and minority views of Schmerber ), abrogated by McNeely, 569 U.S. at __, 133 S.Ct. at 1568; see also State v. Smith, 105 Nev. 293, 296, 774 P.2d 1037, 1039 (1989) (citing Schmerber in support of the conclusion that warrantless administration of a breath test did not violate the Fourth Amendment " because evidence such as breath samples may be lost if not immediately seized" ). Other courts, however, understood Schmerber to require a review of the totality of the circumstances, not just the rapid dissipation of alcohol, to determine whether there was an exigency. See, e.g., State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (Utah 2007). The Supreme Court recently resolved this split of authority in McNeely, holding that the natural dissipation of alcohol from the bloodstream is a relevant consideration in an exigent circumstances analysis but is not a per se exigent circumstance that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood draws in drunk-driving cases. 569 U.S. at __, 133 S.Ct. at 1568.
The McNeely Court reasoned that a per se rule of exigency based on the natural dissipation of alcohol is inappropriate because it would apply the exception in circumstances that are inconsistent with the policy justifications that make a warrantless search based on an exigency reasonable. Id. at __, 133
S.Ct. at 1560-63. The Court observed that a warrantless search in exigent circumstances is reasonable because " 'there is compelling need for official action and no time to secure a warrant.'" Id. at __, 133 S.Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978)). Accordingly, there is no justification for applying the exigent circumstances exception when " officers can reasonably obtain a warrant before a blood sample can ...