Prosecutors in Clark County amaze me with what they think they can get away with.  If you have a pending criminal case, you need to make sure your lawyer is fighting to get the criminal histories (rap sheets) on the witnesses against you.  The reason that’s important is because you need to know what these people have in their background.  Let’s say you are charged with battery with a deadly weapon resulting in substantial bodily harm in violation of NRS 200.481.  In our hypothetical, let’s say you’re accused of stabbing someone with a knife.  A good criminal lawyer will want to know who you are accused of pulling a knife on and stabbing and what kind of criminal trouble he has in his past.  The reason is simple.  If the person you are accused of has prior arrests for crimes of violence, this is something your attorney should know because you have a better chance of arguing self-defense.  Let’s say the other person has been arrested in the past for misdemeanor battery and let’s say you have no priors.  Well, now instead of your word against the other guy’s word, it’s your word – the person with no prior arrests – against the word of a guy who has a prior arrest for a crime of violence.  Suddenly your chances of winning just improved.  The same goes for any eyewitnesses.  You are entitled to know if they have any felony convictions in their pasts under NRS 50.095 which allows you to impeach the witness if he or she has a felony conviction within the past 10 years.  (Impeach means that when the witness against you testifies, you can tell the judge or jury that he or she has a prior felony conviction.)  Why is it such a big deal if the eyewitness or witness against you has a prior felony conviction?  This is because a person with a felony conviction is considered under the law to be less believable than a person who doesn’t have a felony conviction.  (Remember that a conviction means that you were found guilty by a judge or jury or that you pleaded guilty to a felony.  An arrest is just an accusation and not evidence of anything.)  If someone has a felony conviction, that person by law cannot possess a firearm, cannot run for public office, and cannot even vote.  Think about that!  A person who has a felony conviction isn’t even trusted enough by society to pull a lever behind a voting booth!  So wouldn’t you want to know if the eyewitnesses in your case or your accuser has a prior felony conviction in his or her past?

Your attorney should demand that he or she be allowed to see the rap sheets of the witnesses the State or the U.S. Government intend to use to convict you before you even go to trial.  Unfortunately, a lot of prosecutors think that you aren’t entitled to know this.  Huh?  That’s not the law.  The individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf, including the police.  Kyles v. Whitley, 514 U.S. 419, 437 (1995).  The government [or the State of Nevada] has a duty to “turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.” United States v. Bernal-Obeso, 989 F.2d 331, 334. (9^th Cir. 1993)  United States v. Blanco, 392 F.3d 382, 397 (9th Cir. 2004).  “Where life and liberty depend upon the testimony of another, it is in the interest of justice that the jury should have before them every fact affecting the credibility of the witness. Otherwise, a party may be deprived of life and liberty by the testimony of a criminal.”  Corbin v. State, 111 Nev. 378, 383 (Nev. 1995) (quoting Williams v. United States, 3 F.2d 129, 134 (8^th Cir. 1924)).  “Moreover, the state possesses and controls information regarding a witness’ prior criminal activity and can more easily determine whether a prior felony conviction exists. The defense, on the other hand, does not have ready access to such information.”  Id. at 383.

Impeachment evidence is exculpatory evidence within the meaning of Brady.   See Giglio v. United States, 405 U.S. 150, 154 (1972); see also United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Brady/ Giglio information includes “material . . . that bears on the credibility of a significant witness in the case.” United States v. Brumel-Alvarez, 991 F.2d 1452, 1461 (9th Cir. 1993), amending 976 F.2d 1235 (9th Cir. 1992) (quoting United States v. Strifler, 851 F.2d 1197, 1201 (9th Cir. 1988)) (alteration in original). Impeachment evidence is favorable Brady/ Giglio material “when the reliability of the witness may be determinative of a criminal defendant’s guilt or innocence.” Id. at 1458 (citing Giglio, 405 U.S. at 154); see also United States v. Serv. Deli Inc., 151 F.3d 938, 943 (9th Cir. 1998).

Because the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing what it does not know but could have learned.  Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (en banc).  “Exculpatory evidence cannot be kept out of the hands of the defense just because the prosecutor does not have it, where an investigating agency does. That would undermine Brady by allowing the investigating agency to prevent production by keeping a report out of the prosecutor’s hands until the agency decided the prosecutor ought to have it, and by allowing the prosecutor to tell the investigators not to give him certain materials unless he asked for them.” Id. at 480; see also United States v. Monroe, 943 F.2d 1007, 1011 n.2 (9th Cir. 1991) (stating that “the prosecution must disclose any [Brady] information within the possession or control of law enforcement personnel”) (quoting United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 824 (9th Cir. 1985)).  United States v. Blanco, 392 F.3d 382, 387 (9th Cir. 2004).

What all this means is that the prosecutor can’t stick his or her head in the sand and say that “I don’t know if the witness has a felony conviction or not.”  Each prosecutor has a duty to tell you if the witness does or does not have a prior felony conviction within the past 10 years.  And, if you are charged with a crime of violence, you have the right to know if your accuser has a prior arrest for a crime of violence because that’s relevant to show that your accuser, not you, was the aggressor.

The FBI maintains the National Crime Information Center database (NCIC).  There are two ways to get the NCIC criminal history (rap sheet) of the witnesses the prosecutor is relying on to prove the state or the government’s case against you.  One way is to have the judge sign an order directing the FBI to produce the rap sheet and turn it over to the judge for the judge to review it and tell you if the witnesses have criminal history or not.   Technically, you aren’t entitled to possess the rap sheet, but you have the right to see it or at a minimum have a judge review the rap sheets of your accusers and eyewitnesses against you and tell you what’s in it.  The other way to get the rap sheet is to fight for it.  The first thing I do is demand the prosecutor run the NCIC rap sheets of the witnesses against my client.  If the prosecutor doesn’t turn it over, I file a motion to compel to force the prosecutor to turn it over.  A few years ago, a Las Vegas Municipal Court judge didn’t agree with me that I was entitled to see the rap sheets of the witnesses against my clients.  The city prosecutor said I was “fishing”.  Obviously I wasn’t about to accept that.  I appealed the judge’s ruling to a Clark County District Court judge who agreed with me that I was entitled to see it and he reversed the judge who ruled against me and agreed with me that I was entitled to see the rap sheets. He ordered the municipal court judge to order the city attorney to run the rap sheets through NCIC and turn over the rap sheets for me to review.

If you are represented by a lawyer in a criminal case, make sure you ask your lawyer if he or she has asked the prosecutor to see the rap sheets of witnesses against you.  If you lawyer hasn’t done so, then you need to get a better lawyer.

I’m amazed at how sloppy Nevada law enforcement does its job in investigating and arresting motorists suspected for Driving Under the Influence (DUI).  Every law enforcement officer in the state of Nevada is supposed to advise a motorist suspected of driving under the influence the following implied consent warning under NRS 484C.160:

If the motorist is suspected of driving under the influence of alcohol, he must be advised if he has a prior conviction for DUI within the past 7 years that he cannot choose to give a sample of breath instead of giving a blood sample. However, if the motorist does not have a prior conviction for DUI within the past 7 years, he  may choose to give a sample of his breath or choose to have blood drawn from his arm. If there has been an accident that has resulted in death or serious bodily harm, the motorist is required to submit to a blood test and cannot choose a breath test.  If the person refuses to give a breath sample or a blood sample, the motorist can be held for up to 5 hours and 3 samples of blood may be drawn from his or her arm.

In the above paragraph, I’ve presented you with a simple breakdown of NRS 484C.160 which is the Implied Consent Law. What Nevada law enforcement has done is taken this statute (NRS 484C.160) and butchered it by requiring officers to read the following botched, fatally flawed implied consent warnings:

“You are required to submit to an evidentiary testing of your blood or breath to determine alcohol content.  If this is a first offense, you may refuse to submit to a blood test if breath is available.  If you choose breath you must give two or more consecutive samples.  If this is other than a first offense, or grounds exist to believe you have caused death or substantial bodily harm to another person, you must submit to a blood test.  If the presence of a controlled substance is in issue, you are required to submit to a blood or urine test, or both, in addition to the breath test.  If you fail to submit to the required testing, the law allows me to direct reasonable force to be used to the extent necessary to obtain up to three blood samples from you.  You are further advised that any warning related to having an attorney present before answering questions does not bear on the issue of submitting to evidentiary tests.  You do not have the right to speak to an attorney before testing.”

The above fatally flawed implied consent warnings are what every law enforcement officer reads to motorists detained and suspected of DUI. Here’s what’s wrong with this warning.  The above advisement is a defective implied consent advisement because it is inaccurate and renders the consent of the motorist who gives breath or blood involuntary.  The implied advisory consent form used by Nevada law enforcement officers fails to advise a motorist that he may choose a breath test if he has not been convicted of DUI within the past 7 years.  Specifically, Nevada law enforcement officers read to motorists the implied consent form that states “If this is a first offense, you may refuse to submit to a blood test if breath is available.”  This is an incorrect advisement since it implies that a motorist who has only been arrested and not convicted at any time for any crime in the past may not choose a breath test.  The admonishment is also silent as to the 7 year time limit.  Additionally, the word “offense” is ambiguous since a motorist could conclude that “offense” means arrest and therefore believe that he or she is not entitled to a breath test.  Finally, the word “offense” lacks specificity since the implied consent warning could be believed by a motorist to include any criminal offense in the past not limited to a misdemeanor DUI.

Additionally, the sentence “If this is other than a first offense, or grounds exist to believe you have caused death or substantial bodily harm to another person, you must submit to a blood test” is misleading and inaccurate.  This section is silent as to the 7 year window.  A motorist who has a prior offense, which could be an arrest for a trespass, public intoxication, a DUI conviction over 8 years prior to the arrest, or a DUI charge that was reduced to a reckless driving could easily be misled in to concluding that he or she thus has a prior “offense” and is prohibited from taking a breath test.

Finally, the sentence “If you fail to submit to the required testing, the law allows me to direct reasonable force to be used to the extent necessary to obtain up to three samples of blood from you” is inaccurate and misleading because the statute clearly specifies that up to three samples of blood may only be taken during a 5-hour period immediately after the arrest.  This sentence can mislead a motorist to believe that he or she will be held indefinitely until three samples are forcibly taken from the suspect making the consent involuntary.

The implied advisory consent warning given by Nevada law enforcement is fatally defective and does not even remotely track the statute which is NRS 484C.160 referenced above.  For whatever reason, Nevada law enforcement has chosen to substitute its own misleading implied consent warning to read to motorists and ignore the existing implied consent law plainly spelled out in NRS 484C.160.

Because of the fact that Nevada law enforcement officers mislead motorists with their flawed implied consent advisements, I’ve been filing motions to suppress to throw out the breath or blood results.  Because the Nevada Supreme Court has no cases directly dealing with this issue I’m raising in my motions to suppress, I have to rely on other courts from other states:

“While one of the purposes of the implied consent statute is to provide an efficient means of gathering reliable evidence of intoxication, Blaine v. Suess, 22 Wn. App. 809, 592 P.2d 662 (1979), rev’d on other grounds, 93 Wn.2d 722, 612 P.2d 789 (1980), another purpose is to allow the operator of a motor vehicle to exercise intelligent judgment regarding the effect of such refusal. See generally State v. Whitman Cy. Dist. Court, 105 Wn.2d 278, 714 P.2d 1183 (1986); Welch v. Department of Motor Vehicles, 13 Wn. App. 591, 536 P.2d 172 (1975).  Spokane v. Holmberg, 50 Wn. App. 317, 323 (Wash. Ct. App. 1987).  The test result is but one piece of evidence that can be used to establish that an operator was driving while intoxicated.  The prosecutor is still able to admit other evidence to show that the driver was intoxicated.  While we are inclined to agree with the trial judge who ruled on the basis of ‘no harm, no foul,’ we believe strict compliance is the better rule. Consequently, we reverse.”  Id. at 324.

Other courts across the country have recognized the need for accurate implied consent warnings to be administered to a motorist and have suppressed blood test results.  “Because there is insufficient evidence that [Pilkenton or the other driver] suffered a serious injury so as to invoke implied consent to the tests under O.C.G.A. § 40-5-55 (a), the trial court erred in failing to suppress the test results. Accordingly, the blood . . . test results constituting the only evidence at trial which would support a verdict of guilty of the offense charged, [Pilkenton's] conviction must be reversed. Miller v. State, 219 Ga. App. at 497. See State v. Leviner, 213 Ga. App. 99, 102 (3) (c) (443 S.E.2d 688) (1994) (where information given to a defendant contains substantial misleading, inaccurate, or extraneous information such that the defendant was confused as to her implied consent statutory privileges, the results of any test obtained pursuant to the implied consent statute must be excluded).  Pilkenton v. State, 254 Ga. App. 127 (Ga. Ct. App. 2002).

“To omit reference to the right of the accused to have any additional chemical test performed by qualified persons of his own choosing was a fatal flaw, under O.C.G.A. § 40-6-392 (a) (3), rendering the State-administered test results inadmissible at trial.”  State v. Causey, 215 Ga. App. 85 (449 S.E.2d 639).  Mooney v. State, 221 Ga. App. 420, 425 (Ga. Ct. App. 1996).

As you can see from these cases above taken from other states, these state courts would find that the warnings read to motorists by Nevada law enforcement officers are unconstitutional.  I believe it’s a matter of time before the Nevada Supreme Court addresses this issue and requires Nevada law enforcement officers to do their jobs and to read the correct implied consent advisement to motorists suspected of Driving Under the Influence (DUI). I look forward to continue leading this fight.