Attacking Flawed Implied Consent Warnings in Your Driving under the Influence (Dui) Defense

Sobriety Test

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 of 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 evidentiary testing of your blood or breath to determine alcohol content. If this is the first offense, you may refuse to submit to a blood test if the 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 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 the first offense, you may refuse to submit to a blood test if the 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 trespass, public intoxication, a DUI conviction over 8 years prior to the arrest, or a DUI charge that was reduced to reckless driving could easily be misled into 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 as one of the top Las Vegas-based DUI defense lawyers.

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