Brockett v. State

817 P.2d 1183, 107 Nev. 638, 1991 Nev. LEXIS 149

• Court: Nevada Supreme Court
• Decided: September 30, 1991
• Docket: No. 21407
• Status: Published

Opinions

OPINION

By the Court,

Steffen, J.:

This is an appeal from a judgment of conviction, entered pursuant to a bench trial, of one count of driving under the influence, third offense. On March 12, 1989, Officer Steve Schuette observed a vehicle weaving from the left to the right lane on Carson Street in Carson City. Officer Schuette stopped the vehicle and approached the driver. The driver identified himself as appellant, Randy Allen Brockett. Officer Schuette noticed that Brockett had a strong odor of alcohol on his breath, his eyes were bloodshot, and he had slurred speech. Brockett swayed as he stood speaking to Officer Schuette.

Officer Schuette administered several field sobriety tests on Brockett, which he failed. Officer Schuette then arrested Brockett and informed him of his responsibility to submit to an evidentiary test. When Brockett did not respond, Officer Schuette took his silence to be a refusal.

The police dispatcher informed Officer Schuette that Brockett had a prior 1987 conviction for DUI. The dispatcher did not specify, however, the state in which Brockett had received his conviction. Based upon this information, Officer Schuette informed Brockett that he would have to give a blood sample despite his earlier refusal.

Officer Schuette placed Brockett in his patrol car and transported him to the Carson-Tahoe Hospital. At the hospital Officer Schuette again asked Brockett if he would voluntarily submit to a test, and Brockett again failed to answer. Officer Schuette then learned that Brockett’s prior DUI conviction was sustained in California. Believing that a prior California DUI conviction nonetheless supplied grounds for an involuntary blood test, Officer Schuette directed that a forced blood withdrawal be taken from Brockett’s arm. Brockett’s blood-alcohol level proved to be 0.198 percent.

Brockett later moved to suppress evidence of the forced blood draw. The district court denied his motion. Following a bench trial, Brockett was found guilty of the crime of driving with 0.10 percent or more by weight of alcohol in the blood. See NRS 484.379. Because this was his third offense, the district court sentenced him to serve a term of one year in the Nevada State Prison and imposed a fine in the amount of $2,000. See NRS 484.3792(l)(c).

Brockett contends on appeal that his forced blood draw was illegal and, consequently, the district court should have suppressed evidence of appellant’s blood-alcohol level. At the time of Brockett’s arrest, NRS 484.383(8) (emphasis added) provided as follows:

If a person to be tested fails to submit to a required test as directed by a police officer under this section, none may be given, except that if the officer has reasonable cause to believe that the person to be tested was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or a controlled substance, and that the person:

(b) Has been convicted of a violation of NRS 484.379[¹] within the previous 7 years, the officer may direct that reasonable force be used to the extent necessary to obtain a sample of blood from the person to be tested. [²]

We conclude that NRS 484.383(8)(b) did not authorize the forcible taking of Brockett’s blood. Because Brockett had only sustained prior California DUI convictions, he had not been “convicted of a violation of NRS 484.379.” The statute therefore required that no test be given. Nevertheless, it does not necessarily follow that the evidence should have been excluded from trial. We conclude that the district court correctly refused to exclude the evidence.

We first note that no statute requires the exclusion of evidence taken in violation of NRS 484.383(8). There is no indication in the record that Officer Schuette was acting in bad faith or deliberately violating the law when he directed the forced blood draw. He testified that he had been trained that a forced blood draw could be taken from a person who had sustained a previous DUI conviction, regardless of the state in which the conviction was sustained. Although this construction of the statute is incorrect, it was not an unreasonable interpretation of the statute. Many district attorneys and law enforcement officers construed the phrase “[h]as been convicted of a violation of NRS 484.379” to include any DUI violation in any state and, although the language of the statute was ill chosen, it is likely that the legislature intended the statute to be so construed. Indeed, as noted above, NRS 484.383(8)(b) has been amended and would now allow a forced blood draw to be taken in the circumstances of this case. Although Officer Schuette erred in directing the blood draw, we conclude that no public policy would be served by excluding the evidence from trial. Thus, the district court properly admitted the evidence of appellant’s blood-alcohol level.

Accordingly, we affirm the district court’s judgment of conviction.³

Mowbray, C. J., concurs.

1 NRS 484.379 provides that “[i]t is unlawful for any person who . . . [i]s under the influence of intoxicating liquor; or . . . [h]as 0.10 percent or more by weight of alcohol in his blood, to drive or be in actual physical control of a vehicle . . . .”

2 NRS 484.379(8)(b) has since been amended to provide that an offlcer may use reasonable force to obtain a sample of blood when the person has previously been convicted of “an offense, as defined in subsection 7 of NRS 484.3792.” NRS 484.3792(7) defines an offense as “a violation of NRS 484.379 ... or the violation of a law of another jurisdiction which prohibits the same or similar conduct.”

3 We have reviewed Brockett’s remaining contention and have determined that it is without merit.