Higgins v. State

706 P.2d 506, 101 Nev. 531, 1985 Nev. LEXIS 462
CourtNevada Supreme Court
DecidedSeptember 24, 1985
DocketNo. 15858
StatusPublished
Cited by4 cases

This text of 706 P.2d 506 (Higgins v. State) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Higgins v. State, 706 P.2d 506, 101 Nev. 531, 1985 Nev. LEXIS 462 (Neb. 1985).

Opinion

OPINION

Per Curiam:

This is an appeal from a judgment of the district court upholding an order of a Department of Motor Vehicles hearing officer revoking appellant’s driving privileges. The initial order entered October 31, 1983 was affirmed April 16, 1984 after appellant presented additional testimony from Dr. Thorne Butler.

Appellant was injured in a single car accident September 4, 1983 at approximately 4:55 a.m. while driving on Tropicana Avenue in Las Vegas. Her vehicle crossed two lanes of traffic, struck a light pole, and ended up in the dirt portion of a parking [532]*532lot. The left side of appellant’s vehicle was damaged.1 Medicaid personnel responding to the accident had difficulty in removing appellant from the car.

Michael Cranson, a traffic officer for Metropolitan Police Department, investigated the accident. Appellant was pinned inside the car when Officer Cranson arrived at the accident scene. Paramedics were working to extricate her from the driver’s compartment, and the officer did not speak to her at that time. He said, “She was obviously injured.” Although he could not recall specifically any comments made by her at the scene, he said her speech was slurred, her eyes were red and he could smell the odor of an alcoholic beverage on her breath.

Appellant was taken by ambulance to Desert Springs Hospital where she was treated for leg and arm injuries, a torn rib cage, internal injuries and a broken pelvis. Appellant had apparently lost consciousness at the accident scene or while in the ambulance. Skull X-rays were taken at the hospital. Blood and urine tests were administered and when blood was discovered in her urine, she was given an intravenous pyelogram in which dye was put into the blood for an X-ray study of the kidneys. 50 miligrams of Demerol and 50 miligrams of Phenergan were administered to appellant in the emergency room. Dr. Thorne Butler testified that Demerol is an analgesic or pain killer, and that Phenergan is a phenothiazine derivative primarily used as a mood relaxer. Both drugs act as depressants on the central nervous system.

Officer Cranson did not consult with hospital personnel about appellant’s condition or treatment, but went directly to the room where she was confined. Appellant testified that she was sleeping when the officer entered. Cranson did not recall whether appellant was awake or asleep but did say, “She may have had her eyes closed.”

The officer said that based upon his experience “as a police officer from past investigations,” he determined that appellant knew what day it was, that she was in the hospital and understood what was going on around her. He “advised her of her Implied Consent and her Miranda warning at that time.”2

[533]*533Officer Cranson testified that appellant “kept requesting her mother repeatedly without acknowledging whether she would take her blood or urine test.” He further stated that appellant “was irritable, belligerent. She kept stating, ‘I don’t want to talk to anyone. I want to speak to my mother. I want my mother here.’ ” He made no inquiry to determine that blood and urine samples had in fact been taken from appellant while in the hospital. He admitted that he might have become “belligerent possibly because of her attitude. I’m only human.”3

Appellant testified that at the time of the accident she had no control over the car. A letter was admitted in evidence from the shop manager of Pete Findlay Oldsmobile which stated that when the car was towed there, it had no power steering belt which would have made it impossible to steer.

Appellant testified that she could remember little of the accident and her contact with Officer Cranson at the hospital. She stated that she was sleeping after receiving shots and that

He came in and started screaming at me, I had to take to sign a thing to take a test and I said, I really didn’t know what he was talking about at first, and then he says, “you gotta submit, you gotta sign a thing to a test.” He was screaming and he said, and I said they already stuck needles in me and I said, you’re not sticking any in me. I just remember saying I wouldn’t take any more needles.

Appellant stated that Officer Cranson left the room and then returned, at which time he threw a paper on the bed. She testified that it was not her intention to reftise to submit to a blood test; that she did not understand what was happening until several days later when she read “that thing he threw.”

The only medical witness to testify was Dr. Thorne Butler,4 a [534]*534board certified pathologist and forensic toxicologist whose qualifications were stipulated to for purposes of the hearing. Dr. Butler stated,

It is my medical opinion then that Miss Higgins who had suffered a fractured pelvis and was being treated for pain with demerol and a phenothiazine tranquilizer (phenergan) would not be in any condition to give an intelligent response or to comprehend the implied consent laws concerning the obtaining of a blood specimen for a blood alcohol analysis.

Nevada’s implied consent law requires drivers and those exerting actual physical control over a vehicle while upon the highways or premises to which the public has access to submit to a preliminary breath test or evidentiary test to determine if they are under the influence of an intoxicating liquor or a controlled substance. See NRS 484.382 and NRS 484.383. Individuals having an evidentiary blood alcohol level of . 10 percent or more, or who are directed by an officer to take a test but refuse, face revocation of driving privileges. See NRS 484.385(1).

The Department of Motor Vehicles revoked appellant’s driving privileges because of her failure to submit to the evidentiary test. See NRS 484.383(7) and NRS 484.384(1). While appellant was given the opportunity to withdraw her consent, we conclude that based upon the objective facts and circumstances, she was incapable of doing so.

NRS 484.383(3) provides:

Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent, and any such test may be administered whether or not the person is informed that his failure to submit to the test will result in the revocation of his privilege to drive a vehicle.

In State v. Campbell, 615 P.2d 190, 195 (Mont. 1980) the court observed:

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Related

Alford v. Tipton
822 P.2d 513 (Colorado Court of Appeals, 1991)
Hughey v. Department of Motor Vehicles
235 Cal. App. 3d 752 (California Court of Appeal, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
706 P.2d 506, 101 Nev. 531, 1985 Nev. LEXIS 462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-state-nev-1985.