NV: Suspicion of DUI drugs is not an exigency under McNeely

Suspicion of DUI drugs is not an exigency under McNeely. Byars v. State, 130 Nev. Advance Opinion 85, 2014 Nev. LEXIS 111 (October 16, 2014):

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 (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.