The supreme court ruled that police must try to obtain a warrant to take blood from a suspected drunk driver. They said I refused the breathalyzer so they had my blood taken from me without consent and before I had even been arrested and handcuffed. The police never tried to get a warrant for it. Can I get my blood alcohol level thrown out because of this?
The case Missouri v. McNeely struck down per se exigency as an exception to the warrant requirement. It does not necessarily require police to obtain a warrant to draw blood. NRS 484C.160 provides that a police officer can force a blood draw during a DUI arrest. At this point, NRS 484C.160 still applies in Nevada. The DUI courts are moving very slowly, and there are differing opinions about how McNeely will change the state of DUI law. Our firm has several motions to exclude blood samples in the courts right now. We will have a more definitive answer after the Nevada Supreme Court has ruled on the issue.
Short answer: we don't know yet. But it is a very interesting question.
Given the recent ruling, you should definitely hire a private attorney and file a motion to suppress this evidence. My partner handles these, and is arguing one of these motions next week. Actually, he's re-arguing it--he made the same argument before the recent Supreme Court Ruling, and is having it re-considered given the ruling.
He can generally get you in to see him for a free consultation in a day or so.
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