Gov. Brian Sandoval signed Assembly Bill 67 into law last week. The bill makes changes to the Silver State’s laws pertaining to driving under the influence of alcohol and drugs. It both brings the statutes in line with recent Supreme Court rulings and alters when a person is considered in physical control of a vehicle.
In April 2013, the U.S. Supreme Court handed down its opinion in Missouri v. McNeely. In the case, a man had been stopped by officers and refused to take a DUI test. He first refused a breath test. The officer took him to a medical center and asked for consent to a blood draw. The man refused, and the officer ordered the lab technician to take a blood sample. He did not obtain a warrant. The Court ruled that a warrantless test was unconstitutional, and that the fact that alcohol dissipates into blood over time was not enough to constitute an “exigent circumstance” that would allow for a warrantless search.
Based on McNeely, the Nevada Supreme Court found in Byars v. State that the state’s “implied consent” law was unconstitutional. The law, before AB 67 made changes, permitted officers to take a blood draw from suspects by use of reasonable force, as they had been deemed to have consented to a test by driving on Nevada roads. AB 67 removed references that allowed police to compel a blood draw.
In 2014, the state Supreme Court also found in City of Reno v. Howard that a provision of the law that allowed affidavits to be submitted to prove certain requirements for DUI tests impermissibly burdened a person’s right to confrontation. Under the old law, a defendant had to prove that there was a serious dispute of facts between his or her version of the facts and the facts presented in the affidavit, and that it was in the best interests of justice for the court to allow the defense to cross-examine the witness signing the affidavit. AB67 now allows a defendant to object to the admissibility of the affidavit at least 10 days before trial.
AB67 also makes changes related to parking while intoxicated. It is illegal to be in physical control of a vehicle while under the influence of alcohol or drugs. Before AB 67, a person could be convicted of DUI while parked if the prosecutor can prove that he or she met the definition of actual physical control.
AB67 changes the definition of physical control to specifically exclude a person who is:
- Not in the driver’s seat;
- Has the engine turned off;
- Is in a vehicle that is lawfully parked; and
- Could not, under the facts presents, have driven the vehicle to its current location while under the influence.
A person who arrives at his or her car after a night at the bar and opts to sleep in the back seat with the engine turned off, therefore, may avoid prosecution for a DUI. Having this option should help to keep drunk drivers off the road.
The changes in the law highlight the importance of having a DUI defense attorney on your side if you are accused of driving under the influence in Las Vegas or the surrounding areas of Clark County. Your lawyer can object to improperly obtained evidence and assert all relevant defenses.