State v. Jones , 111 Nev. 774 ( 1995 )

OPINION

Per Curiam:

These are consolidated appeals from orders of the district court granting respondents’ motions to suppress evidence. Each of the two respondents, while on the streets of Clark County, was arrested by Las Vegas Metropolitan Police Department (“LVMPD”) officers for being under the influence of cocaine. Each respondent was then taken to the Clark County Detention Center and, after refusing to submit to a blood or urine test, was forced to give blood. LVMPD officers did not obtain warrants for the seizure of this blood.

The respondents were subsequently charged with being under the influence of a controlled substance, a felony under NRS 453.411. Thereafter, they filed motions to suppress all evidence relating to the blood tests. At hearings regarding the warrantless seizure of the respondents’ blood, the state presented evidence that cocaine may be reduced by half in an individual’s blood system within forty-five minutes, and that on the average, cocaine dissipates in the bloodstream within four hours. The state’s toxicology expert opined that one of cocaine’s metabolites, ben-zoylecgonine, may be detectable in the blood for approximately four to six hours beyond the detection period for cocaine. A criminalist with the LVMPD forensic laboratory, however, testified that benzoylecgonine remains in the bloodstream for as many as twelve hours after cocaine dissipates. In addition, respondents cited an article that allegedly specifies five days as the period during which cocaine’s metabolites may be detected. It is not clear, however, whether this article refers to blood tests or urine tests.

After considering the parties’ arguments, the district court granted the respondents’ motions to suppress. On appeal, the state asserts that under Schmerber v. California, 384 U.S. 757 (1966), it was entitled to withdraw blood from each respondent without a warrant and test it for the presence of cocaine and its metabolites. In Schmerber, the Supreme Court concluded that the warrantless seizure of a DUI suspect’s blood was justified because the percentage of alcohol in the blood begins to diminish shortly after drinking stops and because police officers had to spend time investigating the accident scene and taking the suspect to the hospital. Id. at 770-71.

We are not convinced that Schmerber applies in the present circumstances. An intrusion into a suspect’s body constitutes a “search” as contemplated by the Fourth Amendment. Schmerber, 384 U.S. at 767. The Fourth Amendment mandates that a warrant be obtained before such a search is initiated. Katz v. United States, 389 U.S. 347, 357 (1967). One exception to this warrant requirement occurs when exigent circumstances are present. United States v. Salvador, 740 F.2d 752, 758 (9th Cir. 1984), cert. denied, 469 U.S. 1196 (1985). Here, however, the circumstances were not sufficiently exigent to justify a warrant-less search.

As respondents point out, the considerations involved when a person is suspected of driving under the influence are different than those involved when a person is suspected of merely being under the influence of a controlled substance. In a driving-under-the-influence case, the legislature has provided that

[a] person who drives . . . within this state shall be deemed to have given consent to the taking of his blood, urine, breath or other bodily substance for the purpose of testing those substances to determine his alcohol concentration or to detect the presence of a controlled substance in his system.

NRS 483.922.

Thus, a driver suspected of intoxication may be forced to give a blood or urine sample. The implied consent theory, however, does not apply in cases like these, where suspects are arrested on the street. In addition, a conviction for driving under the influence requires a specific minimum concentration of blood alcohol, whereas a conviction for being under the influence of a* controlled substance requires only a trace amount of the substance or its metabolites. See NRS 453.411; NRS 484.379. Further, the dissipation rate for cocaine and its metabolites appears significantly slower than the dissipation rate for alcohol. Finally, intoxicated pedestrians do not present the serious public safety hazard that results from drunk drivers.

Although cocaine and its metabolites dissipate over time, the state will not necessarily lose its evidence and its opportunity to convict a suspect if it is required to obtain a warrant before withdrawing a suspect’s blood. According to the hearing testimony, the state has, at the very least, six to fourteen hours after cocaine is ingested before the cocaine and its metabolites dissipate. In addition, the state may produce evidence of a suspect’s outward symptoms of cocaine use in establishing that the suspect was under its influence.

Although the state asserts that obtaining a search warrant in Clark County requires more than six hours, this alleged delay does not justify the violation of a suspect’s Fourth Amendment rights. Under this reasoning, the slower the jurisdiction is to issue search warrants, the more “exigent” circumstances arise, and the fewer warrants are needed. The Fourth Amendment is simply not susceptible to this type of reasoning.

In short, the state has not met its “‘heavy burden of demonstrating that exceptional circumstances justified a departure from the normal procedure of obtaining a warrant.’ ” United States v. Alvarez, 810 F.2d 879, 881 (9th Cir. 1987)(quoting United States v. Driver, 776 F.2d 807, 810 (9th Cir. 1985)). Accordingly, we aflirm the district court’s orders granting respondents’ motions to suppress evidence.