Ebarb v. State, Dept. of Motor Vehicles and Public Safety, 22004

Decision Date30 December 1991
Docket NumberNo. 22004,22004
Citation107 Nev. 985,822 P.2d 1120
PartiesJames D. EBARB, Appellant, v. STATE of Nevada, DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.
CourtNevada Supreme Court
OPINION

PER CURIAM:

Appellant James D. Ebarb was arrested for driving under the influence of alcohol. A record check through dispatch revealed two prior convictions for DUI in the past seven years. The officer did not read appellant the implied consent law. Instead, he informed appellant that appellant was required to submit to a chemical test. Appellant then submitted to a blood test. The blood test revealed appellant's alcohol level to be .327 percent. Based on the results of the blood test, the Department of Motor Vehicles and Public Safety revoked appellant's driver's license. The district court denied appellant's petition for judicial review and affirmed the Department's revocation decision. This appeal followed. Because we conclude that once an arresting officer has determined that a suspect has prior DUI convictions the suspect no longer has a right to refuse a blood test, we affirm the decision of the district court.

DISCUSSION

Appellant argues that the result of his blood test was improperly admitted at the revocation hearing because the officer did not substantially comply with the provisions of NRS 484.383, as required under 484.389(2). 1 Specifically at issue is the interpretation of NRS 484.383(8), which provides:

If a person to be tested fails to submit to a required test as directed by a police officer under this section, none may be given, except that if the officer has reasonable cause to believe that the person to be tested was driving ... while under the influence of intoxicating liquor ... and that person:

....

(b) Has been convicted of an offense, as defined in subsection 7 of NRS 484.3792, within the previous 7 years, the officer may direct that reasonable force be used to the extent necessary to obtain a sample of blood from the person to be tested.

Also relevant are NRS 484.383(2), which requires the arresting officer to inform a suspect that if he refuses to submit to a test his license will be revoked, and NRS 484.383(5), which requires the officer to offer the suspect a choice between a breath test and a blood test.

Appellant argues that according to the language of NRS 484.383(8), only after the suspect is warned of the consequences of refusal under NRS 484.383(2), is offered a choice of a blood test or breath test under NRS 484.383(5), and has refused to submit to any test, may the officer then require the suspect to submit to a blood test. Therefore, appellant contends, the officer did not substantially comply with the Nevada implied consent law, the results of the blood test should have been excluded, and the revocation was improper.

Appellant's reading of NRS 484.383(8) is erroneous. Statutes should be construed "with a view to promoting, rather than defeating the legislative policy behind them." State, Dep't of Mtr. Vehicles v. Brown, 104 Nev. 524, 526, 762 P.2d 882, 883 (1988). The clear intent of NRS 484.383(8) is to obtain a blood test if there is reasonable cause to believe a DUI suspect has...

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5 cases
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    • United States
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    ... ...         Morgan D. Harris, Public Defender and Michael L. Miller, and Ralph E ... from a fairly close range while the two vehicles were moving. Unlike Nevius, Gonzales was not ... ...
  • Morgan v. State
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    ... ... FILED MAY 03, 2018 Howard Brooks, Public Defender, and Sharon G. Dickinson, Deputy Public ... ...
  • State, Dept. of Motor Vehicles and Public Safety v. Lovett, 23669
    • United States
    • Nevada Supreme Court
    • May 19, 1994
    ... ... Moreover, statutes are generally construed with a view to promoting, rather than defeating, legislative policy behind them. Ebarb v. State, Dep't of Mtr. Vehicles, 107 Nev. 985, 987, 822 P.2d 1120, 1122 (1991) ...         This court has liberally construed the implied ... ...
  • Reyes v. State Dep't of Motor Vehicles & Pub. Safety
    • United States
    • Nevada Supreme Court
    • February 24, 2012
    ... ... , Appellant,v.The STATE of Nevada DEPARTMENT OF MOTOR VEHICLES AND PUBLIC SAFETY, Respondent.No. 58152.Supreme Court of Nevada.Feb. 24, ... Ebarb v. State, Dep't of Mtr. Vehicles, 107 Nev. 985, 987, 822 P.2d 1120, 1122 ... ...
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