Dobleve

In the seven years I’ve been going to Burning Man as part of the theme camp Black Rock City Animal Control, (and as an attorney who’s always curious about such things) I’ve had several occasions to read and research Nevada law. Somehow though, I have never seen this little gem governing what the police may do if a person is stopped for suspicion of driving under the influence in the state of Nevada:

If a person to be tested fails to submit to a required test as directed by a police officer pursuant to this section and the officer has reasonable grounds to believe that the person to be tested was:

(a) Driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or a controlled substance…

(t)he officer may direct that reasonable force be used to the extent necessary to obtain samples of blood from the person to be tested. Not more than three such samples may be taken during the 5-hour period immediately following the time of the initial arrest. In such a circumstance, the officer is not required to provide the person with a choice of tests for determining the concentration of alcohol or presence of a controlled substance or another prohibited substance in his blood.

NRS 484.383 Implied consent to evidentiary test
It’s no secret that I’m passionate to the point of being hotheaded about civil liberties but This – strapping someone down and sticking a needle in their arm to forcibly draw their blood seems to so harshly violate the right to privacy and against unreasonable government intrusion that I’ve reread the statute three times. I honestly can’t believe it — especially when an officer seems to need only a “reasonable suspicion” that a person has been driving under the influence to order this kind of intrusion. I have seen courts find that the slurring of words or inability to do road side tests, for example, are each a basis for reasonable suspicion and yet these things can often be explained by other causes. Imagine having your blood forcibly drawn because you have Multiple Sclerosis or a speech disorder or because you have an ear infection and don’t balance well walking in a straight line. (I have seen each of these used to justify actions based on “reasonable suspicion”!)

The Nevada state legislature seems to justify this forcible intrusion under an implied consent doctrine – -that is to say, if you get a driver’s license there you are automatically consenting to give, or have forcibly taken, your blood – under certain circumstances. Washington State (where I have actually practiced as a lawyer, not just amateur-hour perused the Nevada Revised Statutes) has a similar doctrine – if you apply for and are granted a driver’s license you are implying that you will submit to a breath or blood test under certain circumstances on penalty of losing your license (as opposed to a forcible blood draw) if you do not submit. In Washington State you may have your blood drawn against your will if there has been an injury accident, but never simply to provide evidence against yourself in a possible DUI charge.

It is no small thing to have your blood taken against your will – I personally HATE having a needle stuck in my arm, and, there could be almost nothing more private than your blood! It can reveal all kinds of things that are normally extremely private – whether you’re pregnant, whether you have AIDS or other medical conditions, medications you are taking — just to name a few. And to literally extract that information by force seems barbaric. (If I were to have an opinion, that is.)

I realize that the group in danger of having their rights violated might be “drunk drivers”, and therefore not a necessarily sympathetic group, but as with all civil liberties protections, if they mean nothing for the accused they will never mean anything for the innocent.