OCT 1 6 2014 

IRATE': I INREMAN 

CE 

130 Nev., Advance Opinion en 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

MICHAEL DWAYNE BYARS, A/K/A 

MARCUS JONES, A/K/A JEFFERY 

ROSHAWE BYARS, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 61348 

FILED 

Appeal from a judgment of conviction, pursuant fa a jury 

verdict, of prohibited possession of a firearm by an unlawful user of a 

controlled substance, addict, or felon; using or being under the influence of 

a controlled substance; and two counts of battery by a prisoner in lawful 

custody or confinement. Tenth Judicial District Court, Churchill County; 

Robert E. Estes, Judge. 

Affirmed in part, reversed in part, and remanded. 

Steve E. Evenson, Lovelock, 

for Appellant. 

Catherine Cortez Masto, Attorney General, Carson City; Arthur E. 

Mallory, District Attorney, and Benjamin D. Shawcroft, Deputy District 

Attorney, Churchill County, 

for Respondent. 

BEFORE THE COURT EN BANG. 

OPINION 

By the Court, PARFtAGUIRRE, J.: 

In this appeal, we are asked to determine whether the 

warrantless, forced blood draw on a driver suspected of driving under the 

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influence of a controlled substance violates the Fourth Amendment. In 

light of the U.S. Supreme Court's decision in Missouri v. McNeely, we 

conclude that the natural dissipation of marijuana in the blood stream 

does not constitute a per se exigent circumstance justifying a warrantless 

search. 569 U.S. „ 133 S. Ct. 1552, 1568 (2013) (plurality opinion). 

We further conclude that despite NRS 484C.160, the state's implied 

consent statute, the blood draw in this case was unlawful because 

appellant did not submit to the blood draw, and NRS 484C.160(7), which 

permits officers to use force to obtain a blood sample from a person, is 

unconstitutional because it permits officers to conduct a search without a 

warrant, valid consent, or another exception to the warrant requirement. 

Nevertheless, we conclude that the blood draw was taken in good faith, 

thus the exclusionary rule does not apply. We therefore conclude that the 

Fourth Amendment violation does not warrant reversal of the judgment of 

conviction. 

We do, however, reverse the portion of the judgment of 

conviction finding the defendant guilty on the count of unlawful user of a 

controlled substance in possession of a firearm. The district court merged 

that offense with the felon-in-possession count for sentencing and the 

State concedes on appeal that the district court should not have 

adjudicated the defendant guilty on both counts. 

FACTS 

On January 12, 2012, Nevada Highway Patrol Trooper 

William Murwin pulled Michael Byars over for speeding on U.S. Highway 

50 in Churchill County. Upon approaching Byars, Trooper Murwin 

smelled marijuana. Byars admitted to having smoked marijuana five 

hours before. Trooper Murwin performed field sobriety tests and arrested 

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Byars on the belief that he was under the influence of a controlled 

substance. 

Trooper Murwin and another trooper performed an inventory 

search of Byars' car and found a handgun in a storage area of the car. 

Trooper Murwin then read Byars Nevada's implied consent law and 

informed Byars that he would perform a blood test. Byars refused to 

submit to the test, but cooperated with Trooper Murwin until they reached 

the hospital and the blood draw was actually performed. During the blood 

draw, Byars struggled, striking Trooper Murwin in the head with his 

elbow and a sheriff's deputy in the abdomen and side with his legs. The 

blood draw showed that Byars had THC (tetrahydrocannabinol, the 

psychoactive constituent of marijuana) in his blood. 

The State charged Byars with being an unlawful user of a 

controlled substance in possession of a firearm, a category B felony under 

MRS 202.360(1); unlawful use or being under the influence of a controlled 

substance, a category E felony under NRS 453.411(3)(a); two counts of 

battery by a prisoner in lawful custody or confinement, a category B felony 

under NRS 200.481(2)(f); and being a felon in possession of a firearm, a 

category B felony under NRS 202.360(1)(a). 

The district court bifurcated Byars' trial for the first four 

counts and the fifth count, felon in possession of a firearm. During the 

portion of Byars' trial on the felon-in-possession charge, the State 

introduced two judgments of conviction for Marcus Jones and then 

introduced testimony from Byars at a prior justice court appearance that 

Marcus Jones was his alias and that those convictions were his. The State 

did not introduce additional evidence identifying Byars as Marcus Jones. 

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Byars was convicted of all counts, and the district court 

merged Count 1 with Count 5 for purposes of sentencing, imposing a 

single sentence. In addition, Byars was convicted in a prior proceeding of 

driving under the influence of a controlled substance, a misdemeanor. 

On appeal, Byars argues that: (1) the warrantless blood draw 

violated the Fourth Amendment prohibition on unreasonable searches and 

seizures; (2) the "unlawful user of, or addicted to, any controlled 

substance" element of unlawful possession of a firearm under NRS 

202.360(1)(c) cannot be satisfied by proving a single use of a controlled 

substance; (3) the State did not present sufficient evidence to establish the 

corpus delicti of the felon-in-possession charge; (4) the convictions for 

misdemeanor DUI and the felony under-the-influence charge violated the 

Double Jeopardy Clause; (5) the State did not present sufficient evidence 

to support the battery convictions; (6) Byars was not in custody when the 

batteries occurred; (7) the district court abused its discretion by denying 

Byars' motion to sever the charges; and (8) the prosecutor's remarks 

during closing argument prejudiced Byars' right to a fair trial. 

DISCUSSION 

The warrantless blood draw violated the Fourth Amendment 

Byars argues that, in light of the U.S. Supreme Court's 

decision in Missouri v. McNeely, 569 U.S. „ 133 S. Ct. 1552, 1568 

(2013) (plurality opinion), the warrantless blood draw violated the Fourth 

Amendment prohibition on unreasonable searches and seizures. The 

Fourth Amendment to the United States Constitution and Article 1, 

Section 18 of the Nevada Constitution protect individuals from 

unreasonable searches and seizures. A warrantless search is reasonable 

only where it falls within a recognized exception. McNeely, 569 U.S. at 

, 133 S. Ct. at 1558. The State argues that the warrantless search in 

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this case was reasonable under either of two exceptions: exigent 

circumstances and consent. 

The exigent circumstances exception to the warrant requirement does 

not apply 

The exigent circumstances exception to the warrant 

requirement applies where "the exigencies of the situation make the 

needs of law enforcement so compelling that a warrantless search is 

objectively reasonable under the Fourth Amendment.' Id. at , 133 S. 

Ct. at 1558 (quoting Kentucky v. King, 563 U.S. „ 131 S. Ct. 1849, 

1856 (2011)). Applying that exception, the U.S. Supreme Court upheld the 

constitutionality of a warrantless blood draw in Schmerber v. California, 

where an officer reasonably believed that the delay involved in securing a 

warrant would result in the dissipation of alcohol in a driver's blood. 384 

U.S. 757, 772 (1966). Some courts "interpreted Schmerber as concluding 

that the naturally rapid dissipation of alcohol in the bloodstream creates 

an emergency that justifies a warrantless blood draw." State v. Shriner, 

751 N.W.2d 538, 546-47 & 547 n.11 (Minn. 2008) (discussing majority and 

minority views of Schmerber), abrogated by McNeely, 569 U.S. at , 133 

S. Ct. at 1568; see also State v. Smith, 105 Nev. 293, 296, 774 P.2d 1037, 

1039 (1989) (citing Schmerber in support of the conclusion that 

warrantless administration of a breath test did not violate the Fourth 

Amendment "because evidence such as breath samples may be lost if not 

immediately seized"). Other courts, however, understood Schmerber to 

require a review of the totality, of the circumstances, not just the rapid 

dissipation of alcohol, to determine whether there was an exigency. See, 

e.g., State v. Rodriguez, 156 P.3d 771 (Utah 2007). The Supreme Court 

recently resolved this split of authority in McNeely, holding that the 

natural dissipation of alcohol from the bloodstream is a relevant 

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consideration in an exigent circumstances analysis but is not a per se 

exigent circumstance that justifies an exception to the Fourth 

Amendment's warrant requirement for nonconsensual blood draws in 

drunk-driving cases. 569 U.S. at 133 S. Ct. at 1568. 

The McNeely Court reasoned that a per se rule of exigency 

based on the natural dissipation of alcohol is inappropriate because it 

would apply the exception in circumstances that are inconsistent with the 

policy justifications that make a warrantless search based on an exigency 

reasonable. Id. at , 133 S. Ct. at 1560-63. The Court observed that a 

warrantless search in exigent circumstances is reasonable because 'there 

is compelling need for official action and no time to secure a warrant." Id. 

at , 133 S. Ct. at 1559 (quoting Michigan v. Tyler, 436 U.S. 499, 509 

(1978)). Accordingly, there is no justification for applying the exigent 

circumstances exception when "officers can reasonably obtain a warrant 

before a blood sample can be drawn without significantly undermining the 

efficacy of the search." Id. at , 133 S. Ct. at 1561. 

The Court reiterated that the question of the reasonableness 

of a warrantless search should be answered on a case-by-case basis 

considering the totality of the circumstances. Id. at , 133 S. Ct. at 

1563. The case, however, did not lend itself to development of the various 

factors that might inform a decision about the reasonableness of a 

warrantless blood draw because Missouri had not offered any argument 

based on the totality of the circumstances, such as whether a warrant 

could be obtained within a reasonable amount of time. Id. at , 133 S. 

Ct. 1568 (explaining that "the arguments and the record [did] not provide 

the Court with an adequate analytic framework for a detailed discussion 

of all the relevant factors that can be taken into account in determining 

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the reasonableness of acting without a warrant"). Because the totality of 

the circumstances was not litigated in the case, the Court affirmed the 

Missouri Supreme Court's decision that there were no exigent 

circumstances and that the warrantless blood draw was unconstitutional. 

Id. 

Although McNeely involves alcohol intoxication and this case 

involves marijuana, we conclude that the reasoning of McNeely applies 

here and that, like the natural dissipation of alcohol, the natural 

dissipation of THC from the blood does not create a per se exigency. 

Looking to the totality of the circumstances, we conclude that the State 

failed to establish exigent circumstances to justify the warrantless blood 

draw. First, the State did not demonstrate that waiting for a warrant 

would result in losing evidence of Byars' intoxication. In fact, there is 

reason to believe that traces of marijuana in the bloodstream would take 

longer to dissipate than alcohol, thus the fact that Byars was suspected of 

marijuana use instead of alcohol use militates in favor of finding that 

there were no exigent circumstances justifying the warrantless search.' 

See State v. Jones, 111 Nev. 774, 776, 895 P.2d 643, 644 (1995) (noting 

that cocaine had a slower dissipation rate than alcohol in holding that a 

warrant was required before performing a blood test on a pedestrian 

suspected of being under the influence of a controlled substance). 

'The State's toxicologist testified that Byars had 4.5 nanograms of 

THC per milliliter of blood, which is 2.5 nanograms higher than the 

statutory amount for intoxication. NRS 484C.110(3)(g). According to the 

toxicologist, 4.5 nanograms "probably represent[s] the tail-end of the 

smoking." Even though Byars had stated that he smoked five hours prior, 

there are no facts in the record establishing that the evidence would 

dissipate significantly before a warrant could be obtained. 

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Furthermore, the facts in the record suggest that time was not a factor in 

the officer's decision to take Byars' blood without a warrant. According to 

Trooper Murwin, he waited about 30 minutes before a second K-9 officer 

arrived to sniff the car for drugs, then drove Byars to a hospital to have 

the blood collected, which Trooper Murwin acknowledged to be a lengthy 

process. There is no indication in the record that Trooper Murwin was 

prevented from seeking a warrant telephonically or that time was of the 

essence in securing the blood. There is also no indication in the record 

that the length of the warrant process would endanger the evidence 

Trooper Murwin sought to collect. And we have held that delays in 

securing warrants do not factor into the exigent circumstances analysis. 

Jones, 111 Nev. at 776, 895 P.2d at 644. 2Accordingly, we conclude that 

the warrantless blood draw in question was not justified by the exigent 

circumstances exception to the warrant requirement. 

The consent exception to the warrant requirement does not apply 

The State argues that even if the natural dissipation of THC 

does not create an exigent circumstance, the search was reasonable based 

on consent as provided by the implied consent statute, NRS 484C.160(1). 

Consent to a search also provides an exception to both the Fourth 

Amendment's probable cause and warrant requirements. Schneckloth v. 

2Byars argues that Jones supports this court creating a per se 

warrant requirement where controlled substance use is suspected due to 

the slower dissipation rate of some controlled substances. Although we 

recognize that Jones supports our conclusion that a warrant was required 

in this particular case, we note that a case-by-case examination of the 

totality of the circumstances is still the appropriate way to determine 

whether a warrant is required, especially given the lack of any empirical 

data on the dissipation rate of THC in this case. 

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Bustamonte, 412 U.S. 218, 219 (1973). Byars argues that he did not 

consent and that NRS 484C.160(7), which allows a police officer to use 

reasonable force to take a driver's blood where the officer has a reasonable 

belief that the driver was under the influence of alcohol or a controlled 

substance, is unconstitutional. 

We review the constitutionality of a statute de novo. Sheriff v. 

Burdg, 118 Nev. 853, 857, 59 P.3d 484, 486 (2002). We presume that a 

statute is constitutional, thus the party challenging a statute has a heavy 

burden to show that it is unconstitutional. Id. We have never addressed 

whether a forced blood draw taken pursuant to NRS 484C.160(7) is 

constitutional. 

According to the State, even though Byars refused to submit to 

the blood draw, he had consented to it by choosing to drive on Nevada 

roads. MRS 484C.160(1) provides that "any person who drives or is in 

actual physical control of a vehicle on a highway or on premises to which 

the public has access shall be deemed to have given his or her consent to 

an evidentiary test of his or her blood, urine, breath or other bodily 

substance" if a police officer has reasonable grounds to believe that the 

person was driving or in actual physical control of a vehicle while under 

the influence of alcohol or a controlled substance or was engaging in other 

conduct prohibited by certain statutes. If a driver does not submit to a 

test and the police officer has reasonable grounds to believe that the 

person was under the influence of alcohol or a controlled substance or 

engaging in other specified conduct, "the officer may direct that reasonable 

force be used to the extent necessary to obtain samples of blood from the 

person to be tested." NRS 484C.160(7). 

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The State's argument that consent is valid based solely on 

Byars' decision to drive on Nevada's roads is problematic because the 

statute makes the implied consent irrevocable. A necessary element of 

consent is the ability to limit or revoke it. Florida v. Jimeno, 500 U.S. 248, 

252 (1991) ("A suspect may of course delimit as he chooses the scope of the 

search to which he consents."); see also United States v. McMullin, 576 

F.3d 810, 815 (8th Cir. 2009) (holding that the occupant of a house "must 

make an unequivocal act or statement to indicate the withdrawal of the 

consent"). Just as consent must be freely given, a person must be free to 

withdraw or limit it. United States v. McWeeney, 454 F.3d 1030, 1035-36 

(9th Cir. 2006) (holding that law enforcement officers may not "coerce a 

citizen into believing that he or she had no authority to enforce" the right 

to withdraw consent). 

A number of jurisdictions have upheld implied consent 

statutes where refusing to submit to a blood test results in criminal or 

administrative penalties. See, e.g., People v. Harris, 170 Cal. Rptr. 3d 729, 

734 (Ct. App. 2014) (upholding the state's implied consent statute, which 

attaches a criminal penalty to refusal, noting that "it is no great 

innovation to say that implied consent is legally effective consent, at least 

so long as the arrestee has not purported to withdraw that consent"); State 

v. Brooks, 838 N.W.2d 563, 570, 572-73 (Minn 2013) (concluding that the 

state's implied consent statute, which criminalizes refusal to consent, is 

constitutional, and that the decision to submit to the test "is not coerced 

simply because Minnesota has attached the penalty of making it a crime 

to refuse the test"). The critical distinction between such jurisdictions and 

Nevada is that NRS 484C.160(7) allows a police officer to force a blood 

draw where a driver refuses to submit to a test, thus a Nevada driver who 

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falls under the criteria set forth in NRS 484C.160(7) is not given a choice 

between submitting to a test or facing a penalty. We have found no 

jurisdiction that has upheld an implied consent statute that allows an 

officer to use force to obtain a blood sample upon the driver's refusal to 

submit to a test. 

The State argues that the plurality in McNeely tacitly 

approved of Nevada's implied consent statute as an alternative to the 

exigent circumstances justification for a warrantless blood draw. The 

plurality in McNeely noted that in order to serve the important interest of 

preventing impaired driving, all 50 states "have adopted implied consent 

laws that require motorists, as a condition of operating a motor vehicle 

within the [s]tate, to consent to BAC testing if they are arrested or 

otherwise detained on suspicion of a drunk-driving offense." McNeely, 569 

U.S. at , 133 S. Ct. at 1566. "Such laws impose significant 

consequences when a motorist withdraws consent; typically the motorist's 

driver's license is immediately suspended or revoked, and most [s]tates 

allow the motorist's refusal to take a BAC test to be used as evidence 

against him in a subsequent criminal prosecution." Id. at , 133 S. Ct. 

at 1566. At no point does the plurality appear to retreat from the warrant 

requirement for nonconsensual blood draws, and the Court's description of 

implied consent laws does not appear to endorse our particular statutory 

scheme. 

In fact, the U.S. Supreme Court relied on McNeely in reversing 

a Texas appellate court's determination that a forced blood draw was 

constitutional based solely on consent derived from an implied consent 

statute. Aviles v. Texas, 571 U.S. „ 134 S. Ct. 902, 902 (2014), 

vacating Aviles v. State, 385 S.W.3d 110 (Tex. App. 2012). The defendant 

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in Aviles was stopped for suspicion that he was driving under the 

influence. Aviles u. State, 385 S.W.3d at 112. Upon learning that Aviles 

had two prior DUI convictions, the officer requested a breath or blood 

specimen which Aviles refused. Id. The officer compelled a blood draw 

under Tex. Transp. Code Ann. § 724.012(b) (West 2011), which provides 

that an officer "'shall require the taking of a specimen of the person's 

breath or blood' if the suspect has at least two prior DUI convictions. Id. 

at 112-13 (quoting Tex. Transp Code Ann. § 724.012(b) (West 2011)). The 

Texas Court of Appeals considered the defendant's appeal prior to the 

McNeely decision, and concluded that such a search without a warrant 

was justified based on consent alone, relying on prior Texas precedent. Id. 

at 115-16. 

Aviles filed a petition for a writ of certiorari with the U.S. 

Supreme Court. After issuing McNeely, the U.S. Supreme Court granted 

certiorari and issued a brief order vacating the Texas Court of Appeals' 

opinion and remanding "for further consideration in light of Missouri v. 

McNeely." Aviles, 571 U.S. at , 134 S. Ct. at 902. Although this very 

short order appears to hold limited precedential value on its own, it 

undermines support for the conclusion that consent alone is a viable 

justification for a warrantless search where the subject of the search does 

not have the option to revoke consent. 

Thus, we conclude that NRS 484C.160(7) allows a police 

officer to engage in a warrantless, nonconsensual search in violation of the 

Fourth Amendment. The implied consent provision in NRS 484C.160(1) 

does not overcome the statute's infirmity because the statute does not 

allow a driver to withdraw consent, thus a driver's so-called consent 

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cannot be considered voluntary. Accordingly, we conclude that NRS 

484C.160(7) is unconstitutional. 

The good-faith exception to the exclusionary rule applies 

The State argues that Trooper Murwin relied on the implied 

consent statute in good faith, thus suppression is not required. In United 

States v. Leon, the U.S. Supreme Court held that where the police rely in 

good faith on a warrant issued by a neutral magistrate, evidence seized 

pursuant to that warrant would not be suppressed. 468 U.S. 897, 919-20 

(1984). The Court has also found such a good-faith exception where the 

police reasonably rely on a statute later found unconstitutional. Illinois v. 

Krull, 480 U.S. 340, 349-51 (1987). We conclude that the good-faith 

exception applies here. 

The U.S. Constitution does not provide for exclusion of 

evidence obtained in violation of the Fourth Amendment. Arizona v. 

Evans, 514 U.S. 1, 10 (1995) Instead, the exclusionary rule is a judicial 

remedy designed to deter law enforcement from future Fourth 

Amendment violations. Leon, 468 U.S. at 906. Accordingly, "suppression 

of evidence obtained pursuant to a warrant should be ordered only on a 

case-by-ease basis and only in those unusual cases in which exclusion will 

further the purposes of the exclusionary rule." Id. at 918; see also State v. 

Allen, 119 Nev. 166, 172, 69 P.3d 232, 236 (2003) ("Exclusion is only 

appropriate where the remedial objectives of the exclusionary rule are 

served."). While Leon is applicable to situations where a police officer has 

an objectively reasonable good-faith belief in the validity of an improperly 

issued warrant, the U.S. Supreme Court extended that same logic to 

legislatures in Krull. Presuming that legislatures do not intentionally 

pass unconstitutional laws, the Court determined that a government 

agent was justified in relying on the presumption that a statute 

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authorizing warrantless administrative searches was constitutional. 

Krull, 480 U.S. at 349-51. The Court has also refused to apply the 

exclusionary remedy where a police officer relies in good faith on appellate 

precedent that is later overturned. Davis v. United States, 564 U.S. , 

131 S. Ct. 2419, 2432-34 (2011). 

We conclude that exclusion in the present case would not act 

as a deterrent to unconstitutional police conduct, thus the exclusionary 

remedy is not mandated. The record does not contradict the State's 

assertion that Trooper Murwin relied in good faith on the constitutional 

validity of NRS 484C.160, and such reliance appears reasonable, as prior 

to McNeely, the U.S. Supreme Court had upheld the constitutionality of 

warrantless blood draws under the exigent circumstances exception to the 

warrant requirement. Schmerber v. California, 384 U.S. 757, 772 (1966). 

While McNeely concluded that Schmerber did not create a per se exigency, 

Trooper Murwin relied on the presumptive constitutionality of the statute 

and prior U.S. Supreme Court precedent, thus the deterrent purpose of 

the exclusionary rule would not be served by excluding the evidence in this 

case. See Allen, 119 Nev. at 172, 69 P.3d at 236. 3 

The district court erred by convicting Byars of being an unlawful user in 

possession of a firearm after merging the count with the conviction for felon 

in possession of a firearm 

Byars argues that a person cannot be convicted of being an 

unlawful user or addict in possession of a firearm under NRS 202.360(1)(c) 

where the State only proves a single use of a controlled substance. We 

3Because the good-faith exception to the exclusionary remedy 

applies, we need not determine whether the admission of the blood draw 

evidence was harmless error beyond a reasonable doubt. Chapman v. 

California, 386 U.S 18, 24 (1967). 

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need not reach this issue. The district court merged the sentence for 

unlawful user in possession of a firearm with the sentence for felon in 

possession of a firearm but did not merge the underlying 'convictions. On 

appeal, the State concedes that the district court should not have found 

Byars guilty of being an unlawful user in possession of a firearm after 

merging the count with the conviction for felon in possession of a firearm. 

In light of the State's concession, we reverse the portion of the judgment of 

conviction adjudicating Byars guilty of being an unlawful user or addict in 

possession of a firearm and remand for the district court to correct the 

judgment of conviction. See Hewitt v. State, 113 Nev. 387, 391 & n.4, 936 

P.2d 330, 333 & n.4 (1997) (reversing a conviction for a lesser-included 

offense where the district court did not merge the lesser offense with the 

greater offense but did not sentence the defendant for the lesser-included 

offense, and noting that because the defendant was not sentenced for the 

lesser-included offense, the effect of the reversal of the conviction should 

be to correct the judgment of conviction), overruled on other grounds by 

Martinez v. State, 115 Nev. 9, 12 n.4, 974 P.2d 133, 135 n.4 (1999). We 

therefore need not address Byars' argument that a single use does not 

justify a conviction under NRS 202.360(1)(c). 

The State adequately proved the corpus delicti of the felon-in-possession 

charge 

Byars argues that the State did not prove the corpus delicti of 

the felon-in-possession-of-a-firearm charge. We conclude that this 

argument is unpersuasive. 

We have held that "Wile corpus delicti of a crime must be 

proven independently of the defendant's extrajudicial admissions." Doyle 

v. State, 112 Nev. 879, 892, 921 P.2d 901, 910 (1996), overruled on other 

grounds by Kaczmarek v. State, 120 Nev. 314, 333, 91 P.3d 16, 29 (2004). 

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At a minimum, this requires a prima facie showing by the State 

"permitting the reasonable inference that a crime was committed." Id. 

(quoting People v. Alcala, 685 P.2d 1126, 1136 (Cal. 1984), superseded by 

statute on other grounds as stated in People v. Falsetta, 986 P.2d 182, 186 

(Cal. 1999)). 

Here, the State asserted that Byars went by the alias Marcus 

Jones and introduced two judgments of conviction from a Las Vegas 

district court for Marcus Jones, born on March 14, 1974. The State also 

introduced testimony from the court clerk for the Justice Court of New 

River Township that Byars told the court during his initial appearance 

that he was convicted in Las Vegas of those charges under the name 

Marcus Jones, and that he was born on March 14, 1974. The State then 

played the audio of that appearance for the jury. 

As the record demonstrates, the admission by Byars during 

the initial appearance that he had identified himself as Marcus Jones, was 

born on March 14, 1974, and had been convicted of prior felonies in Las 

Vegas was corroborated by two judgments of conviction for a Marcus 

Jones, born on March 14, 1974, in Las Vegas. Accordingly, we conclude 

that the State provided prima facie evidence that supported a reasonable 

inference that the crime, felon in possession of a firearm, was committed. 

See Doyle, 112 Nev. at 892, 921 P.2d at 910. 

The convictions for misdemeanor DUI and felony being under the influence 

of a controlled substance do not violate the Double Jeopardy Clause 

Byars argues that his convictions for misdemeanor DIJI and 

felony being under the influence of a controlled substance violated the 

Double Jeopardy Clause of the Fifth Amendment and that the convictions 

are redundant. We conclude that neither argument is persuasive. 

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Double jeopardy 

"[T]he Double Jeopardy Clause protects against three distinct 

abuses: a second prosecution for the same offense after acquittal; a second 

prosecution for the same offense after conviction; and multiple 

punishments for the same offense." Williams v. State, 118 Nev. 536, 548, 

50 P.3d 1116, 1124 (2002) (alteration in original) (internal quotations 

omitted). The U.S. Supreme Court has held that "the test to be applied to 

determine whether there are two offenses or only one, is whether each 

provision requires proof of a fact which the other does not." Blockburger v. 

United States, 284 U.S. 299, 304 (1932). 

NRS 453.411 provides that it is unlawful to knowingly use or 

be under the influence of a controlled substance except in accordance with 

a legal prescription. A conviction for driving under the influence of a 

prohibited substance under NRS 484C.110(3) requires the State to prove 

that a person (1) drove or was in "actual physical control of a vehicle on a 

highway or on premises to which the public has access," (2) with an 

amount of a prohibited substance in his or her blood or urine, (3) that is 

equal to or greater than an amount of the prohibited substance found in 

NRS 484C.110(3) (for marijuana, this is 2 nanograms per milliliter of 

blood). NRS 484C.110(2) alternatively allows for a conviction where the 

person is under the influence of a controlled substance. 

This court has held that a violation of NRS 484C.110 on the 

theory that an illegal amount of a controlled substance is found in the 

blood (referred to as a "per se violation") is a separate violation from 

driving a vehicle while impaired. Williams, 118 Nev. at 549, 50 P.3d at 

1124. According to this court in Williams, "each of these subsections 

defines a separate offense for purposes of double jeopardy analysis." Id. 

Thus, we conclude that where the State secures a conviction for a per se 

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violation, as the State did here, the State is proving a separate element (a 

threshold amount of marijuana in the blood) than the under-the-influence 

element of NRS 453.411. For that count, the State introduced testimony 

that the level of marijuana in Byars' blood would cause a person to be 

impaired in addition to proving that Byars had the threshold statutory 

amount for a DUI conviction. 

Accordingly, we conclude that the two convictions did not 

violate the Double Jeopardy Clause. 

Redundancy 

Byars argues that in addition to violating the Double Jeopardy 

Clause, the two convictions are redundant. Byars cites to a number of 

Nevada cases for the proposition that a defendant is not subject to 

multiple convictions for the same conduct. This court has disapproved of 

the "same conduct" theory, however, specifically mentioning the three 

cases cited by Byars in support of his argument. Jackson v. State, 128 

Nev. „ 291 P.3d 1274, 1282 (2012) (naming Salazar v. State, 119 

Nev. 224, 228, 70 P.3d 749, 751-52 (2003), Skiba v. State, 114 Nev. 612, 

616, 959 P.2d 959, 961 (1998), and Albitre v. State, 103 Nev. 281, 283-84, 

738 P.2d 1307, 1309 (1987), and overruling these cases and their progeny). 

In light of our prior disapproval, we conclude that Byars' argument in this 

regard lacks merit. 

Sufficient evidence supports the convictions for battery 

Byars argues that sufficient evidence did not support his two 

convictions for battery. Specifically, Byars argues that the State did not 

provide evidence that he intended to strike the two officers during the 

forced blood draw and the contact did not cause any injury to either the 

officers or their uniforms. We conclude that this argument is 

unpersuasive. 

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In reviewing the sufficiency of the evidence in a criminal case, 

we determine whether any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt after viewing 

the evidence in a light most favorable to the prosecution. McNair v. State, 

108 Nev. 53, 56, 825 P.2d 571, 573 (1992). 

Battery is "any willful and unlawful use of force or violence 

upon the person of another." NRS 200.481(1)(a). Looking to California, 

whose battery statute Nevada's is based upon, we have interpreted battery 

broadly to be "the intentional and unwanted exertion of force upon 

another, however slight." Hobbs v. State, 127 Nev. „ 251 P.3d 177, 

179-80 (2011) (emphasis added). California has further clarified that 

battery is a general intent crime. People v. Lara, 51 Cal. Rptr. 2d 402, 405 

(Ct. App. 1996). Thus, the prosecutor need only prove that "the defendant 

actually intend[ed] to commit a willful and unlawful use of force or 

violence upon the person of another." Id. (internal quotations omitted). 

Here, the prosecution introduced evidence that Byars made 

clear before the blood draw• that he would resist and that he stated, 

"Watch. Watch. I know what I can do. Watch." Byars flailed during the 

blood draw, striking Trooper Murwin and a sheriffs deputy who assisted 

in restraining Byars for the blood draw. While Byars contests some of the 

specific details of Trooper Murwin's testimony, he does not contest that he 

made contact with the officers. Furthermore, the fact that the blows did 

not result in injuries to the officers or their uniforms is not relevant to the 

question of whether a battery occurred. Hobbs, 127 Nev. at , 251 P.3d 

at 180. Thus, we conclude that the State has provided sufficient evidence 

to support the jury's verdict beyond a reasonable doubt that Byars 

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intentionally used force upon another, however slight. Hobbs, 127 Nev. at 

251 P.3d at 180; McNair, 108 Nev. at 56, 825 P.2d at 573. 

Byars was in custody when he committed the batteries 

Byars argues that he was not in lawful custody when the 

batteries were committed. We disagree. 

A battery committed on a peace officer while in lawful custody 

or confinement is a felony under NRS 200.481. In the context of defining 

lawful custody or confinement under NRS 200.481, we have noted that a 

person is a prisoner "when one is 'held' in custody under process of law or 

under lawful arrest." Domaine v. State, 103 Nev. 121, 124, 734 P.2d 1230, 

1232 (1987) (quoting NRS 193.022 and NRS 208.085). This requires a 

person to either submit to the control of an arresting officer or be taken 

and held in control. Id. Here, Trooper Murwin placed Byars under arrest, 

secured him in a restraining belt, and then transported him to the hospital 

against Byars' will. Accordingly, we conclude that Byars was in custody 

for the purposes of the battery enhancement. 4 

4Byars also argues that his resistance to the officers was lawful 

because the blood draw was unconstitutional under McNeely. The only 

authority Byars cites for this proposition is Rosas v. State, 122 Nev. 1258, 

1262, 147 P.3d 1101, 1104 (2006). In Rosas, the defendant argued that he 

was entitled to an instruction on self-defense for a charge of battery upon 

an officer. Id. We agreed that a defendant is entitled to such an 

instruction where there is some evidence to support it. Id. At no point did 

we decide the underlying factual issue of self-defense in Rosas, and in the 

present case, Byars did not seek any such instruction from the district 

court. Accordingly, we conclude that Rosas is inapposite and Byars' 

argument is otherwise without merit. See Maresca v. State, 103 Nev. 669, 

673, 748 P.2d 3, 6 (1987) (noting that this court need not consider 

allegations of error not cogently argued or supported by any pertinent 

legal authority). 

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The district court did not abuse its discretion by refusing to sever the first 

four counts 

Byars argues that the district court's denial of his motion to 

sever the first four counts prejudiced his right to a fair trial. 

A district court has discretion to join or sever charges, and we 

review for harmless error a district court's misjoinder of charges. Weber v. 

State, 121 Nev. 554, 570-71, 119 P.3d 107, 119 (2005). NRS 173.115 

provides that multiple offenses may be charged together where they are 

"[biased on the same act or transaction; or. [biased on two or more acts 

or transactions connected together or constituting parts of a common 

scheme or plan." 

Byars cites McIntosh v. State, 113 Nev. 224, 227, 932 P.2d 

1072, 1074 (1997), for the proposition that a motion to sever should be 

granted where the charges have doubtful relevance to each other. In 

McIntosh, we determined that the district court abused its discretion by 

allowing the State to introduce evidence that the defendant was in 

possession of a firearm when the only crime charged was possession or 

being under the influence of a controlled substance. Id. McIntosh did not 

involve a motion to sever, and there was no firearm-related charge. 

Here, the district court bifurcated the felon-in-possession 

charge in order to prevent prejudice to Byars as a result of testimony 

about his prior felony convictions but refused to sever the remaining 

counts. The remaining counts (two battery-upon-an-officer counts, 

possession of a firearm while under the influence, and being under the 

influence) are all related to the same transaction or occurrence—

specifically, Byars' marijuana use and the related efforts to secure a blood 

sample. Accordingly, we conclude that the district court did not abuse its 

discretion in refusing to sever those counts. 

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Remarks during the State's closing argument were not prejudicial 

Byars argues that the State's remarks during closing 

argument were prejudicial and denied him a fair trial. Byars' counsel did 

not object to the State's remarks during trial. Accordingly, plain error 

review is appropriate. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 

(2003). 

To determine if a prosecutor's misconduct was prejudicial, we 

examine whether a prosecutor's statements so infected the proceedings 

with unfairness as to result in a denial of due process. Thomas v. State, 

120 Nev. 37, 47, 83 P.3d 818, 825 (2004). "The statements should be 

considered in context, and 'a criminal conviction is not to be lightly 

overturned on the basis of a prosecutor's comments standing alone." Id. 

(quoting United States v. Young, 470 U.S. 1, 11 (1985)). "[P]rosecutors 

'may not argue facts or inferences not supported by the evidence?" Id. at 

48, 83 P.3d at 825 (quoting Williams v. State, 103 Nev. 106, 110, 734 P.2d 

700, 703 (1987)). The specific statements cited by Byars are as follows: 

O "That's how dangerous the circumstance was. [The firearm] 

was loaded at that time." 

o "[H]e's an unlawful user in possession of that firearm 

Dangerous combination." 

• "And just think of how dangerous it is with somebody under 

the influence of marijuana to be in possession of a firearm when an 

officer, who thought he was just giving a speeding ticket out, came 

up to that vehicle. 

How dangerous is that when he was impaired? When he was 

impaired, not thinking straight." 

o In regard to the battery counts: "Who's looking after these 

people who are in custody? They need greater protection for the 

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dangerous circumstances that can be created by dangerous 

individuals." 

• "What if in fighting he gets one—one of the officer's firearms 

to go off, kills somebody? Still inadvertent? Not a battery?" 

None of these statements include any assertion of fact that is 

not supported by the record. The argument that the defendant was 

dangerous is well within bounds because the State appears to refer to the 

very dangers that justify the criminalization of the behaviors that the 

State alleged that Byars engaged in. Thus, given the nature of the 

statements and the high bar for overturning a jury verdict due to a 

prosecutor's statements at closing argument, we conclude that Byars was 

not denied a fair trial. See Thomas, 120 Nev. at 47, 83 P.3d at 825. 

CONCLUSION 

Given the U.S. Supreme Court's decision in Missouri v. 

McNeely, we conclude that the natural dissipation of THC from Byars' 

blood did not, standing alone, create exigent circumstances justifying a 

warrantless blood draw. We further conclude that NRS 484C.160(7) is 

unconstitutional because it permits officers to use force to take a suspect's 

blood without a warrant, valid consent, or another exception to the 

warrant requirement. Nevertheless, we conclude that Trooper Murwin 

obtained the evidence in good faith, thus the evidence should not be 

excluded. 

We conclude that the district court erred by merging the 

sentence for being an unlawful user in possession of a firearm with the 

sentence for felon in possession of a firearm but not merging the 

underlying convictions. Accordingly, we reverse the portion of the 

judgment of conviction finding Byars guilty of being an unlawful user in 

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J. 

possession of a firearm and remand for the district court to correct the 

L_ 

judgment of conviction. We affirm By s' conviction in all other respects. 

0—t.9,-cr—an_61 

Parraguirre 

J. 

We concur: 

fl 

\ 

Gibbons 

, J. 

Hardesty 

Douglas 

Saitta 

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J. 

J. 

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