F I LED

United States Court of Appeals

Tenth Circuit

January 9, 2007

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMIE MARSHALL,

Plaintiff - Appellee,

v.

COLUMBIA LEA REGIONAL

HOSPITAL; JANE DOE, Nurse; CITY

OF HOBBS; TONY KNOTT, Captain,

 Defendants,

WALTER ROYE, Sergeant; RODNEY

PORTER, Officer,

Defendants - Appellants.

No. 05-2173

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CIV-99-1363 LH/LCS)

Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, New

Mexico, for Defendants-Appellants.

Robert J. Gorence, Gorence & Oliveros, Albuquerque, New Mexico for PlaintiffAppellee.

Before HENRY, BRISCOE, and LUCERO, Circuit Judges.
2

HENRY, Circuit Judge.

City of Hobbs, New Mexico, police officers Rodney Porter and Sergeant

Walter Pope, appeal a jury verdict in favor of plaintiff Jimmie Marshall for

violation of his Fourth Amendment right to be free of unreasonable search and

seizure. The officers do not dispute that they violated Mr. Marshall’s Fourth

Amendment rights when they ordered a warrantless, nonconsensual blood test for

an alleged misdemeanor. Nevertheless, the officers contend the district court

erred in denying their post-verdict motion for judgment as a matter of law based

on qualified immunity because no clearly established law precluded the test. We

affirm the district court.

I. BACKGROUND

A. Factual history

We described the factual history of this case – including some of the

troubles of the City’s police department – in Marshall v. Columbia Lea Regional

Hospital, 345 F.3d 1157 (10th Cir. 2003) (“Marshall I”):

On December 26, 1996, Mr. Marshall, an African-American

self-employed electrician, was driving his gold Toyota pickup in Hobbs,

New Mexico, when he noticed a police car parked by the side of the

road with its lights off. According to Mr. Marshall, the police

officer–later identified as Officer Rodney Porter–followed his pickup

for several blocks. While Mr. Marshall was stopped at an intersection

with his left-turn signal blinking, Officer Porter pulled up alongside the

pickup and “gaz[ed] intently at [Marshall’s] face,” which Marshall
3

infers was for the purpose of ascertaining his race. Officer Porter

contends that Mr. Marshall failed to stop at the stop sign, which Mr.

Marshall denies. 

Officer Porter then activated his emergency lights, but Mr.

Marshall continued to drive for more than two miles before coming to

a stop at his residence. Mr. Marshall claims that he evaded the officer

for several miles because he was fearful to stop his vehicle outside of

the presence of witnesses, on account of the reputation of the Hobbs

Police Department for racist practices. At that time, Mr. Marshall did

not know Officer Porter and did not have any information about him. In

the criminal complaint filed as a result of the incident, Officer Porter

stated that Mr. Marshall accelerated to 100 miles per hour, drove

through a four-way stop, and weaved from lane to lane, which Marshall

denies. However, Officer Porter made no mention of these allegations

in the affidavit he filed in this case describing the events of December

26, 1996, nor were they mentioned in Defendants’ later pleadings.

On the street in front of Mr. Marshall’s residence, the two men

emerged from their vehicles. Officer Porter had drawn his pistol. His

first words were to accuse Mr. Marshall of being on crack, which

Marshall has consistently denied. Defendants have proffered no

evidence in support of this accusation. Officer Porter states that Mr.

Marshall had the odor of alcohol on his breath, which Marshall does

not deny, stating that he had imbibed one drink with his brother Alfred.

Officer Porter arrested Mr. Marshall on various charges, including the

traffic violation, driving under the influence, and resisting arrest. On

the written citation form, in the space for indicating the gender of the

person receiving the citation, Officer Porter wrote “B/M,” presumably

meaning black male.

After arresting Mr. Marshall, Officer Porter proceeded to search

Marshall’s truck. The search revealed a .40 caliber pistol under the

driver’s seat (apparently lawful), and Officer Porter claimed also to

have found a small amount of a “green leafy substance,” a contention

Marshall denies. Mr. Marshall was taken to the city jail, where several

sobriety tests were performed on him. Mr. Marshall passed two

breathalyzer tests, but had difficulty completing the recitation of the

alphabet (the “ABC test”). There is conflicting testimony about whether

the horizontal gaze stymosis test was administered, and whether Mr.

Marshall passed the finger-number test.
4

Officer Porter then transported Mr. Marshall to the Columbia Lea

Regional Hospital for blood testing. Mr. Marshall claims his request to

put on his shoes was refused, despite the winter weather, and that his

socks became soaked with urine that had pooled on the back floor of the

police car. While waiting for Sergeant Roye to arrive at the hospital,

Officer Porter interrogated the handcuffed Mr. Marshall for over twenty

minutes, again accusing him of being on crack. (“I know you came from

a crack house. You might as well admit it, because I know you went

there to get some crack.”) During this interrogation Mr. Marshall

stated that the blood test might test positive for marijuana.

Thereafter, Sergeant Roye and Nurse Iris Goad entered the room.

When Nurse Goad approached Mr. Marshall, he said, “Ma’am, you

don’t have my consent oral or written to take my blood. But if you’re

going-and I rather you not stick me with that needle. But if you’re go

going to take my blood, I’m not going to resist, but you don’t have my

consent oral or written.” At that point Sergeant Roye told Nurse Goad,

“Go-ahead and give it to him. I’ll consent.” Mr. Marshall then held his

handcuffed arms in front of him for the blood test. The record contains

a “consent form,” initialed by Officer Porter, which states: “Refused to

sign. Gave verbal consent.” Two vials of blood were taken. The

laboratory tests subsequently found no evidence of alcohol or other

illegal drugs, but revealed the presence of THC, the active ingredient

in marijuana, in Marshall’s bloodstream.

After the events in the hospital, Mr. Marshall was returned to the

jail, where he was confined for several hours before his mother obtained

his release on bail. Later, he was charged in a criminal complaint with

(i) possession of a controlled substance (marijuana), (ii) resisting,

evading or obstructing a police officer, (iii) negligent use of a firearm

(possession while intoxicated), (iv) reckless driving, (v) running a stop

sign, and (vi) driving under the influence. In May 1997, the DA entered

a nolle prosequi because the evidence obtained in the case had been

suppressed. The record does not contain any further information about

that proceeding, or the legal basis for the suppression of the evidence.

Id. at 1161 (citations omitted).

B. Procedural history 

In November 1999, Mr. Marshall filed a § 1983 action in federal district
5

court against the officers, the police chief, the hospital, and the nurse who

administered the blood test. In June 2002, the district court granted summary

judgment for the defendants. In Marshall I, we reversed the district court in part,

holding that critical questions of fact remained with respect to Mr. Marshall’s

Equal Protection, Fourth Amendment, and related state-law claims against the

officers and the City. Id. at 1181.

On remand, the district court held a bifurcated trial. In the first phase of

the trial, which involved claims against the officers, the jury rendered a special

verdict in favor of Mr. Marshall on his Fourth Amendment claim against Officers

Porter and Roye. The jury awarded Mr. Marshall compensatory damages of

$90,000 from both Officer Porter and Officer Roye, and punitive damages in the

amount of $300,000 against Officer Porter and $100,000 against Officer Roye. 

In the second phase, the court granted judgment as a matter of law to the

City on the supervisory and municipal liability claims. Following entry of 

judgment, the officers filed a renewed motion for judgment as a matter of law

based on qualified immunity. The district court denied the motion.

II. DISCUSSION

The officers contend that the district court erred when it denied their postjudgment motion for judgment as a matter of law based on qualified immunity. 

They maintain that, at the time they ordered the nurse to draw Mr. Marshall’s
 Rule 50 provides in pertinent part: 1

Rule 50. Judgment as a Matter of Law in Jury Trials; Alternative

(continued...)

6

blood against his will, no clearly established law precluded a warrantless

nonconsensual blood test. Hence, they argue that they are entitled to qualified

immunity.

A. Standard of review

We review de novo a district court’s denial of a motion for judgment as a

matter of law. Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir. 2006). 

The Supreme Court has recognized that qualified immunity embodies “an

entitlement not to stand trial or face the other burdens of litigation, conditioned

on the resolution of the essentially legal question whether the conduct of which

the plaintiff complains violated clearly established law.” Mitchell v. Forsyth, 472

U.S. 511, 526 (1985).

1. Rule 50(a) pre-verdict motion requirements.

We begin by sua sponte addressing one procedural hurdle. Although the

officers raised the qualified immunity defense in their answer to Mr. Marshall’s

amended complaint, in their motion for summary judgment prior to the first

appeal in this case, and later in their post-verdict motion for judgment as a matter

of law under Rule 50(b)(1)(C), the officers apparently did not raise qualified

immunity in their pre-verdict Rule 50(a) motion, which is a prerequisite to a 1
(...continued) 1

Motion for New Trial; Conditional Rulings

a) Judgment as a Matter of Law.

(1) If during a trial by jury a party has been fully heard on an issue and there

is no legally sufficient evidentiary basis for a reasonable jury to find for that

party on that issue, the court may determine the issue against that party and

may grant a motion for judgment as a matter of law against that party with

respect to a claim or defense that cannot under the controlling law be

maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time

before submission of the case to the jury. Such a motion shall specify

the judgment sought and the law and the facts on which the moving

party is entitled to the judgment.

(b) Renewing Motion for Judgment After Trial; Alternative Motion for

New Trial. If, for any reason, the court does not grant a motion for

judgment as a matter of law made at the close of all the evidence, the

court is considered to have submitted the action to the jury subject to

the court’s later deciding the legal questions raised by the motion. The

movant may renew its request for judgment as a matter of law by filing

a motion no later than 10 days after entry of judgment–and may

alternatively request a new trial or join a motion for a new trial under

Rule 59. In ruling on a renewed motion, the court may:

(1) if a verdict was returned:

(A) allow the judgment to stand,

(B) order a new trial, or

(C) direct entry of judgment as a matter of law.

FED. R. CIV. P. 50(a)-(b)(1) (emphasis added).

 The transcript of the officers’ pre-verdict Rule 50(a) motion reads as 2

follows:

(continued...)

7

post-verdict motion under Rule 50(b). The renewed motion under Rule 50(b) 2
(...continued) 2

I think the most I can tell you is that I respectfully disagree with the

Tenth Circuit’s interpretation of Schmerber and its application of the

facts of this case. I’m not sure there is a whole lot we can do about that

with this case. The facts haven’t changed, although I would add that I

think that this Court would find that based upon the testimony and lack

of credibility thereof coming from the plaintiff, no reasonable juror

could find that Mr. Marshall had his blood taken against his will and

that he didn’t voluntarily give a sample of his blood . . . .

And with respect to the claim against Rodney Porter, again, the

substance of the evidence is simply that if in the light most favorable

to Mr. Marshall that he pulled up next to him and looked at him, again,

I guess I would have to respectfully disagree with the Tenth Circuit

interpretation. I think that no reasonable juror would find that in and

of itself, and that is all he had, is sufficient to vitiate the probable cause

that Rodney Porter has testified to that he had for the stop sign

violations. 

Aples’ App. vol. III, at 516. 

8

cannot assert grounds for relief not asserted in the original motion. See Anderson

v. United Tel. Co., 933 F.2d 1500, 1503 (10th Cir. 1991) (using the “directed

verdict” and “judgment n.o.v.” nomenclature of Rule 50 prior to its amendment in

1991); McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir. 1997) (“In sum, a posttrial

motion for judgment as a matter of law can properly be made only if, and to the

extent that, such a motion specifying the same grounds was made prior to the

submission of the case to the jury.”). “To hold otherwise would be in

contravention of the purposes of Rule 50(a).” Miller v. Eby Realty Group LLC,

396 F.3d 1105, 1115 (10th Cir. 2005).

The provisions of Rule 50(a) and (b) thus serve two purposes: they
9

“‘protect[ ] the Seventh Amendment right to trial by jury, and ensur[e] that the

opposing party has enough notice of the alleged error to permit an attempt to cure

it before resting.’” Id. (quoting FSLIC v. Reeves, 816 F.2d 130, 138 (4th Cir.

1987)). Mr. Marshall does not mention this issue in his response brief before us,

although at oral argument, counsel reminded the panel that qualified immunity

was not raised until after the jury reached its verdict. Mr. Marshall’s failure to

challenge the Rule 50(b) motion in his brief specifically on the grounds that the

issue was waived by an inadequate Rule 50(a) motion results in a waiver of the

issue. State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir.

1994) (stating that failure to raise an issue in appellate brief waives the issue). 

We thus proceed to qualified immunity issue. 

2. Review of Rule 50(b) post-verdict motion.

We next consider what impact the officers’ Rule 50(b) motion has upon our

standard of review. Where, as here, defendants “assert qualified immunity after

undergoing trial on a § 1983 claim, a post-trial grant of immunity would still

confer a benefit by shielding them from any liability for the monetary damages

awarded by the jury.” Acevedo-Garcia v. Monroig, 351 F.3d 547, 562 n.6 (1st

Cir. 2003) (emphasis added). We note that this two-stage “order of procedure is

designed to spare a defendant not only unwarranted liability, but unwarranted

demands customarily imposed upon those defending a long drawn out lawsuit.” 

Wilson v. Layne, 526 U.S. 603, 609 (1999).
10

Moreover, whether an asserted federal right was clearly established at a

particular time such that a public official who allegedly violated the right has no

qualified immunity from suit is a mixed question of law and fact we review de

novo. See Mitchell, 472 U.S. at 528; Cruz v. City of Laramie, 239 F.3d 1183,

1187 (10th Cir. 2001). Because the defendants appeal from a denial of qualified

immunity motion raised after the jury’s verdict, the evidence is “construed in the

light most hospitable to the party that prevailed at trial.” Iacobucci v. Boulter,

193 F.3d 14, 23 (1st Cir. 1999). That is, we consider whether the evidence is “so

one-sided that defendants were entitled to prevail as a matter of law” on the

constitutional claim. Hill v. McKinley, 311 F.3d 899, 903 (8th Cir. 2002). In this

procedural posture, “deference should be accorded the jury’s discernible

resolution of disputed factual issues.” Id.

When evaluating a claim of qualified immunity, we “must first determine

whether the plaintiff has alleged the deprivation of a constitutional right at all,

and if so, proceed to determine whether that right was clearly established at the

time of the alleged violation.” Wilson , 526 U.S. at 609 (quoting Conn v.

Gabbert, 526 U.S. 286, 290 (1999)).

For a constitutional right to be clearly established, its contours must be

sufficiently clear that a reasonable official would understand that what

he is doing violates that right. That is not to say that an official action

is protected by qualified immunity unless the very action in question

has previously been held unlawful, but it is to say that in light of

pre-existing law that unlawfulness must be apparent.
11

Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citations and internal quotation marks

omitted). 

“In discussing the degree of factual similarity that is required to conclude

that the law is clearly established, the [Supreme] Court [has] noted that all that is

required is that prior case law provide ‘fair warning’ that an officer’s conduct

would violate constitutional rights. Thus, ‘officials can still be on notice that

their conduct violates established law even in novel factual circumstances.’”

Denver Justice & Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 932 (10th

Cir. 2005) (quoting Hope, 536 U.S. at 739-41) (citations omitted).

B. Deprivation of an actual constitutional right

In evaluating a qualified immunity defense, “the first inquiry must be

whether a constitutional right would have been violated on the facts alleged.” 

Saucier v. Katz, 533 U.S. 194, 200 (2001). We need not linger on this threshold

question because the defendants do not dispute that they “violated [Mr.

Marshall’s] [F]ourth [A]mendment rights by forcing him against his will to

produce a blood sample.” Aplts’ App. vol. I, at 166 (Dist. Ct. Order, filed May

12, 2005); Reply Br. at 2.

C. The constitutional right was clearly established

Since the jury found a violation of Mr. Marshall’s Fourth Amendment right

to be free from unreasonable searches, we next consider whether the right was

clearly established at the time of the incident. First, the officers take exception to
12

the district court’s conclusion that it was clearly established that a nonconsensual 

warrantless blood test for a misdemeanor offense, conducted upon probable cause

but in violation of state law, fell outside the exigent circumstances exception

recognized in the Supreme Court’s decision in Schmerber v. California, 384 U.S.

757 (1966). Specifically, they contend that when this case arose, (a) the law was

unsettled as to whether violation of a state law barring nonconsensual blood

testing would also amount to a violation of the Fourth Amendment; and (b) the

law did not clearly indicate that classification of a driving under the influence

(“DUI”) offense as a misdemeanor would preclude a finding of exigent

circumstances to sustain a warrantless blood test.

1. Exigent circumstances under Schmerber v. California

 Indeed, as the Supreme Court has noted, it is clearly established that blood

tests constitute searches under the Fourth Amendment. Schmerber, 384 U.S. 757,

767-68 (1966); Marshall I, 345 F.3d at 1171-72; Anthony v. City of N.Y., 339 F.3d

129, 142 (2d Cir. 2003) (citing Schmerber); Ellis v. City of San Diego, 176 F.3d

1183, 1191 (9th Cir. 1999) (citing Schmerber). In Schmerber, the Court

emphasized that the “overriding function of the Fourth Amendment is to protect

personal privacy and dignity against unwarranted intrusions by the State.” 384

U.S. at 767. Similarly, “warrantless compulsory blood tests are unreasonable

unless supported by both [1] probable cause and [2] exigent circumstances.” 

Ellis, 176 F.3d at 1192 (requiring a search warrant “absent an emergency”) (citing
13

Schmerber, 384 U.S. at 768-70) (emphasis added); Marshall I, 345 F.3d at 1171-

72. Because probable cause is not in question, our focus is on the latter factor,

the requirement of an emergency, or exigent circumstance.

In Schmerber, the police arrested the defendant for driving under the

influence of alcohol. 384 U.S. at 758. “Although ultimately prosecuted for a

misdemeanor, he was subject to prosecution for a felony because of the injury to

the passenger.” Marshall I, 345 F.3d at 1172. There was no question the police

had probable cause to arrest Mr. Schmerber. Schmerber, 384 U.S. at 758-59. Mr.

Schmerber refused the police request to submit to a breathalyzer test. Id. at 765

n.9. Thus, the police had only one way to obtain the necessary evidence, a blood

test. The police then compelled the defendant, over his objections and without a

warrant, to provide blood samples to determine the percentage of alcohol in his

blood. Id. at 759.

The Court noted that “the percentage of alcohol in the blood begins to

diminish shortly after drinking stops, as the body functions to eliminate it from

the system.” Id. at 770. Because the percentage of alcohol in a person’s blood is

evanescent, the Court noted that under the “special facts” of the case, “there was

no time to seek out a magistrate and secure a warrant” before the blood alcohol

level had diminished. Schmerber, 384 U.S. at 770-71; Marshall I, 345 F.3d at

1172. Because the “delay necessary to obtain a warrant . . . threatened the

destruction of the evidence,” the Court upheld the warrantless seizure of blood. 
14

Schmerber, 384 U.S. at 770.

Further, in delineating the “special facts” or exceptions to the warrant

requirement, we have pointed out that the Supreme Court 

reach[ed] this judgment only on the facts of [that specific] record. The

integrity of an individual’s person is a cherished value of our society.

That we today [h]old that the Constitution does not forbid the States

minor intrusions into an individual’s body under stringently limited

conditions in no way indicates that it permits . . . intrusions under other

conditions.

Marshall I, 345 F.3d at 1173 (quoting Schmerber, 384 U.S. at 772) (emphasis

added); see also Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989)

(“In light of our society’s concern for the security of one’s person, . . . it is

obvious that this physical intrusion, penetrating beneath the skin, infringes an

expectation of privacy that society is prepared to recognize as reasonable. The

ensuing chemical analysis of the sample to obtain physiological data is a further

invasion of . . . privacy interests.”) (citations omitted); California v. Acevedo, 500

U.S. 565 (1991) (stating that “‘searches conducted outside the judicial process,

without prior approval by judge or magistrate, are per se unreasonable under the

Fourth Amendment-subject only to a few specifically established and

well-delineated exceptions’”) (quoting Mincey v. Arizona, 437 U.S. 385, 390

(1978)). 

The officers argue that a reasonable officer in 1996 could have reasonably

understood that a warrantless blood test performed under the exigent
15

circumstances as described in Schmerber would not violate the Fourth

Amendment, even if the blood test was conducted in violation of state law. At the

time of the officers’ conduct, however, it was well-settled that “the scope of a

warrantless search must be commensurate with the rationale that excepts the

search from the warrant requirement.” Cupp v. Murphy, 412 U.S. 291, 295

(1973). Thus, with respect to the exigency exception, the Court had recognized

the “exigency exception permits warrantless searches only to the extent that

exigency exists.” Skinner, 489 U.S. at 643 (citing Chimel v. California, 395 U.S.

752, 761-64 (1969)). 

The exigent circumstances that justified the state’s bodily intrusion in

Schmerber are not present in the instant case. Unlike the defendant in Schmerber

who refused a breathalyzer test, Mr. Marshall submitted to two breathalyzer tests.

The results of each were negative. The results from the breathalyzer tests and a

blood test are of “similar evidentiary value,” and the officers do not argue

otherwise. Nelson v. City of Irvine, 143 F.3d 1196, 1207 (9th Cir. 1998). When a

suspect has taken an “alternative test of equal evidentiary value, the risk that

evidence will be lost disappears and the exigent circumstance that excused the

police from obtaining a warrant likewise disappears, rendering a warrantless

nonconsensual blood test in such circumstances unconstitutional.” Id. The fact

that Mr. Marshall had already passed two breathalyzer tests makes the officers’

decision to perform a warrantless nonconsensual blood test all the more
16

unreasonable. 

In sum, we agree with the district court that the officers had fair warning of

exigent circumstances requirement under federal law. Aplts’ App. vol. I, at 166-

67 (Dist. Ct. Order, filed May 12, 2005) (“[I]t should have been clear to these

officers that their conduct was unlawful in this case.”).

a. New Mexico’s implied consent law

As Marshall I concluded, it is appropriate to look to state law to determine

the reasonableness of a search for Fourth Amendment purposes. 345 F.3d at 1173

(characterizing Mr. Marshall’s argument as contending that “state law does not

authorize New Mexico police to compel a blood test in a misdemeanor case

involving no physical injury . . . .”); see Tenn. v. Garner, 471 U.S. 1, 15-16

(1985) (“In evaluating the reasonableness of police procedures under the Fourth

Amendment, we have also looked to prevailing rules in individual jurisdictions.”);

United States v. Richardson, 86 F.3d 1537, 1544 (10th Cir. 1996) (stating that

federal courts are to “conduct an independent inquiry . . . apply[ing] federal law”

into the reasonableness of a search, and noting that federal courts “are not

prohibited from considering state law”) (citation omitted). In State v. Richerson,

535 P.2d 644, 648 (N.M. Ct. App. 1975), the New Mexico Court of Appeals,

citing Schmerber, held that exigent circumstances must be present for a

warrantless blood test to fall within the Fourth Amendment’s parameters:

the warrantless search of the defendant was justified because, (a) it was
 As we noted in Marshall I, “[s]ince Mr. Marshall’s arrest, the statute has 3

been slightly modified. The changes, however, have no bearing on the issue

raised by this case. See N.M. STAT. ANN. § 66-8-111(A) (Michie, LEXIS through

(continued...)

17

made incident to a lawful arrest, (b) plaintiff smelled of liquor, and (c)

the police officer was confronted with an emergency due to the

progressive diminution of the blood alcohol level during the time

interval incident necessary to obtain a search warrant.

Id. (emphasis added). Assuming the presence of factors (a) and (b), lawful arrest

and that Mr. Marshall had alcohol on his breath, we hold the officers are unable

to establish the presence of an emergency. 

The officers argue that New Mexico law was far from clear as to whether or

not a search or seizure conducted in violation of state law would also infringe the

Fourth Amendment. New Mexico’s statutes are uniquely clear about the right at

issue. Pursuant to N.M. Stat. Ann. § 66-8-105 et seq. (Michie 1998) (“New

Mexico Implied Consent Act”),

If a person under arrest for violation of an offense enumerated in the

Motor Vehicle Code . . . refuses upon request of a law enforcement

officer to submit to chemical tests designated by the law enforcement

agency as provided in section 66-8-107 NMSA 1978, none shall be

administered except when a municipal judge, magistrate or district

judge issues a search warrant authorizing chemical tests as provided in

section 66-8-107 NMSA 1978 upon his finding in a law enforcement

officer’s written affidavit that there is probable cause to believe that the

person has driven a motor vehicle while under the influence of alcohol

or a controlled substance, thereby causing the death or great bodily

injury of another person, or there is probable cause to believe that the

person has committed a felony while under the influence of alcohol or

a controlled substance and that chemical tests as provided in section

66-8-107 NMSA 1978 will produce material evidence in a felony

prosecution.3
(...continued) 3

2003 Sess.).

18

Id. § 66-8-111(A) (emphasis added). As we pointed out in Marshall I:

The statute describes two scenarios under which a magistrate can issue

a warrant for chemical tests, including a blood test: (i) upon probable

cause to believe that a person has driven while under the influence of

alcohol or a controlled substance and has thereby caused the death or

great bodily injury of another person; and (ii) upon probable cause to

believe that the person has committed a felony while under the

influence of alcohol or a controlled substance and that chemical tests

will produce material evidence in a felony prosecution. Under New

Mexico law, the driver’s license of a person arrested for driving under

the influence may be revoked if he refuses to submit to a chemical test.

. . . But if the subject refuses to submit to the test, the statute expressly

forbids the police from administering it without a warrant.

345 F.3d at 1173-74 (emphasis added).

The officers contend that, despite the New Mexico Implied Consent Act’s

admonitions, New Mexico law was unclear as to whether the warrantless seizure

of blood could violate a defendant’s constitutional rights. They cite State v.

Steele for the proposition that “compulsory blood tests do not violate

constitutional rights.” Aplts’ Br. at 26 (quoting State v. Steele, 601 P.2d 440, 441

(N.M. Ct. App. 1979) (citing Schmerber, 384 U.S. 757 (1966)). Steele involved

an arrestee suspected of committing vehicular homicide, a felony. Importantly,

Steele involved the admission of the results of a blood test into evidence,

implicating Fifth Amendment self-incrimination concerns. Schmerber held that

the compulsory administration of a blood test and admission into evidence the
19

test’s results does not implicate the Fifth Amendment, 384 U.S. at 761, “it plainly

involves the broadly conceived reach of a search and seizure under the Fourth

Amendment.” Id. at 767. Thus the New Mexico Court of Appeals, despite there

being no Fifth Amendment prohibition against the use of the chemical analysis,

was constrained by the New Mexico Implied Consent Act, noting that “consent of

the offending driver must be obtained before blood test results may be introduced

in a trial charging a criminal act resulting from driving while intoxicated.” 601

P.2d at 441 (emphasis added). The sole exception to this consent requirement is a

warrant supported by probable cause. Id. 

No such warrant was issued in the instant case. Moreover, pursuant to the

New Mexico Implied Consent Act, “no search warrant could lawfully have been

obtained to compel a test of Mr. Marshall’s blood” because Mr. Marshall was not

suspected of having committed a felony. Marshall I, 345 F.3d at 1174; see New

Mexico Implied Consent Act § 66-8-111(A) (requiring “probable cause to believe

that the person has committed a felony” before issuance of a warrant). 

The officers also cite to State v. Wyrostek, 767 P.2d 379 (N.M. Ct. App.

1988). Wyrostek stated that “[b]ecause [the officer] had probable cause to believe

Wyrostek was under the influence of intoxicating liquor, and because of the

evanescent nature of blood-alcohol levels, the trial court found that exigent

circumstances justified the warrantless seizure of blood. Thus, no constitutional

issues are raised by this case.” Id. at 380.
 The New Mexico’s Implied Consent Act states in pertinent part: 4

Any person who is dead, unconscious or otherwise in a condition

rendering him incapable of refusal, shall be deemed not to have

withdrawn the consent provided by Section 66-8-107 NMSA 1978, and

the test or tests designated by the law enforcement officer may be

administered.

§ 66-8-108.

20

Wyrostek involved a very different set of facts. The Wyrostek inquiry

considered whether the New Mexico Implied Consent Act required an officer to

arrest an unconscious driver before administering a blood test. Because the

defendant’s freedom of action was already restricted as he was unconscious, the

court determined that an arrest would have been a “useless act.” Id. at 381. 

Unlike Mr. Marshall, the driver in Wyrostek was incapable undergoing the lessintrusive breathalyzer test. Reasoning that defendant’s unconscious state did not

withdraw his consent under the New Mexico Implied Consent Act the court 4

concluded that the officers were justified in the taking of the blood test. Id. 

 No one disputes that Mr. Marshall’s refusal to submit to a blood test put

him in violation of New Mexico’s implied consent law and that his driver’s

license could be suspended as a result. As we discussed with regard to

Schmerber, where, as here, police could and did use an alternative, less intrusive,

means of testing blood-alcohol content, a blood test is not necessary and cannot

be justified by exigent circumstances. The officers needed something more to

justify a blood test after Mr. Marshall’s voluntary submission to two breathalyzer
21

tests. See Richerson, 535 P.2d at 648 (requiring that the officer be “confronted

with an emergency”); Hammer v. Gross, 932 F.2d 842, 854 (9th Cir. 1991) (“If

the government is going to use force to pin someone to a chair, stick a needle in

his arm and drain blood from his vein, against his will and despite his

acquiescence in an effective alternative [here, a breathalyzer test] it had better

have a reason.”) (Kozinski, J., concurring in part and dissenting in part). 

b. The effect of New Mexico’s classification of a DUI

offense as a misdemeanor

Next, the officers contend that the law was not clearly established that New

Mexico’s classification of a DUI offense as a misdemeanor would preclude a

finding of exigent circumstances to sustain a warrantless blood test. In their

attempt to reframe the dispositive question, the officers maintain that our opinion

in Marshall I misconstrued Welsh v. Wisconsin, 466 U.S. 740 (1984). According

to the officers, Welsh “did not indicate – let alone establish – how, if at all, its

rationale should be extended beyond home entries into the area of blood testing.” 

Aplts’ Br. at 34.

As we summarized Welsh in Marshall I, 

the defendant’s car swerved off the road, coming to a stop in an open

field. A witness, noticing the car driving erratically, contacted the

police, but by the time they arrived defendant Welsh had walked away

from the scene. By checking the vehicle identification number, police

were able to identify the car as belonging to Welsh, and proceeded to

his home without first obtaining a warrant. Police entered his home and

took him to the station house to administer a breathalyzer test. Welsh

refused to take the test and as a result was charged and convicted in two
22

separate, but related, proceedings: one concerning his refusal to submit

to a breathalyzer test and the second relating to driving while

intoxicated. The Wisconsin Supreme Court upheld the convictions,

ruling that the warrantless arrest was justified under the doctrine of

exigent circumstances. 

The Supreme Court reversed both convictions. Although the

government argued that the need to preserve the evidence of Welsh’s

blood alcohol level created exigent circumstances, the Court held that

preservation of evidence did not justify a warrantless in-home arrest if

the offense for which probable cause was said to exist is “relatively

minor.” 

345 F.3d at 1175 (internal citations omitted) (emphasis added).

The officers misread Welsh. A person’s home is his or her castle, and

throughout history, one of the key purposes of a castle’s walls has been to protect

the castle-owner’s blood. As the Welsh Court explained:

[T]he police bear a heavy burden when attempting to demonstrate an

urgent need that might justify warrantless searches or arrests. Indeed,

the Court has recognized only a few such emergency conditions, see,

e.g., United States v. Santana, 427 U.S. 38, 42-43 (1976) (hot pursuit

of a fleeing felon); Warden v. Hayden, 387 U.S. 294, 298-299 (1967)

(same); Schmerber, 384 U.S. 757, 770-771 (1966) (destruction of

evidence); Michigan v. Tyler, 436 U.S. 499, 509 (1978) (ongoing fire).

Welsh, 466 U.S. at 749-50. 

As to finding those exigent circumstances, the Court expressed its

hesitation, “especially when warrantless arrests in the home are at issue” and

when “the underlying offense for which there is probable cause to arrest is

relatively minor.” Id. at 750. Moreover, the Court expressly stated in Schmerber

that non-emergency invasions of the body are due at least the same protections as
23

are warrantless searches in the home. Schmerber, 384 U.S. at 770 (“Search

warrants are ordinarily required for searches of dwellings, and absent an

emergency, no less could be required where intrusions of the human body are

concerned.”). 

Welsh’s impact upon the present case is abundantly clear: “[T]he offense

that “[Mr.] Welch was suspected to have committed was ‘a noncriminal civil

forfeiture offense, for which no imprisonment is possible . . . . Given this

expression of the States’ interest, a warrantless home arrest cannot be upheld

simply because evidence of the petitioner’s blood alcohol level might have

dissipated while police obtained a warrant.’” Marshall I, 345 F.3d at 1175

(quoting Welsh, 466 U.S. at 754). Thus, a state law’s characterization of the

gravity of the offense is particularly relevant when analyzing Fourth Amendment

violations. See Marshall I, 345 F.3d at 1176 (citing Howard v. Dickerson, 34

F.3d 978, 982 (10th Cir. 1994) and United States v. Flowers, 336 F.3d 1222,

1229-31 (10th Cir. 2003)). 

Here, Mr. Marshall was suspected of having committed a misdemeanor. As

the Marshall I panel stated, New Mexico has a “limited interest in coerced testing

of the blood of a motorist charged with a petty misdemeanor.” 345 F.3d at 1176. 

Moreover, the statute does not even allow a magistrate the authority to issue a

warrant for such a search. See id.; N.M. STAT. ANN. § 66-8-111(A) (requiring

“probable cause to believe that the person has committed a felony” before
24

issuance of a warrant) (emphasis supplied). Because there was no possibility of

obtaining a warrant, it was readily clear that the exigent circumstances exception

to Schmerber could not exist. Marshall, 345 F.3d at 1176. Accordingly, we

reject the officers’ contention that they did not have “fair warning” that, at the

time of the events in question, New Mexico’s classification of a DUI offense as a

misdemeanor would preclude the finding of exigent circumstances under

Schmerber. Hope, 536 U.S. at 740.

The jury found that Mr. Marshall’s actions in no way amounted to consent.

As the district court concluded, it is difficult to imagine how a competent officer

could think it could make sense or be reasonable to violate state law. Aplts’ App.

vol. I, at 167 (“I conclude that even if these officers mistakenly thought what they

did was proper, it was objectively unreasonable for them to think they could

lawfully give this blood test in the absence of Mr. Marshall’s consent. . . .”);

Malley v. Briggs, 475 U.S. 335, 341 (1986) (“As the qualified immunity defense

has evolved, it provides ample protection to all but the plainly incompetent or

those who knowingly violate the law.”); Harlow v. Fitzgerald, 457 U.S. 800,

818-19 (1982) (stating that “a reasonably competent public official should know

the law governing his conduct”). Viewing the facts in the light most favorable to

the jury’s verdict, the district court correctly concluded that a reasonable officer,

similarly situated, would understand that his or her conduct violated the rights

clearly established in Schmerber. 
25

III. CONCLUSION

Accordingly, we AFFIRM the district court’s denial of the officers’ postverdict motion for judgment as a matter of law.