Implied Consent

vegaspassat · Aug 19, 2012

So Doofster and I went for a beer this evening and in the course of our conversation a thought struck me. Is there any sort of implied consent to BAC testing while carrying? I know that if you get pulled over in Nevada and deny a BAC test, they will arrest you and take you down town where they will forcefully administer a blood draw (because of implied consent). Is it the same while carrying? I have only read in the NRS that the BAC cannot be .10 or more (or to a degree in which a person cannot control their weapon), whereas a person with a BAC of less than .08 can still be cited for "wet and reckless" while driving. I would assume that the only laws applicable to discerning RAS would be the same as those regarding drunk in public, but I haven't researched those laws at all. Please understand that I am not advocating being drunk while carrying, I am just trying to gain a better understanding of my rights. Please keep this discussion about what the law says, and not a debate over what you think a person should do. Thoughts and input appreciated!!

DON`T TREAD ON ME · Aug 19, 2012

Here is the Statute:
NRS 202.257 Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.
1. It is unlawful for a person who:
(a) Has a concentration of alcohol of 0.10 or more in his or her blood or breath; or
(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him or her incapable of safely exercising actual physical control of a firearm,
Ê to have in his or her actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within the person’s personal residence and had the firearm in his or her possession solely for self-defense.
2. Any evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484C.160 to 484C.250, inclusive, except that submission to the evidentiary test is required of any person who is directed by a police officer to submit to the test. If a person to be tested fails to submit to a required test as directed by a police officer, the officer may direct that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.
3. Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.
4. A firearm is subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive, only if, during the violation of subsection 1, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.
5. As used in this section, the phrase “concentration of alcohol of 0.10 or more in his or her blood or breath” means 0.10 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his or her breath.
(Added to NRS by 1995, 2533; A 1999, 2470; 2003, 2565)

If you ask me this NRS is all over the place , and a good one for discussion!
As far as implied consent, I woiuld say no. It does appear that the officer can knock you over and give you a blood test, with RAC? The difference here is no penalty for not submitting.

usmcmustang · Aug 19, 2012

vegaspassat said:
So Doofster and I went for a beer this evening and in the course of our conversation a thought struck me. Is there any sort of implied consent to BAC testing while carrying? I know that if you get pulled over in Nevada and deny a BAC test, they will arrest you and take you down town where they will forcefully administer a blood draw (because of implied consent). Is it the same while carrying? I have only read in the NRS that the BAC cannot be .10 or more (or to a degree in which a person cannot control their weapon), whereas a person with a BAC of less than .08 can still be cited for "wet and reckless" while driving. I would assume that the only laws applicable to discerning RAS would be the same as those regarding drunk in public, but I haven't researched those laws at all. Please understand that I am not advocating being drunk while carrying, I am just trying to gain a better understanding of my rights. Please keep this discussion about what the law says, and not a debate over what you think a person should do. Thoughts and input appreciated!!

The way I understand it, Nevada's implied consent law addresses operator's of motor vehicles only. Here's some background

Implied Consent

Nevada's Implied Consent Law (codified in "TRAFFIC LAWS") originated with Assembly Bill 268 of the 1969 Legislative Session. The bill provided that a person operating a motor vehicle on the highways of the State was deemed to have consented to a test to determine the content of alcohol in the blood. Initially, refusal to submit to such a test was punishableby suspension of the driver's license for 6 months.

Currently, NRS 484.382 provides that a driver on a highway or on premises to which
the public has access is deemed to have consented to a preliminary test of his breath if a police officer has an "articulable suspicion" that the person is under the influence of intoxicating liquor or a controlled substance. Failure to submit to the preliminary test results in the immediate revocation of the person's driver's license.

In addition, NRS 484.383 provides that a driver is deemed to have consented to an
evidentiary test of his blood, urine, or breath, when such a test is administered at the direction of a police officer having reasonable grounds to believe that the person was operating a vehicle while under the influence of alcohol or a controlled substance. Failure to submit to the evidentiary test results in revocation of the driver's license. If a driver refuses to submit to a test, none may be given, unless the police officer has reasonable cause to believe that the person has caused the death or substantial bodily harm to another or has been previously convicted of a DUI offense within the past 7 years.

davidmcbeth · Aug 19, 2012

DON`T TREAD ON ME said:
If you ask me this NRS is all over the place , and a good one for discussion!
As far as implied consent, I woiuld say no. It does appear that the officer can knock you over and give you a blood test, with RAC? The difference here is no penalty for not submitting.

That's a retarded law .... but in reality if a cop says you were drunk, and with a gun, a jury would believe him...think we are free? Think again. I see no issue with a person being drunk and simply having a gun available.

usmcmustang · Aug 19, 2012

davidmcbeth said:
That's a retarded law .... but in reality if a cop says you were drunk, and with a gun, a jury would believe him...think we are free? Think again. I see no issue with a person being drunk and simply having a gun available.

No truer words were ever spoken.

And... "drunk" or "sober," if an individual does something with a gun that violates THE LAW, then that's what it is... a violation of THE LAW.

Citizen · Aug 19, 2012

usmcmustang said:
No truer words were ever spoken.

And... "drunk" or "sober," if an individual does something with a gun that violates THE LAW, then that's what it is... a violation of THE LAW.

Yeah. And we all know how THE LAW is infallible. Like that tyrannical implied consent law. You don't have a choice, which really means you didn't consent. So, as judges and legislators, we'll just make it that your consent is implied. And, use force to make you do whatever it is we happen to want. Since we can't get your actual consent, we'll just pretend you did consent. And, since we've got the guns and goons to back us up our lie is the one that will be operative.

usmcmustang · Aug 19, 2012

Citizen said:
Yeah. And we all know how THE LAW is infallible. Like that tyrannical implied consent law. You don't have a choice, which really means you didn't consent. So, as judges and legislators, we'll just make it that your consent is implied. And, use force to make you do whatever it is we happen to want. Since we can't get your actual consent, we'll just pretend you did consent. And, since we've got the guns and goons to back us up our lie is the one that will be operative.

And that's what the government IS... do what we say when we say it or answer to our "guns and goons." That's FREEDOM here is the U S of A. "Government" exists and thrives because it has bestowed upon itself the ability to employ "guns and goons" to enforce its will upon we, the "FREE" people of the U S of A.

vegaspassat · Aug 19, 2012

DON`T TREAD ON ME said:
Here is the Statute:
NRS 202.257 Possession of firearm when under influence of alcohol, controlled substance or other intoxicating substance; administration of evidentiary test; penalty; forfeiture of firearm.
1. It is unlawful for a person who:
(a) Has a concentration of alcohol of 0.10 or more in his or her blood or breath; or
(b) Is under the influence of any controlled substance, or is under the combined influence of intoxicating liquor and a controlled substance, or any person who inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders him or her incapable of safely exercising actual physical control of a firearm,
Ê to have in his or her actual physical possession any firearm. This prohibition does not apply to the actual physical possession of a firearm by a person who was within the person’s personal residence and had the firearm in his or her possession solely for self-defense.
2. Any evidentiary test to determine whether a person has violated the provisions of subsection 1 must be administered in the same manner as an evidentiary test that is administered pursuant to NRS 484C.160 to 484C.250, inclusive, except that submission to the evidentiary test is required of any person who is directed by a police officer to submit to the test. If a person to be tested fails to submit to a required test as directed by a police officer, the officer may direct that reasonable force be used to the extent necessary to obtain the samples of blood from the person to be tested, if the officer has reasonable cause to believe that the person to be tested was in violation of this section.
3. Any person who violates the provisions of subsection 1 is guilty of a misdemeanor.
4. A firearm is subject to forfeiture pursuant to NRS 179.1156 to 179.119, inclusive, only if, during the violation of subsection 1, the firearm is brandished, aimed or otherwise handled by the person in a manner which endangered others.
5. As used in this section, the phrase “concentration of alcohol of 0.10 or more in his or her blood or breath” means 0.10 gram or more of alcohol per 100 milliliters of the blood of a person or per 210 liters of his or her breath.
(Added to NRS by 1995, 2533; A 1999, 2470; 2003, 2565)

If you ask me this NRS is all over the place , and a good one for discussion!
As far as implied consent, I woiuld say no. It does appear that the officer can knock you over and give you a blood test, with RAC? The difference here is no penalty for not submitting.

Thank you for quoting the NRS on this one, I guess it's been a little longer than I thought since I've read it. So let me see if I understand it correctly - you cannot deny submitting a BAC test, but there is no penalty if you deny? Why do they reference the implied consent law for driving a motor vehicle? From the sounds of it, you can be in possession of your firearm if you are at home and be over the limit. But if you are over the limit in public (or on private property that isn't your residence) then can be cited for a misdemeanor, but they can't confiscate your gun unless you brandished it?

DON`T TREAD ON ME · Aug 19, 2012

Remember the Clown Test is NOT evidentiary, nor is the stagnant eye gaze. Submission to non evidentiary tests is not required.

Motofixxer · Aug 19, 2012

Without getting into legal specifics, generally speaking while driving a BAC is usually required and any other time it's not. But they will lie and deceive you to gain evidence. If it's required by statute it can get complicated. Many believe that you aren't required to give evidence to convict yourself so any forced submission is a 5th Amendment violation. So at a minimum one might want to be sure to state that one doesn't consent but is doing so under duress, threat of harm etc. If a blood sample is forced...seems like one could charge the one drawing the sample with assault. How can anyone give consent for another party to pierce the body with a foreign object, especially if it's stated it's nonconsensual?

The Big Guy · Aug 19, 2012

Motofixxer said:
Without getting into legal specifics, generally speaking while driving a BAC is usually required and any other time it's not. But they will lie and deceive you to gain evidence. If it's required by statute it can get complicated. Many believe that you aren't required to give evidence to convict yourself so any forced submission is a 5th Amendment violation. So at a minimum one might want to be sure to state that one doesn't consent but is doing so under duress, threat of harm etc. If a blood sample is forced...seems like one could charge the one drawing the sample with assault. How can anyone give consent for another party to pierce the body with a foreign object, especially if it's stated it's nonconsensual?

For all intents and purposes the 5th amendment is all but dead. An example. When you sign your tax return, you are doing so knowing that anything you say on your form can and will be used against you in a court of law. You are coerced to sign this "voluntary" form under threat of legal action, arrest and the confiscation of your property if you don't. The courts have ruled that you do have a 5th amendment right to refuse to answer some the questions, but not all of them. You must answer to how much money you made. So if you don't have a source you can point to for your income, you are in trouble. Of course the income tax is a scam that is beyond the scope of OC.org.

You can again ask the courts how forcing one to give evidence and not just evidence but sacred evidence, your blood, is above the scope of the 5th amendment. I believe I remember something somewhere about holding the people who draw your blood blameless but I'm too lazy at the moment to go look it up.

Always be vocal, loudly, about your opposition to such procedures.

TBG

DON`T TREAD ON ME · Aug 19, 2012

Last I knew, if on federal property, "lake Mead" rec area there is no federal implied consent. My last experience with this is 2006'ish. A park ranger was threatening with "implied consent forced draw tactics" when the only penaltyallowed by law for not consenting in the rec area was a suspension, that prohibited you from going to that particular park temporarily for 1 year.

davidmcbeth · Aug 20, 2012

Isn't the constitution implied consent from the guberment?

Yard Sale · Aug 20, 2012

I've been on the wrong side of this law, arrested for possession of a firearm while intoxicated, four months after my last consumption of an alcoholic beverage.

There is no implied consent for it. The law doesn't say they will revoke your driving privilege if you withdraw your consent. They have nothing to hold over you other than the threat of simple assault. Therefore, never consent, never blow, never piss. Make them assault you to steal your blood. The law says they are immune from prosecution and civil damages for assaulting you. However, that only applies in Nevada and doesn't apply to a federal civil rights action.

The fifth amendment is generally applied to testimony only.

davidmcbeth · Aug 20, 2012

Yard Sale said:
However, that only applies in Nevada and doesn't apply to a federal civil rights action.

The fifth amendment is generally applied to testimony only.

So you sued them, thats what I'm reading between the lines ....

Yard Sale · Aug 20, 2012

DON`T TREAD ON ME said:
Last I knew, if on federal property, "lake Mead" rec area there is no federal implied consent. My last experience with this is 2006'ish. A park ranger was threatening with "implied consent forced draw tactics" when the only penaltyallowed by law for not consenting in the rec area was a suspension, that prohibited you from going to that particular park temporarily for 1 year.

Dual sovereignty? It's still in Nevada so they call in local LEOs who can enforce state law.

Nevada carrier · Aug 21, 2012

There's the thing about implied consent that doesn't apply to unlicensed firearms carry. You signed a document when you received your drivers license agreeing to implied consent. Driving is NOT a constitutionally protected right as there are other means of transit freely available to you to go where ever you wish to go. By it's very nature, unlicensed firearms carry is a constitutionally protected right. That said, you need not sign any document waiving your right to refuse to testify against yourself in exchange for your right to carry a firearm. It matters not what the statute says, the argument can be made that the law is unconstitutional and should you refuse to submit to a substance test and one was forced on you, that evidence would be excluded.

For those activities that are constitutionally protected, you cannot be required to sign away another right in order to participate. Driving is a privilege so you can be required to enter into a contract with the state waiving your fourth amendment rights (to some degree) in order to participate in that privileged activity.

Nevada carrier · Aug 21, 2012

Yard Sale said:
The fifth amendment is generally applied to testimony only.

Your blood falls under the fourth amendment. The right to be secure in your person.

Motofixxer · Aug 21, 2012

Nevada carrier said:
You signed a document when you received your drivers license agreeing to implied consent.

If you study Contract Law, that "document" you signed is not valid. The requirements for a valid contract are not there. Who in their right mind would sign, giving up a right to travel for being charged with an ever changing list of rules and guidelines that you can't even follow or comprehend? For being physically assaulted, harmed and jailed if you don't comply with the Civil Contract, and being held accountable by the agents who benefit from that same system? If your like most, you signed because you were told you had no choice, if you didn't you would be dragged out of your car and hauled to jail and fined. Look up the definition of duress, it negates any contract.

Implied Consent

vegaspassat

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