                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 THE STATE OF NEVADA,                                   No. 68691
                 Appellant,
                 vs.
                 REGIS QUINTEROS,                                              FILED
                 Respondent.
                                                                               JUL 2 8 2016
                                           ORDER OF AFFIRMANCE                 TRACIE K LINDEMAN
                                                                          CLEI , OF SUPREME COURT
                                                                          BY
                                                                                 DEPUTY CLERK
                                This is an appeal from a district court orcter granting
                 respondent's motion to suppress evidence. Fourth Judicial District Court,
                 Elko County; Nancy L. Porter, Judge.
                                On October 18, 2011, Officer Sean Nolen was notified that
                 Corporal Robert Roy had pulled over a vehicle. The vehicle was allegedly
                 being driven by respondent Regis Quinteros. Officer Nolen arrived at the
                 scene, conducted a DUI investigation, and subsequently took Quinteros for
                 a blood draw pursuant to NRS 484C.160(7) (2005), Nevada's implied
                 consent statute at the time. The State later filed a criminal complaint
                 charging Quinteros with DUI with one or more prior felony DUI
                 convictions.
                                Prior to trial, the U.S. Supreme Court ruled in Missouri v.
                 McNeely, U.S. ,            133 S. Ct. 1552 (2013), that a warrantless DUI
                 blood draw violated the Fourth Amendment of the U.S. Constitution.
                 Quinteros filed a motion to suppress the blood draw pursuant to McNeely.
                 Corporal Roy was not available to testify at the subsequent hearing.
                 Officer Nolen was available and testified that, after he arrived at the
                 scene, Corporal Roy stated that it was his belief that Quinteros was
                 driving while intoxicated. Additionally, Officer Nolen initially stated that
                 Quinteros was in physical control of the vehicle when he arrived on the

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                        scene and that he observed the keys in the ignition of the vehicle. Officer
                        Nolen subsequently admitted that he did not know if the keys were in the
                        vehicle and that he had no direct evidence that Quinteros was in physical
                        control of the vehicle. The district court determined that Corporal Roy's
                        statements were inadmissible hearsay and that Officer Nolen was not a
                        credible witness. Accordingly, the district court concluded that the State
                        failed to meet its burden of demonstrating that Officer Nolen relied in
                        good faith on NRS 484C.160(7) in obtaining the warrantless blood draw
                        and granted Quinteros' motion to suppress evidence obtained after the
                        blood draw. The Statel timely filed the instant appeal.
                        The district court did not abuse its discretion in concluding that Corporal
                        Roy's statements were inadmissible
                                    The State argues that the district court erred in concluding
                        that the Confrontation Clause is applicable to Corporal Roy's statements
                        because his statements were nonhearsay and the Confrontation Clause
                        does not apply to nonhearsay under Crawford v. Washington, 541 U.S. 36
                        (2004). We disagree and conclude that the district court did not abuse its
                        discretion in excluding Corporal Roy's statements.        Ramet v. State, 125
                        Nev. 195, 198, 209 P.3d 268, 269 (2009) ("We review a district court's
                        decision to admit or exclude evidence for an abuse of discretion.").
                                    The Sixth Amendment's Confrontation Clause provides that,
                        "[i]ri all criminal prosecutions, the accused shall enjoy the right . . . to be
                        confronted with the witnesses against him." U.S. Const. amend VI. The
                        Confrontation Clause, is applicable to the states through the Fourteenth
                        Amendment.     Pointer v. Texas, 380 U.S. 400, 407-08 (1965). This court
                        has recognized that, under Crawford, "if a witness is unavailable to testify
                        at trial and the out-of-court statements sought to be admitted are
                        testimonial, the ' Sixth Amendment Confrontation Clause
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                  requires . . . cross-examination."   Flores v. State, 121 Nev. 706, 714, 120
                  P.3d 1170, 1175 (2005) (internal quotation marks omitted). However,
                  "Nile Clause also does not bar the use of testimonial statements for
                  purposes other than establishing the truth of the matter asserted."
                  Crawford, 541 U.S. at 59 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414
                  (1985)). Therefore, where a statement is both testimonial and offered to
                  prove the truth of the matter asserted, the Confrontation Clause must be
                  satisfied. See Flores, 121 Nev. at 713-20, 120 P.3d at 1175-79.
                              We conclude that the district court did not abuse its discretion
                  in concluding that Corporal Roy's statements were testimonial under
                  Crawford and Flores. Given the context of Officer Nolen's testimony, the
                  district court reasonably concluded that Corporal Roy's statements were
                  offered to demonstrate that Quinteros was driving or in physical control of
                  the vehicle pursuant to NRS 484.160(7). Therefore, the district court did
                  not abuse its discretion in concluding that Corporal Roy's statements were
                  inadmissible pursuant to Crawford.
                  The district court did not abuse its discretion in concluding that the State
                  failed to meet its burden of demonstrating that Officer Nolen relied in good
                  faith on the constitutionality of NRS 484C.160(7)
                              The State argues that the district court erred in suppressing
                  evidence of the blood draw based on Officer Nolen's lack of credibility. The
                  State contends that the district court must have concluded that Officer
                  Nolen did not have reasonable grounds or probable cause for arresting
                  Quinteros, despite evidence to the contrary, based solely on Officer Nolen's
                  misstatements at trial. We disagree.
                              The U.S. Constitution does not provide for the 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

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                 remedy designed to deter law enforcement from future Fourth
                 Amendment violations,.      United States v. Leon, 468 U.S. 897, 919-20
                 (1984). Accordingly, "[e]xclusion is only appropriate where the remedial
                 objectives of the exclusionary rule are served."    State v. Allen, 119 Nev.
                 166, 172, 69 P.3d 232, 236 (2003). Thus, where an officer relies in good
                 faith on a statute that is ruled unconstitutional subsequent to the arrest,
                 the exclusionary rule does not act as a deterrent to unconstitutional police
                 conduct, and thus the exclusionary remedy is not mandated. See Byars v.
                 State, 130 Nev., Adv. Op. 85, 336 P.3d 939, 947 (2014) (concluding that a
                 blood draw should not be excluded where an officer relied in good faith on
                 the constitutional validity of NRS 484C.160).
                             Because NRS 484.160(7) was ruled unconstitutional in
                 violation of the Fourth Amendment in Byars, the exclusionary rule would
                 generally preclude the admission of a blood draw procured under NRS
                 41.670 unless the State can demonstrate that the officer who obtained the
                 blood draw relied in good faith on the constitutionality of NRS 484.160(7).
                 See Byars, 130 Nev., Adv. Op. 85, 336 P.3d at 947. Therefore, to overcome
                 Quinteros' motion to suppress evidence of the blood draw, it was the
                 State's burden to demonstrate that Officer Nolen relied in good faith on
                 the constitutionality of NRS 484C.160(7). To make this showing, the State
                 called on Officer Nolen to testify as to the reasonable grounds on which he
                 believed that Quinteros was driving or in physical control of the vehicle.
                             It is not within this court's purview to weigh conflicting
                 evidence or assess witness credibility.   See Lay v. State, 110 Nev. 1189,
                 1192, 886 P.2d 448, 450 (1994) ("Mt is exclusively within the province of
                 the trier of fact to weigh evidence and pass on the credibility of witnesses
                 and their testimony."). Therefore, we conclude that the district court did

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                 not abuse its discretion in concluding that Officer Nolen lacked credibility
                 and therefore that the State failed to demonstrate that he relied in good
                 faith on the constitutionality of NRS 484C.160(7). Accordingly, we
                             ORDER the judgment of the district court AFFIRMED.'




                                                                                    J.



                                                                                    J.
                                                    Douglas


                                                                                    J.
                                                    Gibbons




                 cc: Hon. Nancy L. Porter, District Judge
                      Attorney General/Carson City
                      Elko County District Attorney
                      Kenneth J. McKenna
                      Elko County Clerk




                        'We have considered the State's remaining arguments and conclude
                 that they are without merit.



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