                                                     130 Nev., Advance Opinion en
                        IN THE SUPREME COURT OF THE STATE OF NEVADA

                 MICHAEL DWAYNE BYARS, A/K/A                            No. 61348
                 MARCUS JONES, A/K/A JEFFERY
                 ROSHAWE BYARS,
                 Appellant,
                                                                                 FILED
                 vs.                                                              OCT 1 6 2014
                 THE STATE OF NEVADA,                                            IRATE': I INREMAN
                 Respondent.                                                CE




                             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. 2 Accordingly, 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.


                        2 Byars  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

                      3 Because  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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                possession of a firearm and remand for the district court to correct the
                judgment of conviction. We affirm By s' conviction in all other respects.

                                                      L_
                                                           0—t.9,-cr—an_61        J.
                                                     Parraguirre
                We concur:
                          fl



                         \
                Gibbons


                                                J.




                                            ,   J.
                Hardesty




                Douglas


                                                J.




                                                J.
                Saitta




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