Court of Appeals rules against Nissley

Nissley was an impaired driver who killed a pedestrian, noted doctor Richard Pavese, on the sidewalk in 2010… seriously-how-often-does-this-happen !?

Here’s the opinion from the CoA website; unfortunately these links don’t seem to live for very long:

STATE OF ARIZONA, Appellee, v. PATRICK MCLEOD NISSLEY, Appellant. No. 1 CA-CR 12-0780 Filed 10/20/2015

In case that disappears, here it is State v. Nissley, 362 P.3d 493, 494 (Ariz. Ct. App. 2015) via, or google scholar.

As usual the Facts and Procedural History are concise and well-written:

Shortly after 5:30 p.m. on November 2, 2010, while driving his
car at a high rate of speed in a residential area, Nissley crashed head on into an oncoming car, injuring four people in the oncoming car and killing a pedestrian. Witnesses later detailed Nissley’s erratic and dangerous driving and behavior leading up to and after the fatal crash. A blood sample taken from Nissley by medical personnel at a hospital less than an hour later revealed significant concentrations of methamphetamine and an active metabolite of heroin in his system at the time of the crash. The State charged Nissley with one count of second degree murder, a Class 1 dangerous felony; one count of possession or use of narcotic drugs, a Class 4 felony; and four counts of endangerment, each a Class 6 dangerous felony.
Nissley moved to suppress the blood test results, asserting the
blood sample was obtained without a warrant or probable cause and that he expressly refused medical treatment…

The Court of Appeals (with 1 dissent; IIRC this is a 3 judge panel?) agreed with Superior court’s decision to allow the warrantless blood evidence because they found Nissley’s actions did not rise “to the level of ‘express rejection’ of medical care contemplated by Estrada“.

The statute section that allows a warrantless blood draw this is, from what i gathered, all parties agreed there was probably cause:

28-1388E. Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated section 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.

Interesting thought experiment is was Nissley’s diabetes defense arrived at knowing the blood draw was warrantless? This was a hugely involved and no-doubt costly trial (an 18-day jury trial!). Not sure exactly who paid for all of this. In Feb 2013 Nissley was declared indigent and that a PD be appointed. The trial lawyer was Lawrence Kazan,   the lawyer whom AZRepublic columnist Laurie Roberts refers to as “the Valley’s go-to attorney for bad drivers – the ones who can afford him, that is”.

Here’s an AP story, it didn’t otherwise get much media coverage…

Ruling says lack of specific refusal allows use of evidence
By: The Associated Press October 23, 2015 , 4:00 am
An Arizona court has ruled that an injured suspect’s thrashing and yelling at responders to leave him alone wasn’t enough to block use of blood-test results that helped convict the man.
Patrick McLeod Nissley was convicted of manslaughter, endangerment and a drug crime after a 2010 crash in which a pedestrian was killed and four other people were injured…



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