The Pershing County 11th Judicial met on Monday, Dec. 16. It was the last session of 2019.
“I don’t want to be an old man by myself,” said Felipe Ignacio Guerrero, acknowledging the stress alcoholism has placed on his marriage. “I’ve been with my wife for 22 years, and I’d like to spend the next 22 with her.”
Guerrero faced sentencing for driving under the influence, third offense. He came to court represented by Carter King of Reno.
Under Nevada law, a third DUI conviction within seven years is a Category B felony, punishable by up to 20 years in prison. Guerrero’s first conviction, in 2013, took place in Humboldt County. His second was in Lyon County in 2016.
King questioned the Lyon County judgment of conviction, saying it lacked a waiver of Guerrero’s Constitutional rights. Judge Jim Shirley, presiding over the 11th Judicial, found the conviction “passed Constitutional muster.”
King noted that his client’s status as a family man, married with four children. He added that the Division of Parole and Probation recommended probation.
The judge sentenced Guerrero to five years of probation with several conditions. He will participate in the Western Regional Drug Court in Churchill County. He’ll be on house arrest with an ankle monitor the first six months of his probation.
Also, Guerrero must serve ten days in jail, two days a month, by the end of his probationary term. At his own expense, he has to install an Interlock device on any vehicle he drives.
“If you are caught in violation of that condition of probation, we will recommend prison,” said DDA Todd Banks, about the Interlock requirement.
The 11th Judicial arraigned Robert Anthony Phoenix, 32, on two gross misdemeanor counts of battery on a peace officer. Phoenix admitted that on Sept. 1, 2019, he spit on a law enforcement officer’s boots and kicked out the rear window of a patrol car, resulting in damages of between $250 - $5,000. The incident happened at Burning Man.
Phoenix faces up to 364 days in jail on each count. The judge may impose either concurrent or consecutive sentences.
After arraignments, Judge Shirley often orders defendants tested for controlled substances. A positive test results in a null arraignment and a new hearing date.
Steve Cochran voiced concerns when the judge ordered Phoenix tested.
“Your Honor, I don’t oppose the court making inquiries, but there are facets of the court’s order that don’t comply with controlling law,” he said. Cochran cited U.S v Scott (2005), from the US Court of Appeals, Ninth Circuit.
Scott was arrested in Nevada on state charges of drug possession and released on his own recognizance. He consented to random drug testing “any time of the day or night by any peace officer without a warrant.” He also agreed to random searches of his home.
Acting on an informant’s tip, state officers went to Scott’s residence and tested him for controlled substances. When he tested positive for methamphetamine, the officers arrested him and searched his home. They found an unregistered shotgun.
A federal grand jury indicted Scott for the unregistered gun. The district court granted Scott’s motion to suppress the shotgun and statements he made about it to law enforcement. The court said there was no probable cause for the warrantless search.
He also cited Chambers v. State from the Supreme Court of Nevada (1997). The court found that a defendant “knowingly and intelligently” waived his Miranda rights despite a blood alcohol level of 0.27. and positive tests for meth, morphine and a marijuana metabolite.
“In some applications, the court probably has the authority to have them test, but I don’t think it can be a blanket policy that shoves the Fourth Amendment aside with an administrative order without any legislative direction or case direction,” said Cochran. “There has to be some source of authority to order someone to engage in a search of their body.”
The judge said he appreciated Cochran’s argument but emphasized that 11th Judicial Drug Court staff conducted the tests to make sure defendants were clean and sober while entering pleas. Cochran plans to file a writ of prohibition with the Supreme Court of Nevada.
Other cases
Amy Christine Fritz, of Calif., pleaded guilty to possessing a controlled substance (LSD). The incident happened on Sept. 1, 2019, at Burning Man. She’ll hopes to serve informal probation through the Pershing County Out of State Drug Court Program. The judge ordered a presentencing investigation report. The court scheduled sentencing for Feb. 22. Depending on the results of the PSI, Fritz may not have to attend the hearing. The judge would find her eligible if the report recommended drug court.
Gabriel Gonzalez did not show up for his arraignment on charges of possessing a controlled substance. The judge issued a bench warrant for Gonzalez’ arrest.
