After considering the parties' briefs, the district court concluded that
McNeely applied to Tanner's case, and, relying on Hardison v. State, 84
Nev. 125, 437 P.2d 868 (1968), the district court concluded that it could
consider the issue on appeal because it involved a constitutionally
protected Fourth Amendment right. Further, because the trial court
record did not reveal sufficient facts to "show 1) whether consent was
obtained for the blood test and/or 2) whether an exception existed to
justify performing the blood test without first obtaining a warrant," the
district court remanded the case to the justice court for an evidentiary
hearing to determine whether the blood test results should be suppressed.
This original petition for a writ of certiorari or prohibition followed.
Because the district court had jurisdiction to consider Tanner's
appeal, we conclude that a writ of certiorari or prohibition is not the
proper vehicle in which to challenge the district court's decision. See NRS
34.020(2) ("The writ [of certiorari] shall be granted in all cases when an
inferior tribunal . . . has exceeded the jurisdiction of such tribunal . . . and
there is no appeal, nor, in the judgment of the court, any plain, speedy and
adequate remedy."); NRS 34.320 (providing that a writ of prohibition
"arrests the proceedings of any tribunal . . . when such proceedings are
without or in excess of the jurisdiction of such tribunal"). Rather, the
State's contention more appropriately falls within the scope of mandamus,
and we elect to construe the State's pleading as a petition for a writ of
mandamus, which is available to compel the performance of an act that
the law requires or to control a manifest abuse of discretion. See NRS
34.160; Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-
04, 637 P.2d 534, 536 (1981).
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Having considered the petition and the answer, we conclude
that relief is warranted. NRS 189.050 provides that a duly perfected
appeal from a criminal conviction in justice court "transfers the action to
the district court to be judged on the record." The plain language of that
statute limits the district court's review of an appeal from a justice court
conviction to only matters contained in the trial record. State v. Catania,
120 Nev. 1030, 1033, 102 P.3d 588, 590 (2004) ("We must attribute the
plain meaning to a statute that is not ambiguous."). And while Hardison
observes that constitutional issues may be considered on appeal even
though they were not raised in the trial court, nothing in that decision
suggests that the trial record may be expanded on appellate review. See
generally Baltazar-Monterrosa v. State, 122 Nev. 606, 614, 137 P.3d 1137,
1142 (2006) (observing that the failure to object to• the admission of
evidence generally precludes appellate review of the issue absent plain
error affecting a defendant's substantial rights).
Tanner argues that the district court's remand for an
evidentiary hearing is supported by this court's decision in Ryan's Express
Transp. Servs. Inc. v. Amador Stage Lines, Inc., 128 Nev. , 279 P.3d
166 (2012). We disagree. That case concerned a motion filed in this court
by Ryan's Express to disqualify a law firm from representing a party to an
appeal before this court. Because the motion pleadings were insufficient
to determine a discrete issue raised in the pleadings, this court remanded
the matter to the district court for an evidentiary hearing on that discrete
issue, recognizing that laln appellate court is not particularly well-suited
to make factual determinations in the first instance." 128 Nev. at , 279
at 172-73. The posture of Tanner's case is significantly different from
Ryan's Express. Unlike Ryan's Express, Tanner's case concerns appellate
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review of an unpreserved allegation of trial error where the district court's
review is statutorily limited to the trial record.
Because the district court's consideration of Tanner's
suppression issue was limited to a review of the trial record, we conclude
that it manifestly abused its discretion by remanding the case to the
justice court for an evidentiary hearing on the matter. Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order remanding Tanner's case for an
evidentiary hearing to determine whether his blood test results should be
suppressed.
Hardesty
aksuty ,
J.
Cherry
cc: Hon. Michael P. Gibbons, District Judge
Attorney General/Carson City
Douglas County District Attorney/Minden
Larry K. Dunn & Associates
Douglas County Clerk
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