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Watching The Cops
See other Watching The Cops Articles

Title: Arrested Utah Nurse Had It Coming
Source: Saily Caller
URL Source: http://dailycaller.com/2017/09/04/arrested-utah-nurse-had-it-coming/
Published: Sep 4, 2017
Author: Gregg RE, Associate editor
Post Date: 2017-09-04 18:49:15 by misterwhite
Keywords: None
Views: 16017
Comments: 123

The near-universal outrage surrounding the arrest of Alex Wubbels, the Salt Lake City nurse who was arrested July 26 for refusing to let police officers draw blood from an unconscious crash victim, empowered Wubbels and her attorney to threaten legal action against the police on CNN’s “New Day” on Monday. At the very least, Wubbels says, she’d like to “re-educate” the police department on proper procedure.

Prospective students are advised to steer clear of Wubbels’ courses. Despite reams of inaccurate reporting on the incident, Wubbels was likely legally wrong to obstruct the police officer. The case is a much closer one than it appears.

In a widely-seen video documenting her arrest, Wubbels calmly tells a police officer, Jeff Payne, that hospital policy permits the police to draw blood from patients in only three instances: when the patient consents, when the patient is under arrest, or when the police officer has a warrant.

After a hospital administrator tells Payne he is making a “mistake” by insisting he has the right to obtain the blood, Payne arrests the nurse, who howls her way outside of the building and proceeds to put the “salt” in Salt Lake City.

The hospital’s policy does not have the force of law, even if the local police department agreed to its terms. And crucially, the policy overlooks a well-established exception to the warrant requirement: Police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence. The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance.

A quick hypothetical. Let’s say you’re watching an unlikely UCLA comeback in the peace and quiet of your own home on the day before Labor Day, when suddenly your neighbor bursts through your front door with a pile of drugs in his hands. You hear police sirens in the background, and your neighbor says, “They’re coming for me!”

As your neighbor busies himself by tossing his cocaine into your toilet, the doorbell rings, and the police request to come inside. They’ve seen your neighbor running into your house with what they suspect are drugs.

“A-ha,” you say. “I have a policy. No police in my house without my consent, or a warrant, or unless I’m under arrest.”

The police would be justified in pushing you aside – even breaking your door down if necessary – to get to your bathroom. As long as a reasonable person would conclude that evidence is in imminent risk of destruction, the police can enter your home for the limited purpose of preventing that destruction.

If you actively impeded their access to the bathroom, you would likely find yourself at least temporarily detained. (Wubbels was only detained for approximately twenty minutes).

In its reporting of this incident, The New York Times falsely claimed that “the United States Supreme Court ruled that the police do not have the right to draw blood in drunk driving investigations without a warrant.”

But the case the Times cites, Missouri v. McNeely, does not stand for that proposition at all. The court explicitly held in McNeely that some drunk-driving cases could permit warrantless blood draws.

“When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” the Court wrote. “Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts….”

There are some more complicated questions at play here. The police are on far shakier ground if they demanded the nurse to draw blood for them, as opposed to the police drawing the blood themselves. But the video suggests that the police wanted to draw blood here.

“If she interferes in any way with me getting the blood drawn, she needs to be arrested,” an officer says early on in the video. And The Washington Post has reported that Payne is a trained police phlebotomist, meaning that he is sent to hospitals to collect blood from patients and check for illicit substances.

But the coverage of this incident has focused so much on outrage that outlets cannot agree on even this basic factual issue. CNN has reported that the nurse “refused to let police officers draw blood.” The New York Times reported that the nurse was arrested after “refusing to draw patient’s blood.” News outlets cannot even agree on who was going to draw the blood.

Officer Payne is now on paid administrative leave. The chief of the Salt Lake City police department has said he is “alarmed” and “sorry.” There is talk of lawsuits and criminal investigation. The mayor of Salt Lake City has called the arrest “completely unacceptable” and apologized.

These are moves are necessitated not by the law, but public relations. Wubbels says in the video that “you can’t put me under arrest.”

Unfortunately, and only because she is a sympathetic nurse up against a faceless Officer Payne in the YouTube era, she may have been right.

Post Comment   Private Reply   Ignore Thread  


TopPage UpFull ThreadPage DownBottom/Latest

Begin Trace Mode for Comment # 92.

#2. To: misterwhite (#0)

Author: Gregg RE, Associate editor

Are you altering your sources? Where did it say that he was an associate editor?

The page says "Gregg Re, Freelance Writer".

A quick look at his history shows that he used to post a lot of stories there but that this is his first story there since May 2013.

Tooconservative  posted on  2017-09-04   19:57:23 ET  Reply   Untrace   Trace   Private Reply  


#5. To: Tooconservative (#2)

If you haven't already, you should read the comments. This dimwit is getting absolutely roasted.

kenh  posted on  2017-09-05   9:27:16 ET  Reply   Untrace   Trace   Private Reply  


#6. To: kenh (#5)

If you haven't already, you should read the comments. This dimwit is getting absolutely roasted.

I did read them as well as the comments at YouTube on their videos and a few other sites that covered this story. And I read a lot of them too.

I'd say that comments that support for the nurse and hate on the cops is about 1000:1. If even that.

This is one of those stories that starts out very small but quickly grows legs, really completely out of proportion to the incident itself. It has, as they say, struck a nerve.

Tooconservative  posted on  2017-09-05   9:42:09 ET  Reply   Untrace   Trace   Private Reply  


#8. To: All (#6)

A bit more on how the incident started from Fox13 in Salt Lake City.

. . .

According to the Logan Police Department, officers responded to 6200 South and Highway 89/91 in Wellsville after the deadly crash.

The crash occurred after Utah Highway Patrol received numerous 911 calls reporting an erratic driver, and troopers attempted a traffic stop on a black Chevrolet Silverado pickup truck.

The driver of the pickup truck fled from troopers, and during the ensuing pursuit the driver veered into the oncoming lanes and struck a semi-truck head on.

. . .

Tooconservative  posted on  2017-09-05   10:00:35 ET  Reply   Untrace   Trace   Private Reply  


#10. To: All, Pinguinite, misterwhite, Vicomte13, nolu chan, hondo68, A K A Stone, kenh (#8)

A bit more, quoting the WaPo article. Rotten Cop admits he and Logan PD have no probable cause to draw the victim's blood at all, an absolute requirement under Utah law. This escaped my notice when I watched earlier.

A 19-minute video from the body camera of a fellow officer shows the bitter argument that unfolded on the floor of the hospital’s burn unit. (Things get especially rough around the 6-minute mark).

A group of hospital officials, security guards and nurses are seen pacing nervously in the ward. Payne can be seen standing in a doorway, arms folded over his black polo shirt, waiting as hospital officials talk on the phone.

“So why don’t we just write a search warrant,” the officer wearing the body camera says to Payne.

“They don’t have PC,” Payne responds, using the abbreviation for probable cause, which police must have to get a warrant for search and seizure. He adds that he plans to arrest the nurse if she doesn’t allow him to draw blood. “I’ve never gone this far,” he says.

After several minutes, Wubbels shows Payne and the other officer a printout of the hospital’s policy on obtaining blood samples from patients. With her supervisor on speakerphone, she calmly tells them they can’t proceed unless they have a warrant or patient consent, or if the patient is under arrest.

“The patient can’t consent, he’s told me repeatedly that he doesn’t have a warrant, and the patient is not under arrest,” she says. “So I’m just trying to do what I’m supposed to do, that’s all.”

“So I take it without those in place, I’m not going to get blood,” Payne says.

Wubbels’s supervisor chimes in on the speakerphone. “Why are you blaming the messenger,” he asks Payne.

“She’s the one that has told me no,” the officer responds.

“Sir, you’re making a huge mistake because you’re threatening a nurse,” Wubbels’s supervisor says over the phone.

At that point, Payne seems to lose it.

He paces toward the nurse and tries to swat the phone out of her hand. “We’re done here,” he yells. He grabs Wubbels by the arms and shoves her through the automatic doors outside the building.

This appears to be a case of a conspiracy by UHP, Logan PD, and SLCUPD to knowingly deprive a crime victim of his constitutional rights. There will be big lawsuits filed against all three organizations.

Tooconservative  posted on  2017-09-05   10:32:13 ET  Reply   Untrace   Trace   Private Reply  


#15. To: Tooconservative (#10)

A bit more, quoting the WaPo article. Rotten Cop admits he and Logan PD have no probable cause to draw the victim's blood at all, an absolute requirement under Utah law.

41-6a-522. Person incapable of refusal.

Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-5 520(1), and the test or tests may be administered whether the person has been arrested or not.

https://le.utah.gov/xcode/Title41/Chapter6A/41-6a-S522.html

Pesky facts.

misterwhite  posted on  2017-09-05   10:56:03 ET  Reply   Untrace   Trace   Private Reply  


#17. To: misterwhite (#15)

Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-5 520(1), and the test or tests may be administered whether the person has been arrested or not.

Unconstitutional. A void law.

Vicomte13  posted on  2017-09-05   10:59:19 ET  Reply   Untrace   Trace   Private Reply  


#20. To: Vicomte13 (#17)

Unconstitutional. A void law.

He comes down from the mountain and speaks! Heed his words!

(A U.S. Supreme Court ruling would add a little credibility to your words.)

misterwhite  posted on  2017-09-05   11:14:09 ET  Reply   Untrace   Trace   Private Reply  


#66. To: misterwhite, Vicomte13, Tooconservative (#20)

(A U.S. Supreme Court ruling would add a little credibility to your words.)

https://www.supremecourt.gov/opinions/12pdf/11-1425_cb8e.pdf

Missouri v McNeely, S Ct 11-1425, 569 US (17 Apr 2013)

SUPREME COURT OF THE UNITED STATES

Syllabus

MISSOURI
v.
MCNEELY

CERTIORARI TO THE SUPREME COURT OF MISSOURI

No. 11–1425. Argued January 9, 2013—Decided April 17, 2013

Respondent McNeely was stopped by a Missouri police officer for speed- ing and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing.

The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab technician to take a sam- ple. McNeely’s BAC tested well above the legal limit, and he was charged with driving while intoxicated (DWI). He moved to suppress the blood test result, arguing that taking his blood without a warrant violated his Fourth Amendment rights. The trial court agreed, concluding that the exigency exception to the warrant requirement did not apply because, apart from the fact that McNeely’s blood alcohol was dissipating, no circumstances suggested that the officer faced an emergency. The State Supreme Court affirmed, relying on Schmerber v. California, 384 U. S. 757, in which this Court upheld a DWI suspect’s warrantless blood test where the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’” id., at 770. This case, the state court found, involved a routine DWI investigation where no factors other than the natural dissipation of blood alcohol suggested that there was an emergency, and, thus, the nonconsensual warrantless test violated McNeely’s right to be free from unrea- sonable searches of his person.

Held: The judgment is affirmed.

358 S. W. 3d 65, affirmed.

JUSTICE SOTOMAYOR delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. Pp. 4–13, 20–23.

(a) The principle that a warrantless search of the person is reasonable only if it falls within a recognized exception, see, e.g., United States v. Robinson, 414 U. S. 218, 224, applies here, where the search involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a blood sample to use as evidence in a crimi­nal investigation. One recognized exception "applies when '" the exigencies of the situation" make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.' " Kentucky v. King, 563 U. S. ___, ___. This Court looks to the totality of circumstances in determining whether an exigency exits. See Brigham City v. Stuart, 547 U. S. 398, 406. Applying this approach in Schmerber, the Court found a warrantless blood test reasonable after considering all of the facts and circumstances of that case and carefully basing its holding on those specific facts, including that alcohol levels decline after drinking stops and that testing was delayed while offocers transported the injured suspect to the hospital and investigated the accident scene. Pp. 4-8.

(b) The State nonetheless seeks a per se rule, contending that exi­gent circumstances necessarily exist when an officer has probable cause to believe that a person has been driving of alcohol because BAC evidence is inherently evanescent. Though a person's blood alcohol level declines until the alcohol is eliminated, it does not follow that the court should depart from careful case-by-case assessment of exigency. When officers in drunk-driving investigations can reasonable obtain a warrant before having a blood sam­ple drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U. S. 451, 456. Circumstances may make obtaining a warrant impractical such that the alcohol's disspation will support an exigency, but that is a reason to decide each case on its facts, as in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect, Richards v. Wisconsin, 520 U. S. 385, 393. Blood testing is different in critical respects from other destruction-of-evidence cases. Unlike a situation where, e.g., a suspect has control over easily disposable evidence, see Cupp v. Murphy 412 U.S. 291, 296, BAC evidence naturally dissipates in a gradual and relatively predictable manner. Moreover, because an officer must typically take a DWI suspect to a medical facility and obtain atrained medical professional's assistance before having a blood test conducted, some delay between the time of the arrest or accident and time of the test is inevitable regardless of whether a warrant is ob­tained. The State's rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence supporting probable cause is simple. The natural dissipation of alcohol in the blood may support an exigency finding in a specific case, as it did in Schmerber, but it does not do so categorically. Pp. 8–13.

(c) Because the State sought a per se rule here, it did not argue that there were exigent circumstances in this particular case. The arguments and the record thus do not provide the Court with an adequate framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. Pp. 20–23. JUSTICE SOTOMAYOR, joined by JUSTICE SCALIA, JUSTICE GINSBURG, and JUSTICE KAGAN, concluded in Part III that other arguments advanced by the State and amici in support of a per se rule are unpersuasive. Their concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers may make the desire for a bright-line rule understandable, but the Fourth Amendment will not tolerate adoption of an overly broad categorical approach in this context. A fact-intensive, totality of the circumstances, approach is hardly unique within this Court’s Fourth Amendment jurisprudence. See, e.g., Illinois v. Wardlow, 528 U. S. 119, 123–125. They also contend that the privacy interest implicated here is minimal. But motorists’ diminished expectation of privacy does not diminish their privacy interest in preventing a government agent from piercing their skin. And though a blood test conducted in a medical setting by trained personnel is less intrusive than other bodily invasions, this Court has never retreated from its recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests. Finally, the government’s general interest in combating drunk driving does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. Pp. 15–20.

nolu chan  posted on  2017-09-05   15:49:22 ET  Reply   Untrace   Trace   Private Reply  


#67. To: nolu chan (#66)

McNeely seems to be the major direction of the Court but they muddied the waters a bit in their 2016 case, Birchfield v. North Dakota.

At least, I find parsing the two to be difficult.

NYSlimes:

WASHINGTON — The police must obtain warrants to test the blood of motorists arrested on suspicion of drunken driving, the Supreme Court ruled on Thursday, but no warrants are needed to conduct a breath test.

The case, Birchfield v. North Dakota, No. 14-1468, consolidated with two others, arose from laws that made it a crime for motorists suspected of drunken driving to refuse breath or blood tests.

The court’s split decision considered three cases: one from Minnesota and two from North Dakota.

Justice Samuel A. Alito Jr., in a part of the decision determined by a 7-to-1 vote, said laws effectively requiring blood tests violated the Fourth Amendment’s ban on unreasonable searches. In a part decided by a 6-to-2 vote, Justice Alito wrote that laws requiring breath tests are permissible.

“Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test,” he wrote.

When all that is sought is a suspect’s breath, he wrote, “the physical intrusion is almost negligible,” adding that “the effort is no more demanding than blowing up a party balloon.”

Moreover, he wrote, “breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath.”

But blood tests, Justice Alito wrote, “are a different matter,” requiring piercing of the skin and extraction of “a part of the subject’s body.”

“In addition,” he wrote, “a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond” what can be learned from a breath test.

In a partial dissent, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, said warrants should be required for both kinds of tests.

Tooconservative  posted on  2017-09-05   16:12:36 ET  Reply   Untrace   Trace   Private Reply  


#70. To: Tooconservative (#67)

Why is that difficult to parse? Breath tests, ok without a warrant because trivial. Blood tests: warrant required.

In both cases the privacy interest of the individual is held as being of greater importance than any law enforcement objective.

What the cop was trying to do in Utah was illegal. The nurse was right. His arresting her was illegal. The supervisor who directed that it happen ordered illegal acts. And ignorance of the law is no excuse, ESPECIALLY not for cops.

Whereas cops are given the benefit of the doubt when it comes to the use of force, the opposite rule should be the case when they are enforcing the law. Ignorance of the law should not only not be an excuse FOR THE COPS, but should bring with it the strict liability against them that they apply to the citizenry regarding each and every law.

Ignorance of the law is no excuse, and when the cops are ignorance of the law, it should be a separate and specific offense. The cops have to be forced to learn the law and obey it, and when they don't, they need to be very severely punished, to put the fear of God in the rest of them.

When cops don't obey the law, they damage the very loyalty of people to the republic. That's a serious thing that warrants very harsh punishment.

More cops need to fined, found personally liable, given jail time, broken, expelled from the force. The police forces need to be beaten into submission to the law.

Vicomte13  posted on  2017-09-05   16:20:48 ET  Reply   Untrace   Trace   Private Reply  


#72. To: Vicomte13 (#70) (Edited)

Why is that difficult to parse? Breath tests, ok without a warrant because trivial. Blood tests: warrant required.

Well, no, I did get that. It was consistent. But the circumstances of the two cases and the results...well, I found parts of it confusing. But IANAL so I shouldn't expect to have a perfect understanding of the Court's finer distinctions in their verdicts.

Overall, the 2016 case restated in even stronger terms the results of the 2013 case.

Tooconservative  posted on  2017-09-05   16:27:59 ET  Reply   Untrace   Trace   Private Reply  


#73. To: Tooconservative (#72)

Well, no, I did get that. It was consistent. But the circumstances of the two cases and the results...well, I found parts of it confusing. But IANAL so I shouldn't expect to have a perfect understanding of the Court's finer distinctions in their verdicts.

Overall, the 2016 case restated in even stronger terms the results of the 2013 case.

This is why I find Mr White's position so perverse.

You can't look at those cases and not see that a warrant is required for an involuntary blood draw (and that an "implied consent" law of some state is inferior to and cannot supersede the Supreme Court, because federal constitutional law is supreme over state law to the contrary).

But he is so very dogged about this that his determination on the matter interests me. I have to think that he's having fun with us. There's no reasonable read of the law that gets us to where he is.

Vicomte13  posted on  2017-09-05   16:43:30 ET  Reply   Untrace   Trace   Private Reply  


#77. To: Vicomte13 (#73)

There's no reasonable read of the law that gets us to where he is.

41-6a-522. Person incapable of refusal.

Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-5 520(1), and the test or tests may be administered whether the person has been arrested or not.

Does this confuse you or is it pretty straightforward?

misterwhite  posted on  2017-09-05   17:06:21 ET  Reply   Untrace   Trace   Private Reply  


#85. To: misterwhite (#77) (Edited)

Does this confuse you or is it pretty straightforward?

It's utterly irrelevant. The Supreme Court has spoken on the matter of blood draws, and because we are a federal union with federal supremacy, the Utah state and local laws are utterly obliterated, erased from having any force, by the superior federal law.

Yes, that's the Utah statute. So what? No analysis is needed. The Supreme Court says no warrantless blood draws without consent anywhere in the United States. Utah can't make laws opposed to that. Neither can Puerto Rico or American Samoa, for that matter. Federal Constitutional rights trump state laws and regulations to the contrary, every time.

Federal supremacy.

Vicomte13  posted on  2017-09-05   18:37:43 ET  Reply   Untrace   Trace   Private Reply  


#87. To: Vicomte13 (#85)

The Supreme Court says no warrantless blood draws without consent anywhere in the United States. Utah can't make laws opposed to that.

"Utah’s implied consent law only imposes civil penalties (such as suspension of driver’s license) and thus is constitutional."

misterwhite  posted on  2017-09-05   19:41:11 ET  Reply   Untrace   Trace   Private Reply  


#88. To: misterwhite (#87)

"Utah’s implied consent law only imposes civil penalties (such as suspension of driver’s license) and thus is constitutional."

So we are to override everything, abuse and arrest nurses, in order to do a blood draw for CIVIL liability?

Nah.

Vicomte13  posted on  2017-09-05   20:27:52 ET  Reply   Untrace   Trace   Private Reply  


#89. To: Vicomte13 (#88)

So we are to override everything, abuse and arrest nurses,

It needn't be that way. The cop said it was the first time it had gone this far.

"I'm here to do a blood draw."
"Fine. He's in Room 4."

Boom. Done.

misterwhite  posted on  2017-09-05   20:55:59 ET  Reply   Untrace   Trace   Private Reply  


#91. To: misterwhite (#89)

It needn't be that way. The cop said it was the first time it had gone this far.

"I'm here to do a blood draw." "Fine. He's in Room 4."

Boom. Done.

No.

"I'm here to do a blood draw."

"Let me see your warrant."

"I have none."

"Then you cannot draw blood in this hospital. We need to see a warrant before you can touch a patient."

"Ok." Leaves to get electronic warrant.

Boom. Done.

Instead, the cop lost his EMT job, and will lose his police job, and his supervisor will be severely sanctioned, and Salt Lake City will pay a lot of money in damages, because this cop could not follow the law and take "no" for an answer. He bullied his way forward under color of authority, broke the law, and now he needs to be publicly crucified, to put the appropriate degree of fear into police officers all across the nation.

The only way to get their attention is through a zero tolerance policy. Ignorance of the law is no excuse. When the cops step out of line, they need to be crucified for it.

Vicomte13  posted on  2017-09-06   6:29:10 ET  Reply   Untrace   Trace   Private Reply  


#92. To: Vicomte13 (#91)

"I'm here to do a blood draw."
"Let me see your warrant."
"Your policy for hospital blood draws may require a warrant, but I don't need one. Here's my "warrant" -- a copy of State of Utah law which reads:

41-6a-522. 522. 522. 522. Pe 522. Person incapable of refusal.
Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-5 520(1), and the test or tests may be administered whether the person has been arrested or not.

Now get the fuck out of my way or I will have you arrested for obstructing an officer during an investigation.

(Screams follow)

misterwhite  posted on  2017-09-06   10:06:40 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 92.

#93. To: misterwhite (#92)

(Screams follow)

That's the part you really like, isn't it?

And the Supreme Court has already weighed in, as has been explained to you repeatedly. No state law can overrule the USSC.

Tooconservative  posted on  2017-09-06 10:32:35 ET  Reply   Untrace   Trace   Private Reply  


#100. To: misterwhite (#92)

I want you to scream in pain.

A K A Stone  posted on  2017-09-07 07:32:12 ET  Reply   Untrace   Trace   Private Reply  


#101. To: misterwhite (#92)

Now get the fuck out of my way or I will have you arrested for obstructing an officer during an investigation.

Yep, that's how Payne played it. Now he's under criminal investigation, has lost one job, and will soon lose another, and may serve jail time.

Your attitude is that of a violent criminal who commits violent crimes under color of authority.

Payne is a criminal who got caught on camera. He abused authority, assaulted a woman and wrongfully detained her. He was egged on by his watch supervisor.

So they're going to be punished as the criminals they are, crucified before the whole public as an example, and police forces around the country will adjust to the state of the law, and not commit this particular crime again.

Vicomte13  posted on  2017-09-07 09:22:21 ET  Reply   Untrace   Trace   Private Reply  


#119. To: misterwhite, Vicomte13 (#92) (Edited)

"I'm here to do a blood draw."
"Let me see your warrant."
"Your policy for hospital blood draws may require a warrant, but I don't need one. Here's my "warrant" -- a copy of State of Utah law which reads:

41-6a-522. 522. 522. 522. Pe 522. Person incapable of refusal.
Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-5 520(1), and the test or tests may be administered whether the person has been arrested or not.

Now get the fuck out of my way or I will have you arrested for obstructing an officer during an investigation.

(Screams follow)

This argument is legal nonsense. It allows that a test may be carried out.

Sticking a needle in someone's arm is not a test. Had a blood sample been legally obtained, it could have been tested. The accused has the right to refuse the invasive blood draw. Under Utah Code 41-6a-520(c)(ii), "If a peace officer requests more than one test, refusal by a person to take one or more requested tests, even though the person does submit to any other requested test or tests, is a refusal under this section." The refusal can be noted, but a needle cannot be stuck in his arm without a warrant, absent exigent circumstances, and dissipation of alcohol is not exigent circumstances.

As decided in McNeely, warrantless puncturing the skin to perform a blood draw, absent exigent circumstances, is unconstitutional, and any result obtained is inadmissible in court. McNeely's 1.54 reading may as well have been 0.00. And the cop and whoever performed the test should have been sued.

Police can demand submission to a breath test from someone suspected of drunk driving, and refusal can lead to license suspension, but puncturing the skin with a needle still requires a search warrant, per the U.S. Supreme Court in McNeely.

Missouri v. McNeely, S. Ct. 11-1425 (17 Apr 2017)

The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See §577.012.1. McNeely was charged with driving while intoxicated (DWI), in violation of §577.010.1 He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that “[a]s in all cases involving intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG–CR01849–01 (Cir. Ct. Cape Giradeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id., at 24a. The Missouri Supreme Court affirmed. 358 S. W. 3d 65 (2012) (per curiam). Recognizing that this Court’s decision in Schmerber v. California, 384 U. S. 757, “provide[d] the backdrop” to its analysis, the Missouri Supreme Court held that “Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw.” 358 S. W. 3d, at 69, 74. The court further concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” 358 S. W. 3d, at 70. According to the court, exigency depends heavily on the existence of additional “‘special facts,’” such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital,as had been the case in Schmerber. 358 S. W. 3d, at 70,

74. Finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74–75. We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations. See 567 U. S. ___ (2012). We now affirm.

nolu chan  posted on  2017-09-08 20:48:19 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 92.

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