[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Jamie Dimon’s quick kowtow after telling truth on communist China

Progressives forget that parents are in charge of kids’ education

NH Public Health Policy Has Officially Killed More “Kids” than COVID

CLIF HIGH AND DAVID NINO RODRIGUEZ - 11-26-21

Smartphones and Social Media - A Mass Surveillance Dystopia

In The Pacific NorThwest ... members of survivalisT movemenTs --- are growing in number ( 2016)

Biden-Harris dream team suddenly Dems' worst nightmare after just 10 months

Democrats' deepest fears

If GOP wins in 2022, they must investigate Biden family corruption

BOOM: Trump Gets Even MORE Good News From 5 Key Battleground States

The Corrupt Media Did Not Fall For The Russia Collusion Hoax. They Were Part Of It

Attempts barred to Access Info about Brandon's daughter!

How Facebook and Google Actually Fund the Creation of Misinformation

Build Back Better’s tax hikes will squeeze Americans long into the future — yet still won’t cover its spending

Whistleblower Videos Capture Pennsylvania Election Officials Destroying Evidence

Feehery: The next Republican wave is coming

FULL RELEASE: Ashley Biden Diary Reveals Child Sex Trauma, Drug Abuse, Resentment For Joe – Whistleblower

Proof that AG Garland misled Congress about silencing parents who dissent

Trump ... ‘ The USA is ' --- ' a Radicalized Mess’

IT’S NOT JUST WHITE PEOPLE: DEMOCRATS ARE LOSING NORMAL VOTERS OF ALL RACES

Pinkerton: Joe Biden and John Kerry’s Green Great Reset Punishes America, Rewards China

Are You Better Off Today Than You Were 10 Months Ago? (Does a bear sh-t in the woods?_

Byron York's Daily Memo: The Biden White House dumpster fire

Washington Post edits and adds editor's notes to at least a dozen Steele dossier stories

Media ... sacrifices RiTTenhouse --- aT alTar of iTs lies

Byron York's Daily Memo: When Adam Schiff loved the dossier

SANHEDRIN BEGINS TO PREPARE OIL TO ANOINT KING MESSIAH/KOHEN GADOL

What Did Obama Know and When Did He Know It?

The Russian ATTack On Ukraine ... Has Already Begun --- Biden Will Do NoThing To STop IT

“The only Thing ThaT sTands beTween The new way of life ... The currenT way of life is - frankly --- hesiTancy To vaccinaTions,” he said.

Joe Biden is all-in for open borders

NJ Senate President Stephen Sweeney concedes election loss to GOP trucker Edward Durr

Virginia Paves the Way for Trump’s Return

Astro World Hell - First hand account - My prayers go out to everyone involved

Mississippi to launch mobile ID program with digital driver’s licenses and vaccine cards

Joe Biden just keeps on lying to the American public: Devine

Democrat Governor Who Pushed for Trump's Tax Returns Didn't Pay Income Tax for Years

CNN - Sesame STreeT Team Up ... To Push Vaccine Propaganda --- for Very Young Children

Supreme CourT Likely To Hold New York Law ViolaTes Second AmendmenT ... ConsTiTuTioal RighTs means --- we don'T need permiTs - permission

PoTenTial apex TargeTs above him in The invesTigaTion ... range from STeele himself --- To ClinTon general counsel Marc Elias To ClinTon campaign officials.

ERs Across The Nation ... Are CompleTely Overwhelmed WiTh Non-Covid PaTienTs --- Is This The ‘vaccine effecT’ in acTion?

President Biden's Not So Stellar Report Card

A deserved Democratic defeat and Republican victory

LAODICEAN FRANKLIN GRAHAM PLEADS WITH EVANGELICALS ... TO RECEIVE THE SACRAMENT OF VACCINATION --- SAYS HE’LL JOIN WITH JOE BIDEN TO PUSH THE JAB

What to watch for in Virginia on election night

Flashback (2013) MSNBC Says Children Belong to Community, Not Parents

I&I/TIPP Poll: Just 42% Now Think Biden Is ‘Mentally Sharp’

Democrats have screwed up everything — stop voting for them!

META will be a plaTform wiTh The approved ThoughTs - beliefs ... allow Them To escape realiTy --- like Zuckerberg.

L.G.B.


Status: Not Logged In; Sign In

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: 10969
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

#1. To: misterwhite, pile of drugs (#0)

A quick hypothetical

neighbor bursts through your front door with a pile of drugs in his hands

Source: Saily Caller

Yeah this is a lot like a truck driver hauling a load of tomatoes? NOT!

What were the results of the psycho detective's blood tests? He seems buzzed in the video. There's more reason to suspect him of being intoxicated.

You need a BAC lockout device on your keyboard, Saily!

And after twisting together a crown of thorns, they put it on His head

Hondo68  posted on  2017-09-04   19:40:40 ET  Reply   Trace   Private Reply  


#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   Trace   Private Reply  


#3. To: Tooconservative (#2)

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

I got it from the cached source. But I rechecked it and it now says Freelance Writer. I had no reason to post something that wasn't there -- I don't care who he is.

misterwhite  posted on  2017-09-04   21:02:07 ET  Reply   Trace   Private Reply  


#4. To: misterwhite (#0)

Sophistry. The Supreme Court is the final authority on what the Constitution is. The Supreme Court has ruled on the subject matter. The cop acted illegally. He's toast.

The supervisor who told him to do it is likewise going to suffer important consequences. It's all much for the good.

And because the cop also threatened his other employer, the EMT services, he will probably also lose that job.

Vicomte13  posted on  2017-09-05   8:54:36 ET  Reply   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   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   Trace   Private Reply  


#7. To: Vicomte13 (#4)

The Supreme Court has ruled on the subject matter.

That they did. But you're misreading the ruling.

"The supervisor who told him to do it is likewise going to suffer important consequences."

I don't see why. They were both operating under department policy. Which has now been changed.

"And because the cop also threatened his other employer, the EMT services, he will probably also lose that job."

How did he threaten his employer? I read something about taking all the transients to that hospital.

misterwhite  posted on  2017-09-05   9:43:01 ET  Reply   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   Trace   Private Reply  


#9. To: Tooconservative (#8)

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.

So - the driver of the semi-truck was the guy who was seriously burned in a reckless police chase and was guilty of nothing except for being in the wrong place at the wrong time.

My theory still stands - the cops wanted to find something to charge the semi-truck driver with so that their actions that caused the crashed would be justified.

If indeed they had taken the man's blood, they would have used the fact that he was most likely on medication administered by the hospital as proof that he was DWI.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

Deckard  posted on  2017-09-05   10:05:50 ET  Reply   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   Trace   Private Reply  


#11. To: Tooconservative (#6)

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

Ask any one of those 1000 what happened and they'd say the cop tried to force her to draw blood and when she told them it was against hospital policy to do so, they had her arrested. That's the power of fake news.

Hell, if that were true, even I would be on her side.

misterwhite  posted on  2017-09-05   10:33:20 ET  Reply   Trace   Private Reply  


#12. To: Deckard (#9)

My theory still stands - the cops wanted to find something to charge the semi-truck driver with so that their actions that caused the crashed would be justified.

And what if the pickup driver veered off the road and hit a tree? Sample the tree? What a moron.

My theory is that it's police departmental policy to draw blood of all drivers in any accident involving death. For the record, and for use in possible future lawsuits. Better to have and not need, than need and not have.

misterwhite  posted on  2017-09-05   10:38:50 ET  Reply   Trace   Private Reply  


#13. To: Deckard, misterwhite, A K A Stone, Vicomte13 (#9)

My theory still stands - the cops wanted to find something to charge the semi-truck driver with so that their actions that caused the crashed would be justified.

If indeed they had taken the man's blood, they would have used the fact that he was most likely on medication administered by the hospital as proof that he was DWI.

I think you're right. You see this theory mentioned steadily in the comments threads at the news sites and YouTube.

Since it was Utah highway patrol that chased the perp into oncoming traffic where he hit the semi, they were the ones with legal liability issues here. Not the Logan PD which was not involved in the chase at all, at least not in any reporting that I've read.

I think some watch commander at UHP decided to play the odds that the truck driver was on some legal or illegal drug or was in some way impaired so they could bargain down a settlement with the victim in a lawsuit. So the UHP commander calls up the Logan PD (in whose jurisdiction the accident occurred) and asks them to get a blood sample. Logan PD agrees to do so but the victim is already gone to the university hospital. So the Logan PD calls up their go-to guy at SLCUPD, the supervisor of Rotten Cop, who then sends out Rotten Cop to get that blood sample, come hell or high water.

This was all done knowing that the patient could not give consent (unconscious and on so many pain drugs that he probably could not give consent anyway), that he was not under arrest, and that UHP/Logan PD/SLCUPD had absolutely no reasonable cause to suspect him of anything to give them grounds to compel a blood sample from the victim. Which Rotten Cop tried to pretend that he was doing to "protect" the victim.

There is almost certainly a wide-ranging conspiracy here by UHP, Logan PD, and SLCUPD to knowingly and deliberately deprive the victim of his 4th Amendment rights.

It's the role of Utah highway patrol that has not come to light yet. But I think it will. This was not cooked up by Logan PD or SLCUPD, they were merely accomplices and agents of the UHP. IMO.

Tooconservative  posted on  2017-09-05   10:42:32 ET  Reply   Trace   Private Reply  


#14. To: misterwhite (#11)

Ask any one of those 1000 what happened and they'd say the cop tried to force her to draw blood and when she told them it was against hospital policy to do so, they had her arrested. That's the power of fake news.

Hell, if that were true, even I would be on her side.

The majority seem to grasp the facts pretty well.

It is obvious that you are trying to pretend this is just a hullabaloo by ignorant mobs on the internet to gin up an anti-police scandal.

But they aren't that ignorant of the facts, even if you think there is some advantage in pretending that they are.

Tooconservative  posted on  2017-09-05   10:44:29 ET  Reply   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   Trace   Private Reply  


#16. To: misterwhite (#7)

I'm not misreading the ruling. That will be clear at the end of all of this: the cop will not be vindicated. He will be crucified.

Yes, he threatened his employers by taking all of the transients to that hospital.

Vicomte13  posted on  2017-09-05   10:58:52 ET  Reply   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   Trace   Private Reply  


#18. To: Tooconservative (#14)

The majority believe what they're told. And they're told by fake news that the cop tried to force her to draw blood in violation of hospital policy, and arrested her when she refused.

'Somebody Help Me!' Nurse Arrested After Refusing to Draw Blood
-- Time Magazine

Utah Nurse Handcuffed After Refusing to Draw Patient’s Blood
-- New York Times

Utah nurse arrested for refusing detective's order considering lawsuit
-- New York Daily News

And 100 more with similar headlines.

"It is obvious that you are trying to pretend this is just a hullabaloo by ignorant mobs on the internet to gin up an anti-police scandal."

Nope. Just illustrating the power of fake news to create a hullabaloo by ignorant mobs on the internet to gin up an anti-police scandal.

misterwhite  posted on  2017-09-05   11:11:48 ET  Reply   Trace   Private Reply  


#19. To: Tooconservative. misterwhite (#14)

Utah nurse who was arrested says officer was on a 'warpath'

Alex Wubbels, the Utah nurse who was arrested for refusing to draw blood from an unconscious patient in July, recounted to ABC News how she still feels "not safe" since returning to work and believes the detective who arrested her was on a "warpath."

Police bodycam footage from the July 26 incident instantly sparked a national outcry when it was released last week.

In the video, Salt Lake City Detective Jeff Payne is seen squaring off against Wubbels, who was working the night shift on the burn unit at Utah University Hospital. That night a man named William Gray was taken to the hospital after suffering severe injuries from a car crash.

Wubbels said she tried explaining to Payne that she wouldn't allow Gray's blood to be drawn unless he was under arrest or there was a police warrant.

When Wubbels defended the hospital's policy, buttressed by a 2016 Supreme Court ruling citing that warrantless blood draws are a direct violation of the Fourth Amendment, she was rebuffed.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

Deckard  posted on  2017-09-05   11:12:17 ET  Reply   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   Trace   Private Reply  


#21. To: misterwhite (#15)

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

Pesky facts.

Implied consent and probably cause are two different animals.

The former does not come into operation until the latter is determined to exist.

randge  posted on  2017-09-05   11:15:57 ET  Reply   Trace   Private Reply  


#22. To: Vicomte13, misterwhite (#17)

Unconstitutional. A void law.

Exactly. Just some cruft that has not been repealed. Sometimes this is just sloppiness by legislators, other times I think they leave these unconstitutional laws on the books just to bamboozle victims of unconstitutional searches by telling this "this is the law".

Tooconservative  posted on  2017-09-05   11:17:32 ET  Reply   Trace   Private Reply  


#23. To: Deckard (#19)

Alex Wubbels, the Utah nurse who was arrested for refusing to draw blood from an unconscious patient in July,

Really? She was arrested for refusing to draw blood from an unconscious patient? Is that what happened, or is that what you read?

And what Supreme Court ruling are you referring to?

misterwhite  posted on  2017-09-05   11:18:39 ET  Reply   Trace   Private Reply  


#24. To: Deckard (#19)

Alex Wubbels, the Utah nurse who was arrested for refusing to draw blood from an unconscious patient in July, recounted to ABC News how she still feels "not safe" since returning to work and believes the detective who arrested her was on a "warpath."

I can see why she is worried about police retaliation.

She has become woke to the fact that UHP, Logan PD, and SLCUPD all conspired to violate the 4th Amendment rights of the patient she was rightfully protecting as a vulnerable person under medical care.

She has to realize that their lives would all be a lot easier if something happened to her before any trials begin.

Tooconservative  posted on  2017-09-05   11:20:42 ET  Reply   Trace   Private Reply  


#25. To: Vicomte13 (#16) (Edited)

I'm not misreading the ruling. That will be clear at the end of all of this: the cop will not be vindicated. He will be crucified.

You're right, I think. He admitted on camera that he knew that they had no probable cause (UHP and Logan PD for whom he acted as an agent).

And it is clear he plans to rely on a Nuremburg defense, "I was only following the orders of my boss". That rarely works well, especially for a police detective who has received extensive training as it related to his phlebotomist qualifications.

Rotten Cop and his supervisor should spend six months to a year in the general population of a Utah state prison. Perhaps along with one or more supervisors from Logan PD and the Utah state patrol. They all had to be in on it. It was a conspiracy.

Tooconservative  posted on  2017-09-05   11:25:19 ET  Reply   Trace   Private Reply  


#26. To: randge (#21)

Implied consent and probably cause are two different animals.

Probable cause? Why probable cause? Why not reasonable suspicion? Preponderance of the evidence?

And good luck finding those things from a dead man. Yet Utah law states that a blood draw may be done on a dead man. How can that be?

misterwhite  posted on  2017-09-05   11:25:27 ET  Reply   Trace   Private Reply  


#27. To: Tooconservative (#24)

all conspired to violate the 4th Amendment rights of the patient

He consented to a blood draw when he received his Utah driver's license. That's the law.

misterwhite  posted on  2017-09-05   11:28:36 ET  Reply   Trace   Private Reply  


#28. To: Tooconservative (#25)

He admitted on camera that he knew that they had no probable cause

Which he needed in order for the hospital to do the blood draw. He was a trained police phlebologist. He didn't need the hospital to do the blood draw. He was qualified to do the blood draw. But the nurse prevented him from doing so. So she was arrested for obstruction.

Why didn't she tell the cop that the hospital had already done a blood draw?

misterwhite  posted on  2017-09-05   11:34:10 ET  Reply   Trace   Private Reply  


#29. To: Tooconservative (#22)

Just some cruft that has not been repealed.

Well, you can say that about any law, can't you? What makes you think the Utah State legislature wants it repealed -- other than the fact that it would bolster your argument?

All along, on multiple threads, you've been saying they couldn't do a blood draw on an unconscious person. I provide proof they can and your response is that the law is "just some cruft that has not been repealed"?

Pathetic. I expected more from you.

misterwhite  posted on  2017-09-05   11:41:33 ET  Reply   Trace   Private Reply  


#30. To: misterwhite (#27)

He consented to a blood draw when he received his Utah driver's license. That's the law.

No, it isn't.

You are apparently too ignorant to understand the actual difference between "consent" and "implied consent". It simply does not mean what you say.

All of these state laws use the term "implied consent". What they really want is unfettered consent but the courts (and some legislatures) won't allow it.

If the law in Utah (or anywhere) was as you say, there would be no mention of needing probable cause, giving the suspect the right to refuse, etc.

Tooconservative  posted on  2017-09-05   11:45:17 ET  Reply   Trace   Private Reply  


#31. To: misterwhite (#26)

Probable cause nor reasonable suspicion.

Either way you try to run it, this was a fishing expedition.

randge  posted on  2017-09-05   11:46:30 ET  Reply   Trace   Private Reply  


#32. To: Vicomte13 (#16)

I'm not misreading the ruling.

The ruling stated that exigent circumstances alone were not sufficient for a warrantless blood draw. Nothing to do with this case.

"Yes, he threatened his employers by taking all of the transients to that hospital.

How are his employers threatened by that? The hospital would be pissed, yeah. That's the intent.

misterwhite  posted on  2017-09-05   11:48:06 ET  Reply   Trace   Private Reply  


#33. To: randge (#31)

Either way you try to run it, this was a fishing expedition.

You don't know that. As I said before, it could be as simple as departmental policy requiring blood draws of all drivers involved in a fatal accident.

Which I happen to agree with, since it then goes into the record and can be used in future litigation.

misterwhite  posted on  2017-09-05   11:51:21 ET  Reply   Trace   Private Reply  


#34. To: Tooconservative (#30)

You are apparently too ignorant to understand the actual difference between "consent" and "implied consent".

Fine. He implicitly consented to a blood draw when he received his Utah driver's license. Better?

"What they really want is unfettered consent but the courts (and some legislatures) won't allow it."

No. All they want is implied consent. This way, if the driver refuses, he can be charged.

"If the law in Utah (or anywhere) was as you say, there would be no mention of needing probable cause, giving the suspect the right to refuse, etc."

If the law is how YOU say, then how do they get probable cause or the right to refuse from an unconscious person? They can't. Yet the Utah law I cited says they can do a blood draw on an unconscious person.

How do you explain that?

misterwhite  posted on  2017-09-05   11:58:53 ET  Reply   Trace   Private Reply  


#35. To: misterwhite, Vicomte13 (#32)

How are his employers threatened by that? The hospital would be pissed, yeah. That's the intent.

I would bet that the university hospital (and others) will all inevitably impose new terms of service on private ambulance companies as a result of this.

And the cop will be fired by Gold Cross too. He probably has been already. They don't need the grief from the public or the hospitals.

BTW, you haven't mentioned the charges the cop will likely face.

https://le.utah.gov/~2016/bills/static/SB0106.html

Looks to me like he is guilty of a class A misdemeanor assault of medical personnel. Since she was not injured, he likely will not qualify for a felony charge. Too bad.

Tooconservative  posted on  2017-09-05   12:03:03 ET  Reply   Trace   Private Reply  


#36. To: misterwhite, Vicomte13 (#34)

If the law is how YOU say, then how do they get probable cause or the right to refuse from an unconscious person? They can't.

Plenty of ways. They might find open containers of alcohol in an accident. Or the driver might reek of alcohol. Or their eyes might be dilated enough to suspect narcotics. Those are just a few of the obvious ones.

When the patient is unconscious, they get a warrant.

Any metro area like SLC has at least one judge ready to issue warrants in less than a half hour. Yet this cop shows up hours later at the hospital and admits on camera to another cop that they can't apply for a warrant because they lack probable cause. This only heightens his guilt.

It does open a question up as to whether the SLCPD or Logan PD or UHP actually did try to get a warrant and got turned down by a judge. That would only increase their guilt and potential criminal/civil penalties.

Tooconservative  posted on  2017-09-05   12:06:50 ET  Reply   Trace   Private Reply  


#37. To: Tooconservative (#35)

BTW, you haven't mentioned the charges the cop will likely face.

They won't face any charges. None that won't be thrown out.

She obstructed a police officer. She was arrested for obstruction. She then resisted arrest and and the police officer used only the force necessary to place her into the patrol car.

You're as bad as the MSM with your made-up facts and your made-up laws. And this is with a video showing you exactly what happened.

misterwhite  posted on  2017-09-05   12:11:02 ET  Reply   Trace   Private Reply  


#38. To: misterwhite (#37)

This is why we have trials and juries.

We'll see in court how happily this works out for the criminal conspirators at SLCUPD, Logan PD, and Utah highway patrol.

Tooconservative  posted on  2017-09-05   12:13:52 ET  Reply   Trace   Private Reply  


#39. To: Deckard (#9)

If indeed they had taken the man's blood, they would have used the fact that he was most likely on medication administered by the hospital as proof that he was DWI.

A Pole  posted on  2017-09-05   12:15:44 ET  (1 image) Reply   Trace   Private Reply  


#40. To: Tooconservative (#36) (Edited)

The law reads "the test or tests may be administered (on an unconscious person) whether the person has been arrested or not."

You need probable cause to arrest. So the law is saying the test or tests may be administered (on an unconscious person) whether there is probable cause or not.

"When the patient is unconscious, they get a warrant."

The law says nothing about a warrant.

You keep insisting that probable cause and/or a warrant is always required for anyone. Then why does the State of Utah have a separate section of the law devoted to dead or unconscious people ... unless the requirements are different?

misterwhite  posted on  2017-09-05   12:16:22 ET  Reply   Trace   Private Reply  


#41. To: Tooconservative (#38)

This is why we have trials and juries.

Yeah. That's what I thought, too. But it looks to me like you already found him "guilty of a class A misdemeanor assault of medical personnel".

So I have to wait for a trial and jury, while you're free to immediately find him guilty of assault before he's even been charged.

misterwhite  posted on  2017-09-05   12:23:07 ET  Reply   Trace   Private Reply  


#42. To: misterwhite, Vicomte13 (#40)

You need probable cause to arrest. So the law is saying the test or tests may be administered (on an unconscious person) whether there is probable cause or not.

The Utah law leaves that open. In my reading, the officer can demand a blood test whether the suspect has been arrested or not. Perhaps this was legislative neglect but I think it was deliberate. It increases the incentives for the suspected drunken/drugged driver to honor his implied consent to a blood test even if he hasn't been arrested yet. And it applies the penalties of refusal to any driver who refuses even if they haven't been arrested or charged. Utah intends to punish the refusal itself, even for someone who is innocent of DUI. IMO. This is done to prevent lawyering and sharpshooting by suspects and to curtail civil suits against police.

The law says nothing about a warrant.

But the Supreme Court does. They do honor some very limited exceptions to warrantless blood draws but only in "exigent circumstances", according to their 2016 decision. In this case, hours had already passed which means there must be some very substantial probable cause to justify a warrantless involuntary blood draw.

Tooconservative  posted on  2017-09-05   12:27:42 ET  Reply   Trace   Private Reply  


#43. To: misterwhite (#41) (Edited)

But it looks to me like you already found him "guilty of a class A misdemeanor assault of medical personnel".

Me and 99.9% of America.

Good luck finding a jury for this one.

And it is like a bad joke to hear you, of all people, try to feign concern over presumption of innocence. We do have some pretty good video here, not just vague or inaccurate initial reporting and questionable eyewitnesses.

Tooconservative  posted on  2017-09-05   12:28:42 ET  Reply   Trace   Private Reply  


#44. To: Tooconservative (#42)

They do honor some very limited exceptions to warrantless blood draws but only in "exigent circumstances", according to their 2016 decision.

According to that decision, "exigent circumstances" by itself does not justify a warrantless blood draw. There must be other, additional factors.

That's it. That's all they said. It has no bearing on this case -- the cop was not justifying the blood draw under "exigent circumstances".

misterwhite  posted on  2017-09-05   12:34:38 ET  Reply   Trace   Private Reply  


#45. To: Tooconservative (#43) (Edited)

Good luck finding a jury for this one.

Good luck finding a prosecutor who won't be Nifong'd.

"And it is like a bad joke to hear you, of all people, try to feign concern over presumption of innocence. We do have some pretty good video here, not just vague or inaccurate initial reporting and questionable eyewitnesses."

And what does the video show? Everyone being polite and reasonable -- right up to the point where she refuses to allow him to do the blood draw. He lawfully places her under arrest for obstruction and she hysterically runs away and resists arrest. He takes her outside and places her in the car.

Yet you and "99.9% of America" actually believe that he is guilty of a class A misdemeanor assault of medical personnel? If so, then I give up on our legal system. I've already given up on y you. The other 99.9% of the people are simply ignorant of the facts because they've been lied to.

misterwhite  posted on  2017-09-05   12:47:20 ET  Reply   Trace   Private Reply  


#46. To: misterwhite (#45)

Good luck finding a prosecutor who won't be Nifong'd.

The prosecutors should worry more about the reaction of voters if they fail to prosecute effectively or stage a phony show trial.

And what does the video show? Everyone being polite and reasonable -- right up to the point where she refuses to allow him to do the blood draw. He lawfully places her under arrest for obstruction and she hysterically runs away and resists arrest. He takes her outside and places her in the car.

You have crossed into the realm of outright lying.

She did not run away. He lunged at her, pinned her arms behind her back cruelly, and forced her out of her workplace (as responsible head nurse of a burn unit). And it looked like he was trying to break her arm as he manhandled her and spoke to her in a very angry way.

Tooconservative  posted on  2017-09-05   13:06:33 ET  Reply   Trace   Private Reply  


#47. To: misterwhite (#45)

she refuses to allow him to do the blood draw

inTeresTing

her case is blown

Kim Davis was jailed for far less

which way The pc winds are blowing

love
boris

If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !

BorisY  posted on  2017-09-05   13:12:10 ET  Reply   Trace   Private Reply  


#48. To: Tooconservative (#46)

She did not run away. He lunged at her

He said, "We're done. You're under arrest." She then backed away from him and started screaming. She resisted arrest.

"And it looked like he was trying to break her arm"

What a drama queen. Emphasis on "queen".

misterwhite  posted on  2017-09-05   13:16:05 ET  Reply   Trace   Private Reply  


#49. To: BorisY (#47)

Kim Davis was jailed for far less

Every once in a while something profound emerges from the soup of your posts.

misterwhite  posted on  2017-09-05   13:17:58 ET  Reply   Trace   Private Reply  


#50. To: misterwhite (#48)

I can tell you're disappointed that he didn't just pull a gun and shoot that Confederate nurse.

Tooconservative  posted on  2017-09-05   13:24:42 ET  Reply   Trace   Private Reply  


#51. To: misterwhite (#49)

yeah

The pc winds

shariah

jihad

nuclear winTer

snowflakes

blow here

relenTlessly

love
boris

If you ... don't use exclamation points --- you should't be typeing ! Commas - semicolons - question marks are for girlie boys !

BorisY  posted on  2017-09-05   13:29:06 ET  Reply   Trace   Private Reply  


#52. To: Tooconservative (#50)

I can tell you're disappointed that he didn't just pull a gun and shoot that Confederate nurse.

Nah. I think he did everything correctly.

He was patient and waited ... and waited ... and waited while she dicked around and checked hospital policy, actually took time to print out the policy, showed it to him, called her supervisor and chatted away .. I would have tased her and told her to get the fuck out of the way.

misterwhite  posted on  2017-09-05   13:31:59 ET  Reply   Trace   Private Reply  


#53. To: Tooconservative (#8)

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.

Sooo...Someone driving on the correct side of the road is slammed by an SUV driving on the wrong side of the road while pursued by police.

Yeah, sounds like the cops were fishing for additional crimes here that most likely were not there or any reason to investigate. I mean someone who was just in a head on collision is going to be disoriented regardless of the last beverage taken.

I had a buddy in HS who was in a similar situation. Car veered into oncoming traffic hit him head on (he survived). Last thing he remembers before losing consciousness was a needle going in his arm to draw blood from the EMT crew.

Pretty crappy people are treated as guilty immediately when an accident is not their fault.

I'm sure his age had to do something with it too (17).

redleghunter  posted on  2017-09-05   13:32:13 ET  Reply   Trace   Private Reply  


#54. To: Deckard (#9)

So - the driver of the semi-truck was the guy who was seriously burned in a reckless police chase and was guilty of nothing except for being in the wrong place at the wrong time. My theory still stands - the cops wanted to find something to charge the semi-truck driver with so that their actions that caused the crashed would be justified. If indeed they had taken the man's blood, they would have used the fact that he was most likely on medication administered by the hospital as proof that he was DWI.

Points well taken and I agree with you.

redleghunter  posted on  2017-09-05   13:41:35 ET  Reply   Trace   Private Reply  


#55. To: Tooconservative (#13)

It's the role of Utah highway patrol that has not come to light yet. But I think it will. This was not cooked up by Logan PD or SLCUPD, they were merely accomplices and agents of the UHP. IMO.

You are right. We might find out Logan PD and SLCUPD had faulty information on the nature of the crash and stepped out accordingly. As we peel the onion more this stinks.

redleghunter  posted on  2017-09-05   13:49:40 ET  Reply   Trace   Private Reply  


#56. To: randge (#21)

Implied consent and probably cause are two different animals. The former does not come into operation until the latter is determined to exist.

Indeed. Beat me to it. :)

redleghunter  posted on  2017-09-05   13:53:08 ET  Reply   Trace   Private Reply  


#57. To: redleghunter (#53)

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 Logan PD responded only after the crash, when their fire department and ambulances were already on their way. The Utah HP had chased the driver and put out the burning victim and they had jurisdiction over the local cops in this accident.

This is why it is so puzzling that they obviously put the Logan PD up to getting a blood sample and then Logan PD dragged in Rotten Cop and his supervisor at SLCUPD to do the deed. You know, to "protect" the burned truck driver.

What puzzles me is why Logan PD and SLCUPD agreed to be the henchmen for Utah highway patrol. It makes no sense.

Tooconservative  posted on  2017-09-05   13:53:14 ET  Reply   Trace   Private Reply  


#58. To: Tooconservative (#22)

Exactly. Just some cruft that has not been repealed. Sometimes this is just sloppiness by legislators, other times I think they leave these unconstitutional laws on the books just to bamboozle victims of unconstitutional searches by telling this "this is the law".

Joel Segal mentioned this on one of his documentaries. He said there are probably thousands of city/town ordinances which have not been challenged which are Unconstitutional.

redleghunter  posted on  2017-09-05   13:55:28 ET  Reply   Trace   Private Reply  


#59. To: Tooconservative, RICO organized criminal conspiracy, Fusion Center Cop Klan, FCCK, *The Two Parties ARE the Same* (#10)

a conspiracy by UHP, Logan PD, and SLCUPD to knowingly deprive a crime victim of his constitutional rights

It's a federal organized crime racket (Fusion Centers) founded by the Bush DHS/DOJ, so the Trump DOJ under Jeff Sessions will ignore it, and decline to prosecute the gangbangers in blue under the RICO statutes. Establishment swamp dwelling Republicans and Democrats will stick together and ignore the US Constitution, the Bill or Rights, and the Rule of Law.

The whole Fusion Center Cop Klan (FCCK) should be in jail!

And after twisting together a crown of thorns, they put it on His head

Hondo68  posted on  2017-09-05   13:55:46 ET  Reply   Trace   Private Reply  


#60. To: Tooconservative (#25)

Did they ever get the sample after the nurse was arrested?

redleghunter  posted on  2017-09-05   13:56:49 ET  Reply   Trace   Private Reply  


#61. To: redleghunter (#60)

Did they ever get the sample after the nurse was arrested?

Nope.

If that cop was so sure he was right, why didn't he just leave another SLCPD officer at the car with the nurse and go in and start hauling out any staff who objected to his taking a blood sample?

It's because he knew he was in the wrong all along. He said they had no probable cause on tape, he said he'd never gone so far before. And he said he was doing it on the orders of his superior.

Tooconservative  posted on  2017-09-05   14:22:52 ET  Reply   Trace   Private Reply  


#62. To: Tooconservative, redleghunter (#61)

Did they ever get the sample after the nurse was arrested?

Nope.

Some report(s) said that they got some blood that the hospital had taken earlier for medical tests.

AFAIK they did get some blood from someone there, likely in violation of hospital policy.

And after twisting together a crown of thorns, they put it on His head

Hondo68  posted on  2017-09-05   14:43:19 ET  Reply   Trace   Private Reply  


#63. To: hondo68 (#62)

Some report(s) said that they got some blood that the hospital had taken earlier for medical tests.

I read a lot of these articles and I haven't come across any reports that they actually got his blood.

If they did, the penalties will be even harsher since they were in the wrong to begin with.

If you can find any reliable reporting that they did get the blood, post me a link.

Tooconservative  posted on  2017-09-05   14:51:33 ET  Reply   Trace   Private Reply  


#64. To: Tooconservative (#61)

and go in and start hauling out any staff who objected to his taking a blood sample?

Maybe by then they informed him they already had a blood sample.

misterwhite  posted on  2017-09-05   15:13:33 ET  Reply   Trace   Private Reply  


#65. To: hondo68 (#62)

Maybe they did get blood but for medical purposes associated with the patient's condition and treatment plan.

redleghunter  posted on  2017-09-05   15:14:04 ET  Reply   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   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   Trace   Private Reply  


#68. To: nolu chan (#66)

Yep.

The cops lose here, and lose badly because they used coercive force illegally to try to force medical staff to do what it was illegal for them to do.

The cops don't have a pot to piss in, they have angered the people who pay their salaries, and they are going down, as examples to the whole of American policedom.

Vicomte13  posted on  2017-09-05   16:14:34 ET  Reply   Trace   Private Reply  


#69. To: redleghunter (#65)

but for medical purposes associated with the patient's condition and treatment plan.

They still don't have probable cause, a warrant, or even reasonable suspicion of any crime. The fact that it was already drawn, really changes nothing from a legal standpoint, IMO.

And after twisting together a crown of thorns, they put it on His head

Hondo68  posted on  2017-09-05   16:19:16 ET  Reply   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   Trace   Private Reply  


#71. To: redleghunter (#65)

Maybe they did get blood but for medical purposes associated with the patient's condition and treatment plan.

Maybe, but without a warrant that blood was not, and should not be, available for use by law enforcement.

Vicomte13  posted on  2017-09-05   16:23:55 ET  Reply   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   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   Trace   Private Reply  


#74. To: Vicomte13 (#73)

and that an "implied consent" law of some state is inferior to and cannot supersede the Supreme Court

Yeah. That stupid federalism and states rights is so passe. We need a one-size size-fits-all federal government.

misterwhite  posted on  2017-09-05   16:51:22 ET  Reply   Trace   Private Reply  


#75. To: misterwhite (#74)

That stupid federalism and states rights is so passe. We need a one-size size-fits-all federal government.

It IS passe. The Union won the Civil War. The Constitution IS the Supreme Law of the Land, and the Supreme Court IS the final authority on what the Constitution means.

That's our structure of law, that's our system. Some people fought mighty hard for a different system, but they lost.

The federal Constitution supersedes states rights and federalism on matters of personal liberties and protections under the Constitution, and search and seizure, blood taking, etc. - this is all center field of federal Constitutional jurisdiction. EVEN IN a federalist, states rights thematic, the individual rights guaranteed by the Constitution STILL override state laws to the contrary.

It's obvious.

Taking a violent cop and his ignorant supervisor, who arrested a former Olympian nurse just doing HER job, to try to force an unconstitutional blood draw from an unconscious policeman who happened to also be a part-time truck driver, lying there burnt and unconscious after a police chase herded a car into him - honestly you would have to work to find a worse set of facts, a more unsympathetic case for the police.

So it seems to me that you're making this case a basis on which to try to refight the outcome of the Civil War. You've gotta pick better battlefields than this one. If THIS is the battleground on which to challenge federal constitutional protection, you're more likely to get a complete federalization of the police out of this case than you are a carve out from 4th Amendment jurisprudence to allow the cops in Utah to abuse whomever, whenever, wherever, over whatever, because they wanna.

This is not a hill to die on. And if you fight this battle, with these ignorant violent dirtbag cops, you're going to die on this hill to no effect.

Even AKA Stone, who is no fan of judicial overreach or lawlessness, is not going to be anywhere near these cops with their crazy actions. It's just nuts, what they did.

Is that why you're fighting this so hard? States rights? Really? I think you're busting our chops.

Vicomte13  posted on  2017-09-05   17:01:41 ET  Reply   Trace   Private Reply  


#76. To: Vicomte13 (#73) (Edited)

But he is so very dogged about this that his determination on the matter interests me.

He does verge into perversity on the subject of abusive police cases.

Is it a psychiatric thing like his daddy spanked him bareass too often but he really loved daddy anyway?

Is he just pulling our legs? If so, he's devoted a lot of time and effort to it and never convinced anyone to join his opinions.

So it is mysterious. The payoff is so low you just have to wonder.

Tooconservative  posted on  2017-09-05   17:05:09 ET  Reply   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   Trace   Private Reply  


#78. To: Vicomte13 (#75)

and protections under the Constitution,

Protections under the Constitution, my ass. Utah drivers consent to blood draws the moment they pick up their driver's license.

misterwhite  posted on  2017-09-05   17:09:34 ET  Reply   Trace   Private Reply  


#79. To: Tooconservative (#63)

Gold Cross Ambulance places detective on administrative leave after controversial nurse arrest

I can't find anything on them getting a blood sample from the lab, probably just a lame rumor.

Sorry about that.

And after twisting together a crown of thorns, they put it on His head

Hondo68  posted on  2017-09-05   17:09:43 ET  Reply   Trace   Private Reply  


#80. To: Tooconservative (#67)

Gosh. How does that ruling work in states where the drivers have already given their implied consent to blood/breath testing when they apply for a driver's license?

misterwhite  posted on  2017-09-05   17:12:29 ET  Reply   Trace   Private Reply  


#81. To: hondo68, Vicomte13, misterwhite, nolu chan, A K A Stone, kenh, redleghunter (#79) (Edited)

Gold Cross Ambulance places detective on administrative leave after controversial nurse arrest

I visited the linked website and read your story from 10pm last night. Then at the bottom of the page, I noticed a newer story, dated today at 3pm.

SLC detective who arrested nurse fired from part-time paramedic job

“Gold Cross Ambulance in Salt Lake City, Utah has terminated Jeff Payne as a part-time Paramedic effective immediately. Although Jeff was not working for Gold Cross Ambulance at the time of the incident, we take his inappropriate remarks regarding patient transports seriously,” the emergency medical transport company said in a statement released Tuesday. “We acknowledge those concerned individuals who have contacted us regarding this incident and affirm our commitment to serving all members of the community with kindness and respect. We will continue to maintain our values of outstanding patient focused care, safety, and the complete trust of the communities we serve.”

A perfect employee record with the ambulance company for almost 35 years didn't save his part-time gig. Just imagine the legal issues after that statement he made about bringing them only transient homeless patients. That finishes him as an EMT, just from potential lawsuits down the road.

You have to wonder how many arrests he's made over the years as a cop and how those are going to be re-examined in light of what he did to the nurse. I'm sure local defense attorneys will be preparing briefs for new trials, resentencing hearings, etc. He'll be portrayed successfully as a dirty cop.

Tooconservative  posted on  2017-09-05   17:29:37 ET  Reply   Trace   Private Reply  


#82. To: misterwhite (#80)

Gosh. How does that ruling work in states where the drivers have already given their implied consent to blood/breath testing when they apply for a driver's license?

I dunno. Isn't that every state in the Union? I assume they have a multistate compact to deal with drivers from out-of-state and all the legal issues that would arise as a result. But I don't have any info on that right now. The question arises somewhat in this case because the truck driver is from Idaho, not Utah. So how does Utah enforce its implied consent laws on residents of other states with the rules for driver interlock and such? Or seizing their license but giving them a 29-day temporary license, etc.? I don't recall reading about such cases but they must come up with some regularity.

Tooconservative  posted on  2017-09-05   17:33:24 ET  Reply   Trace   Private Reply  


#83. To: misterwhite (#78)

Protections under the Constitution, my ass. Utah drivers consent to blood draws the moment they pick up their driver's license.

The truck driver is a resident of Idaho. When did Idahoans ever consent to the laws of Utah by getting a license in Idaho?

I suppose some pack of asshole judges will tell us it's the Commerce Clause again, the last refuge of scoundrels in black robes.

Tooconservative  posted on  2017-09-05   17:37:35 ET  Reply   Trace   Private Reply  


#84. To: Tooconservative (#81)

He'll be portrayed successfully as a dirty cop.

Because he is a dirty cop.

Vicomte13  posted on  2017-09-05   18:33:30 ET  Reply   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   Trace   Private Reply  


#86. To: Vicomte13 (#84)

I think it has to affect his employability as a cop.

How can he ever testify again in court without the defense impeaching him as a cop willing to violate the rights of defendants, crime victims like the trucker, and any nearby nurses that stand in his way?

Similarly, his past cases will be suspect as well. As will the cases handled by his supervisor who he claims ordered him to assault the nurse. Any case in which the primary evidence was his blood draw is suspect. It would be unreasonable to believe that this is the very first time he violated civil rights under the color of authority.

I read that the nurse is also reconsidering her previous disclaiming of any intention to file a lawsuit. Apparently, the police cam videos made her much angrier about what happened.

Tooconservative  posted on  2017-09-05   18:44:38 ET  Reply   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   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   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   Trace   Private Reply  


#90. To: Vicomte13 (#88)

I'm telling you that he has some kind of psychiatric fixation about authority figures. The Germans never loved Hitler as much as this guy loves cops. Especially bad cops.

Maybe his mommy gave him lots of enemas when he was a young child.

Tooconservative  posted on  2017-09-05   22:17:09 ET  Reply   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   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   Trace   Private Reply  


#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   Trace   Private Reply  


#94. To: Tooconservative (#93)

No state law can overrule the USSC.

They're not. The USSC ruled on "A" and the State of Utah is doing "B".

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

misterwhite  posted on  2017-09-06   10:43:15 ET  Reply   Trace   Private Reply  


#95. To: misterwhite (#94)

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

So you're saying that Utah has the right to suspend the drivers licenses of dead people and that is the purpose of this law?

You've gone around the bend. You need psychiatric help.

Tooconservative  posted on  2017-09-06   11:07:09 ET  Reply   Trace   Private Reply  


#96. To: Tooconservative (#95)

So you're saying that Utah has the right to suspend the drivers licenses of dead people and that is the purpose of this law?

I have cited the law many times. I know you can read.

misterwhite  posted on  2017-09-06   11:12:13 ET  Reply   Trace   Private Reply  


#97. To: misterwhite (#94)

The USSC ruled on "A" and the State of Utah is doing "B".

You can repeat your bogus claim ad nauseum and that still makes you wrong. In fact - no one else on the entire internet, cops, civilians, lawyers, judges agree with the bullshit you've posted.

Doesn't that tell you something? Are you the only one in the entire world who is right and everyone else is wrong?

Good luck with that.

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

Deckard  posted on  2017-09-06   13:54:43 ET  Reply   Trace   Private Reply  


#98. To: misterwhite, Tooconservative (#96)

Warrantless Blood Draw Stopped by Utah Nurse Was Legal in Another Reality (The facts and the law are on Alex Wubbels' side.)

“Truth is treason in the empire of lies.” - Ron Paul

Those who most loudly denounce Fake News are typically those most aggressively disseminating it.

Deckard  posted on  2017-09-07   7:03:30 ET  Reply   Trace   Private Reply  


#99. To: misterwhite (#96)

You don't know the law. You need a dose of ass kicking. You deserve it. Peon.

A K A Stone  posted on  2017-09-07   7:30:58 ET  Reply   Trace   Private Reply  


#100. To: misterwhite (#92)

I want you to scream in pain.

A K A Stone  posted on  2017-09-07   7:32:12 ET  Reply   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   9:22:21 ET  Reply   Trace   Private Reply  


#102. To: Deckard (#97)

Good luck with that.

What the law is, is decided by the political process, which is fundamentally democratic at its root. Payne and his supervisor managed to make themselves the poster children for police abuse, and they're going to be made examples of by the political, legal, judicial and media system.

They cannot be successfully defended, and they won't be.

Vicomte13  posted on  2017-09-07   9:24:18 ET  Reply   Trace   Private Reply  


#103. To: misterwhite (#96) (Edited)

I have cited the law many times. I know you can read.

You have cited the wrong law. You have cited some puny state statute. States bow before the might of the Federal Government and the Federal Supreme Court.

The Supreme Court has spoken. The state law is crushed and erased, because in this land, the Supreme Court of the United States is the SUPREME LAW OF THE LAND, and - regardless of your opinion of it - state law is an ant that is squashed by federal supremacy.

"States Rights" over against federal power was settled at Appomattox. It does not exist. It has not existed for 152 years. it will not be resurrected for this case.

Some states still had laws on their books barring interracial marriage until a few years ago. But the Supreme Court spoke on the matter in 1967, and by that decision erased all authority of all states, individually or combined, on the matter. All federal, state and local laws to the contrary were erased by the supreme authority over the law exercised by the Supreme Court of the United States.

So, you can quote the "law" all you want, but that law no longer exists any more than a law against interracial marriage that sits, unrepealed, on the books. Those dead laws that haven't been repealed stand there like Confederate monuments, silent testimony to the supremacy of the federal government, Supreme Court, and federal law. The local people in the state made a law, and the federal government erased the law completely by one opinion.

States are completely subordinate to the Supreme Court and federal law on matters of the federal Constitution. You have quoted a "law" that is NOT a law at all, because the Supreme Court's decision erased that law.

So you're NOT quoting the law. You're effectively quoting the words on a Confederate monument and pretending that a defeated, voided, erased opinion of an inferior authority - the state of Utah - still has any force in the face of the majestic, supreme, overwhelming and unquestionably absolute authority of the Supreme Court to completely nullify the will of the people of Utah and replace it by one standard that is not what is in their now-dead law.

Same thing with gay marriage. It's a constitutional fact. States have statutes that say otherwise, but those statutes are not laws. They are monuments to a defeated resistance, nothing more.

That's the way it is. You're not quoting law. You're quoting dead statutes. voided by higher authority. Utah has no authority to stand against the Supreme Court.

No matter how much you want to refight the Civil War, the outcome of the Civil War stands, which means that Utah's OPINION on the matter - expressed in that voided law - is erased by the supreme, absolute and unassailable power of the Supreme Court.

You may not admit it. Payne didn't. He will kneel before that superior law and be whipped by it and submit to it nevertheless, because he is weak and it is strong.

You believe in the rule of the strongest. The Federal Supreme Court and federal law are stronger than Utah and it's now erased law, and most certainly stronger than some detective on the Salt Lake City PD.

The cops do not have a pot to piss in, and they will kneel before the law.

And yes, I am writing this in a way to be as explicitly offensive as possible, pissing all over the notion of "states rights", and exalting federal supremacy PRECISELY BECAUSE I know it pisses you off, and PRECISELY BECAUSE I know that that is how REAL POWER in the REAL WORLD is distributed. I know how much you like the cops to display power. I like power too. And I always go with the highest and most organized powers, because I always like to win. Dying for a weak and lost cause is always stupid. This cop took on a superpower, and he is going to be crushed. I know you hate that, which is precisely why I am exulting in it. You like to see people you consider inferior beaten down by the cops. And I like to see the people you like - cops - on their knees with superior authority to them smashing them in the face with a boot again and again and again.

We're both fascists at heart, you and I, but you go with Hitler, while I go with Truman and the Federal Government of the United States. I back the stronger horse - the one that burns down Hiroshima, Nagasaki, Dresden...and Atlanta. The one that always wins.

You like exercises of police power. So do I. But you're an Imperial Stormtrooper kind of guy. I'm with Darth Vader and the Emperor.

Vicomte13  posted on  2017-09-07   9:35:29 ET  Reply   Trace   Private Reply  


#104. To: Vicomte13, misterwhite, Tooconservative (#103)

I know how much you like the cops to display power. I like power too. And I always go with the highest and most organized powers, because I always like to win. Dying for a weak and lost cause is always stupid. This cop took on a superpower, and he is going to be crushed. I know you hate that, which is precisely why I am exulting in it. You like to see people you consider inferior beaten down by the cops. And I like to see the people you like - cops - on their knees with superior authority to them smashing them in the face with a boot again and again and again.

We're both fascists at heart, you and I, but you go with Hitler, while I go with Truman and the Federal Government of the United States. I back the stronger horse - the one that burns down Hiroshima, Nagasaki, Dresden...and Atlanta. The one that always wins.

You like exercises of police power. So do I. But you're an Imperial Stormtrooper kind of guy. I'm with Darth Vader and the Emperor.

Wow, wow, wow.

A Pole  posted on  2017-09-07   9:55:05 ET  Reply   Trace   Private Reply  


#105. To: Vicomte13 (#103)

"Blah, blah, blah ..."

"Utah’s implied consent law only imposes civil, not criminal, penalties (ie., suspension of driver’s license) and thus is constitutional."

misterwhite  posted on  2017-09-07   10:09:36 ET  Reply   Trace   Private Reply  


#106. To: misterwhite (#105)

Utah is a state, an utterly subordinated tax-paying appendage of the United States of America. Utah has no power to enforce any law that the supreme authority over Utah - the federal government of the United States - speaking through the Supreme Court of the United States - says it cannot.

Your Utah laws are mere playthings, void, null, old rules that no longer apply. The federal master has spoke, and the peasant state SHALL obey, or be compelled to by superior armed force that no state nor collection of states can resist.

That is the American system since 1865, and we're not going to change it to save some little dick of a cop in Utah.

You quote Utah law. It has no force in this case. Federal law is supreme, and the Supreme Court of the supreme law and supreme imperial authority in this land has spoken. Therefore, the state of Utah is UTTERLY ERASED in its will and its law, and it law is now reduced to lockstep obedience to the legal imperial master, who resides in Washington DC, not Salt Lake City. The victory of the federal government in the Civil War secured this outcome, and it is the supreme law of the land.

It's fun saying this over and over, because you hate it and it's true.

The fact that you hate it but have to submit to it makes me happy.

Vicomte13  posted on  2017-09-07   10:35:29 ET  Reply   Trace   Private Reply  


#107. To: Vicomte13 (#106)

Utah has no power to enforce any law that the supreme authority over Utah - the federal government of the United States - speaking through the Supreme Court of the United States - says it cannot.

Wow. Pretty specific there. Then show me the Supreme Court ruling that says the State of Utah cannot enforce it's blood draw laws.

You can't. The court ruled on a different matter that you're trying to apply to the State of Utah. Apples and oranges.

misterwhite  posted on  2017-09-07   10:45:22 ET  Reply   Trace   Private Reply  


#108. To: A Pole, Vicomte13 (#104)

Wow, wow, wow.

Vic is not saying anything so novel here. Over the last 15 years, it has become something of a favorite debate topic on whether we should cheer for the Empire or the rebels in Star Wars. This article is typical and introduced a lot of people to the topic.

Weekly Standard: The Case For The Empire

Tooconservative  posted on  2017-09-07   10:50:18 ET  Reply   Trace   Private Reply  


#109. To: misterwhite (#107)

Wow. Pretty specific there. Then show me the Supreme Court ruling that says the State of Utah cannot enforce it's blood draw laws.

You can't. The court ruled on a different matter that you're trying to apply to the State of Utah. Apples and oranges.

I don't have to do any of that. The presumption is on my side. You have to overcome it. Payne can't overcome it, so his life will be crushed.

Vicomte13  posted on  2017-09-07   11:06:05 ET  Reply   Trace   Private Reply  


#110. To: Tooconservative (#108)

My wows are directed to the way vicecount expresses himself.

A Pole  posted on  2017-09-07   12:41:12 ET  Reply   Trace   Private Reply  


#111. To: A Pole, Vicomte13 (#110)

You've hung out with us for 15 years or more.

Surely you can't be that surprised that Vic has strong opinions and likes to be a little provocative in prose.

I hope you aren't going to start whining like some SJW snowflake that they've discovered a neo-Confederate hiding under their bed or something.

Tooconservative  posted on  2017-09-07   12:46:22 ET  Reply   Trace   Private Reply  


#112. To: A Pole, Vicomte13 (#110)

BTW, don't be so sure that Darth Vader is so unpopular.

They are removing the Robert E. Lee stained glass from the National Cathedral. But no one is trying to remove the Sith Lord gargoyle.

Yep, Darth Vader is on the National Cathedral and has been for a long time now. To me, it's just another argument for razing that obscenity to the ground but most people probably like it.

Long live the Empire! LOL

Tooconservative  posted on  2017-09-07   14:18:37 ET  (1 image) Reply   Trace   Private Reply  


#113. To: A Pole (#110)

My wows are directed to the way vicecount expresses himself.

I am the scion of a broken aristocratic French family, a bastard grandson of the Dutch van Oranjie, a legitimate great-grand nephew of J.E.B. Stuart, a former Navy pilot, a world class lawyer, a Catholic, married to a West Indian French woman, raising a US Olympian.

When I'm good, I'm very, very good - Jon Snow good.

And when I'm bad, I'm Tywin Lannister bad. Cardinal Richelieu bad.

My instinct, when presented with a threat of force, is to kill whoever makes it. It's concern for God's opinion on the matter that balks me, not the squeamishness of other men.

I'm a lawyer, I've studied the Common Law. It's taught in schools and generally enforced. But I ALSO know the other law, the Law of the Elite, which is not directly taught in schools, but which is taught through experience and contacts and observations. All societies have two systems of law, ours included. Or, in truth, we have three systems: The Common Law, for the working, middle and managerial class, and professionals. The Law of the Low is for them, and it's quite rough and ready. The Law of the Elite is a special set of unwritten laws that are as real as the statute law, and enforced with their own logic.

It is highly offensive to people in the middle class to hear the Law of the Elite spoken of as a real thing, an entity, separate and apart from the "Common Law", but it is. The Elite are not common, and don't have the same laws applied to them in the same way, except sometimes overzealous cops or prosecutors will pretend that there is only the Common Law and try to make that point by publicly imposing it on one of the lesser Elite.

Nobody at any level makes any bones about their being the Law of the Low. The common middle actually delights in it, because relative to it, the Common Law is quasi elite.

But this is getting esoteric and no subject has come up that invokes it (except, to a degree, the nurse case in Utah...but only to a degree).

Vicomte13  posted on  2017-09-07   14:38:03 ET  Reply   Trace   Private Reply  


#114. To: Vicomte13, Tooconservative (#113) (Edited)

experience and contacts and observations. All societies have two systems of law, ours included. Or, in truth, we have three systems

I love this topic. Spin the yarn, please. And do it thoughtfully.

A Pole  posted on  2017-09-07   15:46:44 ET  Reply   Trace   Private Reply  


#115. To: A Pole (#114)

Ok. Tonight.

Vicomte13  posted on  2017-09-07   16:03:29 ET  Reply   Trace   Private Reply  


#116. To: Vicomte13 (#115)

Ok. Tonight.

Work hard, please. The topic deserves it :)

A Pole  posted on  2017-09-07   16:26:09 ET  Reply   Trace   Private Reply  


#117. To: A Pole (#116)

Alright, I promised. Let's begin.

We have to start with the concept of law itself. Don't go running to a dictionary, or a legal dictionary. Spend some time to think about what you think law is. And while you're at it, think through what you mean when you add the definite article in from of the world "law" and say "the law". Think about how that is distinguished from what you mean when you use the indefinite article. What is the difference between "a law" and "the law".

Does capitalization matter? Is there a difference in your mind between "the law", "The Law", "the Law" and "THE Law"? Obviously there is a difference in inflection and tone, but is there a difference in kind?

Now think of the source of law. Is it government? Is it men? Is it specific men? Is it God? Is it nature? Is it a synopsis of men's observations of something? How does "Constitutional Law" differ from "The Law of Physics", and how do they differ from "The Law of Economics"?

Now go back to your original definition of "law". Do the laws of physics or of economics fit within it?

It's a short word, "law", but it carries a lot of freight.

Does law require a legislator? Who legislates the law of physics? the law of economics?

Is the nature of law that it can be broken? Can the law of physics be broken? How about the law of supply and demand? How about the law of torts?

Is obeying the law "good"? Is breaking the law "bad"? Does that depend on what law, or whose law, or how the law got there?

Who decides all of these things? Does the dictionary decide what "law" is? If you think so, did what the dictionary cover all of those different areas of law? Physics? Torts? Criminal? Economics?

It is these philosophical, and indeed philological, things that we must first resolve before any sort of meaningful discussion is even possible, else you will be speaking Greek while I may be speak Latin, or French, or Basque...or Martian.

If I say to you "Might makes Right", have I made a morally normative statement, or have I made a purely descriptive one? Or both? Can you know without context? Have you ever considered , before now, that "Might makes right" might not be a moral statement at all, but a purely descriptive statement, an observation about the world?

You have your prejudices, as do I, and all other adults. To think about this topic properly we have to be able to consider the full stunning scope of it, which may run from theology to the courthouse to the test tube.

I could just skip over all of the philosophy, philology and theology, and jurisprudence, and just cut to the chase: speaking descriptively, there's a different set of laws that apply to very poor people, to average people, and to very powerful people. There's some overlap at the edges, and a lot of pretense that there is only one law, but there are really three laws: the Law of the Poor, the Law of the Common, and the Law of the Elite. You yourself can probably sketch in most of the three sets of laws by just thinking about it. You will find that they persist over the ages, and operate in all cultures, making them in a sense a manifestation of the laws of human nature.

Still speaking descriptively, not normatively, it is generally useful for any lawyer, politician, actor or upwardly mobile person to understand these three sets of law, to understand how they work, and to learn to work as seamlessly as possible with all three systems.

To discuss this at all, though, given the normative passions it is likely to arouse, it is best to start in the world of description first, to go through the mental exercises proposed at the opening of this short essay, rather than plow straight ahead into what amounts to "I should rule the world, and this is my law!" Because the only thing more useless than that is another man's religion. (The utility in "I should rule the world..." is that it is funny and can be unpredictable. Listening to a man dutifully prattle on about his pre-canned off-the-shelf normative fantasies is always dull.)

Vicomte13  posted on  2017-09-08   19:38:53 ET  Reply   Trace   Private Reply  


#118. To: Tooconservative (#67)

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.

That has no application whatever to the current case. The unconscious dude was not arrested, he was not asked for a breath test, and he was not even a suspect. He was the victim of the dude running from the cops.

Police can demand submission to a breath test from someone suspectged of drunk driving, and refusal can lead to license suspension, but puncturing the skin with a needle still requires a search warrant.

nolu chan  posted on  2017-09-08   19:52:11 ET  Reply   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   Trace   Private Reply  


#120. To: nolu chan (#119)

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.

The Utah case had nothing to do with exigent circumstances. That wasn't the reason used for the blood draw. Had it been, the above case might have some bearing.

misterwhite  posted on  2017-09-09   9:27:27 ET  Reply   Trace   Private Reply  


#121. To: misterwhite (#120)

The Utah case had nothing to do with exigent circumstances. That wasn't the reason used for the blood draw. Had it been, the above case might have some bearing.

McNeely has bearing. Puncturing the skin to draw blood requires a warrant or exigent circumstances. In the SLC case, they had neither. The 4th Amendment as interpreted by the U.S. Supreme Court is controlling.

You cite a Utah statute that does not authorize a blood draw without a warrant, except in your imagination. The statute is legal. There is no implied consent to a blood draw. There is a consequence for a refusal, but it is not to strap him down and take an involuntary blood draw.

The nurse was correct.

nolu chan  posted on  2017-09-09   20:30:08 ET  Reply   Trace   Private Reply  


#122. To: nolu chan (#121)

Puncturing the skin to draw blood requires a warrant or exigent circumstances.

That's not what the court said. The court said exigent circumstances alone is not suficient.

misterwhite  posted on  2017-09-10   10:37:36 ET  Reply   Trace   Private Reply  


#123. To: misterwhite (#122)

That's not what the court said. The court said exigent circumstances alone is not suficient.

The fact is, you are absolutely clueless about you are talking about.

Missouri v. McNeely, S. Ct. 11-1425, 569 U.S. ____ (17 Apr 2013)

[footnotes omitted]

At 2: (Syllabus)

(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. _, _.

[nc] You have admitted there is no claimed exception of exigent circumstances. Thus, the principal applies that the proposed 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, required a search warrant.

Read it until you understand it.

- - - - - - - - - - - - - - - - - - - -

At 4-11: (Opinion of the Court)

II

A

The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” Our cases have held 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 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s [*5] “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U. S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989).

We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U. S., at 758. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. Id., at 770. We explained that the importance of requiring authorization by a “‘neutral and detached magistrate’” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.” Ibid. (quoting Johnson v. United States, 333 U. S. 10, 13–14 (1948)).

As noted, the warrant requirement is subject to exceptions. “One well-recognized exception,” and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” Kentucky v. King, 563 U. S. ___, ___ (2011) (slip op., at 6) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U. S. 45, 47–48 (2009) (per curiam), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U. S. 38, 42–43 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U. S. 499, 509–510 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a [*6] warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U. S. 291, 296 (1973); Ker v. California, 374 U. S. 23, 40–41 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U. S., at 509.

[nc] In the instant case there was time to get a warrant. The detective did not even try.

To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U. S. 398, 406 (2006) (finding officers’ entry into a home to provide emergency assistance “plainly reasonable under the circumstances”); Illinois v. Mc-Arthur, 531 U. S. 326, 331 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable “[i]n the circumstances of the case before us” due to exigency); Cupp, 412 U. S., at 296 (holding that a limited warrantless search of a suspect’s fingernails to preserve evidence that the suspect was trying to rub off was justified “[o]n the facts of this case”); see also Richards v. Wisconsin, 520 U. S. 385, 391–396 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct “in a particular case”). We apply this “finely tuned approach”to Fourth Amendment reasonableness in this context because the police action at issue lacks “the traditional justification that . . . a warrant . . . provides.” Atwater v. Lago Vista, 532 U. S. 318, 347, n. 16 (2001). Absent that established justification, “the fact-specific nature of the reasonableness inquiry,” Ohio v. Robinette, 519 U. S. 33, 39 (1996), demands that we evaluate each case of alleged exigency based “on its own facts and circumstances.” Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 [*7] (1931).

Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U. S., at 758. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758–759. After explaining that the warrant requirement applied generally to searches that intrude into the human body, we concluded that the warrantless blood test “in the present case” was nonetheless permissible because 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 (quoting Preston v. United States, 376 U. S. 364, 367 (1964)).

In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” 384 U. S., at 770. We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id., at 770–771. “Given these special facts,” we found that it was appropriate for the police to [*8] act without a warrant. Id., at 771. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based“on the facts of the present record.” Id., at 772.

Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.

B

The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28–29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U. S., at 623; Schmerber, 384 U. S., at 770– [*9] 771. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual’s blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437–441 (L. Kobilinsky ed. 2012). Regardless of the exact elimination rate, it is sufficient for our purposes to note that because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U. S., at 770–771.

But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be 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 (1948) (“We cannot . . . excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative”). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly [*10] conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards, 520 U. S., at 393.

The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “‘now or never’” situation. Roaden v. Kentucky, 413 U. S. 496, 505 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U. S. 103, 116, n. 6 (2006); Cupp, 412 U. S., at 296, BAC evidence from a drunk driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N. W. 2d 538, 554 (Minn. 2008) (Meyer, J., dissenting). This reality undermines the force of the State’s contention, endorsed by the dissent, see post, at 3 (opinion of THOMAS, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence “is actively being destroyed with every minute that passes.” Brief for Petitioner 27. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.

The State’s proposed per se rule also fails to account for [*11] 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 offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.

Schmerber is deprecated by McNeely and technology.

Clearly noted is,

In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.

And,

The State’s proposed per se rule also fails to account for [*11] 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 offered to establish probable cause is simple.

nolu chan  posted on  2017-09-11   22:14:05 ET  Reply   Trace   Private Reply  


TopPage UpFull ThreadPage DownBottom/Latest

[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com