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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: 19715
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.
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#84. To: Tooconservative (#81)
Because he is a dirty cop.
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.
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.
"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.
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." Boom. Done.
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.
"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.
"I'm here to do a blood draw." 41-6a-522. 522. 522. 522. Pe 522. Person incapable of refusal. Now get the fuck out of my way or I will have you arrested for obstructing an officer during an investigation. (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.
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."
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.
I have cited the law many times. I know you can read.
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. You don't know the law. You need a dose of ass kicking. You deserve it. Peon.
I want you to scream in pain.
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.
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.
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.
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.
"Utah’s implied consent law only imposes civil, not criminal, penalties (ie., suspension of driver’s license) and thus is constitutional."
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.
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.
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
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.
My wows are directed to the way vicecount expresses himself.
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.
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
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).
I love this topic. Spin the yarn, please. And do it thoughtfully.
Ok. Tonight.
Work hard, please. The topic deserves it :)
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.)
At least, I find parsing the two to be difficult. NYSlimes: 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.
41-6a-522. 522. 522. 522. Pe 522. Person incapable of refusal. 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) 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.
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.
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) [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) 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. 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, And,
He'll be portrayed successfully as a dirty cop.
#85. To: misterwhite (#77)
(Edited)
Does this confuse you or is it pretty straightforward?
#86. To: Vicomte13 (#84)
#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.
#88. To: misterwhite (#87)
"Utah’s implied consent law only imposes civil penalties (such as suspension of driver’s license) and thus is constitutional."
#89. To: Vicomte13 (#88)
So we are to override everything, abuse and arrest nurses,
"Fine. He's in Room 4."
#90. To: Vicomte13 (#88)
#91. To: misterwhite (#89)
It needn't be that way. The cop said it was the first time it had gone this far.
#92. To: Vicomte13 (#91)
"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:
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.
#93. To: misterwhite (#92)
(Screams follow)
#94. To: Tooconservative (#93)
No state law can overrule the USSC.
#95. To: misterwhite (#94)
"Utah’s implied consent law only imposes civil penalties (such as suspension of driver’s license) and thus is constitutional."
#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?
#97. To: misterwhite (#94)
The USSC ruled on "A" and the State of Utah is doing "B".
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#98. To: misterwhite, Tooconservative (#96)
“Truth is treason in the empire of lies.” - Ron Paul
Those who most loudly denounce Fake News are typically those most aggressively disseminating it.
#99. To: misterwhite (#96)
#100. To: misterwhite (#92)
#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.
#102. To: Deckard (#97)
Good luck with that.
#103. To: misterwhite (#96)
(Edited)
I have cited the law many times. I know you can read.
#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.
#105. To: Vicomte13 (#103)
"Blah, blah, blah ..."
#106. To: misterwhite (#105)
#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.
#108. To: A Pole, Vicomte13 (#104)
Wow, wow, wow.
#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.
#110. To: Tooconservative (#108)
#111. To: A Pole, Vicomte13 (#110)
#112. To: A Pole, Vicomte13 (#110)
#113. To: A Pole (#110)
My wows are directed to the way vicecount expresses himself.
#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
#115. To: A Pole (#114)
#116. To: Vicomte13 (#115)
Ok. Tonight.
#117. To: A Pole (#116)
#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.
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.
#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:
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. 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,
#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.
#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.
#122. To: nolu chan (#121)
Puncturing the skin to draw blood requires a warrant or exigent circumstances.
#123. To: misterwhite (#122)
That's not what the court said. The court said exigent circumstances alone is not suficient.
(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. _, _.
II
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).
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.
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.
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