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Foreign Invaders crisis cost $150B in 2023, forcing some areas to cut police and fire services: report Israel kills head of Hezbollah Intelligence. Status: Not Logged In; Sign In U.S. Constitution See other U.S. Constitution Articles Title: U.S. Supreme Court Rules That Police Can Forcibly & Warrantlessly Carry Out Blood Draws on Unconscious Drivers Source: The Rutherford Institute URL Source: https://mailchi.mp/rutherford/us-su ... conscious-drivers?e=c5472441ea Published: Jun 29, 2019 Author: John Whitehead Post Date: 2019-06-29 07:33:52 by Deckard Keywords: None Views: 1592 Comments: 10 WASHINGTON, DC  — In a ruling that gives police greater leeway to violate the Fourth Amendment rights of anyone driving on a public road, the U.S. Supreme Court has ruled that police may forcibly and warrantlessly carry out blood draws on unconscious drivers suspected of drunk driving. The Court’s 5-4 decision in Mitchell v. State of Wisconsin found that an unconscious driver suspected of driving under the influence of alcohol constitutes an emergency situation that allows police to ignore the Fourth Amendment’s warrant requirement and draw blood from that suspect without consent or a warrant, regardless of whether there is an opportunity to obtain a warrant. In an amicus brief filed in the case, attorneys for The Rutherford Institute had argued that “implied consent” laws—which suggest that merely driving on a state-owned road implies that a person has consented to police sobriety tests, breathalyzers and blood draws—should not be used as a means of allowing police to bypass fundamental Fourth Amendment protections for privacy and bodily integrity. “All of those freedoms we cherish—the ones enshrined in the Constitution, the ones that affirm our right to due process, privacy, bodily integrity, the right to not have police seize our property without a warrant, or search and detain us without probable cause—amount to nothing when the government and its agents are allowed to disregard those prohibitions on government overreach at will,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “What this ruling makes clear is that our so-called Fourth Amendment rights have been reduced to technicalities in the face of the government’s ongoing power grabs.” MAKE THE GOVERNMENT PLAY BY THE RULES OF THE CONSTITUTION: SUPPORT THE FIGHT FOR FREEDOM In May 2013, the Sheboygan, Wisconsin, police received a call that Gerald Mitchell was in distress. Mitchell had driven his van to the shore of Lake Michigan and consumed 40 pills and a mixture of vodka and soda. Police found Mitchell walking unsteadily along the lake, although his van was parked elsewhere. Mitchell was given a roadside sobriety test which showed that he had a blood-alcohol concentration of .24. He was taken into custody and driven to the police station where he was placed in a holding cell. While in the cell, Mitchell began to fall asleep or pass out, although he could be roused if stimulated. Wanting another test of Mitchell’s blood-alcohol level but unsure if Mitchell could cooperate with a breath test, police took Mitchell to a hospital to have his blood drawn and tested. Mitchell was unconscious upon arriving at the hospital. Police then read an unconscious Mitchell his rights under Wisconsin’s “implied consent” law, including his right to refuse to submit to a blood or breath test, and then proceeded to have a hospital technician forcibly draw his blood. Upon being prosecuted for operating a vehicle while intoxicated, Mitchell moved to suppress the blood test results on the ground that his blood was taken without a warrant or exigent circumstances. After losing in the Wisconsin state courts, Mitchell appealed to the U.S. Supreme Court, arguing that the forced blood draws violated his Fourth Amendment rights. Although the Supreme Court has previously ruled that forced, warrantless blood draws are unconstitutional, it justified the blood draw in Mitchell as dependent on “exigent circumstances.” Twenty-eight states have laws similar to Wisconsin’s “implied consent” law. The Supreme Court’s opinion and The Rutherford Institute’s amicus brief in Mitchell v. State of Wisconsin are available at www.rutherford.org. Affiliate attorneys D. Alicia Hickok, Mark Taticchi, D. Alexander Harrell, and Matthew C. Sapp of Drinker Biddle & Reath LLP, in Philadelphia and Dallas assisted The Rutherford Institute and CATO in presenting its arguments. The Rutherford Institute, a nonprofit civil liberties organization, provides legal assistance at no charge to individuals whose constitutional rights have been threatened or violated. Post Comment   Private Reply   Ignore Thread   Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 7. #3. To: Deckard (#0) Remember that nurse who was arrested for interfering with a police officer when he wanted to draw blood from an unconscious patient? She sued and won. Turns out the cop was within his rights after all. misterwhite  posted on  2019-06-29   10:27:24 ET  Reply   Untrace   Trace   Private Reply   #7. To: misterwhite (#3) Turns out the cop was within his rights after all. I tried telling the LF Paultard population that, when Dicktard posted his yella article. But they have the IQ of a used tampon. It’s called IMPLIED CONSENT. GrandIsland  posted on  2019-06-29   16:28:38 ET  Reply   Untrace   Trace   Private Reply   Replies to Comment # 7. #9. To: GrandIsland (#7) the LF —— population have the IQ of a used tampon. Reflection in the eye of the poseur poster... tpaine  posted on  2019-06-30 10:03:59 ET  Reply   Untrace   Trace   Private Reply   #10. To: GrandIsland, misterwhite (#7) [misterwhite #3] Turns out the cop was within his rights after all. [Grand Island #7] I tried telling the LF Paultard population that, when Dicktard posted his yella article. But they have the IQ of a used tampon. It’s called IMPLIED CONSENT. No, the Utah case was not covered by implied consent. It was an unreasonable search in violation of the Fourth amendment. The Implied Consent rule only applies where the law enforcement officer has probable cause to believe the driver was impaired or legally drunk. In the Utah case involving nurse Wubbels, the drunk driver was killed when he collided with a truck while running from the police. The law enforcement officer went to the hospital and ordered a blood draw on the unconscious, critically injured truck driver with no probable cause to suspect the truck driver had been impaired or driving drunk. The truck driver had not been arrested. Nurse Wubbels received a $500,000 settlement for wrongful arrest and Officer Payne was fired, and the Watch Commander Lieutenant was reduced to Officer by Salt Lake Police Department. Former Lieutenant James Tracy's demotion to officer was upheld by the Salt Lake Civil Service Commission on 18 April 2019. Implied Consent authorizes a warrantless breath test but not a warrantless blood test. Exemptions to the warrant requirement are under the search-incident-to-arrest doctrine, per the U.S. Supreme Court opinion in Birchfield, or pursuant to exigent circumstances. The ordered blood draw in Utah lacked an arrest or exigent circumstances, and there was no probable cause to support an arrest. https://www.sltrib.com/opinion/commentary/2017/09/01/paul-cassell-cop-who-arrested-nurse-was-wrong-but-the-law-is-complicated/ The Salt Lake Tribune contained the following in a report: The basic facts are that the detective sought to take a blood draw from an unconscious patient, in order to show that the patient was not under the influence of drugs or alcohol at the time that the patient was involved in an vehicle accident. Nurse Alex Wubbels, following directions from her hospital supervisors, refused to allow the draw, unless the detective had a search warrant, probable cause and exigent circumstances or consent of the patient. The detective, who as following instructions from his watch commander, said he had “implied consent” to take the blood draw. [...] But while Utah’s law is constitutional, it turns out not to have permitted this specific blood draw. As written, Utah’s law only permits an officer to conduct such a test where he has reasonable grounds to believe that a person from whom blood is to be taken was driving “while in violation of” the laws regarding driving under the influence of alcohol or other substances. In this case, the detective specifically lacked any such grounds, because the draw was being taken to show the opposite – that the driver was not under the influence. Utah’s implied consent law did not authorize this particular blood draw under these particular circumstances. http://bok.ahima.org/doc?oid=302412#.XRkCa49OlaQ Utah Law Utah allows testing when the officer believes the person was in violation of laws regarding driving under the influence. Specifically, the law states in 41-6a-520 (1)(b): “a test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision under Subsections (1)(a)(i) through (iii).” In this case, Payne explicitly did not believe this was the case because in his report he stated he wanted to show the patient was not under the influence of drugs or alcohol. Therefore, the implied consent the officer was relying on was nonexistent. So while the US Supreme Court would have upheld Utah’s law regarding implied consent, it would only do so when the officer believed the truck driver was in violation. And only if the truck driver was arrested, as shown below. Officer Studly Doright purportedly imagined implied consent to draw blood from the non-suspect, unarrested, unconscious victim of a drunk driver for the purpose of showing that said victim was not under the influence. Implied consent in Utah only applies as specified in Utah law: 41-6a-520. Implied consent to chemical tests for alcohol or drug -- Number of tests -- Refusal -- Warning, report. (1) (a) A person operating a motor vehicle in this state is considered to have given the person's consent to a chemical test or tests of the person's breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle while: (i) having a blood or breath alcohol content statutorily prohibited under Section 41-6a-502, 41-6a-530, or 53-3-231; (ii) under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6a-502; or (iii) having any measurable controlled substance or metabolite of a controlled substance in the person's body in violation of Section 41-6a-517. (b) A test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision under Subsections (1)(a)(i) through (iii). Further, (d) As a matter of procedure, the peace officer shall submit a signed report, within 10 calendar days after the day on which notice is provided under Subsection (2)(b), that: (i) the peace officer had grounds to believe the arrested person was in violation of any provision under Subsections (1)(a)(i) through (iii); and (ii) the person had refused to submit to a chemical test or tests under Subsection (1). Note reference to "the arrested person." Birchfield v North Dakota, S Ct 14-1468 (23 Jun 2016) Held: 1. The Fourth Amendment permits warrantless breath tests inci­dent to arrests for drunk driving but not warrantless blood tests. Pp. 13–36. (a) Taking a blood sample or administering a breath test is a search governed by the Fourth Amendment. See Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616–617; Schmerber v. Cali­fornia, 384 U. S. 757, 767–768. These searches may nevertheless be exempt from the warrant requirement if they fall within, as relevant here, the exception for searches conducted incident to a lawful arrest. This exception applies categorically, rather than on a case-by-case basis. Missouri v. McNeely, 569 U. S. ___, ___, n. 3. Pp. 14–16. (b) The search-incident-to-arrest doctrine has an ancient pedi­gree that predates the Nation’s founding, and no historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. The mere “fact of the lawful arrest” justifies “a full search of the person.” United States v. Robinson, 414 U. S. 218, 235. The doctrine may also apply in situations that could not have been envisioned when the Fourth Amendment was adopted. https://www.supremecourt.gov/opinions/boundvolumes/569BV.pdf Missouri v. McNeely, 569 U.S. 141 (17 Apr 2013) 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 speeding 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 sample. 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 unreasonable searches of his person. Held: The judgment is affirmed. https://www.vonbriesen.com/legal-news/3597/the-utah-blood-draw-story-drawing-unwarranted-conclusions Exceptions to the Warrant Requirement In addition to considering whether a patient has consented to a blood draw, either overtly or by implication, the provider must also consider whether an exception to the warrant requirement applies. One long-standing exception to the warrant requirement is "search incident to arrest." The search incident to arrest exception allows officers making a valid arrest to search the arrestee and his or her immediate surroundings without a warrant. This exception was also at issue in Birchfield. In that case, the Court recognized limitations on the types of warrantless searches that can be made incident to arrest. The Court concluded that arrests for drunk driving can include a warrantless breathalyzer test but a blood alcohol test is too invasive to fall within the exception. Following the Utah nurse incident, many commentators seemed to mistakenly expand the Court's conclusion to suggest that a warrantless blood alcohol test is unconstitutional in all situations. Indeed, search incident to arrest is not the only exception to warrantless searches. Another exception applies where the police have probable cause to suspect a crime and exigent circumstances exist that make seeking a warrant impracticable. Such an exigent circumstance may occur where the evidence of a crime is likely to be destroyed before the officer can obtain a warrant. This can include a situation in which the alcohol in the suspected drunk driver's body will dissipate before a warrant can be obtained. The United States Supreme Court and the Wisconsin Attorney General have confirmed that the exigent circumstances exception does not automatically apply in every case where natural dissipation of a substance occurs. All of the facts and circumstances of the situation must be considered. Where the exception does apply, however, it may allow the preservation of evidence by drawing blood without a warrant. The incident was on July 27, 2017. The 2017 Utah law was in effect. The truck driver died from his injuries on September 25, 2017. https://law.justia.com/codes/utah/2017/title-41/chapter-6a/part-5/section-520/ 2017 Utah Code Title 41 - Motor Vehicles Chapter 6a - Traffic Code Part 5 - Driving Under the Influence and Reckless Driving Section 520 - Implied consent to chemical tests for alcohol or drug -- Number of tests -- Refusal -- Warning, report. Universal Citation: UT Code § 41-6a-520 (2017) Effective 5/9/2017 41-6a-520. Implied consent to chemical tests for alcohol or drug -- Number of tests -- Refusal -- Warning, report. (1) (a) A person operating a motor vehicle in this state is considered to have given the person's consent to a chemical test or tests of the person's breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle while: (i) having a blood or breath alcohol content statutorily prohibited under Section 41-6a-502, 41-6a-530, or 53-3-231; (ii) under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6a-502; or (iii) having any measurable controlled substance or metabolite of a controlled substance in the person's body in violation of Section 41-6a-517. (b) A test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision under Subsections (1)(a)(i) through (iii). (c) (i) The peace officer determines which of the tests are administered and how many of them are administered. (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. (d) (i) A person who has been requested under this section to submit to a chemical test or tests of the person's breath, blood, or urine, or oral fluids may not select the test or tests to be administered. (ii) The failure or inability of a peace officer to arrange for any specific chemical test is not a defense to taking a test requested by a peace officer, and it is not a defense in any criminal, civil, or administrative proceeding resulting from a person's refusal to submit to the requested test or tests. (2) (a) A peace officer requesting a test or tests shall warn a person that refusal to submit to the test or tests may result in revocation of the person's license to operate a motor vehicle, a five or 10 year prohibition of driving with any measurable or detectable amount of alcohol in the person's body depending on the person's prior driving history, and a three-year prohibition of driving without an ignition interlock device if the person: (i) has been placed under arrest; (ii) has then been requested by a peace officer to submit to any one or more of the chemical tests under Subsection (1); and (iii) refuses to submit to any chemical test requested. (b) (i) Following the warning under Subsection (2)(a), if the person does not immediately request that the chemical test or tests as offered by a peace officer be administered, a peace officer shall, on behalf of the Driver License Division and within 24 hours of the arrest, give notice of the Driver License Division's intention to revoke the person's privilege or license to operate a motor vehicle. (ii) When a peace officer gives the notice on behalf of the Driver License Division, the peace officer shall: (A) take the Utah license certificate or permit, if any, of the operator; (B) issue a temporary license certificate effective for only 29 days from the date of arrest; and (C) supply to the operator, in a manner specified by the Driver License Division, basic information regarding how to obtain a hearing before the Driver License Division. (c) A citation issued by a peace officer may, if provided in a manner specified by the Driver License Division, also serve as the temporary license certificate. (d) As a matter of procedure, the peace officer shall submit a signed report, within 10 calendar days after the day on which notice is provided under Subsection (2)(b), that: (i) the peace officer had grounds to believe the arrested person was in violation of any provision under Subsections (1)(a)(i) through (iii); and (ii) the person had refused to submit to a chemical test or tests under Subsection (1). (3) Upon the request of the person who was tested, the results of the test or tests shall be made available to the person. (4) (a) The person to be tested may, at the person's own expense, have a physician of the person's own choice administer a chemical test in addition to the test or tests administered at the direction of a peace officer. (b) The failure or inability to obtain the additional test does not affect admissibility of the results of the test or tests taken at the direction of a peace officer, or preclude or delay the test or tests to be taken at the direction of a peace officer. (c) The additional test shall be subsequent to the test or tests administered at the direction of a peace officer. (5) For the purpose of determining whether to submit to a chemical test or tests, the person to be tested does not have the right to consult an attorney or have an attorney, physician, or other person present as a condition for the taking of any test. Amended by Chapter 181, 2017 General Session nolu chan  posted on  2019-06-30 15:47:12 ET  Reply   Untrace   Trace   Private Reply   End Trace Mode for Comment # 7. Top • Page Up • Full Thread • Page Down • Bottom/Latest

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