Forced blood draw
In Wyoming: Five Cheyenne officers held down a 24-year-old man to obtain a sample after he was spotted driving erratically and refused to comply with a search warrant.
40 Responses to “Forced blood draw”
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August 22nd, 2011 at 9:36 am
FREEEEDOM!
August 22nd, 2011 at 10:09 am
In Florida, any person who is involved in a car accident that results in serious injury or death is required to give a blood sample. Police may use force to take it.
August 22nd, 2011 at 10:16 am
….and the problem is?
August 22nd, 2011 at 10:19 am
Seems pretty pointless–in most states refusal to blow is an automatic 12 month suspension. Don’t wanna blow? No biggie, Big Brother will just say you can’t for a year.
August 22nd, 2011 at 10:23 am
Markie Marxist sez: “No problemo! We Marxists own people, so we can take whatever we want to take from them – blood, guns, ammo, homes, cars, money, whatever! Ha! Ha! All of whatever you’ve got are belong to us! All property belongs to the state, so we’ll help ourselves to your stuff any time we like! Ha! Ha!”
August 22nd, 2011 at 10:36 am
What are those cops thinking? Hell he was just a little tipsy so what, everybody does it. Just let him go and keep his blood. If he kills someone else we can always go back and sue the cops for not keeping him off the road. if he makes it home, good for him, he can try it again another day. After all his rights are more important than taking someone else’s life.
August 22nd, 2011 at 10:36 am
Non compliance with a lawful warrant often results in the use of force.
Is the story supposed to be the blood draw aspect of it?
August 22nd, 2011 at 10:47 am
This is one of those issues where the 4th Amendment goes up against the 5th Amendment. Wish SCOTUS would settle this.
August 22nd, 2011 at 11:00 am
He said obtaining a search warrant over the phone usually takes less than five minutes.
I was under the impression the police had to present you with a copy of the warrant… How else can they prove they have it?? Unless he was already under arrest but then why would they need the warrant?
August 22nd, 2011 at 11:07 am
If it is a situation involving employment, operating a motor vehicle, or child custody, one can in most cases be legally forced to take a drug test. The grounds for this is that you are voluntarily seeking out a job, making a choice to operate a motor vehicle or other dangerous piece of equipment which could endanger the lives of others or yourself, or in the case of child custody, you are responsible for minor children and must prove to be fit to take care of them. These are all considered voluntary responsibilities and a drug test is proof that one is willing to undergo these obligations.
August 22nd, 2011 at 11:37 am
Y’all may have missed the salient point here. The point is NOT “can the cops do that”, but WHY did cops do it and not someone medically qualified?
Not a lawyer, but there is insufficient exigent circumstances to NOT wait for an EMT-4 or doc or nurse to do that blood draw.
Essentially, the guy now has a lawsuit against the cops for practicing medicine without a license.
August 22nd, 2011 at 12:05 pm
I doubt the cops drew the blood, he was at Blahblah Regional Medical Center. And besides, if it becomes an issue, wouldn’t be that hard for the police to send a couple of desk jockeys for a phlebotomy cert; i.e. you don’t need that much training to safely draw blood.
Golf clap for trying to run out the clock, but this guy kinda lost the right to complain once he staggered on to public roads and made himself a danger to others.
August 22nd, 2011 at 12:07 pm
If the cops have a search warrant, they are going to get whatever it says they can get on the warrant. Period.
The reason they didn’t get an EMT or a doctor is because an EMT or a doctor will balk when the “patient” says no.
Rivrdog: The police will deny that they were providing medical treatment … they were serving a warrant. The odds of the perp winning such a suit in Wyoming are pretty low.
August 22nd, 2011 at 12:54 pm
It had nothing to do with taxes; he was behind on his union dues.
August 22nd, 2011 at 12:54 pm
Shoot, I meant to write “It had nothing to do with drunk driving; he was behind on his union dues.”
August 22nd, 2011 at 1:04 pm
The cops didnt draw the blood. They held the guy down while medical personnel drew it.
While I agree that drunk drivers should be kept off the roads I disagree with a forced drawing of blood to check the blood-alcohol level when breathalyzers have done fine for a long time.
August 22nd, 2011 at 1:18 pm
The base issue is this: The govt can now go under your skin inside your body and remove stuff against your will. In this case it was blood, but who knows what it will be next, a part of your brain that makes you “misbehave”? The fact that there is some law to cover the act doesnt make it right. But relax, its for your own good, and for the children.
August 22nd, 2011 at 1:32 pm
Always could in some circumstances. A warrant is a warrant. Nothing in the Constitution says once a search warrant is issued they cannot, as long as a Judge feels there is probable cause. And driving erratically on the highway is.
The thing is drawing blood, or taking hair samples is not considered to hurt you much in any way. Not like a brain sample or spinal tap. SCOTUS I believe did rule on that.
Don’t want that done to you, don’t get drunk and drive.
August 22nd, 2011 at 1:41 pm
The fact that there is some law to cover the act doesnt make it right.
Was whipping escaped slaves right if there was a law for it?
Was castrating rapists right if there was a law for it?
Was confining people of Japanese ancestry right? I believe SCOTUS did rule on that. Dont want to be locked up, dont be a Jap.
August 22nd, 2011 at 2:01 pm
None of these statements answer how he was supposed to know the warrant was real… Not only that how were the police able to hold him without arresting him?
August 22nd, 2011 at 2:15 pm
The driver should have told them that he was an Indianapolis police officer. Give IMPD’s drunk driving rate, the Wyoming cops would understand.
August 22nd, 2011 at 2:27 pm
Back when I was stationed in Germany, I was told that the Polizei did not look kindly on servicemembers being a wee-bit polished while operating a motor vehicle. In fact, uniform or no uniform, they had the authority to get a breathalyzer sample from you and, if they wanted, a blood test. If you refused, they could drag your ass out of the car, beat you down for fun, and THEN get the blood from you (it wasn’t clarified whether that mean they’d get it from a vein or just collect the gusher coming from your noggin’).
Seems to me as if we’ve caught up to the Deutschen Polizei. Wouldn’t you say that’s progress, Kamaraden?
August 22nd, 2011 at 2:44 pm
@TennGoodBoy:
Yes, because being a drunk driver (which no one seriously disputes that he was) is EXACTLY the same as being an escaped slave or an interned non-criminal Japanese.
August 22nd, 2011 at 4:23 pm
Need more ammo. Apparently there are a lot more state slaves that’s gonna need taken care of when things get bad.
August 22nd, 2011 at 5:48 pm
They would do the same thing to our minds if they could, and they will when they have the technology. We’re still living in a time when we have the privacy of our own minds. That will change; for the worse. There is nothing that a government con artist can’t justify taking, and then take when he has the power to do so. In the future they will be able to copy our thoughts from inside our heads, and they will. We will still have the right to remain silent, but it will have been rendered meaningless by the issuance of search warrants for our minds.
August 22nd, 2011 at 5:52 pm
Tenngoodboy:
Let’s say a shoplifter looks at a diamond ring, swallows it, and runs from the store … and gets caught.
The judge is going to write a search warrant for the evidence he swallowed, and the police are going to chain him to a portapotty, and feed him laxatives … bet on it.
Once a judge is convinced a crime may have been committed, and there is good reason to believe a person is concealing evidence, the warrant will be written. The cops will serve it. Try not to get in their way. It will be painful.
If these things upset you, I suggest founding a country where judges can only issue search “requests”, with pink unicorn stickers attached.
August 22nd, 2011 at 6:29 pm
We’re all Statists now.
August 22nd, 2011 at 7:45 pm
Just wondering if the police officer was an EMT, Nurse, Doctor, Physicians Assistance, Phlebotomist?
Don’t you have to have a licence or some kind of accreditation to draw blood?
Otherwise wouldn’t that be preforming a medical procedure without a licence?
So if someone shows up with a warrant and is not a trained medical personal (with proof) I have to let some untrained badge monkey preform a medical procedure on me?
August 22nd, 2011 at 8:19 pm
Reading the responses here I’d really like to know the preferred libertarian outcome. Is any level of non-voluntary evidence collection valid, or any process that makes it so? Would an automatic conviction for refusing to blow into the breathalyzer be better? Or involuntarily incarcerating him without trail, aka letting him sleep it off? Or should the police just apologized for stopping him, after he failed the field sobriety test and refused the breathalyzer, and let Tipsy McStagger off on his merry way to hand out bumper massages to any of the folks on the sidewalks of his fair city?
August 22nd, 2011 at 8:20 pm
… or even involuntarily incarcerating him without trial…
August 22nd, 2011 at 8:54 pm
If the police have probable cause to think that he is drunk they should take him to the hospital for the blood test AFTER they have arrested him.. Holding him captive while you get a warrant then transporting him to the hospital through forcible abduction is just that abduction.. You cannot just grab someone off the street without arresting them first.. This is not the CIA… I bet the judge will be surprised that the officers forcibly transported him to a hospital to conduct a search warrant… By the way.. Don’t police officers have to provide a copy of said warrant at the time the search is to occur??? How did they do that without a fax machine. Did they force him to look at a computer screen? If you are going to arrest someone arrest them. Don’t get creative with the system and complicate things…
August 22nd, 2011 at 9:32 pm
Junyo,
Having alcohol in your blood shouldn’t be a crime, any more than having insufficient oxygen in your blood (say, because you’re fat or old) should be a crime, or having too many cancer cells in your blood should be a crime. The law should criminalize behavior.
If somebody is driving dangerously, the cause is irrelevant to public safety. Drunk, diabetes, stroke, ADHD, doesn’t matter. If the car is being driven safely, then it doesn’t matter that the driver is drunk, blind, sick, whatever. The police don’t want to document behavior (such as a dashboard-mounted camera) because cameras capture too many civil rights violations by the police.
Before blood tests, police weren’t magically helpless to protect society from drunks.
August 22nd, 2011 at 9:55 pm
Drunks didn’t get jail back in the 50s either. Not like today at least. DUI can land you in a world of hurt nowdays. Your job, jail, lawyer fees, etc…
No, it ain’t like Mayberry RFD and the nice drunk Otis. To many Otis’s kill people on the road these days.
August 22nd, 2011 at 10:48 pm
My $.02, the preferred libertarian outcome looks a lot like dustydog’s second paragraph. If the guy is driving erratically, police should be able to document that, stop the driver, arrest the driver, and get him in front of a magistrate promptly.
If, during the course of the arrest, police observe that the driver may be under the influence of alcohol, they document those observations the same way they document the dangerous driving—video, sound recordings, witnesses. Quickly, before the alcohol wears off (which is why the blood was drawn; I think heavy drinkers with lots of practice wear off their BAC faster than amateurs).
The alcohol should be a penalty enhancer, not an offense on its own (as, here in Cheyenne, so is talking on a phone or texting while driving). The offense should be the dangerous driving, with severity of the offense connected to the damage done.
That gives a lot of discretion back to cops, but it gives even more discretion ultimately back to JURIES.
FWIW
August 23rd, 2011 at 8:39 am
@dustydog
But alcohol in his blod wasn’t the issue. If he were drunk on his couch we wouldn’t be having this conversation. Alcohol in his blood while behind the wheel of a moving car is the problem. He chose to drive while drunk, which is behavior.
“If somebody is driving dangerously, the cause is irrelevant to public safety. Drunk, diabetes, stroke, ADHD, doesn’t matter. If the car is being driven safely, then it doesn’t matter that the driver is drunk, blind, sick, whatever.”
That strikes me as a bit nonsensical. Of course we want to know why someone’s driving dangerously. Penalty is based on intent and responsibility, and we can’t determine those without determining the reason (or lack thereof) for the behavior, unless you really want to punish someone who becomes a danger through an involuntary condition being imposed upon them to the same degree as someone who made themselves a danger through direct and deliberate action. An old guy losing his motor skills can probably just have his license yanked, a diabetic having a health issue probably needs medical attention (unless they didn’t take their meds deliberately), a person that purposely chemically altered their mental state willfully chose to endanger others. Don’t get me wrong, you have the right to purposely chemically altered your mental state, you just don’t have the right to threaten me in the process.
Now you can alter the structure of the formalities, you can call it sentencing enhancements rather than a specific law, but at the end of the day, for you to understand the crime enough to hand out any sort of equitable sentence you need to collect evidence.
People always rail about zero-tolerance laws with no basis in common sense, this seems to be a prescription for that; if you’re altered, regardless of reason, the punishment is the same.
@Fyoo
“The alcohol should be a penalty enhancer, not an offense on its own (as, here in Cheyenne, so is talking on a phone or texting while driving). The offense should be the dangerous driving, with severity of the offense connected to the damage done.
That gives a lot of discretion back to cops, but it gives even more discretion ultimately back to JURIES.”
As I said above, calling it a penalty enhancer to dangerous driving is just rearranging the furniture. You still need to know why to tack on the enhancers, and thus still need to collect evidence while it exists. A judge will still be able to disallow the evidence, and a jury will still be able to disregard it. What I’m not getting is a coherent argument as to why it shouldn’t be collected in the first place, or how this is different than any other search warrant served over the suspect’s objections.
August 23rd, 2011 at 9:37 am
From the Wyoming article:
“Police officers are used to doing hand-to-hand combat,”
Another data point in the para-militarization of the police.
August 23rd, 2011 at 12:07 pm
Rivrdog here, retired 25-year Patrol Deputy. During my career, I probably did close to 100 drunk driving arrests. I lost about 5% of those in court, the rest either pleading guilty or being found guilty by judges or juries.
Two of the five or so I lost were because of an excellent local defense attorney, John Henry Hingson, who just flat out beat me and the State, but three of them were because of that infernal blood-draw rule. In Oregon, no Public Safety officer (cop or EMT…I was certified as both) may do the blood draw, it has to be done by a doctor or P.A. in a medical facility. A search warrant is NOT required if the suspect has been involved in an injury accident and there is Probable Cause to believe that DUII has been involved as a cause of the accident. When the Doc draws the blood, it has to be handled according to both medical AND police rules of pathology/evidence, and any failure to do that or document what was done correctly is usually fatal to the case.
BTW, I have NEVER seen a patient fight the blood draw, because it is done as part of normal hospital ER procedure and we just don’t tell them. No search warrant is needed in injury accident/DUII cases in OR, so no notice must be given.
There ARE very rare cases where blood draws pursuant to a search warrant are done, usually on DUID cases, but in 25 years, I never did one of those.
August 23rd, 2011 at 1:17 pm
junyo: “What I’m not getting is a coherent argument as to why it shouldn’t be collected in the first place, or how this is different than any other search warrant served over the suspect’s objections.”
I didn’t argue against collecting the evidence.
August 23rd, 2011 at 5:28 pm
@Fyooz
My apologies, that should have been a new paragraph, and not specifically addressed to you. Also, I should have spelled your username correctly.
August 24th, 2011 at 8:49 pm
junyo:
“Penalty is based on intent and responsibility,”
Penalty should be based on actual, demonstrable, quantifiable damage to an actual identifiable victim. The only victim here is the guy who was vamped by the cops, the judge, and the medical staff.