Can Police in California take Forced DUI Blood Draws?

You are driving home from drinks with friends when you are stopped by the police. After you fail field sobriety tests, the officer asks you to agree to a breath test to measure your blood alcohol concentration (BAC). You decline.

You are placed under arrest and taken to a nearby hospital. The officer asks you to agree to a blood test, telling you that in California, refusal to submit to a chemical blood or breath test can result in the automatic loss of your driver’s license for a minimum of one (1) year.

You again say no.

Can the officer order a lab technician to take your blood without your consent? Can the police literally strap you down and forcefully take a blood draw?

Not without a warrant, the United States Supreme Court held in Missouri v. McNeely, unless there are specific exigencies that make obtaining a warrant impractical.

Otherwise, taking the blood of someone suspected of a DUI, without a warrant, may constitute a violation of that person’s Fourth Amendment right to be free of unreasonable searches and seizures.

The warrant requirement is subject to exceptions, the court noted. One well-recognized exception is 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.

But just because motorists have a diminished expectation of privacy in their cars, the court said, that does not diminish their privacy interest in preventing a government agent from piercing their skin. In routine DUI cases, police may need to seek a warrant.

In the case before the court, the defendant had been stopped by a Missouri police officer for speeding and crossing the center line. The officer noticed several signs that the defendant was intoxicated, including bloodshot eyes, slurred speech, and the smell of alcohol on his breath.

The defendant declined to take a breath test to measure his BAC. He was arrested and taken to a hospital for blood testing, which he also refused.

The officer did not attempt to get a warrant, but directed a lab technician to take his blood anyway. The test showed that defendant’s BAC was well above the legal limit and the defendant was charged with driving while intoxicated in violation of Missouri statute 577.010.

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, testimony in the case established.

The state of Missouri argued that because BAC dissipates so quickly, there are inherently “exigent circumstances” whenever an officer has probable cause to believe that a person has been driving under the influence.

But the justices disagreed, saying that the mere fact that BAC dissipates quickly does not, in and of itself, constitute exigent circumstances that justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.

In some situations, the justices acknowledged, exigent circumstances may exist because obtaining a warrant may be impractical.

But in other situations, the warrant process will not significantly increase the delay before the blood test is conducted. As an example, the justices cited a situation in which an officer could take steps to secure a warrant while the suspect is being transported to a medical facility by another officer.

In such a case, they said, there would be no plausible justification for an exception to the warrant requirement.

In short, the court concluded, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

The case is Missouri v. McNeely, 569 U. S. ____ (2013).

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If I am charged with an OVI, will I be forced to put “party plates” on my car?

Personally I am opposed to branding, shaming, and/or using humiliation as a method of punishment. If you are charged with an OVI, I will fight to keep restricted license plates (a.k.a. “party plates”) off of your car.

If you are convicted of an OVI in Ohio, yellow “party plates” are required in certain circumstances:

If, as a result of being charged with an OVI, you are placed under an administrative license suspension (“ALS”), a judge has the discretion to order restricted plates as a condition of granting limited driving privileges.If you are convicted of a first offense OVI, a judge has the discretion to order restricted plates as a condition of granting limited driving privileges.If you are convicted of a high tier first offense OVI, restricted plates are mandatory as a condition of granting limited driving privileges.If you are convicted of a second offense OVI within six years of a first offense conviction, restricted plates are mandatory as a condition of granting limited driving privileges.If you are convicted of a fourth offense OVI within 20 years of three prior OVI convictions, restricted plates are mandatory as a condition of limited driving privileges.

If a judge orders restricted plates, you must go the Bureau of Motor Vehicles (“BMV”) to surrender your normal Ohio license plates. Once you turn in your license plates, the BMV will issue you the restricted plates. The restricted license plates must remain on your vehicle for the duration of your license suspension or ALS.

If you or a loved one has been arrested or charged with a DUI/OVI, please call the Law Office of Sean A. Boris at 216-264-6295.  The initial consultation is free of charge.  If I agree to handle your case, I will aggressively defend your rights and help you every step of the way in securing the best possible outcome.  Sometimes the proper legal action, very early in the process, can stop prosecution in its tracks, saving you time, money, and other hardships.  DUI/OVI cases can require rigorous investigation on behalf of the defendant, and involve strict deadlines. Please contact Sean Boris right away to ensure that you do not give up any of your precious legal rights.

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DUI Suspect Forced to Have Penis Catheterized

Just when you thought MADD’s "War on Drunk Driving" had reached the limits of sanity…. 

Man Sues Police Over ‘Forced Catheterization"

Salt Lake City, UT.  May 24 - A 22-year-old college student has filed an $11 million federal lawsuit against police in central Utah, claiming they forced a catheter in him after he refused to consent to a search for marijuana…

“I don’t think it’s right what they did,” Cook told FOX 13 on Thursday. “I’m pretty sure they’re doing it to other people. They made me feel like an animal.”

The former Snow College student said he was smoking cigarettes with friends back in 2008 when police approached their car, parked on a roadside in Ephraim. His lawsuit, filed in February in U.S. District Court, claims police searched the young men and their vehicle. The police claimed they could smell marijuana, but could not find any during a search, Cook claims.

After a K-9 still could not find marijuana, an officer popped the trunk and found a glass pipe inside. Cook claims the officers then asked him to drive his friend’s car to the police station.

“If somebody’s under the influence of marijuana, the last thing you want to do is put them in a car and drive,” said Cook’s attorney, Lindsay Jarvis. “That goes against every statute the state has, and so that’s where it gets a little frustrating and it gets out of control from there.”

Cook said he believed that after driving his friend’s car to the police station, he thought he would be free to go. Instead, he was put in a holding cell and officers demanded he take a drug test.

“I asked for an attorney because I didn’t know if this was right what they were doing,” he said. “Once I did that, they said ‘We’re getting a search warrant so we’re going to have your urine by the end of the night.’ “

Police obtained the warrant, his lawsuit claims, and they drove him to Sanpete Valley Hospital. After being told that a catheter would be inserted into his body to obtain urine, Cook said he said he would consent to giving a sample but became “nervous” and could not urinate.

“The nurse told (an officer) to hold my shoulders, so he held my shoulders and then the nurse undid my pants, wiped me down with iodine and put the tube in me,” Cook told FOX 13. “And then they took me to jail.”

Cook was arrested for marijuana possession and resisting arrest. Jarvis said the resisting arrest charge was for refusing to give a urine sample. She accused police of “bullying” people with forced catheterization.

“This is being used as a punishment to try and get them to comply,” she said. “Rather than employ a simple blood test, they’re forcibly catheterizing these people.”

Forced catheterization is a relatively new issue in the courts. A similar lawsuit was filed by a woman in 2008 against police in neighboring Sevier County. It was dismissed after a federal judge ruled the officers acted without malice and their intent was to “bring her to justice” for the charges she was facing at the time…

“I want them to be accountable for what they did,” Cook said.

If you think this incident in 2008 is an isolated one, you may be surprised to discover that forced catheterization for urine samples is a growing DUI law enforcement technique.  See, for example,  Catheter Forced Up Penis After DUI Arrest (Washington) and DUI Cops Inspired by CIA? (Indiana).  Forced draws of blood with syringes have already become a staple in the "War" – including draws with syringes used by the cops themselves:  Taking Blood by Force, Forced Blood Draws by Cops Spreading and Blood Draws in the Backseat by the Dashboard Light.     

This entry was posted on Thursday, June 7th, 2012 at 9:42 am and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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State Supreme Court: No Forced Blood Draws

I’ve written in the past about the increasingly common practice of cops to pin DUI suspects down and forcefully withdraw blood from them.  In some cases the needle is wielded by medical staff — and in others by the cops themselves.  See Taking Blood by Force, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Forced Blood Draws by Cops: Constitutional?
How far will the courts permit these kinds of police state tactics?  One state supreme court has just drawn the line:

Illinois Court Blocks Forced Draw From Motorist

Chicago, IL.  April 16 – An increasing number of states allow police to use any level of force needed to take blood from a motorist accused of driving under the influence of alcohol (DUI). In Ohio and Texas this procedure is explicitly authorized by statute. In Washington, the state Supreme Court decided to sanction the practice on its own authority. Last Tuesday, the Illinois Court of Appeals was unwilling to take that extreme step.
A three-judge panel upheld a trial court’s determination to suppress the evidence created when police held Jacqueline Farris down and forcibly drew her blood. On May 12, 2009 at around 10:30pm, Officer Kevin Orms arrived at the scene of an accident in the village of Bradley and found Farris behind the wheel of one of the vehicles involved. She smelled of alcohol. Orms had her taken to the hospital where he asked for consent to draw her blood. Farris refused. Officer Orms then ordered a nurse to take the blood by force. Three personnel were required to hold Farris down because she resisted.
Lab results showed the blood alcohol content (BAC) of the Farris sample was estimated at 0.285, but a lower court threw out the evidence as inadmissible. Under state law, forcible blood extraction is only authorized when a driver causes death or the personal injury of another driver, passenger or pedestrian.
Prosecutors argued that the officer had probable cause to suspect Farris of being drunk, and there was not time to obtain a warrant before the alcohol would dissipate. In agreeing with the lower court, the appellate majority cited a 2005 state Supreme Court precedent that allowed testing without consent in cases of death or injury but did not touch on cases where no injuries occurred.
"In Jones our supreme court was quite clear that there is no practical need for physical force in obtaining bodily fluid samples since the Vehicle Code eliminates any advantage a DUI arrestee might hope to gain from refusing chemical testing," Judge William E. Holdridge wrote for the majority. "As the Jones court noted, the defendant’s refusal to comply with the request for a sample, in and of itself, is sufficient to justify a statutory summary suspension of the defendant’s driver’s license, the purpose of which is to protect the public from intoxicated motorists."  People v. Farris
.

This court prohibited forced blood draws in a medical setting.  Other courts, however, have actually approved the forceful extraction of blood by the cop himself — even when done in the back seat of a patrol car.  See, for example, Would You Want a Cop Taking Blood From You?
This entry was posted on Monday, April 16th, 2012 at 4:56 pm and is filed under Duiblog. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
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Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?

Home > Blood Test > Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?Posted on January 11, 2009 by Ken Gibson The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw.  APD would rely on the Sheriff's nurses to do the forced blood draw.  (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle)  The Sheriff's Department nurses stopped taking blood samples on January 1.  The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence.  Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws.  (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.)  The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws.  The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons.  Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.  Chief Acevedo thinks he has figured out a way around these problems.  APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve.  APD agreed to pay the phlebotomist for three eight hour shifts during these weekends.  What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws.  I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits.  What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code.  The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen. 

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.  APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.
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