The Nurse In Utah, Blood Draws, The 4th Amendment, SCOTUS Decisions And More

Fourth Amendment of the U.S. Constitution

“The 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Here is a disclaimer that might be necessary because of people who want to pick at every word I write to falsely accuse me of practicing law or trying to be a lawyer.  What follows regarding the constitution and state rights are things that I learned in my senior year of high school.  My freshman year college political science class and junior college class in business law also play significant roles in what I learned and retained about courts and the law. So there!

Alex Wubbels

When I heard about Alex Wubbels, the nurse in Utah who was taken into custody for refusing to allow a blood draw on an unconscious patient, it was as if I was taken back into time.  Not only was I taken back in time to remember those political science, social studies and business law classes, but also because I thought the controversy over blood draws and hospitals had been resolved years ago.

When reading the opinions of some others,  I wonder if the books assigned to classes or even the teachers or professors fully addressed that the issue in America’s Civil War was over the rights of the states? That war was to decide whether the federal government had political power to regulate or abolish slavery within individual states.  The federal government did abolish slavery in the land, and also gave states the right to legislate their own laws as long as those laws do not violate the U.S. Constitution.

When the Supreme Court of the United States decides to hear cases involving state laws, they decide them based on the U.S. Constitution. 

In 2016, Justice Samuel A. Alito, Jr. delivered the decision of the Supreme Court in consolidated cases Birchfield v. North Dakota, Bernard v. Minnesota and Beylund v. Levi.

In its 7-1 opinion, the U.S. Supreme Court ruled that it is a violation of the Fourth Amendment for states to prosecute suspected drunken drivers for refusing warrantless blood draws when they are arrested.  The majority opinion delivered by Justice Samuel A. Alito Jr. held that states may, however, require a warrantless breath test incident to arrest because such tests are less intrusive.

In its decision, SCOTUS points out that today, all 50 states have adopted implied consent laws that require motorists, as a condition of operating a motion vehicle with the State, to consent to BAC (blood alcohol content) testing if they are arrested or otherwise detained on suspicion of driving under the influence.

“In addition, the breath tests are capable of revealing only the amount of alcohol in blood, unlike the collection of DNA. And the breath test is likely to produce no greater embarrassment than is already inherent in the arrest. Blood tests are a different matter. They are more intrusive than blowing into a tube, and the preserved sample could yield more information than a blood-alcohol reading.”

I was surprised – seriously, that the situation involving nurse Wubbels took place.  That’s because Illinois faced the blood draw issue years ago.  In 2008, there was an accident in Loves Park, IL.  The police said that the driver was on drugs.  They took him to Rockford Memorial Hospital where the doctor refused to draw his blood without a court order.  The Winnebago County State’s Attorney argued that under Illinois law, no one can refuse to have their blood drawn if there’s been an accident involving serious injury or death.

The clock was ticking.  The police wanted the blood draw.  The hospital said “no”, not without a court order.  The driver was taken to the Winnebago County jail where the police eventually delivered a subpoena for a blood draw and it was taken by a jail nurse.

The key players in that issue subsequently faced sounding like hypocrites.  On August 30, 2008, Loves Park police Sargent Dave Jacobson was charged with DUI.   Jacobson refused to submit to a field sobriety test and a blood sample. The Winnebago County State’s Attorney at that time was Phil Nicolosi.  Nicolosi said that Jacobson was well within his rights to refuse to submit to the tests because he was not involved in an accident resulting in serious injury or death.

Thus, we reached the pertinent part of the blood draw issue and the law.  The person giving implied consent does so by being the driver and the driver had to have caused an accident resulting in serious injury or death.  Does that address the obligation of hospital personnel to draw blood from an unconscious patient?  Yes, because the same conditions apply.

In Winnebago County, IL, the controversy over whether hospitals have to take blood draws without order from the court continued through two State’s Attorneys and for more than 2 years. It finally ended in 2010 with a new protocol that allows hospitals to draw blood from a suspected drunk driver IF police FIRST obtain a judge’s approval for the evidentiary procedure.  That is the qualifying factor for having blood drawn.

So, what if you’re driving along minding your own business, and a pickup truck comes at you head-on?  Why would the police want your blood drawn?  It turns out that is the situation that occurred in Utah.

If you haven’t already watched the video, it is below.  The verbiage from the story about the arrest of nurse Alex Wubbels says that there is a hospital policy that does not allow blood draws from unconscious patients.  That doesn’t tell the whole story and is the reason behind arguments of Utah’s implied consent law that is being argued on social media. The full facts however, is that implied consent only applies to drivers causing accidents who are suspected of driving under the influence.  The patient whose blood the police wanted drawn was not the driver causing the accident.

On the video, we hear Wubbels tell the officer that the unconscious patient is not under arrest.  Hearing that caused me to wonder how LE would have probable cause to take the patient’s blood.  Wubbels understood what she was talking about.

More information has been reported today about the patient and the accident.

Accident scene that placed patient in hospital.

The officer who arrested Alex Wubbels gave a report that identifies the patient as 43-year-old William Gray.  Gray is a reserve officer in the Rigby, Idaho, Police Department.

When he’s not serving as a reserve police officer for Rigby, Idaho, Gray drives a truck.   That is what Gray was doing on July 26, 2017 when a man fleeing from the Utah Highway Patrol crashed a pickup truck into Gray head-on.   The crash caused an explosion and fire.  The driver of the pickup truck, 26-year old Marcos Torres, died at the scene.   Gray was seriously burned by the fire.  And, guess what?  The collision was caught on dash cam video.

There’s a reasonable expectation that because Torres was trying to escape the police, that the police might be held liable for the collision resulting in Gray’s serious injuries.  How many times have we read news reports where police officers try to avoid accountability by blaming the victim?  Maybe that is why the officer was determined to get Gray’s blood to see if he could blame Gray for not being clairvoyant, expecting for Torres to cross into his lane and hit him head-on.

In the following video, Wubbels points out to the officer what is required in order for her to draw Gray’s blood.

 

Police Chief Mike Brown said in a statement Friday that his department will comply with the investigation into Detective Jeff Payne, who was placed on administrative leave.

Here’s wishing William Gray a speedy recovery.

 

Sources: ABC News

Press Mentor

Cambridge Chronicles

Rockford Register Star

The Salt Lake Tribune