Nurse forcibly arrested for not allowing cop to draw blood of unconscious patient(Video)

a reply to: Xcathdra

Since it has been posted several times in various previous pages.
The Supreme Court decision requiring a warrant for blood draw only applies to states whose implied consent laws attach a criminal punishment for failure to comply. States whose implied consent laws attach a civil (administrative) penalty were not affected by the ruling and are constitutional.

It's been posted several times in this thread that blood draw for this patient was unlawful under Utah law.

Federal law (title 49) and federal motor carrier requirements require a test of commercial drivers, regardless of fault, involved in an accident where there is a lot of damage coupled with injuries. Those laws have preemption over state laws specifically included. It also notes local / state police investigations can be used as the required testing in those case.

This law required that a peace officer have reason to believe that the subject was in violation of the law, driving under the influence, before drawing blood from an unconscious victim.

From your source, another link;
Gehrke: The outrageous arrest of a nurse exposed Salt Lake City police for having bizarrely out-of-date policies

originally posted by: Xcathdra
Did I get that right or would you like to clarify your post on what the Hospital claimed and what the Mayor and Police Chief stated and how they were in fact operating from 2 separate policies.

Policy ... schmolicy. The cop roid-raged that nurse. End of story.

originally posted by: Zaphod58
a reply to: Realtruth

When you sign that contract with the trucking company, you sign an agreement to abide by the FMCSR. That means you agree that, at any time in the future, if you are in an accident, they have permission to run blood and alcohol tests. If you refuse, you're going to be screwed for years to come.

Contracts are just paper and agreements that are mutable, changeable, and can be challenged at any time. Most people don't understand this. Contracts are only enforceable via the legal system and courts, which means up the food chain to the Supreme Courts again.

If the person is not able to refuse, or is unconscious they still have rights, which revert back to the highest laws in our land, not mutable turd contracts.

All Contracts are subservient to Supreme Court Case rulings, and the Constitution,

a reply to: Realtruth

The 4th amendment applies to the government and not the individual (requires the government to obtain a warrant and doesnt require anything of citizens).

The 2 minute video everyone is watching was released by the nurse and her lawyer. The complete video is 20 minutes long and the detective spent over an hour on the phone with his lt. trying to resolve the situation.

a reply to: windword

Its also been stated several times now that blood draws in fatality accidents are common.

a reply to: Realtruth

If what you say is true then explain the contracts you sign when going into the military, where you freely and knowingly give up several of your constitutional rights.

Also explain how Police departments and other sectors can perform random drug tests on their employees without a warrant then.

In the state of Utah fs a person is unconscious they give implied consent for testing to be done.

a reply to: Realtruth

And when you refuse, you get hammered, lose your job, and have a failure added to your work record, which means most companies won't go near you with a 40 foot pole, in addition to having to retrain for a new career. Even if you fight it and win, that will get around.

It has actually been upheld in the courts, however, that no warrant or even suspicion of wrongdoing is required for drug and alcohol testing to be performed on certain individuals. The initial case was against railroad employees, which by extension will almost certainly hold up in court against truck drivers, since both have most of the same regulations.

originally posted by: Snarl

originally posted by: Xcathdra
Did I get that right or would you like to clarify your post on what the Hospital claimed and what the Mayor and Police Chief stated and how they were in fact operating from 2 separate policies.

Policy ... schmolicy. The cop roid-raged that nurse. End of story.

Yeah got to love how the nurse is making the talk show rounds claiming she was simply bullied for doing her job when in reality the policies she claimed were accepted by the police department were in fact not and were different.

a reply to: Zaphod58

Do you know off-hand of any challenges, successful or otherwise, to the DoT regulation about implied consent? Or the drug screening regulation in general?

I ask because it seems that we're now getting in to "well I think it's an unconstitutional regulation and therefore it's superseded by the Constitution" territory. Any sort of legal challenge (again, successful or not) to either the implied consent specifically (as it pertains to the DoT regulation) or the entire DoT regulation generally would clarify that.

originally posted by: Snarl

originally posted by: Xcathdra
Did I get that right or would you like to clarify your post on what the Hospital claimed and what the Mayor and Police Chief stated and how they were in fact operating from 2 separate policies.

Policy ... schmolicy. The cop roid-raged that nurse. End of story.

If that's a 'roid rage episode, he must've gotten a pretty terrible batch. His arms are pretty undersized.

Personally I think it was more the Hulk Hogan hairstyle that caused it.

originally posted by: Xcathdra
a reply to: Realtruth

The 4th amendment applies to the government and not the individual (requires the government to obtain a warrant and doesnt require anything of citizens).

The 2 minute video everyone is watching was released by the nurse and her lawyer. The complete video is 20 minutes long and the detective spent over an hour on the phone with his lt. trying to resolve the situation.

Well you are part right. I spent 4 years pre-law at University of Michigan and well you know the rest. lol

Anyhow the 4th may apply to this situation and police interaction.

criminal.findlaw.com...

However, Fourth Amendment concerns do arise when those same actions are taken by a law enforcement official or a private person working in conjunction with law enforcement.

This is just one example of why the Utah PD apologized and changed their policies fast, and the fact the officers behavior was inappropriate, at the scene.

There are a lot of good officers out there that exercise good judgement, and understand how to deal with the public, but there are some that need time off, or even to be excused from duty because they are a liability. I'm sure you would agree with that.

a reply to: Shamrock6


I posted this earlier in this thread.

In Utah, a peace officer may draw a person’s blood without a warrant if the state can show by a totality of the circumstances that both probable cause and exigent circumstances justified the warrantless blood draw.

And what evidence is required to justify suspicion?"

Here's an interesting example.

The Utah Supreme Court reasoned that the State of Utah isolated a few facts within the totality of the circumstances to the exclusion of others.  The testimony revealed that the defendant was in fact crying.  Although alcohol could have accounted for her red eyes, her crying was equally, if not more plausible, reason for her red eyes.  Similarly, testimony from the victim advocate, who was with the defendant for nearly the entire time, revealed that the defendant had only one cigarette, and that she smoked the cigarette to calm herself. These facts did not create a basis for probable cause.  Nor did these facts clearly indicate sufficient impairment to justify an intrusion into defendant’s body.  Accordingly, the State of Utah failed to demonstrate under the totality of the circumstances that probable cause existed.

www.utahduilegal.com...

a reply to: Shamrock6

In Skinner V Railway Labor Executives Assn, the courts upheld the testing rules for employees who can cause "a great deal of harm if their jobs are not done properly".

The current law of public employee drug testing began with the Supreme Court’s decisions in Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602 (1989), and National Treasury Employees v. Von Raab, 489 U.S. 656 (1989). In these companion cases, the Court held that the government is allowed to conduct drug tests without individualized suspicion when there is a “special need” that outweighs the individual’s privacy interest. In Skinner, the court found that public safety was such a special need. In Von Raab, the court found a special need in relation to customs agents who carry firearms or are directly involved in drug interdiction.
The federal courts spent the next decade defining which government interests qualified as “special needs” and defining the scope of those that qualified.
It soon became clear that “special need” meant little more than that the nature of the employee’s job was extremely important, and that a great deal of harm could be done if the job was not performed properly. The courts did not require public employers to demonstrate that employees who used drugs were likely to create this harm, nor that there was any special difficulty with preventing the harm through normal supervisory methods. Courts generally resisted, however, attempts to push the Skinner/Van Raab envelope to encompass large sections of the workforce. The result was an unprincipled, but relatively small and well defined exception to normal Fourth Amendment principles.

workrights.us...

I haven't looked much farther than that though. I'm on my phone and research on it is a pain in the ass.

a reply to: Shamrock6

The nurse's cry of alarm seems to be what really set things in motion on social media. I am so glad I'm 'just a citizen' these days.

Your right to resist arrest

a reply to: windword

I was asking specifically about legal challenges to the DoT regulation at play here, but thank you nonetheless.

At a minimum, your response highlights what I've said before: there's multiple things in play in this scenario.

a reply to: Zaphod58

I haven't looked much farther than that though. I'm on my phone and research on it is a pain in the ass.

Lazy. Kidding, please don't throw any trucker bombs at me.

Thanks for the info though. It appears, at least to me, that the DoT regulation would still fall within the scope of that ruling. Either truckers as a group are entirely unwilling to challenge the regulation, or they've accepted it as not being a violation of their rights.

a reply to: Shamrock6

The OOIDA has tried once or twice to challenge it I believe, but it hasn't gone anywhere. For the most part, it's generally accepted that it is legal.

And just remember, you ain't a real trucker until you've hit a hitchhiker with a "trucker bomb". Heh.

originally posted by: Xcathdra
a reply to: Realtruth

If what you say is true then explain the contracts you sign when going into the military, where you freely and knowingly give up several of your constitutional rights.

When people enlist they are no longer their own person, but property of the US government, thus signing over their person, and rights which are governed by military law and court system.

Basically they are the property of the US government, unless they start what's call "Retracting Military Enlistment" which basically breaks the contract due to many factors, while many times not easy with a good attorney and the proper reasons, it can be done.

Also explain how Police departments and other sectors can perform random drug tests on their employees without a warrant then.

Because people sign subservient legal contracts, or sometimes are subjected to laws that can and will be challenged at the supreme court level because they are unconstitutional. Many people lack legal, financial and the knowledge to challenge laws that have shaky-legs under our constitution, thus creating a judicial mess (Lawyer's, courts, and the judicial system makes tons of money however). lol

Just because a law or rule is on the books doesn't make it legal, sometimes it take years to be properly challenged.

In the state of Utah fs a person is unconscious they give implied consent for testing to be done.

Not according to a criminal defense attorney in Utah.


abcnews.go.com...

Paul Cassell, a criminal law professor at the University of Utah's S.J. Quinney College of Law, wrote in an opinion piece for The Salt Lake Tribune that state law doesn't permit a blood draw in this situation — especially since the blood was being sought to prove the patient was not under the influence.

Wubbels' attorney, Karra Porter, said the state's implied-consent law "has no relevance in this case whatsoever under anyone's interpretation. ... The officer here admitted on the video and to another officer on the scene that he knew there was no probable cause for a warrant."

originally posted by: Shamrock6
Either truckers as a group are entirely unwilling to challenge the regulation, or they've accepted it as not being a violation of their rights.

Or, as a whole, it's not applicable to them so they don't care. I would say, generally speaking that the majority of truck drivers' LEAST of concerns is whether or not they're driving under the influence because rare few are. More on their minds is likely driving around OTHER regular drivers. I know personally I always double high-beam truckers and let em get over because I know how hard it is for them, especially on roadways like the NY Thruway.

But I think the real argument here is why should truckers rights as human beings be superceded by some poorly legislated contractural obligation? Again I revert back to safety and security usurping liberty and why that was so dumb of us.

a reply to: Shamrock6

Ya, I'd be pretty angry walking around with a dome like that

Just a bit of levity here folk's.