It’s a draw

Artwork: Jed Helmers

Should drawing blood for evidence-gathering be illegal?

By Sarah Sidlow

Who is Alex Wubbels? Glad you asked.

She’s a nurse in Salt Lake City, Utah, who recently made waves when bodycam footage of her July 26 arrest became a viral sensation.

Why was she arrested? Ask Detective Jeff Payne.

On the night of the arrest, Payne went to the hospital where Wubbels works to retrieve an evidentiary blood sample from a car crash victim. Wubbels, a registered nurse, denied Payne’s request to draw blood from her patient, because he didn’t have a warrant, he didn’t have the patient’s consent, and the patient was not under arrest. Seems legit.

Not a lot of people are on Payne’s side in this one—an internal investigation is underway, he was fired from his part-time paramedic job and he’s been temporarily suspended from his full-time cop job. Wubbels was never booked, nor was she charged with anything other than being an internet star for doing what she’s supposed to do: protect her patients.

But the episode has surfaced larger questions about the question of drawing blood as evidence.

In 2013, the Supreme Court weighed in with a decision that police may not automatically order a blood test on someone they have arrested for drunken driving. (Trivia bonus: the decision was the result of a case called Missouri v. McNeely.) Their argument is about the Fourth Amendment to the United States Constitution: the right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. The rationale for requiring a warrant is that it involves a neutral party (i.e. the judge who grants the warrant) to get involved in what would be an otherwise heated battle between a police officer and the person they want to stick a needle into.

Others argue that there’s a privacy case to be made here as well. For example, if someone’s blood is drawn for evidence in a DWI (should it be DUI or DWI?), and the lab results also indicate the person has lupus, how can you ensure responsible stewardship of that personal information?

Yet others argue blood is evidence—or at least it contains evidence, especially in the form of blood alcohol (BAC) levels. In fact, it’s the best evidence when it comes to DWI situations. Requiring a warrant is tricky when it comes to BAC measures, though, because over time, the BAC level naturally diminishes. Given the fact that police officers don’t typically have judges with them on ride-alongs, it’s easy to see how the sometimes time-consuming process of getting a warrant could be problematic—especially when more stringent penalties apply to those whose BAC is .15 or above, compared to those who are simply over the legal .08 limit.

Because of these and other considerations, many believe that blood-drawing for the sake of evidence should be left up to the police officer’s best judgement.

Reach Dayton City Paper forum moderator Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.


Question of The Week: Should drawing blood for evidence-gathering be illegal?


Blood will tell

Blood draws are necessary

By Don Hurst

Law enforcement needs the ability to draw blood from unconscious DUI suspects. I definitely don’t mean a blanket policy where everybody gets stuck with a needle. I’m also not talking about the recent Utah case where the officer possessed zero probable cause. Stop, frisk, and stick is not a practice that will stand up in court.

I’m talking about situations where probable cause of a DUI offense exists. Witnesses observed erratic driving. Medical staff smells booze on the suspect. Officers find open containers of alcohol in the car. In those situations draw blood.

When I was a police officer in Denver we operated under Colorado’s implied consent law. The act of driving in Colorado gave the state consent to administer a blood or breath test if probable cause of a DUI offense existed. Refusal to submit meant a suspended driver’s license. The driver could choose which test they wanted but they had to choose. If unconscious that meant we were drawing blood.

Waiting for the patient to recover consciousness to serve a warrant to draw the blood or force a Breathalyzer test is not feasible. From the moment the suspect stops drinking we are on the clock. Every moment the body processes alcohol it is essentially destroying the evidence needed to successfully prosecute a DUI case.

If the driver is just slightly over the limit then in a couple of hours they will have no alcohol in their system and prosecution is impossible. Many states impose harsher sentences on higher BACs. The difference between a habitual drunk driver serving 5 years in prison or six months of probation could be as little as an hour. Even if they are truly hammered and there is still enough alcohol to theorize how much was in their system at the time of the accident that doesn’t work. The science has enough margin of error, and depends on individual biochemistry, that a slightly competent defense attorney should have no problem injecting enough doubt into a juror’s mind to guarantee an acquittal.

Not only do I believe cops should draw blood but they should be able to do it without a warrant when probable cause exists. The US Supreme Court decided that blood draws with a warrant are permissible because of the time factor. However warrantless draws violate the 4th amendment because the procedure is more intrusive than a breathalyzer and even though police are fighting the clock there should still be enough time to obtain a warrant.

The Court has long upheld warrantless searches under exigent circumstances; usually the imminent loss of evidence. If an officer hears the toilet flushing when executing an arrest warrant of a drug dealer they can search that toilet for disposed evidence. If the evidence will be destroyed before a warrant can be signed and delivered then cops can gather it. If not then rapists and murderers would walk the streets because they were smart enough to burn damning evidence while cops just had to watch helplessly.

The same logic applies to unconscious DUI suspects. Every minute that passes the kidneys and liver destroy more evidence. Most of these accidents occur in the middle of the night when judges (even the on-call ones) are asleep. A big city police force may have the mechanisms in place to investigate the accident, determine probable cause, write the affidavit, wake up the judge to sign it, and then actually draw the blood before all the evidence disappears. But what about those rural jurisdictions where it might take an hour for the police to even begin the initial investigation? There’s just not enough time for warrants.

When a DUI suspect is being treated in the hospital the investigative blood draw is not intrusive. The nurses have already drawn blood to make sure there is nothing that would have negative effects with the medication they are giving. With all the needles and tubes already in the suspect drawing a vial for evidentiary purposes would go unnoticed.

When probable cause is met police officers need to draw blood form unconscious DUI suspects. If not then we as a society must just accept a larger number of DUI drivers going free and all the harm they inflict.

Don Hurst is a combat vet and a former police officer. He now lives in Dayton where he writes novels and plays. Reach DCP freelance writer Don Hurst at DonHurst@DaytonCityPaper.com.


Sanguinary Feud

My body, my property

By Ben Tomkins

It is the nature of human rights that, when we are vulnerable or silent, we default to a state of protection. If the police show up at our door and we do not answer, they cannot simply kick it in and tell a judge later that, if we wanted to invoke the right to privacy, we should have spoken up. This kind of thinking is the stuff of dictators and gods, which are precisely the two entities our entire social system is designed to keep out of civil affairs.

If this is true of our domicile, it is even more true of our bodies—the one studio apartment we cannot walk out of without irrevocable consequences. It is the most private residence in which we live, and the one thing in the universe that belongs to us as a birthright. For someone to take a part of that body or violate its threshold without our consent is the first order of crime it is possible to commit, and should not be done unless there are compelling and obvious reasons for doing so.

Preventing the spilling of blood is one of the first and best reasons for breaking down someone’s door without their permission, which is why drawing blood from an unconscious person for the purpose of incriminating them is so obviously perverse. If the needle was a penis, the phrase “mandatory minimum” would be marching in the direction of the assailant, and while blood has a certain renewable quality that one’s dignity does not, it is no less a rape and a theft.

Nevertheless, it is inevitable that a person brought to the hospital by police might need to have their blood drawn, but it certainly shouldn’t be up to the police. Of the three individuals in the equation—the police, the person, and a doctor—only two of them have compelling reasons for possibly wanting (or not wanting) to draw blood. If a person is unconscious that is undoubtedly a situation where a doctor might think it critical to draw blood. Their interest is one of health, whereas the police interest is prosecutorial. Prosecutors are not known for expressing great concern for the personal wellbeing of suspects, and neither are the police. Quite the opposite, actually.

Moreover, a police officer is the last person who should be making decisions about what is medically necessary for the health of a patient. They lack the training that would make them even remotely qualified to direct a doctor to take a patient’s blood. It would be fair to say that, if anything, it would be the job of the police officer to look out for the rights of the very person from whom that blood was being taken, and if it appeared something was not right they would be compelled to stop it.

If a doctor decides to take blood for health reasons, it is conceivable that the police might be able to legally gain access to the results, but doctor/patient privilege would probably preclude it. The big question on the table is whether the police should be allowed to obtain a warrant for your blood, and I am inclined to say “no”. Our right to be secure in our papers and effects are often analogized as an extension of our person, but that doesn’t mean the analogy works both ways. Penetrating a house and penetrating a body are simply not the same thing, and once we allow for the possibility of people deciding they can shove a needle into our arm, where does the vein end? If I eat something, can a warrant be obtained for a stomach pump? If they think something is embedded in my flesh, can they force me under a knife? People in power will literally claim an entitlement to cut you to the core if you let them, and if they auger you out and don’t find what they are looking for, they will demand to see what you’re hiding in your mind. Last I checked, “minimally invasive” was a term that already applied to civil authorities touching the outside of my body. My insides are well off-limits, thanks.

Ben Tomkins is a violinist, teacher, journalist, and critically acclaimed composer currently living in Denver, Colorado. He hates stupidity and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of an issue. For more of his work, visit HillofAthens.com. Reach him at BenTomkins@DaytonCityPaper.com

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Sarah Sidlow
Reach DCP editor Sarah Sidlow at SarahSidlow@DaytonCityPaper.com.

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