Salt Lake City, Utah Nurse, Alex Wubbles, was arrested after refusing to draw blood from one of her patients. Recent reports indicate that Detective Jeff Payne of the Salt Lake City Police Department wanted the blood to show that the patient was not driving under the influence of alcohol.
University of Utah Hospital policy allows blood draws only when the patient consents, the patient is under arrest, or the police have a warrant. Detective Payne did not have a warrant and the patient was not under arrest. Further, the patient was unconscious and could not consent.
Many are wondering why an officer would try to draw blood without a warrant following the Supreme Court case Missouri v. McNeely. The truth is that McNeely didn’t outlaw warrantless blood draws completely. Complicated exceptions to the Fourth Amendment warrant requirement still apply.
Utah’s implied consent law allows warrantless blood draws.
If you learn only one thing from this story, learn this: Utah has an implied consent law that allows warrantless blood draws. Utah code section 41-6a-519 allows law enforcement officers to conduct breath, blood, urine, or other chemical tests without a warrant.
For this statute to apply, however, the suspect must be under arrest. Further, an officer must have grounds to believe that a driver was under the influence of alcohol or drugs. Law enforcement agencies cannot use this law to randomly test drivers whenever they choose.
Utah’s implied consent law did not apply in this case because the patient was not under arrest. Detective Payne didn’t have any evidence he could use to ask for a warrant authorizing the blood draw either.
Check out the attached body cam video excerpts. Detective Payne threatens to bring the hospital “all of the transients and take the good patients elsewhere.” Next, he wonders out loud if this will affect his other job as a paramedic.
Other states use implied consent laws in DUI investigations too.
Justice Sotomayor notes in McNeely that every state has an implied consent law. These laws allow states to conduct warrantless chemical testing in exchange for the citizen’s privilege of driving in each state.
If this incident took place in Florida the outcome could have been quite different. Florida’s implied consent law requires a blood draw any time an accident results in a death or serious injury. Florida law enforcement officers are also authorized to use reasonable force to get blood under this statute. Unlike Utah’s implied consent law, the Florida statute does not require the suspect to be under arrest.
Florida law also allows law enforcement officers to arrest anyone that refuses to help them do their jobs. Florida statute 843.06 says that a person is guilty of a second-degree misdemeanor if he/she neglects, or refuses to help a law enforcement officer do his job.
Ms. Wubbles may have rightfully faced criminal consequences if she refused the exact same blood draw in Florida. It should be noted, however, that Florida nurses are rarely if ever, arrested under the above statute.
Criminal laws must comply with the Constitution above all else.
Fourth Amendment case law is complicated and often contradictory. The Supreme Court makes rules, allows exceptions to the rules, and then narrows the exceptions. You could get whiplash if you studied Fourth Amendment case law too quickly.
Even with all the changes, State law must comply with the Constitution. States can be more restrictive than the Constitution but they cannot be less restrictive. So, for example, a state may not enact a law that allows officers to draw blood from citizens at any time, for any reason, without a warrant. That law would violate McNeely, as discussed above.
Protect yourself by learning your Fourth Amendment rights and your state’s criminal laws. Ms. Wubbles was right to deny police requests to draw blood but not because the request violated the Fourth Amendment. Under different state laws, Ms. Wubble’s refusal could have resulted in criminal charges. Law enforcement officers, prosecutors, and judges aren’t going to let you violate the law because you were following workplace policy. If you end up in a tug-of-war between state law and work place policy follow the law. Your supervisors can work the rest out later.
Detective Payne remains under investigation at this time.