McHenry County Institutes “No Refusal” DUI Blood Draw Policy

From the Chicago Tribune:

Police in McHenry County will be out for blood with drivers who refuse to take breath tests for suspicion of driving under the influence of alcohol or drugs.

Nine departments in the northwest suburban county announced they will seek immediate search warrants during traffic stops to draw blood from suspected drunken or drugged drivers who refuse to blow for a breath test.

The new policy is meant to counter drivers, particularly repeat DUI offenders, who increasingly refuse breath tests, which makes it more difficult to prosecute them, McHenry County State’s Attorney Patrick Kenneally said in a news release.

Starting Sunday, police in Algonquin, Cary, Harvard, Huntley, Johnsburg, Lake in the Hills, McHenry, Spring Grove and Woodstock will institute the new policy.

Woodstock police Chief John Lieb said in the release that the policy will deter some people from driving while impaired.

While DUI suspects face severe civil penalties if they refuse a breath test — like driver’s license suspensions — police generally can’t force a suspect to submit to a blood test.

If the warrant is granted by a judge, the suspect will be taken to a nearby emergency room, where blood will be drawn and tested for alcohol and drugs.

The policy will be aided by an electronic warrant system launched last year, allowing police to generate an e-warrant that can be sent electronically to a judge for review. Officers can also communicate with a judge through teleconferencing and ultimately obtain a warrant through a judge’s electronic signature, if the judge agrees.

“The days of drunk drivers refusing to blow thinking that they can beat a DUI charge are coming to an end,” Kenneally said. “This new policy means that we’re going to ensure we have all the evidence we need to successfully prosecute drunk drivers every time.”

In addition to holding offenders accountable, Cary police Chief Patrick Finlon said in the release that the initiative “will create strong cases for the prosecution, thereby encouraging a defendant to seek plea negotiations, reducing the need for investigating officers to appear in court, and improving law enforcement patrol staffing.”

Utah nurse arrested for refusing to draw blood for police

Doctors and nurses are supposed to be health care providers, not arms of the police state.  Yet, these days, many police officers think differently.

From NBC news:

A Utah nurse who refused to give a patient’s blood to police — and then was handcuffed and carried into a patrol car in an escalating incident — held an emotional news conference Thursday demanding better training by law enforcement.

“I just feel betrayed, I feel angry, I feel a lot of things,” said Alex Wubbels, a nurse at the University of Utah Hospital and a former Olympic athlete, as she wiped away tears.

“And I am still confused. I’m a health care worker,” she added. “The only job I have is to keep my patients safe.”

The July 26 encounter at the Salt Lake City hospital — in which Wubbels pleaded, “Stop! I’ve done nothing wrong!” — has prompted an internal police investigation.

Police bodycam videos released during Wubbels’ news conference showed the officer — later identified as Det. Jeff Payne — growing increasingly impatient as she tried to explain, according to hospital protocol, why she couldn’t draw an unconscious patient’s blood for a police investigation.

She told the officers gathered in the middle of the hospital’s work area that they need either an electronic warrant, patient consent or to be placing the patient under arrest if they want access to his blood.

The patient had been a driver in an earlier truck crash, and was badly burned and comatose at the hospital, reported NBC affiliate KSL-TV. Vials of his blood were needed as part of the investigation to determine whether the patient had illicit substances in his system at the time of the crash, according to a written report obtained by The Salt Lake Tribune.

n the videos, which may have been edited, Wubbels holds her ground about drawing blood. Payne then suddenly snapped.

“No, we’re done,” he said. “You’re under arrest, we’re going!”

He is seen pulling her arms behind her and places handcuffs around her wrists before yanking her to the back of the patrol car. He said she obstructed justice.

“Please sir, you’re hurting me,” Wubbels said.

“Then walk,” Payne responded.

Wubbels, from inside the car, screamed for help and that “I did nothing wrong!”

Other officers from the University of Utah and the Department of Public Safety, which provide security for the hospital, did not intervene during the arrest, The Salt Lake Tribune reported.

Wubbels was later released and no criminal charges were filed against her.

Payne, who remains on active duty with Salt Lake City police but has been suspended from the blood draw program, did not immediately respond to a request for comment.

A Salt Lake City police spokeswoman said the department has been working closely with the hospital to ensure such actions never happen again and that it is alarmed by what occurred.

Read the whole story here:  https://www.nbcnews.com/news/us-news/utah-nurse-arrested-refusing-give-patient-s-blood-police-n798021

U.S. Supreme Court issues split decision in DUI refusal cases

Today the United States Supreme Court issued its Opinion in three consolidated cases that dealt with states that criminalize anyone who is arrested for a DUI and refuses to submit to a blood or breath test (Birchfield v. North Dakota).

The short version of it is that the Court did not find a problem with state laws that make it a crime to refuse a breath test.  The Court found that a breath test falls within the right of law enforcement to conduct a search subject to arrest and that one’s right to bodily integrity or to avoid self-incrimination were not significantly affected enough to overcome this.

However, the Court found that blood tests are a significant invasion of one’s right to bodily integrity and privacy, and that states could not require warrantless blood draws in DUI cases, except in exceptional circumstances.

Currently, Illinois does not criminalize breath test refusals, however, it does impose a license suspension of one year for first offenders and three years for repeat offenders who refuse to submit to breath, blood or urine testing subsequent to a DUI arrest.  However, now that the Supreme Court has ruled that it is permissible, perhaps that will change.

Personally, I feel that it is deep within our traditions to say no to government, to insist on our bodily integrity, to be free of unreasonable searches and seizures and to have the right to refuse to provide evidence that may incriminate ourselves.  I feel that this opinion, like so many when it comes to DUI, ignores our legal history and tradition, and ignores the important Constitutional protections that makes America the freest nation in the world, merely to make it easier to convict DUI defendants.  This approach is short-sighted.  I hope that our Illinois legislators don’t take this opportunity to further chip away out our freedom and liberty.

Study raises questions about accuracy of blood tests in DUI cases

Here is a link for a study entitled “The Criminal Justice System Creates Incentives for False Convictions.”

From an article describing the study:

A recent analysis published in the Criminal Justice Ethics academic journal suggests when technicians perform forensic analysis of blood and other evidence for cases such as drunk driving, the results can be influenced by built-in financial incentives to produce a conviction. Syracuse University Professor Roger Koppl joined Meghan Sacks from Fairleigh Dickinson University argue that even if false conviction rates are very low, a 3 percent error rate could put 33,000 innocent individuals behind bars every year.

The primary problem, according to the paper, is that fourteen states reward crime labs with a bonus for each conviction they generate. North Carolina pays a $600 bounty “upon conviction” to the law enforcement agency whose lab “tested for the presence of alcohol.” These incentives do not necessarily encourage scientists to lie, rather they tend to create an observation bias when measuring, for example, a blood specimen for its blood alcohol content.

“We tend to see what we expect to see and what we hope to see,” Koppl and Sacks wrote. “Incentives (‘motivation’ and ‘hope’) can skew honest errors because they influence perception.”

When there is a reward for a guilty result, a lab technician will not double-check test results that are in the guilty range, though he would be more likely to double-check results that show innocence. The same effects do not work in favor of the defense, which usually depends solely on the forensic report produced by the prosecution.

“The subjectivity of forensic science matters in part because of the twofold monopoly in forensic science,” Koppl and Sacks wrote. “First, evidence is typically examined by one crime lab only. In this sense, the crime lab receiving a bit of evidence has a monopoly on examination of that evidence.”

Radley Balko, author of the new book Rise of the Warrior Cop, cites the paper as an example of the need for reform.

“They’re literally being paid to provide the analysis to win convictions,” Balko wrote. “Their findings are then presented to juries as the careful, meticulous work of an objective scientist. No wonder there have been so many scandals.”

In 2009, a crime lab in Colorado Springs, Colorado was caught certifying at least 82 DUI blood tests with falsely high readings. A whistleblower in Washington, DC revealed in 2010 that the city had been using faulty breathalyzer machines for more than a decade.

Koppl and Sacks called for more research into possible structural changes that could restore the balance. Some examples include privatizing crime labs and providing a voucher so that poor defendants could hire a private lawyer instead of depending on a public prosecutor.

U.S. Supreme Court turns down prosecutors requests for warrantless blood draws in DUI cases

The United States Supreme Court has released its opinion in the warrantless DUI blood draw case that I have blogged about here, here and here.  The Court denied prosecutors request to allow for warrantless blood draws in all DUI cases, although it left room for a case by case basis in which they may be allowed.  This means that a police officer can’t routinely take a DUI suspect to a hospital for a blood draw whenever that suspect refuses to provide a breath sample.

Here is a link to the Court’s opinion in Missouri v. McNeely.

What do you think?

 

Warrantless blood draw case, continued

Here are some links to good articles about the warrantless blood draw case (Missouri v. McNeely) that was argued before the United States Supreme Court Wednesday:

Here is the transcript of the oral argument.

Slate’s Emily Bazelon wrote an article (before the oral arguments) that considers the pros and cons for each side and suggests a compromise may be in order.

NPR’s Nina Totenberg says that the justices were skeptical of the prosecutor’s arguments to eliminate the need for warrants, but did see that this need might be justified in some cases.

SCOTUSBLOG’s Lyle Denniston has an argument recap suggesting that the Justices’ questioning did in fact seem to suggest a compromise decision.  (Mr. Denniston also wrote an excellent argument preview outlining the issues in the case).

Update:  Here is another good read:  Orin Kerr’s take over at Volokh Consiracy:  He wonders how important the warrant requirement is in light of modern technology.

 

Oral Arguments tomorrow in US Supreme Court over Warrantless blood draws

Tomorrow, Wednesday, January 9, 2013, the United States Supreme Court will hear oral arguments in a Missouri case that concerns the issue of whether police can forcibly take a blood sample from you, without a warrant or court order, based solely on the officer’s suspicion that you have been driving while intoxicated.

In the meantime, here is a link to an op-ed piece in the N.Y. Times, by Lincoln Caplan, arguing that a ruling in favor of the police “will diminish constitutional rights without increasing public safety in any meaningful way.”

Update:  here is an argument preview by Lyle Denniston for SCOTUSBLOG.

DuPage Prosecutors have new plan to get your blood sample

According to a story today, DuPage County will have phlebotomists on hand to draw blood of those suspected of DUI.

The story states that the phlebotomists are for those cases where a person refuses a breath test and demands a blood test.  I have a hard time believing this, since this rarely ever happens.

in my experience, which is vast, blood tests occur in DUI s because (1) the motorist was injured and was taken to a hospital, not a police station, (2) the officer suspects drug use, which can’t be detected by a breath test, or (3) it is a “no-refusal” in which the motorist refused a breath test, and the police seek to obtain a blood sample without consent. In situation (1), the motorist is already at a hospital, where a blood sample can be easily obtained, so there is no need to hire phlebotomists for that scenario.

I suspect that the only reason to maintain phlebotomists on-call for blood draws is for reason (3) the “no-refusal” situation.  I have discussed no-refusals here and here, including the following:

Illinois courts have stated that while defendants do not have a right to refuse a test, the police cannot use excessive force to draw blood from the individual.  People v. Jones, 214 Ill.2d 187 and People v. Farris, 2012 IL App (3d) 100199.

Police and prosecutors seek to justify these blood draws under the grounds that blood alcohol evidence is the strongest evidence of intoxication, and that because alcohol eliminates from the blood rapidly, it must be drawn soon after the arrest.

…the United States Supreme Court announced that it would be hearing a case from Missouri where a police officer took a recalcitrant motorist to a hospital and had his blood drawn.  The Missouri courts suppressed the blood test, because it was taken without a warrant or a showing of “exigent circumstances.”

If the Supreme Court overturns the Missouri decision, then police will be authorized to drag anyone they suspect of driving while intoxicated to a facility where their blood can be drawn.  This strikes me as a very serious infringement on our liberty.

It seems to me that DuPage is getting ready in advance of the Supreme Court’s ruling in the Missouri case, expecting that the Court will allow warrantless, involuntary forced blood draws in DUI cases.

What do you think?

 

US Supreme Court to review involuntary, warrantless blood draws in DUI cases

Over the last few years, a new trend in DUI enforcement has been the concept of the “no refusal.”  Basically, the police will use force to obtain a blood draw from a motorist who is refusing to consent to a breath test.

This has been done in different ways.  Through a warrant, an emergency court order, or by simply holding the motorist down and drawing blood.

Illinois courts have stated that while defendants do not have a right to refuse a test, the police cannot use excessive force to draw blood from the individual.  People v. Jones, 214 Ill.2d 187 and People v. Farris, 2012 IL App (3d) 100199.

Police and prosecutors seek to justify these blood draws under the grounds that blood alcohol evidence is the strongest evidence of intoxication, and that because alcohol eliminates from the blood rapidly, it must be drawn soon after the arrest.

Today the United States Supreme Court announced that it would be hearing a case from Missouri where a police officer took a recalcitrant motorist to a hospital and had his blood drawn.  The Missouri courts suppressed the blood test, because it was taken without a warrant or a showing of “exigent circumstances.”

If the Supreme Court overturns the Missouri decision, then police will be authorized to drag anyone they suspect of driving while intoxicated to a facility where their blood can be drawn.  This strikes me as a very serious infringement on our liberty.

It is not clear to me how the court will rule.  The stereotypical assumptions that certain Justices are “liberal” or “conservative” do not apply in a case like this, which scrambles competing values such as the state’s need for evidence and to protect the public from drunk drivers versus a person’s right to bodily integrity, a person’s right to be free from unreasonable search and seizures, and one’s right to avoid self-incrimination.

 

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