Electronic Warrants And Roadside Blood Draws Are The New Normal For DUI Checkpoints
from the jetsons-were-so-wrong-about-so-much dept
A few years ago, the National Highway Traffic Safety Administration brought down the heat on itself by teaming with local law enforcement to set up roadside blood/saliva draws. The plan was to compile data on impaired driving, but the "voluntary" sample stations were staffed by cops who flagged motorists down, leading many to believe this was just another DUI checkpoint.
Now that the NHTSA is out of the picture, local law enforcement is taking care of this itself. Only it very definitely is mandatory and any data-gathering would be incidental to the real purpose of these checkpoints: arresting impaired drivers. It's 2019 in America and we can only now proudly say we're the Home of the Roadside Blood Draw.
It was about 6:30 on a Friday night in January when Phoenix Police Det. Kemp Layden pulled over a white Jeep Cherokee that was speeding and weaving in and out of its lane.
The 47-year-old driver spoke slowly, his eyes were red and watery, and his pupils were dilated. The inside of the Jeep reeked of marijuana, and the driver failed a field sobriety test, which includes walking heel-to-toe and standing on one leg.
He told the officer he had smoked marijuana a few hours earlier and taken a prescription sedative the night before, police say. The man passed a portable breath test — he wasn’t drunk. But Layden suspected he was impaired by drugs, which the test can’t detect.
A DUI police van equipped with a special chair and table for blood testing pulled up. The man refused to submit to a blood draw. So Layden grabbed his laptop and filled out an electronic warrant, or e-warrant, which was transmitted directly to a judge.
Within 10 minutes, Layden had a search warrant. Another officer drew the man’s blood. A lab report later confirmed he had active THC and a sedative in his blood.
Roughly 80 minutes after he was stopped, this driver had traded his vehicle for a DUI citation.
This will become more common as time goes on. With the legalization of marijuana use in several states, there's a new form of impairment that can't be caught with a breathalyzer. While there's definitely a law enforcement interest in limiting impaired driving, there's also a lot of fiduciary pressure to continue to bust drivers generate revenue even when the driver's drug of choice isn't alcohol... and the driver may not even actually be impaired.
This is leading to two things: an increase in electronic warrants sent at odd hours to judges who will likely approve any boilerplate sent from a DUI checkpoint... and a whole bunch of minimally-trained officers running roadside blood drives out of police vans.
The good news is some training is actually happening. The bad news is certified training is the exception, not the rule.
At least nine states have law enforcement phlebotomy programs: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah and Washington state, and Illinois is starting one, according to the national highway safety agency.
That doesn't mean every ad hoc blood draw is a communicable disease vector staffed by officers using your arm to rack up OJT hours. In Arizona, for instance, officers must have 100 hours of training before they perform blood draws and must perform the job in OSHA-approved environments. But that doesn't mean every agency is as demanding as the ones in Arizona are, so the experience may be far more unpleasant than a normal DUI checkpoint.
[S]ince officers aren’t in the healing profession, [defense attorney Donald] Ramsell said, they’re not concerned about pain reduction or hitting a vein. He cited the case of a client arrested in Arizona who had a blood draw in a police DUI van.
“The officer poked him at least 15 times, and because he has a medical condition it was next to impossible to draw enough blood to fill a 10-cc tube,” he said, referring to the size of the tube in cubic centimeters. “Those knuckleheads just kept poking the hell out of him. They only got 3 ccs.”
The only thing keeping this from being even worse is a 2016 Supreme Court decision. Without it, these blood draws wouldn't even have a hasty judicial scrawl at the bottom of a dozen pages of boilerplate authorizing Officer Nurse to take blood from drivers' arms. Meanwhile, officers are touting the speed of this new dystopian feature as a win for the public, since the guilty parties will be able to processed into the criminal justice system in less than half the time.
According to Utah Highway Patrol Trooper Janet Miller, a certified phlebotomist, “It’s been a great tool not only for law enforcement but for the individual placed under arrest.
“Instead of spending three to six hours with the officer, it’s been cut down to one to two,” she said. “They can get to the jail sooner and get out sooner.”
Win-win, I guess.
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Filed Under: 4th amendment, blood draws, dui, dui checkpoints, electronics, police, searches, traffic stops, warrants
Reader Comments
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The purpose of a warrant (among many others) is to be able to show the accused a piece of paper with a judge's signature to demonstrate its legitimacy. A copy of the waarant is to be left with the thing/person searched. Is this possible with an electronic warrant? How long will it be before law enforcement officers start showing suspects something semi-official looking on their own phones or patrol car laptops and claiming that it's a legitimate warrant? Furthermore, when one voluntarily consents to a search afger being shown something semi-official looking, has one now consented to a search for 4th amendment purposes? As a lawyer, I think I would be inclined to advise a client to make the cop tase you, hold you down, cuff you, whatever before they take your blood because if you roll up your sleeve that may negate the question whether it was a legitimate warrant.
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Let them search the electronics of your vehicle if they can only produce an electronic warrant. Your physical vehicle requires a physical warrant that you can provide to your lawyer for later review.
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...said no court anywhere.
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Do we get to apply all of these to police everytime they kill?
Since the police are so happy to broaden their abilities and reduce our rights, do we get to at least see them put under the same scrutiny whenever one of them kills someone either with their service weapons or with their vehicles? It would only be the fair thing after all. If they don't have these same instant warrants and blood draws applied to them, it will just further the divide that their own proponents have created with the thin illegal blue line.
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Re: Do we get to apply all of these to police everytime they kil
What rights have been reduced here?
You have a right to be free from warrantless searches. The cop had probable cause, he applied for a search warrant, and the judge approved it.
The fact that technology now makes the warrant approval process quicker and more efficient and therefore people can't get away with as much as they used to doesn't mean your rights have been reduced.
You don't have a right to a long warrant application process.
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How do they justify allowing a law enforcement officer to perform a medical procedure on the side of the road?
Do the officers receive proper medical education? Performing a medical procedure is no small matter. I doubt the leos have what it takes to pass the tests required for certification. Does their insurance cover the inevitable accident that will occur, what do they care if someone gets hep.
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Doubtful...but they will have qualified immunity to fall back on.
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The same way police unions justify LEOs shooting unarmed/innocent people: “They’re cops.”
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Re:
fwiw - They are trained to be cops.
The training required for the medical field is a bit more involved.
I can imagine the frustration for a leo attempting to perform this procedure in dim light, bad weather, uncooperative perp, lack of training. Finding a vein and sticking it proper will be no problem, I'm sure of it.
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Phlebotomy is a 60 hour course in NY, most of it mind-numbingly boring.
Since the cops would only be using a single type tube, they could probably cut 20 hours off the class.
I'd still insist on "wasting" four hours of the cop's time and insisting on a trip to a hospital for a blood draw.
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Is it a waste of time ensuring that the procedure is performed in clean conditions by trained professionals who care about your well being?
I know that not all cops are bad apples, however ..... all it takes is one. The entry requirements for law enforcement are too low for the medical field and yet some feel they are capable.
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Eh, the clean and whatnot... not a big deal. An alcohol wipe, a sealed needle. We're not talking operating room conditions here.
The time "waste" is the procedure hospitals currently use. They'll tie up a cop for half a shift getting signatures, waivers, sealing evidence bags, etc. Cops HATE that.
More importantly, I don't trust a cop to not fake a positive result. I trust the hospital simply because if they get faking ONE test, they lose all their funding. Unlikely they'll fake one.
And the lab tech who draws the blood there doesn't work in the lab where the testing is done.
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Maybe the officer is pumped up on steroids or growth hormone or maybe has an abnormal amount of caffeine in his or her system leading to snappy judgement. The public has a right to know if this officer has a drug problem or a drinking problem. Most likely more often than not there could be anger management issues or maybe that officer has been disciplined for police brutality. The public has a right to know the record of this officer standing there wanting your blood. Maybe that officer is a nazi or a vampire!
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Re: Re:
There's a huge legal problem with having cops draw blood at a "mobile unit".
When you insist on a blood test, when the hospital draws your blood for testing, they take a second sample which they hold, and, on request, a third sample given to the "accused".
There's no check on a cop doping a blood sample in this "new" method.
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This is what I was concerned about... but... do I have a right to insist that the blood sample be taken at a hospital? Or, once the cop has a warrant, do I lose the ability to demand that?
I find it extremely objectionable that an officer might be allowed to perform a medical procedure such as a blood draw without my consent... I would not have a problem with it being done at a hospital as long as multiple samples were taken and kept in escrow so that I could defend myself against a contaminated sample...
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This is already a low skill occupation even in a "proper" medical setting. A good phlebotomist gets that way from experience and practice. "Well trained" nurses are generally bad at this sort of thing. Even in a hospital, the person drawing your blood could be just some kid working his way through college.
This "medical procedure" is already generally phoned in.
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Well, that makes it ok then, we can just get some junkie off the street to do it.
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That junkie has a better chance of hitting a vein than your average street cop.
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This right here is the only valid criticism of this program. Drawing blood isn't brain surgery, but it does require training and skill to do it properly and any cop who does it should be trained adequately and hygienically.
Everyone whining about after hours warrants and electronic warrant submission and all the rest of it are just butt-hurt that assholes who drive impaired don't have as many chances to beat the charge as they used to.
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Who wants to bet that regardless of the results of the blood test, the suspect's DNA finds its way into the police database?
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I'll take that bet.. absolutely its data.
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This has been a practice for a long time, get with the program. A lancet can get blood too.
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True, a lancet is less invasive than a needle, and less risky thereby. True, a lancet can draw blood. Whole drops of blood.
The blood being drawn by the officers (or hospital) for testing comes to a number of cc's (say, 10, in the story above). A lancet cannot do that (if properly wielded). It is thus inadequate for the variety of testing involved.
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Tell the cop you have HIV and see how anxious they are to draw blood. Or tell them you have hemophilia.
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imho, they are going about it all wrong..
Blood tests are not particularly useful for determining impairment with Marijuana.. The fact that this guy was swerving all over the road and failed the field sobriety test makes him an impaired driver and your THC levels in the blood are unnecessary and not very useful. Elevated THC levels in the blood just isn't linked to impairment the way alcohol is, and regardless why should you care what the cause of the impairment is when you already determined they are impaired?
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Re: Impairment from marijuana
I'd like to see some reliable, peer-review studies as to what level of marijuana indulgence will cause impairment of driving, boating, or operating heavy machinery. Yes, we know when Jeff Spiccoli of "Fast Times at Ridgemont High" and his stoner buds spilled out of that old van after "hot-boxing", they were likely too impaired to drive, let alone pay attention in class! But what of someone whom chills out with a joint the previous night, goes to sleep, and gets up, and on his way to work, is involved in an accident? Would there be detectable THC in his blood, and if so, what level would constitute presumption of impairment? Also, I've heard of some jurisdictions wanting to get a hair sample, and it's well-known that THC can be found in human hair for days after marijuana usage, when the user is obviously not under an influence of this herb.
At least with alcohol, though the levels of presumption of drunkeness have been already driven down to a nationwide level of .08, which many persons can actually drive quite well, and some states, like Utah, are reducing that presumed level to .05...I would expect soon that it will become de facto Prohibition all over again.
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So apparently your anti-authoritarian streak now includes the notion that police should only be allowed to get warrants during business hours?
Is there a part of the 4th Amendment I'm not familiar with that says "Warrants shall only issue between the hours of 9:00am and 5:00pm"?
Most jurisdictions have an on-call judge who is responsible for responding to all after-hours LE issues. The judges in the district rotate that responsibility around on a weekly or monthly basis. Whomever is on-call is no more or less likely to sign off on a warrant just because it comes in after dark than they would if it came across their screen during the afternoon. There is no after-hours rubber stamp. That's Cushing just making shit up and pretending it's real.
If the warrant request meets the minimum probable cause standards-- as the one in this case described in this article most certainly did-- then it doesn't matter what time of day or night it comes in. It's constitutionally sound.
There are no shortage of people who are in the healing profession who don't much care about pain or hitting a vein on the first try when drawing blood. I've experienced a few nurses in my time who seemed to take satisfaction in the opposite.
Why wouldn't increasing the efficiency of the process be a win? Why isn't getting these guys off the road quickly a good thing? Or do you not think it gives criminals enough of a sporting chance to beat the system?
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First, I have no sympathy for people driving under the influence getting in trouble. It's personal, a family friend was hit and killed by a drunk driver on his 3rd offence. My friend was 27, and the driver was 26. The kid wasn't supposed to be driving. And there was a DUI checkpoint not far down the road from where the accident occurred.
The thing is, none of this actually about making the roads safer. It's about creating a dragnet of easy arrests and generating revenue for local police and government. If the goal was to make the roads safer, there would be partnership between police and local business that allowed people to leave their vehicles parked overnight without penalty so long as they were taking a cab/ride share service home. Police would offer voluntary breathalyzer and field tests at bars that would connect impaired drivers with safe and affordable rides home. If this was about safety, then someone who realized that they weren't okay to drive after heading home could pull over and go to sleep without still being at risk of being charged for DUI. Safety isn't the goal, we need to stop giving cover to these unconstitutional actions.
And as someone who has dealt with a phobia, as the best way I can describe it, of IV needles, I haven't exactly been the easiest patient to draw blood from. Panic attacks make it difficult to sit still, but fear doesn't care what the reason side of your brain is saying. And while I have been a difficult patient, not once has a nurse or phlebotomist ever taken sadistic joy in hurting me. Not all phlebotomist are equal, some have a more gentle touch than others. But never, ever has anyone intentionally hurt me, or been unprofessional during a blood draw or inserting an IV. You must be a mean, nasty patient if nurses are getting joy out of hurting you.
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roadside blood draw
In this case, where's the issue? The police observed erratic driving, detected signs of marijuana use by the driver in his vehicle (bloodshot eyes and strong odor of weed), they performed a Field Sobriety Test (which the subject VOLUNTARILY complied with, or at least no mention of coercion to take a voluntary 'test', which admittedly is designed to 'fail' anyway) which indicated likelihood of impairment, performed a preliminary screen for alcohol, which the subject 'passed' (at least not above .08, which is the presumed DUI in AZ, and though not stated, likely below .05, as at least an .05 reading would justify an "impaired" driving charge versus "drunk" driving (a lesser charge), or a "wet reckless", and then requested the subject VOLUNTARILY give a blood sample, which was refused. Rather than simply subdue the man and get his blood anyway, the officer requested a warrant to get the blood draw, which was granted. So where's the problem? Due process and the subject's rights WELL observed in this instance, and though the entire encounter took 80 minutes, at least the process to get a warrant for the blood draw was quick and efficient.
Now, if you have what happened to Nurse Alex Wubbels in Salt Lake City, Utah, two years ago, who was manhandled by an overbearing SLC PD Sergeant for her refusal, IAW patient privacy (HIPPA) and her professional ethics, to get the blood of an unconscious victim of a crash perpetrated by a high-speed pursuit (the fleeing suspect died in a fiery crash at the scene, the victim later died anyway), then you've got a story. Or even officers arbitrarily demanding a blood draw w/o probable cause, and coercing drivers on pain of arrest for "obstruction" or "failure to test" even though there's no evidence of impairment.
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