Outrageous Conduct by Police Detective?

by Jack

An accident occurred between some dirtbag that was running from police and an innocent truck driver, who coincidentally happened to be a reserve police officer. A nice guy according to all his friends. When the accident happened his big-rig exploded in flames and he was severely burned.  The dirtbag died.  Now fast forward to the attending hospital’s burn unit in Salt Lake City.

NEWS STORY: “By all accounts, the head nurse at the University of Utah Hospital’s burn unit was professional and restrained when she told a Salt Lake City police detective he wasn’t allowed to draw blood from a badly injured patient.

The detective didn’t have a warrant, first off. And the patient wasn’t conscious, so he couldn’t give consent. Without that, the detective was barred from collecting blood samples — not just by hospital policy, but by basic constitutional law.

Still, Detective Jeff Payne insisted that he be let in to take the blood, saying the nurse would be arrested and charged if she refused.

Nurse Alex Wubbels politely stood her ground. She got her supervisor on the phone so Payne could hear the decision loud and clear. “Sir,” said the supervisor, “you’re making a huge mistake because you’re threatening a nurse.”

Payne snapped. He seized hold of the nurse, shoved her out of the building and cuffed her hands behind her back. A bewildered Wubbels screamed “help me” and “you’re assaulting me” as the detective forced her into an unmarked car and accused her of interfering with an investigation.” END

Can you imagine the lawyers tripping over themselves to get to that nurse now? The newspapers have jumped on this story and already lynched the cop, so who needs a trial? l

But, here’s one possible exception that may work in the cops favor and change the way you read this story.   It seems all the news agencies missed it, but I found it:  My question now is, was he requesting the blood draw under the authority of section §382.303 D.O.T. code – re Post-accident testing?  This is mandatory testing for a commercial driver, unlike it would be for a regular licensed driver.  

Here’s what it says and it makes a blood draw mandatory, and it’s the exception to all the criteria the hospital relied on:

(a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:

(1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or

(2) Who receives a citation within 8 hours of the occurrence under State or local law for a moving traffic violation arising from the accident, if the accident involved:

(i) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or

(ii) One or more motor vehicles incurring disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.

(b) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for controlled substances for each of its surviving drivers:

Use of Law Enforcement Post-Accident Testing: In lieu of administering a post-accident test, employers may substitute a test administered by on-site police or public safety officials under separate authority. The employer is allowed to substitute a blood or breath alcohol test and a urine drug test performed by such local officials, using procedures required by their jurisdictions. This may be particularly useful if that test can be administered before the employer can get to the scene. The employer must obtain a copy of the test results.

 

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16 Responses to Outrageous Conduct by Police Detective?

  1. Libby says:

    1) Since burn victims are generally in shock and highly susceptible to infection I cannot see it being “practicable” to let a grubby civilian anywhere near them.

    2) Since when do “detectives” draw blood?

    3) How come you never think of this stuff? Having the legal authority to do something does not, repeat, NOT make it prudent, or even decent, to do the thing.

    • Post Scripts says:

      Libby, neither the employer or the police draw blood. This is done by a licensed medical person.

      The next part is for Chris. The authority is very clear Chris… section §382.303 D.O.T. code – re Post-accident testing? This is mandatory testing for a commercial driver, unlike it would be for a regular licensed driver.

      Here’s what it says and it makes a blood draw mandatory, and it’s the exception to all the criteria the hospital relied on:

      (a) As soon as practicable following an occurrence involving a commercial motor vehicle operating on a public road in commerce, each employer shall test for alcohol for each of its surviving drivers:

      (1) Who was performing safety-sensitive functions with respect to the vehicle, if the accident involved the loss of human life; or

      And if you read the bold print in the paragraph below this you will find where the police can assume the authority to draw blood.

      I’m not the guy who wrote this law, so please keep that in mind before you start shooting! lol

  2. Chris says:

    Jack,

    There is nothing that I see in the statute that suggests that an officer can extract blood from an unconscious person without their consent; where are you seeing that?

    • Post Scripts says:

      Jim, if the DOT regulation was their basis for the blood draw, and it sure looks that way, then the police do not require a warrant because this part is waived when anyone obtains a commercial license and operates interstate under federal authority. The same holds true for a pilot or an engineer on a train. No warrant is ever obtain because it’s already covered under federal statute.

      Next up: Chris, I can understand the confusion, it’s a little obtuse, but its in there.

  3. Jim says:

    §382.303 D.O.T.
    If that law applies, why didn’t the the officer get a warrant? On the video he says that he has no PC (probable cause) for a warrant.

    In most states it’s a felony to threaten or interfere with a health care worker. That officer, and the lieutenant who gave him the order to arrest the nurse should both be prosecuted.

  4. Post Scripts says:

    I think we’re missing something here, this whole thing just does not look right. What do you want to bet that we are missing some crucial bits of information?

    By the way, did you notice how loud and hysterical the nurse became? Come on, was that drama really necessary? Would you have behaved that way? I think not. She’s a nurse, she’s a professional, and if nothing else, she owes it to her patients to be calm and quiet, not go bonkers because she was placed under arrest. But, the hysteria will no doubt play well in court when she sues!

    • Chris says:

      Jack,

      You have a bias in that you were a good cop. But the fact is that cops sometimes overstep their authority and make a situation worse than it needs to be. This is an example of one of those times. Conservatives recognize when presidents and other government officials overstep their authority, but tend to have a blindspot when it comes to recognizing when the enforcers of government power do the same.

      • Post Scripts says:

        Chris, yes I have a bias and I also understand that sometimes cops overstep their authority. This may well be one of those times. My only point in bringing up the DOT exception was to show it was not quite as clear cut as the media would have us all believe. There is some room for discussion and there were mitigating circumstances. It explains why the detective was not fired, because technically he was operating within the parameters of the law.

    • Libby says:

      Yeah, a female doing her job is hysterical, whereas a fella doing his job is assertive, assured, and competent.

      Do I have to tell you where you can stick it?

  5. Tina says:

    Jack one of my sons passed the test for a commercial license last year. After listening to his concerns about trust and privacy I’d say your take on this is correct…truckers are cut zero slack when it comes to drug testing even if they’ve never tested positive.

    Back in the 1980’s we started experiencing a high number of trucking accidents. I bet many of these drug regulations were passed then.

    The employer is allowed to substitute a blood or breath alcohol test and a urine drug test performed by such local officials, using procedures required by their jurisdictions. This may be particularly useful if that test can be administered before the employer can get to the scene. The employer must obtain a copy of the test results.

    The law states “employers must” obtain this information. My question is, how can an employer obtain this information under these circumstances unless a police officer or detective obtains it following the accident?

    Sounds to me like hospitals have not been made aware of new laws passed regarding drivers and drug/alcohol use. Since this patient was unconscious and badly burned he was likely catheterized so a urine test could have been done without disturbing him in any way. Had the nurse been fully informed regarding the regulations for truckers she would not have resisted and might have suggested the alternative herself.

    It’s impossible to tell from the newspaper account just how hysterical or combative the nurse may have been and likewise how unreasonable and forceful the officer may have been. Either way the law was not clear to one or both of these professionals.

    You’re right about the lawyers tripping over one another…some “for” the nurse and others “against” the trucking company.

    • Post Scripts says:

      Thanks Tina, always the voice of reason.

      I’ve learned that the Mayor immediately issued an apology to the nurse, which sounds like he was on her side, at least to the extent it was the politically correct thing to do for votes. The Chief also reacted like a guilty party and immediately changed their police blood draw policy, but the story did not say how it was changed.

      My question to our readers would be, is there ever a circumstance where arresting the nurse for delaying or obstructing an officer in the performance of his official duties would be acceptable?

      Suppose he read the DOT regulations to the head nurse, he made it perfectly clear he had the legal right and still she refused, not once, not twice, but three times? Suppose, he had gone through the same process with the hospital administrator? Should he then walk away knowing he had the legal authority and the duty to secure evidence pursuant to federal law and that nurse was obstructing him?

  6. Peggy says:

    I’m with the nurse on this one. She read the hospitals policy on taking blood from and unconscious patient and can be seen clutching it in her hand as she’s being cuffed.

    The cops issue was with the hospital administration, not the nurse who was following the law as presented by her supervisors. I wonder how the cop would have behaved if he had been told to break the law as he understood it, by someone from another position of authority, like the FBI?

    Would the cop have complied or would he have demanded clarification from his supervisors? This nurse should have been able to contact her supervisors.

  7. Post Scripts says:

    I can certainly understand what you are saying Peggy. However, let me point out that the hospital policy does not supercede federal law. Had their policy been up to date with the law, the nurse would have been making the blood draw and that would be the end of this story.

    During the course of trying to get the blood draw, the cop actually did contact his supervisor, a police lieutenant, who instructed him to get the blood or make an arrest for obstruction of an officer in the performance of his duty.

    Also, the nurse did contact her supervisor. They had a conversation and the cop also had a conversation with the supervisor.

    Now, all this being said, I tend to agree more with the nurse than the cop. I think there was a little “contempt of cop” going on here and that led to some bad judgement, i.e. the detective put the haebeus grabbus on the nurse.

    The cops were legally right, as the law states, but they were wrong when it comes to public relations and the possible lawsuit it could spark. I think a telephonic search warrant could have been obtained in about 30 minutes and that would have made everyone happy, even though it was not necessary. Afterwards, the hospital administrator could review in detail with an attorney the federal DOT law and make the necessary correction to their blood draw policy and this would have prevented a similar future event.

    This is going to be an interesting case, because you know its far from over.

  8. Post Scripts says:

    The Salt Lake City Council issued a statement at Tuesday’s formal meeting. Chairman Stan Penfold said that “all seven council members” shared the public’s concern about the incident.

    “We stand united in our believe that it is unacceptable,” he said. “It was especially frustrating in light of all the progress the police department has made recently on [de-escalation] training. This is a big step back on those efforts, which is disappointing.”

    • Tina says:

      I’m not in a position to defend either the nurse or the cop so much is left out of the account.

      I’ll tell you one thing, when/if the courts (or insurance guys) get hold of this they will want to know whether the driver was sober or drunk and why, if there is no blood work available, testing was not done.

      It seems odd to me that local officials didn’t address this issue and assure the public that appropriate testing was carried out in consideration for their safety. But of course that might make the cop’s actions seem more appropriate and we can’t have that. I have no use for administrative types that undermine the authority they expect these men and women in uniform to exert.

      I don’t get the nurse. She should assume the cop might have more intimate knowledge of the law…it’s his profession. Unless he was being a real jerk, and I find that unlikely in a hospital setting, it seems to me that had she cooperated the two of them could have found a way to get what needed to be done, legally accomplished…even if it took them some time and effort.

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