As written, Utah’s law only permits an officer to conduct such a test where he has reasonable grounds to believe that a person from whom blood is to be taken was driving “while in violation of” the laws regarding driving under the influence of alcohol or other substances. In this case, the detective specifically lacked any such grounds, because the draw was being taken to show the opposite – that the driver was not under the influence. Utah’s implied consent law did not authorize this particular blood draw under these particular circumstances.
This is a terrible legal analysis from a former federal judge turned law professor. The holding from the Supreme Court is clear that non-consensual blood draws require a warrant. As such, criminal "refusal" statutes are on their face unconstitutional and many have been voided as a result of the holding. Even if civil penalties for refusing are still permissible, getting warrantless blood draw under a such a statute would still invalidate the prosecution of any criminal case that would follow. So the default is that warrant is required for blood draw without consent. Period.
End he is further wrong about the rationale of the nurse...she was relying on the agreement in place between the hospital and the police agency...not the law.
