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Campfire Ranger
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There is no CDL carve out from the 4th Amendment. Violate the terms of your CDL? ....lose your CDL, however that is administrative in nature and not criminal procedure. However he was unconscious an incapable of consent....therefore the very easy work around is to get a warrant. The nurse was 100% in the right and the cop was wrong. And he should have known better than her that he was wrong. Need the blood now? Get the warrant. The "carve out" is when you sign for that CDL Then get a warrant based on that "carve out". They did not because they could not. I disagree, they could have gotten a warrant but the draw would no longer be timely. If there was alcohol in the blood, it would have been greatly diminished or gone by the time the warrant would have been signed. Since no one from the medical side was involved in the actual requesting and receiving the warrant, there was NO guarantee it would have been honored. The answer could have been asking the County Medical Examiner to do the bold draw from their supplies, in effect taking the hospital out of the equation. But, that's a County Attorney SOP and not the LEO's or the hospitals decision. My guess is there will be a lot of SOP's changed after this incident on both sides. kwg
For liberals and anarchists, power and control is opium, selling envy is the fastest and easiest way to get it. TRR. American conservative. Never trust a white liberal. Malcom X Current NRA member.
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Campfire Oracle
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Campfire Oracle
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Readonly and Ringman....
I am not saying the cop was correct. I am also not saying the nurse was correct. The nurse was placed in a no-win situation. One authority figure was telling her to do one thing. (her boss) Another authority figure was telling her to do something else. (the cop) She was presented with 2 choices. Lose her job or go to jail. The cop needs another vocation for his unwillingness to confront the nurses supervisor instead of the nurse.
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Campfire Regular
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Campfire Regular
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Readonly and Ringman....
I am not saying the cop was correct. I am also not saying the nurse was correct. Both of 'em got their backs up and didn't want to back down. They BOTH did the right thing by calling their supervisors, and at that point it was the supervisors' job to sort it out. BOTH the cop and nurse should have stopped right there, and waited for the supe's to get there to sort it out. But the supervisors didn't show up, so the nurse and cop couldn't de-escalate, which is how the whole thing turned into a YouTube schittshow.
Leadership could have saved the situation. But leadership was abysmally lacking. Great post. Both players called for supervisory assistance; leadership and supervision was absent when needed. Bob
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Campfire 'Bwana
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Campfire 'Bwana
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Then get a warrant based on that "carve out". They did not because they could not.
By signing his CDL license, he has given consent to this in advance for the rest of his professional driving life. Please post the relavent Idaho statue that says that signing their CDL authorizes LE to draw blood 24/7 without PC.
Give a man a fish and he eats for a day. Give a man a welfare check, a forty ounce malt liquor, a crack pipe, an Obama phone, free health insurance. and some Air Jordan's and he votes Democrat for a lifetime.
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Campfire Ranger
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Campfire Ranger
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Then get a warrant based on that "carve out". They did not because they could not.
By signing his CDL license, he has given consent to this in advance for the rest of his professional driving life. Please post the relavent Idaho statue that says that signing their CDL authorizes LE to draw blood 24/7 without PC. Why would Idaho have anything to do with a federal statute?
The government plans these shootings by targeting kids from kindergarten that the government thinks they can control with drugs until the appropriate time--DerbyDude
Whatever. Tell the oompa loompa's hey for me. [/quote]. LtPPowell
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Campfire Ranger
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Campfire Ranger
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Please post the relavent Idaho statue that says that signing their CDL authorizes LE to draw blood 24/7 without PC.
I think it would be wonderful if you would look up the Idaho statute. But since this case happened in Utah, I'm not sure it's relevant. In any case, this isn't a state law issue. CDL's are under Federal jurisdiction. You can read the Sesame Street version here: https://www.fmcsa.dot.gov/regulatio...are-required-and-when-does-testing-occur
"I'm gonna have to science the schit out of this." Mark Watney, Sol 59, Mars
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Campfire Ranger
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Campfire Ranger
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So good to read something that makes some sense of this. 'Thanks Doc. your posts are always among the best I read on the net. Thanks, 700! There are others who do not agree with you, though...
"I'm gonna have to science the schit out of this." Mark Watney, Sol 59, Mars
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Campfire Ranger
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Administrative types often get so wrapped up in rules that they can't imagine they don't apply to every situation, or that there are exceptions they don't have a clue about. But, by Jove, they are going to follow the rules! (all the way off the cliff).
Well said, Dutch. I have a term for those types: corporate pukes. I realize that's not a strong enough term for what I really think of them, though...
"I'm gonna have to science the schit out of this." Mark Watney, Sol 59, Mars
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Campfire Ranger
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Campfire Ranger
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I believe the fed regs only state you have to comply with local statutes re testing.
Any person who holds a CLP or CDL or is required to hold a CLP or CDL is considered to have consented to such testing as is required by any State or jurisdiction in the enforcement of item (4) of Table 1 to § 383.51 of this subpart and § 392.5(a)(2) of this subchapter. Consent is implied by driving a commercial motor vehicle.
What are utahs laws regarding such? They require any accident victim to submit to a search?
“Life is life and fun is fun, but it's all so quiet when the goldfish die.”
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Campfire 'Bwana
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Campfire 'Bwana
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All U.S. states have driver licensing laws which state that a licensed driver has given their implied consent to a field sobriety test and/or a Breathalyzer or similar manner of determining blood alcohol concentration. In 2016, the Supreme Court of the United States in Birchfield v. North Dakota held that both breath tests and blood tests constitute a search under the Fourth Amendment, concluding that requiring breath tests is constitutional without a search warrant, however, requiring more intrusive blood tests involving piercing the skin is not, as the goal of traffic safety can be obtained by less invasive means.[1] Specifically addressing implied consent laws, the court in the Birchfield opinion stated that while their "prior opinions have referred approvingly to the general concept of implied-consent laws" that "there must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads" and "that motorists could be deemed to have consented to only those conditions that are 'reasonable' in that they have a 'nexus' to the privilege of driving". [2] https://en.m.wikipedia.org/wiki/Implied_consent
Give a man a fish and he eats for a day. Give a man a welfare check, a forty ounce malt liquor, a crack pipe, an Obama phone, free health insurance. and some Air Jordan's and he votes Democrat for a lifetime.
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Campfire 'Bwana
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Campfire 'Bwana
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What it means is that Implied Consent does not include blood withdrawal, pure plain and simple.
Spin it anyway you wish, but the Supreme Law of the Land says drawing blood without a warrant or "actual" not "implied" consent is a violation if the 4th amendment
Give a man a fish and he eats for a day. Give a man a welfare check, a forty ounce malt liquor, a crack pipe, an Obama phone, free health insurance. and some Air Jordan's and he votes Democrat for a lifetime.
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Campfire Outfitter
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Campfire Outfitter
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The Federal statue requires the EMPLOYER to send the driver involved in a significant accident to be drug tested, and refusal is deemed a violation. Violation results in automatic suspension of your CDL. Cops have NADA to do with it. In any case, local cops must be certified before they can enforce FMCSA regulations. I very much doubt this local copper was. Every employer of a USDOT regulated company is required to undergo a 2 hr training program that outlines these rules.
I have no clue what the local and state statues are in this case, but they are the only ones that apply HERE.
Sic Semper Tyrannis
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Campfire Tracker
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Campfire Tracker
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Great post, Doc. Bossiness vs leadership: the best descriptive terms I’ve heard on this topic.
We meet bossy people who abuse their power once in awhile in any position that gives them power to tell others that they must do something or can't do something. I recall the gloating joy in a ferry worker's face who refused to let me get on a ferry because they had just instituted a new half hour rule for boarding. I suspect that bossy people gravitate to such positions of usually minor authority but perhaps the position promotes the trait. I wish that there was some way to weed out applicants with this trait, and fire those who develop it. It has zero to do with safety or doing whatever job they do. One abusive, lying jerk TSA officer in Philadelphia tends to make me forget dozens of other good ones and a few in Seattle who went out of their way to serve my ailing wife as well as protect.
Something the nurse pointed out was that the policy she showed the cops was the protocol that (she understood) the police had worked out with the hospital and had agreed to follow.
The cop looked like his default next step is to ratchet up the conflict when anyone disagrees with him.
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Campfire Tracker
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Campfire Tracker
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A lot of good points made.
My take is that while the hospital administrator is not lawyer, the nurse had everything needed to show the responding officers that the ED was on their game. She calmly produced documentation and clearly articulated the hospital's responsibility.
The tenured detective quickly turned his wrath onto the nurse, knowing that his case was shaky at best (no probable cause for a warrant) and upon consent from his boss crossed the line arresting someone that was helping to find a solution. There were no exigent circumstances with the truck diver fleeing the hospital
After most of the drama was over the detective told another officer that he would be bringing all of the homeless patients to that hospital via his night job as an ambulance driver.
Detective and his supervisor phuqued up big time and need to suffer the consequences.
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Campfire Ranger
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Campfire Ranger
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Wasn't part of this issue was the fact the driver was unconscious. I know this changes some issues but it does not relieve the timeliness issue. In other words, some time limits had to be met. I agree, the nurse supervisor needed to be in the room and if necessary, the officers supervisor needed to be there as well. Two bullheaded people meeting in the same room with no way out created this $hitstorm.
There is no such thing as a quick search warrant and there is no such thing as a judge who is close and handy to sign one. This means that the supervisors need to know what the rules are and be able to recite them at a moments notice. If not, why are they a supervisor ??
kwg
For liberals and anarchists, power and control is opium, selling envy is the fastest and easiest way to get it. TRR. American conservative. Never trust a white liberal. Malcom X Current NRA member.
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Campfire Ranger
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Campfire Ranger
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There is no such thing as a quick search warrant and there is no such thing as a judge who is close and handy to sign one. This means that the supervisors need to know what the rules are and be able to recite them at a moments notice. If not, why are they a supervisor ??
kwg
Bullschidt... I know for a fact that many times my wife would draw a legal etoh at the same time she would draw the hospital's blood sample. And this was while working grave shift at 0300.
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Campfire Ranger
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What it means is that Implied Consent does not include blood withdrawal, pure plain and simple.
Spin it anyway you wish, but the Supreme Law of the Land says drawing blood without a warrant or "actual" not "implied" consent is a violation if the 4th amendment Steve (and Dutch)... I ain't a lawyer, and neither are you, nor were the supervisors in this case. (I am a registered CDL Medical Examiner, though, for what that's worth in this discussion... my notes say the CDL holder's consent to a blood draw is not implied, but explicit. Let the lawyers figure that out.) Regardless: the fact that a bunch of us here can get into a quarrel about whether this was right or wrong underscores my central point in the OP: that when the issues aren't clear and/or are in contention, it's the responsibility of the LEADERS to cut through the rancor and arguments and arrive at a solution that doesn't require people doing foolish things at the scene.
"I'm gonna have to science the schit out of this." Mark Watney, Sol 59, Mars
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Campfire 'Bwana
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Campfire 'Bwana
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Wasn't part of this issue was the fact the driver was unconscious. I know this changes some issues but it does not relieve the timeliness issue. In other words, some time limits had to be met. I agree, the nurse supervisor needed to be in the room and if necessary, the officers supervisor needed to be there as well. Two bullheaded people meeting in the same room with no way out created this $hitstorm.
There is no such thing as a quick search warrant and there is no such thing as a judge who is close and handy to sign one. This means that the supervisors need to know what the rules are and be able to recite them at a moments notice. If not, why are they a supervisor ??
kwg Doesn't matter about timeliness, it only matters what the law says and the law as per the United States Supreme court says that no blood without PC, an arrest, a warrant, or actual consent. They also ruled that Implied Consent does not include drawing blood, period.
Last edited by steve4102; 09/03/17.
Give a man a fish and he eats for a day. Give a man a welfare check, a forty ounce malt liquor, a crack pipe, an Obama phone, free health insurance. and some Air Jordan's and he votes Democrat for a lifetime.
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Campfire Ranger
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And the stupid f*cks comment about all sorts of shiet, yet again, that wasn't addressed in the first place by the OP. <sigh> Yes, indeed. Getting bogged down in minutiae, wandering off-topic, and thread-hijacking are SOP on the 24HCF these days. Sometimes I wonder why I bother...
"I'm gonna have to science the schit out of this." Mark Watney, Sol 59, Mars
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