The recent incident involving
the unlawful arrest of a Utah nurse underscores the importance of legal
updates and in-service training
Sep 8, 2017
By now it is likely that many police officers have viewed the video footage
of Utah detective Jeff Payne grabbing and arresting an emergency room
nurse who did not acquiesce to the detective’s demand that she draw
blood from an unconscious motorist in a burn unit.
Wubbels had explained to the detective that hospital policy forbids her
from acting upon the detective’s request unless she was presented with a
search warrant or there was consent from the victim. She even notified
the detective about the policy for blood testing entered into between
the hospital and the Salt Lake City Police Department.
The response from the detective was, “We’re done, we’re done
here…you’re under arrest,” as he moved in to physically restrain her and
push her outside the emergency room doors where he handcuffed her.
be fair, a news report on the incident indicated that the video may
have been edited, and the version many have viewed may not be the entire
video. Still the video clip available for public viewing does not offer
any possible explanation for the detective’s actions. Instead it
supports the department’s placement of the detective on administrative leave and the ensuing internal investigation aided by the FBI.
Video suggests officer misunderstood the law
unfortunate image resonating from this incident is that police officers
– who are sworn guardians of the law – do not have an adequate grasp of
the laws they are empowered to uphold. The incident is compounded by
the fact that the detective seemed to rely on an order from his
lieutenant to place the nurse under arrest if she did not comply.
ignorance from a trained professional is inexcusable, particularly from
a ranking officer who should have been the voice of reasoned judgment,
not the catalyst for unconstitutional behavior. A professional agency
like the Salt Lake City Police Department has surely trained its
officers well, and the detective and his lieutenant are merely two
outliers in an isolated incident that sadly created another negative
public impression of law enforcement.
Whatever we may learn as the
investigation progresses, it is important for police officers to remain
current on the law and developments in certain areas such as DWI
enforcement, otherwise there may be more damning video on the evening
news and your name as a defendant in a civil lawsuit.
Court rulings on blood alcohol testing
In 2013, the U.S. Supreme Court in Missouri v. McNeely
said that police have to obtain a search warrant prior to subjecting a
DWI suspect to a blood test. The Supreme Court held that the dissipation
of alcohol in the blood was not an exigent circumstance for the purpose
of seeking a warrantless blood draw without consent.
In 2016, the U.S. Supreme Court in Birchfield v. North Dakota
ruled that implied consent statutes could not include a criminal
sanction for refusal to submit to breath or blood testing. In its
decision, the Supreme Court reiterated the fact that absent an exigent
circumstance – other than the natural dissipation of alcohol in the
blood – a warrant was required for non-consensual blood draw.
Case law in Utah is no different. The Utah Supreme Court in State v. Tripp,
227 P.3d 1251 (2010) suppressed blood draw evidence that tested
positive for alcohol and cocaine because it was obtained without a
warrant. Despite the defendant having caused the death of another
motorist, the Utah court stated that the grievous nature of the case did
not foreclose its duty to maintain the constitutional balance between
liberty and security. In the Tripp case, the police also
lacked probable cause to justify a warrantless blood draw. Even though
Utah Code section 41-6a-520 provides for implied consent, this alone
does not create an exigency or any other type of legal exception to the
warrant requirement of Missouri v. McNeely.
Unlawful arrest of Utah nurse
from the detective’s unlawful attempt to extract blood from the body of
an unconscious motorist who was declared not to be a suspect, he also
announced the nurse was under arrest for interference with an
investigation. Even though she was not eventually charged, a review of
the law raises a question as to the basis of the detective’s probable
Utah Code 76-8-301 describes the crime of Interference with
a public servant, the presumable offense for which the nurse was
handcuffed. Subsection (b) of the statute defines the culpable conduct
as that which “knowingly or intentionally interferes with the lawful
service of process by a public servant.” The prior subsection (a), which
describes conduct “that uses force, violence, intimidation, or engages
in any other unlawful act with a purpose to interfere with a public
servant performing or purporting to perform an official function,”
certainly could not be the basis of the detective’s actions.
Utah Code 76-8-306, Obstruction of justice in criminal investigations
or proceedings did not apply since there was no discernible “intent to
hinder, delay, or prevent the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding conduct that
constitutes a criminal offense” by any of the 10 means listed in the
What was the basis for the detective’s probable cause
when he announced to the nurse that she was under arrest? A plain
reading of the relevant state statutes does not support any.
Why police officers must review penal codes and statutes
is no substitute to reading legal bulletins and updates issued by your
department and undertaking a semi-annual review of your state penal
codes and vehicle and traffic statutes. No matter how much time a police
officer has on the job, professional education should never cease, and
part of being a professional is maintaining standards of ethical and
lawful behavior. For some that time may be past, but that does not
prevent the rest from upholding traditions of excellence.
About the author
Terrence P. Dwyer retired from the New York State Police
after a 22-year career as a Trooper and Investigator. He is now a
tenured Professor in the Justice and Law Administration Department at
Western Connecticut State University and an attorney in private practice
representing law enforcement officers in disciplinary cases, critical
incidents, and employment matters. He is the author of Legal Issues in
Homeland Security, Looseleaf Law Publications.