Utah nurse arrest: Why cops need to know the law before they act
with Terrence P. Dwyer, Esq.
   
 
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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.

Nurse Alex 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.

To 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

The 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.

Such 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

Aside 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 cause.

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.

Similarly, 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 statute.

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

There 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.

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.
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