Ken White called in on the twitters.
Granted, it took a few days before the answer appeared, but the winner is . . . the Daily Caller.
Arrested Utah Nurse Had It Coming
It would be hard to come up with a worse headline, but that’s on whoever dreamed up this clickbait. But the post itself? That falls on the shoulders of the author.
The writer was a freelancer, Gregg Re, who says he’s a lawyer. What he wrote is borderline idiotic, demonstrating neither a basic comprehension of law nor of logic, which is unfortunate should he some day represent a client. Is he a lawyer? There is one named Gregg Re, admitted to the New York and California bars in 2016. He went to NYU for Law School, Georgetown undergrad, and spent 11 months working at the criminal defense clinic for the Federal Defenders in New York. There being no other lawyer by the name Gregg Re, it’s likely that this is the same guy.
The Daily Caller post is crap. So much so that it’s really unworthy of dicussion. But Gregg Re has quite a good resume, aside from his lack of experience. It’s hard to imagine Re could make it through NYU without the capacity to recognize the holding of a Supreme Court decision.
Despite reams of inaccurate reporting on the incident, Wubbels was likely legally wrong under federal law. The case is a much closer one than it appears.
To say that reporting has been “inaccurate” is not, in itself, particularly shocking. It usually is, at least to some extent. To say that the case is “much closer than it appears,” likewise, is usually the case, as reporting tends to be far more absolute than the law tends to be. But to say Wubbels was “likely legally wrong” demands more serious effort.
The hospital’s policy does not have the force of law, even if the local police department agreed to its terms. And crucially, the policy overlooks a well-established exception to the warrant requirement: Police simply do not need a warrant if exigent circumstances justify an urgent search and seizure of evidence. The imminent loss of blood evidence, which would be useful in a drunk-driving case, qualifies as a potentially exigent circumstance.
It’s correct to say that “hospital policy does not have the force of law.” but that adds nothing to what the law provides. And “exigent circumstances” is, indeed, an exception to the Fourth Amendment. His tossing in that such evidence “would be useful in a drunk-driving case” begs the question of whether this was a drunk-driving case. And his use of the qualifier, “potentially,” when referring to exigent circumstances wiggles him out of the hole he’s dug.
After a remarkably inapt analogy, he gets to a point:
In its reporting of this incident, The New York Times falsely claimed that “the United States Supreme Court ruled that the police do not have the right to draw blood in drunk driving investigations without a warrant.”
That the Times oversimplified McNeely is somewhat true. The Times is technically correct that police have no right to draw blood, but the word “right” does a lot of the heavy lifting. They have authority, never a right, to do so under certain circumstances according to the dicta of Justice Sotomayor’s opinion. But that’s dicta, a backdoor put into a decision so the Court can circumvent its holding in some other case with other facts.
But then came the part that can’t be explained.
But the case the Times cites, Missouri v. McNeely, does not stand for that proposition at all. The court explicitly held in McNeely that some drunk-driving cases could permit warrantless blood draws.
That’s completely inaccurate. There is no way to wiggle out of this assertion, that the Court “explicitly held.” Decisions have holdings that create precedent, and often dicta that don’t. This was not the holding, explicitly or otherwise.
This wasn’t an exigent-circumstances case. Even the exception requires probable cause under the Fourth Amendment and there was none here. Even if there was probable cause, it was not an exigent circumstances case because there was no attempt to obtain a warrant for the blood draw or reason why a warrant could not be obtained within a time frame sufficient to preserve the evidence. Blood alcohol does dissipate, and timing does matter, but this has been accommodated in the warrant process. Had there been a warrant, Alex Wubbels’ express position would have compelled her to back away.
None of this, however, is particularly controversial, or particularly hard to figure out for a lawyer. Even an inexperienced lawyer, especially one who worked at a clinic run by the Federal Defenders of New York and attended NYU Law.
That’s where it gets painful to explain why Gregg Re would want to put his name to a piece of writing that’s so legally unsound. The answer might be that he’s conservative, or perhaps a fan of cops, but to what end? Was he the same Gregg Re who was taken to task in 2012 for attacking a teenager in the Daily Caller and calling him a “douche” based on an anonymous source?
There is no inherent reason why a lawyer can’t, shouldn’t, hold whatever political leanings he wants. And since the DC post isn’t news, but opinion, Re isn’t to be chastised for expressing a contrarian view of the Wubbels arrest per se. But he’s a lawyer, and proffering wildly inaccurate assertions of law to support one’s politics cannot be justified. He’s using his cred to make people stupider for the purpose of furthering a political agenda.
This has become a weapon of choice, and it has undermined the credibility of individuals as well as the media. No matter how strongly they feel, they don’t get to make people stupider. In Re’s case, it’s hard to imagine he has much personally invested in the Wubbels story, such that he felt a passionate need to provide contrary commentary. Rather, he just wanted to get his name on a Daily Caller post. This is not acceptable from anyone, but particularly from a lawyer.
The exception would entail both “exigent circumstances” AND “probable cause” (and if I recall the story correctly, acknowledged absence of probable cause was why the detective made no attempt to obtain a warrant).
Also, accounts have been garbled as to whether the detective was going to draw the blood or whether he wanted Wubbels to draw the blood. Even if the detective had a warrant, I don’t see that it would entitle him to draft random individuals on hospital staff to perform the blood draw for him.
Was I unclear about the need for probable cause? I kinda thought I covered that. As for who would draw blood, that only matters after getting past the first hurdle, so no moderately competent lawyer would even bother to raise it, right?
You did cover it, but Re missed it completely. I foresee a matter styled “In Re. Re” before many more years pass.
Well then, thank you for your comment reiterating what I wrote in my post, because reasons.
I knew if I just said, “Agreed,” you would stop reading.
I know this is a legal blog. But a bit of Medical interjection that might help put some of the legalities in context. This was a severe burn patient who was put in an induced coma to secure their airway via ventilator. The Hospital had already done a blood draw and performed a full fox screen for among other things alcohol. How do we know this? Because the patient was put in an induced coma on a ventilator. The simple fact that the hospital did this means they found no blood alcohol. Alcohol is a total contraindication for that type of sedation.
So the hospital had blood draws and blood tests. These were on record in the patients charts. These test results would be more than sufficient for whatever purpose Law Enforcement required. They simply would need to supeona them. Medical records are legal documents. They carry much the same presumption of truth before the courts as a police report or a fire scene report. While not as 100% chain or evidence airtight as a homicide crime scene investigation team, they are more than sufficient for the given situation, especially since the officers attempts to collect blood were clearly an endangerment to the patients health and well being. Once again this was a critical burn patient.
I, for one, really appreciate it when a non-lawyer explains (poorly) how medical records can be evidentiary and chain of custody to trial lawyers and judges. However, your medical information, assuming you have any clue whatsoever what you’re talking about since you could be a physician or a 12-year-old behind the common medical pseudonym, Hobodog, provides useful context.
Greg Doucette pointed out on Twitter that Birchfield v. ND (579 US — (2016)) came within a gnat’s whisker of explicitly stating that alcohol metabolism is *never* an exigency, directly contradicting the loophole Sotomayor left in McNeely. So he’s even more wrong than he first thought.
Greg might be reading Birchfield a little too broadly. The opinion deals with the “search incident to arrest” exception and the “implied consent” argument. It’s holding is that dissipation doesn’t “always” constitute exigency, not that it never can.
Tell you one thing, he definitely didn’t think twice about signing the release.
It’s worse than that… actually quite a bit worse.
This was in Utah after all. And the Utah Supreme Court has weighed in as well on this topic.
The Utah Supreme Court threw out a blood draw of a drunk driver who killed someone, because they didn’t get either a warrant or vocal consent in 2010 (and didn’t have probable cause for exigent circumstances).
The linked case isn’t a 100% perfect match to the existing case; but it’s also not so different that the above ruling wouldn’t apply (I am not a lawyer, so my opinion might be wrong here, but I don’t think it is).
The best you could say is:
“The Cops had the right to get he blood draw, that absolutely would be thrown out of court for any trial”…
I’m not sure that’s a workable argument, but I don’t see a way to make a better one.
Had this been a post about the law of warrantless blood draws in Utah, this would be very valuable information.
I took a look at a video of the incident and wondered about two things. The nurse told the officer that with an unconscious patient that there were three ways that she was allowed to draw the blood:
1: Signed permission on file with the hospital from the patient.
2: Court order.
3: Patient was under arrest.
What I do not understand, is that since this all happened in what appears to be a large city area, why didn’t the officer just get an order? Even in off hours, most, if not all, large cities have a judge on call to be available for just such orders to be issued.
Failing that, the nurse stated that if the patient was under arrest she could draw the blood; so why didn’t the officer just place the patient under arrest, and then the nurse would have drawn the blood?
I also didn’t understand how or what the officer thought he was allowed to arrest the nurse on. When they got to the police station, what was he going to tell everyone what she was charged with, or even worse, how was he going to explain to any judge or magistrate how refusing to draw the blood allowed him to arrest the nurse?
This would have been an appropriate comment on the post about the arrest itself. This post isn’t about the arrest. But the short answer is that you need probable cause to get a warrant, and there was no probable cause. As for the arrest, it was putatively for obstruction of justice for refusing to comply with Payne’s command. The linked post provides more explanation, but this is a law blog, not designed to answer basic legal questions for non-lawyers.
You’re still taking interior decorating request though, right ?
And fashion advice.
Hell, they didn’t even have reasonable suspicion on this victim, much less probable cause. But anyway, now you can admonish me that is not the scope of this post!
Hey Bmaz, some kid is using your handle to write something pointless yet passive-aggressive on the internets.
Who is that guy??
On what grounds could the officer put the patient under arrest? He was an innocent victim of a car crash.
What conceivable purpose is served by your asking this question at all, and of Louis in particular?
Louis wrote: “Failing that, the nurse stated that if the patient was under arrest she could draw the blood; so why didn’t the officer just place the patient under arrest, and then the nurse would have drawn the blood?” I asked “On what grounds could the officer put the patient under arrest? He was an innocent victim of a car crash?” My question was rhetorical, that is, there are no grounds. Seems like a reasonable response to me. Unless Louis was being sarcastic. Poe’s law.
No, he was not being sarcastic. He was being clueless, because he has no idea how law works. And that was obvious to everyone but you.
What are the legal grounds for you being kind of a jerk right now, especially to Lawrence?
Technically, it’s not “right now.” It was yesterday.
“But he’s a lawyer, and proffering wildly inaccurate assertions of law to support one’s politics cannot be justified. He’s using his cred to make people stupider for the purpose of furthering a political agenda.”
I am shocked—shocked—to find that gambling is going on in here!
Thanks for this post. You are, as of now (as far as I could find), the only blog to have posted a detailed take down of Re’s horrific piece. The fact that DC has left it up until now says a lot about the DC.
I only scratched the surface, as the flaws were flagrantly obvious to most (but not all apparently) lawyers. It really wasn’t a worthy effort to spend time refuting something so facially ridiculous.
Unfortunately most of the people reading that article won’t be lawyers, or even have the advantage (however minimal that may be) of reading law blogs and osmosing a small clue. Having something out there calling out the horseshit that may show up in a google search on the topic is a potential benefit to the world at large.
Probably true, but that’s why there’s HuffPo and Slate. I’m just a lawyer, not a 22-year-old minimum wage pundit atop an important soap box.
Having led many a horse to water, I don’t think that the finer points of Fourth Amendment law are accessible to most lay people in the course of a newspaper article. However, based on personal experience I feel confident in asserting that virtually all criminal defense attorneys have “McNeely” discreetly tattooed somewhere on their body.
Non-lawyer readers sometimes confuse the fact that the internet allows them to read SJ with SJ being there for their benefit. Silly readers.
I’m not a lawyer but even I was embarrassed for Gregg, not just for his juvenile taunts but for him coupling his title as attorney with hardly a superficial grasp of law. Maybe “Gregg Re” is really just a bitter ex out to tarnish the attorney’s reputation. Or maybe he was high. One can dream.
jerk: Thanks for your support. Yes, technically, SHG is right; substantively, you are.
The best part of this comment is that you’re such a nincompoop that you posted it in the wrong thread. Damn, Lawrence.
Commentary, contemporary, ay…
Let it happen.
Tractor, tractor, tractor…
P.S. writers carry their paragraphs through.
Get over the chop.
Let’s back up a bit.
[Ed. Note: Let’s not. Balance of comment deleted.]
As a matter of curiosity, does the fact that the unconscious patient has a CDL (and that the attempted blood draw is after an accident) change the legality of any samples obtained?
I know that the DOT requires a drug test after accidents, (whether the CDL driver is at fault or not), and that those are usually urine tests. So, why did the officer demand blood? There is no part of this officer’s decisions that make sense…
When you premise a question with, “as a matter of curiosity,” do you suppose a lawyer says to himself, “gee whiz, some random person is curious about something, so let me use my mad lawyer skillz that I went to school to learn, that people pay me to use, that are the way I feed my family, to satisfy her curiosity, because I would never be able to live with myself if she’s curious, because if it wasn’t just a matter of curiosity, then it just wouldn’t be worth the effort”? I’ve always been curious about why anyone would premise a question like that.
The answer, by the way, is no, not at all, not even a little bit, which is why no lawyer anywhere ever suggested anything remotely like this.
Thanks for your response. I had tried to find some kind of answer without finding anything that seemed, well, sane. So, I posed the question to an actual lawyer…
Again, thank you for the answer.
Goddammit, why do you have to be so nice after my horribly snarky response and make me feel so awful about being such an asshole.
Every time I get an e-mail about a new comment on this post, all I can think is that you missed the opportunity to title it “In re Re.”
It would have been great, but there was another consideration that was more pressing.