Police confiscate Indiana man's bodily fluids using forced catheterization

[T.Lex]

Here's another indication that what is in the complaint (and news article) is probably not the entire story: there was apparently no suppression motion in the criminal case. If the allegations in the complaint are true, that suppression motion basically writes itself. (Well, the reality is that you do the suppression motion first, then the complaint writes itself.)

Now THIS would be an interesting twist - consent. Let's say he told the officers at the time that they could do the catheterization. No suppression.

But, in the civil suit, he could more easily argue that the consent was invalid - he was intimidated by the holstered guns and shiny badges or he was too intoxicated to give valid consent.

I think it would still be pissing into the wind (pardon the pun) because the consent would still be a strong defense for the officers. It sure would be an interesting case, though!

 

[steveh_131]

If anyone wants to discuss, of course...that's what we do here. But why can't part of the discussion be whether people are jumping to conclusions based upon incomplete information? Some are, some aren't.

You can bring it up if you want. What would you have us do? Should everyone in this thread just say "Hmm, let's see what the court of appeals has to say."? Would that be an interesting discussion?

If you have some reasons to think that they are not true, bring those up. Absolutely. Good discussion points.

You may be surprised at how many people think that just because a lawsuit is filed, the allegations are true.

Does anyone here think this? Speak up, everyone.

 

[ghuns]

r. kelly this man is not.

Made me think of the R. Kelly music video spoof on the Chappelle Show.

 

[Timjoebillybob]

because it's the law

IC 9-30-6-2
Probable cause; offer of test; alternative tests; requirement to submit
Sec. 2. (a) A law enforcement officer who has probable cause to believe that a person has committed an offense under this chapter, IC 9-30-5, or IC 9-30-9, or a violation under IC 9-30-15 shall offer the person the opportunity to submit to a chemical test.
(b) A law enforcement officer:
(1) is not required to offer a chemical test to an unconscious person; and
(2) may offer a person more than one (1) chemical test under this chapter.
(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5 or a violation under IC 9-30-15.
(d) A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

No that is not what the law says. It states a person must submit to a chemical test. Not any and all repeated tests the officer wishes performed. A is different than all. This person agreed to submit to two tests, and was unable to provide the sample for the third.

And what is the difference between this and any other contact law?

 

[Destro]

No that is not what the law says. It states a person must submit to a chemical test. Not any and all repeated tests the officer wishes performed. A is different than all. This person agreed to submit to two tests, and was unable to provide the sample for the third.

And what is the difference between this and any other contact law?

Yes....yes it does. In Indiana, when a law enforcement officer has probable cause to believe someone has OWI, said officer may offer a person more than one (1) chemical test under this chapter. Then, A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

If he can't produce urine, that is the drivers problem, not the officers. If he does not give a urine sample, he has not complied with the implied consent requirement.

 

[rambone]

From the way I understand it, not providing a chemical sample means having your DL suspended. It does not mean that police officers can/should forcibly rape the sample out of your body.

 

[Destro]

From the way I understand it, not providing a chemical sample means having your DL suspended. It does not mean that police officers can/should forcibly rape the sample out of your body.

If the defendants allegations are true, then it is extremely disturbing

 

[2ADMNLOVER]

From the way I understand it, not providing a chemical sample means having your DL suspended. It does not mean that police officers can/should forcibly rape the sample out of your body.

Your " understanding " , IS the problem . YOU WILL RESPECT MAH ATHORITAY !

You see , some men you just can't reach , which is the way he wanted it , well he got it .

 

[rambone]

However, some states will gladly rape the samples out of your body. "No refusal" checkpoints are all the rage in Tennessee, Georgia, Texas, and some others.

 

[HoughMade]

I don't know if I've seen this statute cited. Y'all are going to love this one.

9-30-6-6. Delivery of bodily substance samples or disclosure of test results to law enforcement officer -- Limitations upon civil or criminal liability -- Exceptions to patient-physician privilege -- Disclosure of test results -- Standards for taking samples.

(a) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, who:

(1) obtains a blood, urine, or other bodily substance sample from a person, regardless of whether the sample is taken for diagnostic purposes or at the request of a law enforcement officer under this section; or

(2) performs a chemical test on blood, urine, or other bodily substance obtained from a person;

shall deliver the sample or disclose the results of the test to a law enforcement officer who requests the sample or results as a part of a criminal investigation. Samples and test results shall be provided to a law enforcement officer even if the person has not consented to or otherwise authorized their release.

(b) A physician, a hospital, or an agent of a physician or hospital is not civilly or criminally liable for any of the following:

(1) Disclosing test results in accordance with this section.

(2) Delivering a blood, urine, or other bodily substance sample in accordance with this section.

(3) Obtaining a blood, urine, or other bodily substance sample in accordance with this section.

(4) Disclosing to the prosecuting attorney or the deputy prosecuting attorney for use at or testifying at the criminal trial of the person as to facts observed or opinions formed.

(5) Failing to treat a person from whom a blood, urine, or other bodily substance sample is obtained at the request of a law enforcement officer if the person declines treatment.

(6) Injury to a person arising from the performance of duties in good faith under this section.

(c) For the purposes of this chapter, IC 9-30-5, or IC 9-30-9:

(1) the privileges arising from a patient-physician relationship do not apply to the samples, test results, or testimony described in this section; and

(2) samples, test results, and testimony may be admitted in a proceeding in accordance with the applicable rules of evidence.

(d) The exceptions to the patient-physician relationship specified in subsection (c) do not affect those relationships in a proceeding not covered by this chapter, IC 9-30-5, or IC 9-30-9.

(e) The test results and samples obtained by a law enforcement officer under subsection (a) may be disclosed only to a prosecuting attorney or a deputy prosecuting attorney for use as evidence in a criminal proceeding under this chapter, IC 9-30-5, or IC 9-30-9.

(f) This section does not require a physician or a person under the direction of a physician to perform a chemical test.

(g) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician shall obtain a blood, urine, or other bodily substance sample if the following exist:

(1) A law enforcement officer requests that the sample be obtained.

(2) The law enforcement officer has certified in writing the following:

(A) That the officer has probable cause to believe the person from whom the sample is to be obtained has violated IC 9-30-5.

(B) That the person from whom the sample is to be obtained has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another.

(C) That the accident that caused the serious bodily injury or death of another occurred not more than three (3) hours before the time the sample is requested.

(3) Not more than the use of reasonable force is necessary to obtain the sample.

(h) If the person:

(1) from whom the bodily substance sample is to be obtained under this section does not consent; and

(2) resists the taking of a sample;

the law enforcement officer may use reasonable force to assist an individual, who must be authorized under this section to obtain a sample, in the taking of the sample.

(i) The person authorized under this section to obtain a bodily substance sample shall take the sample in a medically accepted manner.

(j) This subsection does not apply to a bodily substance sample taken at a licensed hospital (as defined in IC 16-18-2-179(a) and IC 16-18-2-179(b)). A law enforcement officer may transport the person to a place where the sample may be obtained by any of the following persons who are trained in obtaining bodily substance samples and who have been engaged to obtain samples under this section:

(1) A physician holding an unlimited license to practice medicine or osteopathy.

(2) A registered nurse.

(3) A licensed practical nurse.

(4) An advanced emergency medical technician (as defined in IC 16-18-2-6.5).

(5) A paramedic (as defined in IC 16-18-2-266).

(6) Except as provided in subsections (k) through (l), any other person qualified through training, experience, or education to obtain a bodily substance sample.

(k) A law enforcement officer may not obtain a bodily substance sample under this section if the sample is to be obtained from another law enforcement officer as a result of the other law enforcement officer's involvement in an accident or alleged crime.

(l) A law enforcement officer who is otherwise qualified to obtain a bodily substance sample under this section may obtain a bodily substance sample from a person involved in an accident or alleged crime who is not a law enforcement officer only if:

(1) before January 1, 2013, the officer obtained a bodily substance sample from an individual as part of the officer's official duties as a law enforcement officer; and

(2) the:

(A) person consents to the officer obtaining a bodily substance sample; or

(B) obtaining of the bodily substance sample is authorized by a search warrant.

 

[Denny347]

From the way I understand it, not providing a chemical sample means having your DL suspended. It does not mean that police officers can/should forcibly rape the sample out of your body.

Correct. In Indiana "Implied Consent" means that your refusal will result in your license suspended for 1 or 2 years. If I want blood after that, I must get a warrant.

 

[mrjarrell]

Correct. In Indiana "Implied Consent" means that your refusal will result in your license suspended for 1 or 2 years. If I want blood after that, I must get a warrant.

So, if you want blood you need a warrant. Wouldn't one be required to catheterise a person against their will? Especially after they'd already had a seemingly voluntary blood draw.

 

[Fargo]

Yes....yes it does. In Indiana, when a law enforcement officer has probable cause to believe someone has OWI, said officer may offer a person more than one (1) chemical test under this chapter. Then, A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.

If he can't produce urine, that is the drivers problem, not the officers. If he does not give a urine sample, he has not complied with the implied consent requirement.

There is no caselaw on inability to give urine that I am aware of, but there is quite a bit of litigation on inability to give breath. IAC 260 explicitly only allows a refusal to be marked if the insufficiency of the sample is due to willful conduct by the blower.

(4) If "subject sample incomplete" is printed on the instrument report, perform an additional breath test beginning with STEP
TWO and proceeding through STEP SIX. If "subject sample incomplete" is printed on the instrument report of this additional
breath test:
(A) obtain an alternate chemical test for ethanol; or
(B) perform a breath test on another breath test instrument.
If the "subject sample incomplete" was caused by the lack of cooperation of the subject, the breath test operator should record
that the test was refused.

Why exactly do you think the law would give a different result on inability to give urine? Nevermind that a license suspension based upon inability to pee is likely unconstitutional. You know that whole "due process" thing.

Consent and ability are NOT the same thing.

 

[Denny347]

So, if you want blood you need a warrant. Wouldn't one be required to catheterise a person against their will? Especially after they'd already had a seemingly voluntary blood draw.

Yes.

 

[Destro]

There is no caselaw on inability to give urine that I am aware of, but there is quite a bit of litigation on inability to give breath. IAC 260 explicitly only allows a refusal to be marked if the insufficiency of the sample is due to willful conduct by the blower.


Why exactly do you think the law would give a different result on inability to give urine? Nevermind that a license suspension based upon inability to pee is likely unconstitutional. You know that whole "due process" thing.

Consent and ability are NOT the same thing.

That's for the courts to decide, not for the officer. Not providing a urine sample is not complying with the law. If the driver believes that he has an affirmative defense for not complying with the implied consent law, then he will have his day in court.

 

[Fargo]

That's for the courts to decide, not for the officer. Not providing a urine sample is not complying with the law. If the driver believes that he has an affirmative defense for not complying with the implied consent law, then he will have his day in court.

Why do you believe that consent and ability are the same thing?

Are you aware there is Indiana caselaw explicitly referencing criminal and civil penalties for an officer for willfully misrepresenting an owi refusal based on inability?

 

[Destro]

Why do you believe that consent and ability are the same thing?

no

 

[Fargo]

Then why do you keep equating inability to perform with refusal to consent/submit?

 

[Denny347]

Why do you believe that consent and ability are the same thing?

Are you aware there is Indiana caselaw explicitly referencing criminal and civil penalties for an officer for willfully misrepresenting an owi refusal based on inability?

I wish there was an easy way for me to bring myself up to speed on that stuff. I was not aware of that but then again, doing that never crossed my mind so it was never an issue,

 

[Kirk Freeman]

Are you aware there is Indiana caselaw explicitly referencing criminal and civil penalties for an officer for willfully misrepresenting an owi refusal based on inability?

Why yes, I just happen to be aware of that!

Emphasis on the willfully though.