Police confiscate Indiana man's bodily fluids using forced catheterization

[Fargo]

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

Emphasis on the willfully though.

Yup, like an officer who goes around publicly stating that he will give you a refusal regardless of ability. Does wonders for the public's faith in leos....

 

[Destro]

Yup, like an officer who goes around publicly stating that he will give you a refusal regardless of ability. Does wonders for the public's faith in leos....

due process

 

[Kirk Freeman]

Meh, Fargo, it's case by case. I'll let you know, I've got one tomorrow morning.

 

[Timjoebillybob]

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.

I stand corrected. I missed that last line.

 

[Wabatuckian]

Facts:

1. Officers allegedly falsified a breathalyzer test.

2. Suspect willfully submitted to a blood draw.

3. Blood draw results were not immediately available/did not meet the expectations of the officers, so officers took urine against the guy's will.

That last is the key part. If I may be a bit crude, there is an analogy for this. If a woman consents to vaginal intercourse, it's all good until the guy tries to put it someplace the woman does not appreciate. If the man continues forcefully, it's then rape and/or sexual assault.

Consent to one does not imply consent to another in either situation.

If they wanted a urine sample, the police had only to put a Texas catheter on the suspect, then wait. The Texas catheter is non-invasive.

If the police said "urine sample" and the suspect said "no", then the police are at fault. Implied consent is only given if the suspect is unconscious or otherwise unable to give or withhold consent.

Josh

 

[Destro]

Facts:

1. Officers allegedly falsified a breathalyzer test.

2. Suspect willfully submitted to a blood draw.

3. Blood draw results were not immediately available/did not meet the expectations of the officers, so officers took urine against the guy's will.

That last is the key part. If I may be a bit crude, there is an analogy for this. If a woman consents to vaginal intercourse, it's all good until the guy tries to put it someplace the woman does not appreciate. If the man continues forcefully, it's then rape and/or sexual assault.

Consent to one does not imply consent to another in either situation.

If they wanted a urine sample, the police had only to put a Texas catheter on the suspect, then wait. The Texas catheter is non-invasive.

If the police said "urine sample" and the suspect said "no", then the police are at fault. Implied consent is only given if the suspect is unconscious or otherwise unable to give or withhold consent.

Josh

 

[Wabatuckian]

Which part?

 

[Dean C.]

I hope the cops loose their asses in this one that is unacceptable behavior for officers of the law. What ever happened to the golden rule treat others like you would like to be treated. This story followed by the New Mexico police video is enough to get most anyone to doubt the police forces integrity.

 

[thebishopp]

...

 

[Destro]

Which part?

Most of it,

#1, I have not seen any claims the PBT results were falsified.

#2, it appears yes.

#3, He is claiming that, yes.

I believe you are confused as to what "impliedconsent" is as it relates to driving privileges. In Indiana, holding an operator’slicense it itself the "implied consent" to submit to chemical testrequirements under Indiana Code. By virtue of having an Indiana driver’slicense, you have given implied consent. The officer's may offer 1 or all 3 ofthe approved chemical tests provided in Code. To comply with the provisions asa driver, you must consent to any or all tests.

As far as waiting, there is a 3 hour window.

What I can’t believe is there was not a certified Datamasteroperator available in Lake County at the time.

 

[IndyDave1776]

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.

You apparently don't get out much. Back in the dark ages when I worked for the Department of Correction, there was an inmate that someone in the administration wanted to smack down on account of being an effective jailhouse lawyer. Drug testing urine, again, held that failure to produce was treated as testing positive. They tested several times a day until they finally caught the inmate unable to **** and then applied the punishment for testing positive, which, among other things, yielded a long-term disqualification from representing other inmates in hearings.

Similarly, it would appear that this is a product of not getting the results one wants and continuing to fish. It also reinforces my suspicion that the official position on marijuana has nothing to do with smoking weed but rather denying us access to five-stranded hemp rope.

 

[Destro]

You apparently don't get out much.

?

 

[HoughMade]

I hope the cops loose their asses in this one that is unacceptable behavior for officers of the law. What ever happened to the golden rule treat others like you would like to be treated. This story followed by the New Mexico police video is enough to get most anyone to doubt the police forces integrity.

Nope. no pre-judging in this thread at all.

 

[j706]

Seems to me it comes down to probable cause. If they only had PC for alcohol, they couldn't look for drugs. Of course, sometimes the PC isn't intoxicant-specific, but it does seem like anything post-blood test was unnecessary.

Probably a good case to settle as early as possible, unless there are some seriously different facts that are going to come out.

PC for intoxication would be for ANY intoxicant. On a blood draw the lab searches for anything and everything we request in a substance check box.

 

[j706]

1. How do you get blood results back immediately? If this is accurate, why does it take months to get some results back?

2. Was there a warrant? Police "ordering" urine tests?

Anyone have the complaint? Got to be on PACER.

Hospitals can give immediate blood work results if we request it and do not mind waiting around for a while. They are not certified results and certified's take time of course.

 

[Benny]

If he consented to a blood draw, what could possibly be gained from penetrating this man's genitals for a urine test?

 

[j706]

If he consented to a blood draw, what could possibly be gained from penetrating this man's genitals for a urine test?

If you are asking me I have no idea. With my limited medical knowledge I would think a blood draw would be more effective than a urine screen. FWIW in the state supplied blood draw kits there is a urine bottle. I have never seen one used though. I have never heard of a catheter being used in any OWI type scenario. This is precisely the kind of thing that gets us messed up case law.

 

[Wabatuckian]

Most of it,

#1, I have not seen any claims the PBT results were falsified.

#2, it appears yes.

#3, He is claiming that, yes.

I believe you are confused as to what "impliedconsent" is as it relates to driving privileges. In Indiana, holding an operator’slicense it itself the "implied consent" to submit to chemical testrequirements under Indiana Code. By virtue of having an Indiana driver’slicense, you have given implied consent. The officer's may offer 1 or all 3 ofthe approved chemical tests provided in Code. To comply with the provisions asa driver, you must consent to any or all tests.

As far as waiting, there is a 3 hour window.

What I can’t believe is there was not a certified Datamasteroperator available in Lake County at the time.

Destro,

I am using "implied consent" in the context that he did not say "Yes, stick a hose in me" and that implied consent for such an action is only valid if he were unconscious or otherwise was unable to give consent.

In other words, if he had been in a traffic accident and was in a coma, a urinalysis might be admissible as evidence if it were done in the course of treatment.

Taking a look at the entire part of Indiana code pertaining to this, beyond what you posted (I think; I'm not losing this to scroll back through):

IC 9-30-6
Chapter 6. Implied Consent; Administrative and Evidentiary Matters

IC 9-30-6-1
Chemical test for intoxication; implied consent
Sec. 1. A person who operates a vehicle impliedly consents to submit to the chemical test provisions of this chapter as a condition of operating a vehicle in Indiana.
As added by P.L.2-1991, SEC.18.
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.
As added by P.L.2-1991, SEC.18. Amended by P.L.53-1994, SEC.7.

IC 9-30-6-3
Arrest; probable cause; evidence of intoxication; refusal to submit to test; admissibility
Sec. 3. (a) If a law enforcement officer has probable cause to believe that a person committed an offense under IC 9-30-5, the person may be arrested. However, if the chemical test results in prima facie evidence that the person is intoxicated, the person shall be arrested for an offense under this chapter, IC 9-30-5, or IC 9-30-9.
(b) At any proceeding under this chapter, IC 9-30-5, or IC 9-30-9, a person's refusal to submit to a chemical test is admissible into evidence.
As added by P.L.2-1991, SEC.18.
IC 9-30-6-4
Bureau rules
Sec. 4. The bureau shall adopt rules under IC 4-22-2 necessary to carry out this chapter, IC 9-30-5, IC 9-30-9, or IC 9-30-15.
As added by P.L.2-1991, SEC.18. Amended by P.L.53-1994, SEC.8.

---

IC 9-30-6-6
Chemical tests on bodily substances; disclosure of results; no privilege or liability; results admissible; limitation; test by law enforcement officer
Sec. 6. (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.
As added by P.L.2-1991, SEC.18. Amended by P.L.2-1993, SEC.69;

P.L.132-1993, SEC.1; P.L.1-1994, SEC.40; P.L.205-2003, SEC.3; P.L.94-2006, SEC.7; P.L.36-2010, SEC.1; P.L.77-2012, SEC.3; P.L.237-2013, SEC.1.

IC 9-30-6-7
Refusal to submit to chemical tests or test results in prima facie evidence of intoxication; duties of arresting officer
Sec. 7. (a) If a person refuses to submit to a chemical test, the arresting officer shall inform the person that refusal will result in the suspension of the person's driving privileges.
(b) If a person refuses to submit to a chemical test after having been advised that the refusal will result in the suspension of driving privileges or submits to a chemical test that results in prima facie evidence of intoxication, the arresting officer shall do the following:
(1) Obtain the person's driver's license or permit if the person is in possession of the document and issue a receipt valid until the initial hearing of the matter held under IC 35-33-7-1.
(2) Submit a probable cause affidavit to the prosecuting attorney of the county in which the alleged offense occurred.
As added by P.L.2-1991, SEC.18. Amended by P.L.85-2013, SEC.93.

IC 9-30-6-9
Suspension of driving privileges; duties of bureau; limitations; nature of action; suspension and reinstatement
Sec. 9. (a) This section does not apply if an ignition interlock device order is issued under section 8(d) of this chapter.
(b) If the affidavit under section 8(b) of this chapter states that a person refused to submit to a chemical test, the bureau shall suspend the driving privileges of the person:
(1) for:
(A) one (1) year; or
(B) if the person has at least one (1) previous conviction for operating while intoxicated, two (2) years; or
(2) until the suspension is ordered terminated under IC 9-30-5.
(c) If the affidavit under section 8(b) of this chapter states that a chemical test resulted in prima facie evidence that a person was intoxicated, the bureau shall suspend the driving privileges of the person:
(1) for one hundred eighty (180) days; or
(2) until the bureau is notified by a court that the charges have been disposed of;
whichever occurs first.
(d) Whenever the bureau is required to suspend a person's driving privileges under this section, the bureau shall immediately do the following:
(1) Mail notice to the person's address contained in the records of the bureau stating that the person's driving privileges will be suspended for a specified period, commencing:
(A) seven (7) days after the date of the notice; or
(B) on the date the court enters an order recommending suspension of the person's driving privileges under section 8(c) of this chapter;
whichever occurs first.
(2) Notify the person of the right to a judicial review under section 10 of this chapter.
(e) Notwithstanding IC 4-21.5, an action that the bureau is required to take under this article is not subject to any administrative adjudication under IC 4-21.5.
(f) If a person is granted probationary driving privileges under IC 9-30-5 and the bureau has not received the probable cause affidavit described in section 8(b) of this chapter, the bureau shall suspend the person's driving privileges for a period of thirty (30) days. After the thirty (30) day period has elapsed, the bureau shall, upon receiving a reinstatement fee, if applicable, from the person who was granted probationary driving privileges, issue the person probationary driving privileges if the person otherwise qualifies.
(g) If the bureau receives an order granting probationary driving

privileges to a person who, according to the records of the bureau, has a prior conviction for operating while intoxicated, the bureau shall do the following:
(1) Issue the person probationary driving privileges and notify the prosecuting attorney of the county from which the order was received that the person is not eligible for probationary driving privileges.
(2) Send a certified copy of the person's driving record to the prosecuting attorney.
The prosecuting attorney shall, in accordance with IC 35-38-1-15, petition the court to correct the court's order. If the bureau does not receive a corrected order within sixty (60) days, the bureau shall notify the attorney general, who shall, in accordance with IC 35-38-1-15, petition the court to correct the court's order.
As added by P.L.2-1991, SEC.18. Amended by P.L.76-2004, SEC.12; P.L.153-2005, SEC.4; P.L.94-2006, SEC.8; P.L.125-2012, SEC.345; P.L.85-2013, SEC.96.

I'm especially noting the following:

(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.

A was satisfied. However, from what I'm reading, B was not.

I would submit that the entire case hangs on whether he was in an accident which injured or killed another person. In that instance, according to Indiana law, permission does not need to be sought and ONLY then may the sample be taken by force.

Do you read it differently?

Josh

 

[Benny]

If you are asking me I have no idea. With my limited medical knowledge I would think a blood draw would be more effective than a urine screen. FWIW in the state supplied blood draw kits there is a urine bottle. I have never seen one used though. I have never heard of a catheter being used in any OWI type scenario. This is precisely the kind of thing that gets us messed up case law.

I was asking anyone that can answer. I asked (with different words) on the first page and didn't get a response.

What you said was what I thought as well. Why do a blood test, then back peddle for a urine test?

Are there any benefits to this or were they simply flexing their muscles and showing him who is boss?

 

[j706]

I was asking anyone that can answer. I asked (with different words) on the first page and didn't get a response.

What you said was what I thought as well. Why do a blood test, then back peddle for a urine test?

Are there any benefits to this or were they simply flexing their muscles and showing him who is boss?

I have no idea on that one