Episode 1

Nurse Wubbels and Detective Payne; David Clarke; Joe Arpaio; “We only shoot black people;” Sheriff Ed Gonzalez & the Houston response.

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After confrontation with nurse at Utah hospital, detective said on camera he’d “bring them all the transients.” This story also includes the sequence of events, beginning with the accident of 43-year-old William Gray, a reserve officer in the Rigby, Idaho, police department.

Video shows Utah nurse screaming, being handcuffed after refusing to take blood from unconscious victim. In this article, reporters quote Nurse Wubbels as saying blood can’t be taken from an unconscious patient unless the patient is under arrest, unless there is a warrant allowing the draw or unless the patient consents. The article also spells out the contact by Det. Payne of his watch commander.

State v. Rodriguez, Utah Supreme Court Case No. 20040566. Decided: January 30, 2007

Missouri v. McNeely, SCOTUS 2013, in which it was ruled that the dissipation of alcohol in the blood over time is not sufficiently exigent to permit the drawing of blood without consent or a search warrant.

Birchfield v. North Dakota, SCOTUS 2016, in which it was ruled that “implied consent” was not a basis to demand a blood draw; that a blood draw was a search under the Fourth Amendment, and that it was significantly more intrusive than breath. “There must be a limit to the consequences to which motorists may be deemed to have consented by virtue of a decision to drive on public roads,” the Court ruled, “…motorists could be deemed to have consented to only those conditions that are ‘reasonable’ in that they have a ‘nexus’ to the privilege of driving”. The intrusiveness of the blood draw was therefore specifically not covered by implied consent, and a warrant should be obtained for non-consent blood draws.

Utah Traffic Code 41-6a-520, Implied consent to chemical tests for alcohol or drug. “A person operating a motor vehicle in this state is considered to have given the person’s consent to a chemical test or tests of the person’s breath, blood, urine, or oral fluids for the purpose of determining whether the person was operating or in actual physical control of a motor vehicle [is intoxicated]…”

Here’s a chart of breath test refusal rates by state that Nick refers to. The source is the National Highway Transportation Safety Administration.

breath_test_refusal_rates.jpg

Another NHTSA document shows a 13.3% refusal rate in selected North Carolina counties. Suffice it to say that, typically, about 80% of the time or more, people accused of driving under the influence consent to breath or blood. Administrative note: What the hell is going on in Florida?

Peter and Nick had discussed the process of getting a warrant in Utah. After some research, this study set forth procedures; it dates to 2007, but after the January, 2007 decision in State v Rodriguez. It reads in part:

“Depending on the jurisdiction, the officer will […] contact the on-call prosecutor who contacts a judge to request a warrant, or the officer will contact the on-call judge directly. The call is recorded and the paperwork is completed later. Some counties have standard forms that simplify the procedure. Many affidavits and warrants can be faxed. If fax facilities are not available, warrants can be obtained by phone. Once a warrant is obtained, the officer must obtain approval from a supervisor. The supervisor contacts a qualified phlebotomist to draw the sample … According to the officials interviewed for this study, the warrant system appears to operate without serious problems in Utah, and they were supportive of the trooper phlebotomist program, believing that it is less expensive and more time efficient to have troopers serve that function.”

Peter and Nick went back and forth on Arpaio; to be clear, Arpaio’s conviction was for contempt of a court order. That order read in part:

“Judge Snow enjoined Defendant and the MCSO from “detaining persons for further investigation without reasonable suspicion that a crime has been or is being committed.” (Gov’t Ex. 1 at 23-24, 25, 26.) Although the parties cited primarily to paragraph five in the “IT IS THEREFORE ORDERED” section of the order as the injunction during trial, a full reading of the December 23, 2011 Order makes clear that the Sheriff did not have “inherent authority” to investigate civil immigration violations.”

Nick made the point that Arpaio had commented that he, Arpaio, felt his continuing the forbidden activity was a “moral obligation.” This is based on, among other sources, the ruling itself:

“In a March 1, 2012 Univision interview, Defendant answered “yes” when asked if he was still detaining and arresting illegal immigrants. (Gov’t Ex. 37A.) He further stated that he would continue to enforce the laws and “if they don’t like what I’m doing, get the laws changed in Washington.” (Gov’t Ex. 37B.) According to a March 28, 2012 press release following a load vehicle raid, “Arpaio remains adamant about the fact that his office will continue to enforce both state and federal illegal immigration laws as long as the laws are on the books.” … “On April 5, 2012, in an interview with CBS about his Department of Justice investigation Defendant stated, “Why are they going after this Sheriff? Well we know why. Because they don’t like me enforcing illegal immigration law.” (Gov’t Ex. 37E.)”

Point of clarification: In the podcast, Nick is clear that he does not agree with Arpaio’s interpretation, but is simply articulating it.

Harris County Sheriff Ed Gonzales Twitter account.