Did Arrested Utah Nurse Have It Coming?

The near-universal outrage surrounding the arrest of Alex Wubbels, the Salt Lake City nurse who was arrested July 26 for refusing to let police officers draw blood from an unconscious car crash victim, empowered Wubbels and her attorney to threaten legal action against the police on CNN’s “New Day” on Monday. At the very least, Wubbels says, she’d like to “re-educate” the police department on proper procedure.

Prospective students are advised to steer clear of Wubbels’ courses. 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.

In a widely-seen video documenting her arrest, Wubbels calmly tells a police officer, Jeff Payne, that hospital policy permits the police to draw blood from patients in only three instances: when the patient consents, when the patient is under arrest, or when the police officer has a warrant.

After a hospital administrator tells Payne he is making a “mistake” by insisting he has the right to obtain the blood, Payne arrests the nurse, who howls her way outside of the building and proceeds to put the “salt” in Salt Lake City.

Never mind the fact that Section 1.3 of the Utah Commercial Driver’s License Handbook states that “If you operate a CMV [commercial vehicle], you shall be deemed to have given your consent to alcohol testing,” creating a potential implied consent justification for the blood draw because the victim was driving a commercial truck. Never mind that the hospital’s policy does not have the force of law, even if the local police department agreed to its terms. 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.

Regardless of whether such an exigency existed in this case, it is troubling that Wubbels, the police, and the hospital policy never mention it, even as a possibility. Wubbels discussed the possibility of consent, a warrant, or an arrest justifying a blood draw — but she never covers exigency.

A quick hypothetical. Let’s say you’re watching an unlikely UCLA comeback in the peace and quiet of your own home on the day before Labor Day, when suddenly your neighbor bursts through your front door with a pile of drugs in his hands. You hear police sirens in the background, and your neighbor says, “They’re coming for me!”

As your neighbor busies himself by tossing his cocaine into your toilet, the doorbell rings, and the police request to come inside. They’ve seen your neighbor running into your house with what they suspect are drugs.

“A-ha,” you say. “I have a policy. No police in my house without my consent, or a warrant, or unless I’m under arrest.”

The police would be justified in pushing you aside – even breaking your door down if necessary – to get to your bathroom. As long as a reasonable person would conclude that evidence is in imminent risk of destruction, the police can enter your home for the limited purpose of preventing that destruction.

If you actively impeded their access to the bathroom, you would likely find yourself at least temporarily detained. (Wubbels was only detained for approximately twenty minutes).

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.”

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.

“When officers in drunk-driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so,” the Court wrote. “Circumstances may make obtaining a warrant impractical such that the alcohol’s dissipation will support an exigency, but that is a reason to decide each case on its facts….”

There are some more complicated questions at play here. The police are on far shakier ground if they demanded the nurse to draw blood for them, as opposed to the police drawing the blood themselves. But the video suggests that the police wanted to draw blood here.

“If she interferes in any way with me getting the blood drawn, she needs to be arrested,” an officer says early on in the video. And The Washington Post has reported that Payne is a trained police phlebotomist, meaning that he is sent to hospitals to collect blood from patients and check for illicit substances.

But the coverage of this incident has focused so much on outrage that outlets cannot agree on even this basic factual issue. CNN has reported that the nurse “refused to let police officers draw blood.” The New York Times reported that the nurse was arrested after “refusing to draw patient’s blood.” News outlets cannot even agree on who was going to draw the blood.

That the patient’s vehicle was struck by another car also raises questions as to whether it was legally reasonable for the police to obtain his blood sample if he was, in fact, a victim not suspected of any crime. Media reports have suggested that Payne apparently wanted to confirm that the patient did not contribute to the crash, or that he felt he had implied consent for the blood draw.

Whether implied consent existed here because of Utah’s CMV policy, and whether Payne’s concerns as to the patient’s potential criminal wrongdoing were reasonable enough to justify the exigency exception, requires a fact-specific inquiry by a court under Supreme Court precedent, and all the facts supporting Payne’s suspicion are not yet clear. Regardless, it is certainly not, as the nurse suggested, de facto impermissible for police to seek a blood sample without an arrest, a warrant, or consent.

Officer Payne is now on paid administrative leave. The chief of the Salt Lake City police department has said he is “alarmed” and “sorry.” There is talk of lawsuits and criminal investigation. The mayor of Salt Lake City has called the arrest “completely unacceptable” and apologized.

These moves are necessitated not by the law, but public relations. Wubbels says in the video that “you can’t put me under arrest.”

Unfortunately, and only because she is a sympathetic nurse up against a faceless Officer Payne in the YouTube era, she may have been right.

Gregg Re can be reached at [email protected]