DWI news from Reason's Hit & Run blog
Today, Radley Balko of Reason magazine presented four alcohol-related news items on the Hit & Run blog. Here's one, click here to read the other three.
As more and more states are now allowing police officers to forcibly extract blood of DWI suspects, the New Jersey State Supreme Court recently took the practice a step further. The court ruled that not only may police forcibly draw blood, they may use extreme force in doing so, including force that inflicts permanent physical damage on the suspect.Link
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I'd like to know more about that court decision in NJ, but I'm unhappy with it as described. Maiming is not a legitimate penalty for DWI. And if the police have to use that kind of force on someone whose only impairment is being drunk, surely there'll be enough corroborating evidence -- smell, physical mannerisms, etc. -- to prosecute the case.
It looks like what's at issue here is the right to refuse to give self-incriminating testimony. The only reason I can see for this ruling is to allow police to forcibly take a blood test from someone who doesn't otherwise show clear evidence of being drunk, but has refused a blood test.
Considering how sometimes permanent death is a result of DWI I'm all for whatever means necessary to get these people off the streets. I can't imagine an officer having to result in serious harm to extract blood I can however see an instance where a cut might leave a scar which could be considered permanent damage.
The decision in Johnston v. Boccanfuso is available at http://www.thenewspaper.com/news/20/2035.asp (link to PDF file on the page).
Actually, this was not a NJ Supreme Court case, but rather a NJ Superior Court, Appellate Division decision. So it is not necessarily the law of New Jersey (yet).
The permanent physical damage in question was nerve damage to the wrist as a result of one of the cops placing his entire weight on it, in an effort to hold the plaintiff's arm stationary while a hospital technician drew blood.
The fact findings by the motion judge at the Superior Court were overly cop-friendly IMHO. Essentially, the court found that because the plaintiff did not react out of a fear of needles or religious objection, the level of force used to compel the blood draw was not excessive.
I suppose this provides a primer for future objectors -- make sure to scream about one of these topics when flailing about in the ER. I suppose the fear of needles ruse is the better one, since it can be used by anyone regardless of religious belief, even atheists :-)
You may learn more about the NJ court decision by reading it here: http://www.thenewspaper.com/rlc/docs/2007/nj-johnston.pdf
In summary, what happened is that a drunk driver got hauled into the area hospital for a blood draw, and was flailing his arms around so the tech couldn't jab him. A cop had to physically restrain him, which is when the putative injury occured. Because police officers have qualified immunity, you can only sue them *personally* for actions that violate clearly established law (457US800). This appellate decision upholds an earlier summary judgement that Ofc. Boccanfuso did no such thing.
The ruling has no bearing on the constitutionality of the search itself; that decision would come during the criminal trial, as a question of whether to suppress the blood draw evidence.
Personally I am a little disturbed by this ruling, because of the immunity it seems to confer to cops who injure me in a search for a crime that I may not have committed. The judge in this ruling hints that the facts are different here because the plaintiff really was DWI, but all the same, as much as I believe that drunk drivers are scum and ought to go to jail, I'm concerned about injuries to people who cops think might be drunk drivers and get jabbed on their say-so.
An abominable act does not suddenly acquire acceptability if it is applied against another abominable act.
(Today's comment is brought to you by the letter "A".)
Here in Canada, an individual suspected of drunk driving may refuse a breathalyzer test, but the penalty for doing so is the same as that for taking and failing the test.
This doesn't really protect one against self-incriminating testimony, but up here such tests are considered evidence, not testimony. And at least it sidesteps the violence the NJ solution necessitates.
#5: The law is actually the same in New Jersey (at least, it was when I got my license there eleven years ago). So it's not really clear why they felt they needed a blood test in the first place. It may have changed due to some court challenge on the Constitutional grounds that refusal answer can't be construed as admission of, but I remember no such case.
Er, that is "refusal to answer can't be construed as admission of guilt."
(Has anyone else noticed that you can't post a comment after previewing it? It's making proofreading a little difficult.)
Considering how sometimes permanent death is a result of DWI I'm all for waterboarding to get these people off the streets. I can't imagine an officer having to result in serious harm to extract blood and I can't imagine that police would ever use excessive deadly force without a gosh darn good reason to do so.
Anyone else here feel like Harrison Bergeron?
A little restriction here, a little additional burden there, some court-mandated "fairness" sprinkled over the top, and on and on. One of these days I may reach the point where I feel strong enough to throw it all off and either (a) do something constructive about it or (b) go somewhere else that is more free...
Maybe one of these days I'll even look up where that somewhere else is...
I'm with TNH @#1 and THE UNUSUAL SUSPECT @#5 on this one - maiming is not a suitable punishment for DUI/DWI/(insert appropriate acronym here) and abhorrent acts are not justified by other abhorrent acts.
Here in MN, I don't know the current laws about forcible blood extraction, but I have been advised that (IANAL) saying "no" to a breathalyzer and/or blood test results in an administrative crime and suspension of your license for a year, but no criminal record unless they convict. (source: here.)
So, if you get pulled over in MN, and you are the driver, and you are asked if you have been drinking, the answer is always "no". If you have any doubt at all whether or not you would pass the test, refuse the test politely and otherwise cooperate with the nice occifer. (IANAL, and my prepaid legal won't even touch cases where alcohol is merely mentioned...) Me, I rarely drink (wife's allergic, I don't like drinking alone, meds mean 1 beer without food makes me not feel like driving for at least 2 hours regardless of BAC) so I likely won't run into this, but given the choice between a certain administrative license revocation and a low-probability of DUI conviction (absent any BAC info or egregious behaviour, a $$$ lawyer should be able to prevent a conviction) I'll take the bus for a year rather than have any BAC level on record that can be used against me in court! (IANAL!)
Note, however: "If the person is unconscious, consent is deemed not to have been withdrawn, and the chemical test may be administered." Hmm, in any other interaction between sane adults that I know of, being unconscious means being unable to give consent...
Later,
-cajun
P.S. I, too, have the "no post option after preview" bug - luckily firefox stores the form info when I hit the "back" button...