Nurse Arrested Then Released In Utah After Refusing To Give Blood Draw To Police

Local Attorney, Officer Talk Legal Rights In SD

Some disturbing video released this week is taking over social media. The video shows a Utah Nurse being placed in handcuffs after she refused to allow a police officer to draw blood from an unconscious patient. The nurse says the officer didn’t have a warrant or meet the criteria needed for taking blood. She was released shortly after and never charged.

So, what are police allowed to do if you’re suspected of committing a crime in South Dakota?

“I could not believe that someone could act so brazen and in obvious violation of the law,” said Wilka & Welter LLP Attorney John Wilka.

After watching body cam video out of Utah, Wilka calls the actions of a Salt Lake City Police Officer shocking.

“I would not be afraid to take that case as a criminal defense lawyer,” said Wilka.

With cases involving misdemeanor charges in South Dakota, he says law enforcement must get a warrant from a judge to take bodily fluids from someone.

“If they give us consent then we can draw blood that way. If they refuse then the officer will actually get a warrant for their blood to be able to draw that,” said Sioux Falls Police Officer Sam Clemens.

It’s called a telephonic warrant that takes only a few minutes to get. However, Wilka says this doesn’t apply to felony charges, including 3rd offense DUI’s.

Wilka said, “Law enforcement is allowed, without a warrant, to literally strap a person down and get blood and in some cases catheterize, which I think is dangerous, but that’s not completely settled yet.”

Even if a person doesn’t submit to a blood, breath or urine test, police say they do several other field tests to help determine if they’re impaired. Wilka says many people have been convicted even after refusing to give one.

“That refusal is admissible. The prosecutor can tell the jury, listen, ‘this person refused the blood test, whether you think that consciousness of guilt is up to you’,” Wilka said.

Wilka says the South Dakota Supreme Court ruled last year that if it’s not possible for the officer to get a warrant in emergency situations, they can still obtain a test. However, the officer would undergo intense scrutiny if that were the case.

South Dakota law has changed in the last few years. In misdemeanor cases, a person used to have the right to refuse a test,
but would be in violation of the ‘implied consent’ law that every licensed driver agrees to. Their license could be taken away for a year regardless of guilt.

 

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