DWI--Defendant with usual signs of intoxication has minor accident and only hurts himself (no serious injury). He fights with EMS and the nurses at the hospital including pulling out a knife on hospital staff. He is so out of control they sedate him. The Officer comes over and gets a blood draw under implied consent. Does anyone see a problem with that since the State/Hospital initiated his unconsciousness?

Implied consent? I don't follow how under those facts the flailing defendant implied anything close to consent prior to being restrained.

Had they used a four point restraint, (or whatever it's called when they tie juvenile inmates to their beds) instead of a chemical that caused the same 'helpless' result, would that change your opinion on 'consent'?

What if they used a brick?

I don't mean to be aggressive with you, but absent any other information, this seems incredibly extreme.

I'm guessing that the officer didn't direct or request any sedation, but coming along afterwards and saying, 'Oooh sweet, he's out, snag me some blood!' Seems incredibly opportunistic.

If they sedated him to treat his injuries, likely they drew blood for medical reasons. Had the officer asked for a betadine (or whatever the 'non alcoholic' stuff is called) swab for the blood draw, the officer can preserve the evidence and get the court's help via subpoena or with a warrant to get his own fresh sample.

I mean, under those circumstances, you've got probable cause for a warrant, don't you?

[This message was edited by Philip D Ray on 07-02-04 at .]

The consent occurred back when he got a driver's license. That's when it was implied.

The defendant had no furthern "right" to refuse. He only had the physical ability to refuse, which in most other circumstances is considered obstruction of justice.

So, if the defendant is unconscious, and unable to physically refuse, what is wrong with taking a sample, assuming there was probable cause?

I was considering using search warrants for blood draws in DWI cases, but I think I like the idea of a brick even better.

Ok. I'd buy that if the flailing and snarling happened outside the officer's presence.

But if the officer watched the scene unfold and said nothing while they 'bricked' the defendant, then asked for the sample, I don't see that the implication would be consent. Especially if the defendant was already in custody or was being escorted to the hospital to effect detention.

Tons of Probable Cause-- Accident, strong odor, slurred speech, bloodshot eyes, ran red light, uncooperative, admitted drinking "two beers". Seems because he was very combatitive with the nurses the hospital sedated him. No State action involved (that I can see).

Hospital records will be obtained but I'm wondering if legal draw can come in. The brick idea works wonders!

Philip,

Officer followed ambulance to hospital for purpose of contining DWI investigation which we all must assume is to get a blood sample. Defendant was left at hospital with notice charges could be filed against him in the future for DWI.

The argument that the defendant went berzerk because the officer was there is possibly valid. If that's true, then I can see the logic in his conduct effectuating 'refusal'.

I think it's a really interesting line drawn that would have been simply avoided with either a search warrant (especially considering your loaded PC) or a subpoena for blood assuming they took some during treatment. (which may still be an option?)

The thing is, you've got an argument. Especially with John B.'s point regarding consent. Your position on the blood you've already got is defensible if the officer made no contribution or had no effect on the treatment provided by the hospital or the conduct of the defendant.

I feel pretty certain that this case if prosecuted won't be decided in the trial court if the judge admits the blood. That being the circumstance, I don't believe we should shy away from cases that will be appealed.

I guess it would come down to how you good you think your story is, and whether or not the officer really was staying out of the way and simply waiting.