Police confiscate Indiana man's bodily fluids using forced catheterization

[Kirk Freeman]

Hospitals can give immediate blood work results if we request it and do not mind waiting around for a while.

This is in complete disagreement with everything I have been told in depositions by multiple agencies.

Please tell me which hospitals can do this. Thank you.

 

[Destro]

I believe your confusing the context of implied consent. It's not being used as a medical term as it relates to Indiana Code for suspicion of OWI.

 

[Destro]

This is in complete disagreement with everything I have been told in depositions by multiple agencies.

Please tell me which hospitals can do this. Thank you.

he did say they were not certified

 

[armedindy]

i dont care about the legality of ANY of this...i turn the channel when catheter commercials come on because they make me queasy...if ANYONE tries to stick ANYTHING up that particular hole, i will kick and scream and fight with all my freaking will....i will deal with consequences later before i let the freaking amewrican SS stick something up my rooster hole...NOT OK NOT OK NOT OK NOT OK NOT OK NOT OK NOT OK!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

[Wabatuckian]

I believe your confusing the context of implied consent. It's not being used as a medical term as it relates to Indiana Code for suspicion of OWI.

Destro,

No Sir, I'm not. I understand that possessing a driver's license is implied consent to a chemical test if one is driving.

That is not the issue. Forget I said anything about implied consent. I'll restate it.

Refined further:

IC 9-30-6-2
Probable cause; offer of test; alternative tests; requirement to submit
...
(b) A law enforcement officer:
     (1) is not required to offer a chemical test to an unconscious person; and
     (2) may offer a person more than one (1) chemical test under this chapter.
...
    (d) [COLOR=#ff0000]A person must submit to each chemical test offered by a law enforcement officer in order to comply with the implied consent provisions of this chapter.[/COLOR]

[B]However:[/B]

IC 9-30-6-3
Arrest; probable cause; evidence of intoxication; refusal to submit to test; admissibility
Sec. 3. (a) If a law enforcement officer has probable cause to believe that a person committed an offense under IC 9-30-5, the person may be arrested. However, if the chemical test results in prima facie evidence that the person is intoxicated, the person shall be arrested for an offense under this chapter, IC 9-30-5, or IC 9-30-9.
(b) [COLOR=#ff0000]At any proceeding under this chapter, IC 9-30-5, or IC 9-30-9, a person's refusal to submit to a chemical test is admissible into evidence.[/COLOR]

IC 9-30-6-6
Chemical tests on bodily substances; disclosure of results; no privilege or liability; results admissible; limitation; test by law enforcement officer
....
[COLOR=#ff0000](g) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician shall obtain a blood, urine, or other bodily substance sample if the following exist:
              (1) A law enforcement officer requests that the sample be obtained.
              (2) The law enforcement officer has certified in writing the following:
                          (A) That the officer has probable cause to believe the person from whom the sample is to be obtained has violated IC 9-30-5.
                          (B) That the person from whom the sample is to be obtained has been involved i[/COLOR][COLOR=#ff0000]n a motor vehicle accident that resulted in the serious bodily injury or death of another.[/COLOR]
                          [COLOR=#ff0000](C) That the accident that caused the serious bodily injury or death of another occurred not more than three (3) hours before the time the sample is requested.[/COLOR]
          [COLOR=#ff0000]    (3) Not more than the use of reasonable force is necessary to obtain the sample.[/COLOR]
(h) If the person:
              (1) from whom the bodily substance sample is to be obtained under this section [COLOR=#ff0000]does not consent[/COLOR]; and
              (2) [COLOR=#ff0000]resists the taking of a sample;[/COLOR]
               [COLOR=#ff0000]the law enforcement officer may use reasonable force to assist an individual, who must be authorized under this section to obtain a sample, in the taking of the sample.[/COLOR]
     [COLOR=#ff0000](i) The person authorized under this section to obtain a bodily substance sample shall take the sample in a medically accepted manner.[/COLOR]

That last part, I believe is the key. I like indents so I used the code tag. The quote tag wouldn't let me use them, so here it is again with acceptable line wrapping:

(g) A physician or a person trained in obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician shall obtain a blood, urine, or other bodily substance sample if the following exist:
(1) A law enforcement officer requests that the sample be obtained.
(2) The law enforcement officer has certified in writing the following:
(A) That the officer has probable cause to believe the person from whom the sample is to be obtained has violated IC 9-30-5.
(B) That the person from whom the sample is to be obtained has been involved in a motor vehicle accident that resulted in the serious bodily injury or death of another.
(C) That the accident that caused the serious bodily injury or death of another occurred not more than three (3) hours before the time the sample is requested.
(3) Not more than the use of reasonable force is necessary to obtain the sample.

...

Here is my problem with what occurred:

Under Section G

• There is little doubt the officers asked such a search take place.

• Again, there is little doubt that the police stated that the suspect violated IC 9-30-5.

• There is nothing to support that the suspect was involved in any vehicle accident, let alone one which resulted in serious bodily injury or death of another.

• What is reasonable force? Reasonable force has always been ambiguous in Indiana. The only differentiation I've ever been able to find is a line between "reasonable force" and deadly force.

• Consent can be withdrawn. A woman going to an abortion clinic may decide not to abort, even if she has already given consent. Marriage might be seen as implied consent to sex, but that was ruled otherwise. It may then be argued that because possession of a driver's license is implied consent that once that license is given up, implied consent to chemical tests is therefore no longer valid; or, conversely, that if the implied consent "contract" were made void by refusal, the license would therefore be revoked (as was mentioned elsewhere in IC 9-30-6). One or the other may be true, but not both.

Think about it: What we're talking about is implied consent to forcible bodily penetration. This is the only instance of which I'm aware that one can give "implied consent" to such a thing while being conscious and free ("free" meaning in this instance not incarcerated due to a conviction.)

You might read this: http://assets.wne.edu/160/24_note_Legislat.pdf as well as peruse this thread: DUI- Implied Consent/Refusal

I hate reading law, and so I'm going to leave it at this: It appears that, from precedents set, the refusal would have been grounds for revocation of the individual's license and nothing more if the suspect had not been in an accident where injury or fatality took place. Only if there had been an injury or fatality could they have forcibly seized any bodily fluids or air.

Any other time it would have been DWI/DUI/etc -- Refused, which is the same as an arrest for driving under the influence and carries harsher penalties.

If the guy really blew drunk, then I don't see what there was to gain from lab work, and it appears that the officers were in violation anyway due to forcing the issue without injury or fatality and not just writing it up as a refusal to consent.

Josh

 

[Destro]

It has been my argument all along that is sounds like he should have been charged with chemical test refusal.

 

[armedindy]

he did say they were not certified

so some non-certified jack-boot can stick a tube up your junk???

 

[steveh_131]

so some non-certified jack-boot can stick a tube up your junk???

I think he meant the results were not certified... not the person doing the junk tube sticking.

 

[armedindy]

I think he meant the results were not certified... not the person doing the junk tube sticking.

thank god.....i guess.....still, to be catheterized is on my short "don't do, unless you want to see me at my most unpleasant" list