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1/11/2008
HOT TOPIC: Do police have rights to all motorists’ blood?
Drivers sue states after roadside blood sampling results in infection, permanent injury

For years, truckers have fought random requests for roadside urine tests. As it turns out, the government doesn’t want your urine.

Big brother wants your blood.

Several state and local governments have enacted laws allowing police to forcibly draw blood from drivers on the side of the road. And in recent months, the issue has hit courtrooms, with motorist Russell Johnson challenging whether several policemen in Washington and Hamilton townships in New Jersey had the right to use excessive force to take his blood at a hospital.

Johnson claims that officers permanently damaged his wrist in the process.

In another case, James Green suffered an arm infection after an Arizona policeman repeatedly inserted a needle in his arm to draw blood.

According to the Wall Street Journal, several states approved laws to allow police to use “reasonable force” to obtain blood samples in DUI cases. Alaska, Arizona, Iowa, Florida, Indiana, Michigan, Nevada and Texas have approved such laws.

The Journal reported in 2004 that nearly all 50 states operate with the “implied consent” concept – the fundamental belief that by obtaining a driver’s license and operating on roadways, all drivers have given the implied OK to search their urine, breath or blood.

OOIDA has been monitoring the erosion of driver’s rights for years.

In 1992, driver Ruth Jones, an OOIDA Member who later became Senior Editor at Land Line, was pulled over and given a “Class 4 inspection” at North Platte, NE. A highway patrolman told her the inspection included submitting to a urine test for drugs and alcohol on the spot.

“My husband had been telling me for months this was coming and I knew it had been talked about,” Ruth recalled later, according to a 2001 Land Line story. “But I was sure that sooner or later, someone would put the brakes on, since it was so obviously unconstitutional.”

After refusing to submit to the roadside urine test, Jones, who died of cancer in 2001, made a beeline to OOIDA headquarters in Grain Valley, MO, became a member and sought legal advice.

“I got mad, and very, very determined,” Jones said, according to the story.

Jones became a plaintiff in OOIDA’s case against the U.S. government’s pilot program for random drug testing.

The random drug testing was a precursor to today’s mandatory drug tests required by DOT, but was it a precursor to allowing police officers to remove blood from drivers?

Todd Spencer, executive vice president of OOIDA, said courts shouldn’t allow any law enforcement officer to forcibly remove blood from a driver on the side of the road.

“That’s not a direction that we want to go – it’s outrageous because of the level of intrusiveness that we’ve reached. ‘Permissible’ intrusiveness,” Spencer told Land Line this week. “It’s such a callous disregard of another human being.”

OOIDA’s lawsuit during the early 1990s, however, was different, Spencer said, because truckers were the only occupation singled out in the government’s random roadside testing program, and probable cause was not needed.

“It was specific to truckers for no other reason than their occupation, without the hint of them doing anything wrong whatsoever,” Spencer said. “They were picked out solely because of their occupation.”

Motorists may have a tougher time fighting the blood-drawn argument than truckers had during the 1990s, particularly due to police establishing suspicion of driving under the influence before taking blood, Spencer said.

“When it comes to civil rights and dignities, it is disturbing as heck, how far you can go when your purported mission is safety or some other noble purpose,” Spencer said.

Implied consent is based on the legal doctrine that drivers have the option to refuse to submit to sobriety tests – even if it means they’ll be convicted of violation of implied consent laws and lose their driver’s license.

Several DUI and DWI blogs on the Web blame organizations such as Mothers Against Drunk Driving and others who wanted to stop drivers from taking the option of refusing implied consent.

The concept of implied consent may be the very legal argument many defense lawyers will use in states that allow police to remove blood from drivers suspected of driving under the influence.

Joe Rajkovacz, regulatory affairs specialist for OOIDA and himself a former police officer, said the implied consent argument doesn’t hold water.

“Cops have no business drawing blood under the guise of implied consent,” Rajkovacz told Land Line.

– By Charlie Morasch, staff writer
charlie_morasch@landlinemag.com

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