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Crime and prevention thereof. Loopholes, grey areas and the letter of the law.
Forum rules: No one line posts please.
User avatar
By One Degree
#14841595
B0ycey wrote:Well that depends. Was alcohol involved? :lol:


This is your post that started this whole conversation. Scroll back up and tell me what else I should have interpreted from this?
By B0ycey
#14841596
One Degree wrote:This is your post that started this whole conversation. Scroll back up and tell me what else I should have interpreted from this?


Exactly what it says.
User avatar
By Drlee
#14841657
One Degree. Pay the fuck attention. You do not understand the implied consent law and it is making you look stupid.

Read:

Utah's "implied consent" law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been driving under the influence, then you consent to taking a chemical test of your blood, breath, urine, or saliva for the purpose of determining your blood alcohol content (BAC). The test must be taken as soon as possible from when you were last driving and the officer gets to choose which test you take.


From the actual Utah law: (b)
A test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision.......


So you see you are wrong in oh so many ways. The implied consent law not only didn't apply, the officer was in violation of it. :roll:
User avatar
By One Degree
#14841660
Drlee wrote:One Degree. Pay the fuck attention. You do not understand the implied consent law and it is making you look stupid.

Read:



From the actual Utah law: (b)

So you see you are wrong in oh so many ways. The implied consent law not only didn't apply, the officer was in violation of it. :roll:


Take your condescending attitude and shove it up your pampered ass. Nothing you said contradicts anything I said. Pay attention. All you demonstrated was your failure to understand what I was saying.

Edit: Out of fairness, I reread your post. I am assuming your argument is based upon your first source which says a person must be arrested first. You do not provide a source for this. The law you quote does not say this. If Utah does indeed require an arrest before requiring a sobriety test, then I am wrong. However, I have never heard of a state having such a ridiculous law. If it exists, then please provide proper sources for me. If not, then you are wrong.
User avatar
By Heisenberg
#14841685
I'd be very surprised if the implied consent law said you didn't need an arrest before taking blood from someone, given that the Supreme Court has repeatedly that warrantless blood tests are unconstitutional. If the law did not require an arrest, it would very likely be struck down.

At the very least, Utah's implied consent law requires "probable cause", something the officer repeatedly admitted he did not have. For some reason, you think this is a "legal nuance", when it is in fact a very clear-cut concept. If an officer has probably cause, getting a warrant is not that hard. If they don't, and they admit that don't, then they have no chance. It really isn't a grey area :eh:

Besides, you are yet to explain how taking an illegally obtained blood sample from someone who was not a suspect would "protect" them in any way. The driver who caused the crash veered onto the wrong side of the road while fleeing police, and in any case, he is dead. There is literally no conceivable reason for the officer's behaviour.
User avatar
By Drlee
#14841731
Take your condescending attitude and shove it up your pampered ass.


You bet. The 20 years I spent in the Army was all pampered playtime. Especially training at tiger land. Then there was all that school. You know how they suck up to students. And of course running my own business.... yup. Pampered.

Now. You did not seem to notice that I posted the actual excerpt from Utah Statutes 41-6a-520. Lest you have to go back and read again it said:

test or tests authorized under this Subsection (1) must be administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while in violation of any provision under Subsections (1)(a)(i) through (iii).


So Utah is unusual you think?

How about Arizona:

A person who operates a motor vehicle in this state gives consent, subject to section 4-244, paragraph 34 or section 28-1381, 28-1382 or 28-1383, to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or section 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.


How about the most cracker-stupid red state you can imagine...Mississippi:

...when such officer has reasonable grounds and probable cause to believe that the person was driving or had under his actual physical control a motor vehicle upon the public streets or highways of this state while under the influence of intoxicating liquor or any other substance which had impaired such person's ability to operate a motor vehicle.


Deeper dude. You have to get over being so hard-headed and think through stuff. As we have repeatedly mentioned, we still have a constitution. It forbids unreasonable searches and seizures. I know of no state that DOES NOT require that implied consent laws be incident to arrest.

Now you seem to think that all this rot has something to do with this case. I was wrong. It does apply to this case. Not because the officer should have been allowed to take the blood. He was prohibited from doing that under state and federal law. It applies because it is an element of evidence in any charge against the officer for false arrest. The officer should have known the law and knowing the law he still illegally arrested a citizen.

He will be very fortunate if he is only fired. His boss too.
User avatar
By One Degree
#14841775
So, you enlarge your words to disguise the fact you are wrong and Utah does not require an arrest. :lol:
Did you really believe 'yelling' would change the facts? :lol:
User avatar
By Drlee
#14841941
So, you enlarge your words to disguise the fact you are wrong and Utah does not require an arrest. :lol:


You can't read. You simply can't read. No need for me to worry about you anymore.
User avatar
By One Degree
#14841948
Drlee wrote:You can't read. You simply can't read. No need for me to worry about you anymore.


Have you actually read any legal opinions on the case? I believe I already posted this one, but here it is again.
http://www.sltrib.com/opinion/commentar ... mplicated/

You are reading a specific law and basing your argument on thinking you know what it means. We are not lawyers. I based my view upon this legal opinion. If you read it carefully, I think you will understand why I called it a 'nuanced misunderstanding'. If you just read the first part, you will think it supports your position, but laws are not always as clear cut as they first appear. The law you quoted for instance does not deal with him being unconscious. (How do you place an unconscious person under arrest?) The laws must deal with this, usually through court cases, which changes the meaning of the law even though the words may not change.
These are 'nuances' for lawyers to argue, not you and I. My argument is it was a 'nuanced misunderstanding', and the legal opinion I linked discusses the legality being complicated.
User avatar
By Heisenberg
#14841952
A police can place someone under arrest even if they are unconscious.

A police officer needs to have "probable cause" for an arrest, and for an implied consent law to apply.

Neither of these conditions was met. There is no "nuanced misunderstanding" at play. The officer was wrong. The nurse was right.

You are also yet to explain how taking a blood sample from the victim would protect him, since he was not suspected of a crime and the perpetrator of the crime was dead (meaning there would be no trial).
By B0ycey
#14841955
One Degree wrote:Have you actually read any legal opinions on the case? I believe I already posted this one, but here it is again.
http://www.sltrib.com/opinion/commentar ... mplicated/

You are reading a specific law and basing your argument on thinking you know what it means. We are not lawyers. I based my view upon this legal opinion. If you read it carefully, I think you will understand why I called it a 'nuanced misunderstanding'. If you just read the first part, you will think it supports your position, but laws are not always as clear cut as they first appear. The law you quoted for instance does not deal with him being unconscious. (How do you place an unconscious person under arrest?) The laws must deal with this, usually through court cases, which changes the meaning of the law even though the words may not change.
These are 'nuances' for lawyers to argue, not you and I. My argument is it was a 'nuanced misunderstanding', and the legal opinion I linked discusses the legality being complicated.


Drlee is correct. You aren't worth arguing with. It actually says the words 'driving under the influence'. It just strengthens Drlees argument and knocks yours out of the ball park. If you can't read or understand your own links what hope is there for your your crystallized intelligence. :lol:

Your problem One Degree is you're so invested in this opinon of yours to fight for absurd that nobody takes you seriously anymore. Even when you write something tangible it gets ignored because nobody cares anymore.
User avatar
By One Degree
#14841956
Heisenberg wrote:A police can place someone under arrest even if they are unconscious.

A police officer needs to have "probable cause" for an arrest, and for an implied consent law to apply.

Neither of these conditions was met. There is no "nuanced misunderstanding" at play. The officer was wrong. The nurse was right.

You are also yet to explain how taking a blood sample from the victim would protect him, since he was not suspected of a crime and the perpetrator of the crime was dead (meaning there would be no trial).


We have been over all this. Did you read the legal opinion I linked that I based my opinion on? It is all I have to say on the subject.
User avatar
By Heisenberg
#14841959
Yes, I have read the opinion article in the Salt Lake Tribune. It is quite poorly written, because it creates the impression that there is nuance where there is none. The reason the officer was wrong was because he did not have probable cause to suspect the unconscious patient of driving under the influence, and said as much. The legality of his attempt to get a blood sample begins and ends there. The article fails to make this clear.

(I expect the reply to this will be an appeal to authority - "the author knows more about the law than you do" - so I will simply point out that this is fallacious reasoning. A layperson can disagree with a court decision, so I see no reason why I can't disagree with the author in the Tribune).
User avatar
By Drlee
#14842011
Oh. Here is a quote from the Tribune article:

But while Utah’s law is constitutional, it turns out not to have permitted this specific blood draw. As written, Utah’s law only permits an officer to conduct such a test where he has reasonable grounds to believe that a person from whom blood is to be taken was driving “while in violation of” the laws regarding driving under the influence of alcohol or other substances. In this case, the detective specifically lacked any such grounds, because the draw was being taken to show the opposite – that the driver was not under the influence.


The article actually contains a link to the Utah Statues. I quoted them too. One does not have to be a lawyer to read the law. This is not difficult. This one is quite easy.

1. The officer was wrong about the blood draw. He was in violation of Utah law.

There there is this:

7
7-30-14. Arrest without warrant.
The arrest of a person may be lawfully made also by any peace officer or a private person without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year, but when so arrested the accused must be taken before a judge or magistrate with all practicable speed and complaint must be made against him under oath setting forth the ground for the arrest as in Section 77-30-13, and thereafter his answer shall be heard as if he had been arrested on a warrant.


This does not look good for the officer.

77-7-2. Arrest by peace officers.
A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person:
(1)
(a) for any public offense committed or attempted in the presence of any peace officer; and
(b) as used in this Subsection (1), "presence" includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses;
(2) when the peace officer has reasonable cause to believe a felony or a class A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it;
(3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may:
(a) flee or conceal himself to avoid arrest;
(b) destroy or conceal evidence of the commission of the offense; or
(c) injure another person or damage property belonging to another person;
(4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.5; or
(5) when the peace officer has reasonable cause to believe that the person is an alien:
(a) subject to a civil removal order issued by an immigration judge;
(b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or
(c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U.S.C. Sec. 1101(a)(43).


This does not look good for the police officer.

Effective 5/9/2017
77-7-6. Manner of making arrest.
(1) The person making the arrest shall inform the person being arrested of his intention, cause, and authority to arrest him.


This does not look good for the police officer.

77-7-1. "Arrest" defined -- Restraint allowed.
An arrest is an actual restraint of the person arrested or submission to custody. The person shall not be subjected to any more restraint than is necessary for his arrest and detention.


Not looking good for the police officer.

77-9-2. Procedure after arrest.
An officer who has made an arrest pursuant to Section 77-9-1 shall without unnecessary delay take the person arrested before a magistrate of the county in which the arrest was made. The magistrate shall conduct a hearing to determine the lawfulness of the arrest. If he finds the arrest was lawful, the magistrate may commit the person arrested for a reasonable time or may admit the person to bail pending extradition proceedings.


Left her in the car for 1/2 hour without transporting her. Not looking good for the police officer. Or his superiors.

I could go on and on.

This officer and his superior who ordered the obviously unlawful arrest when there was absolutely NO REASON for them not to attempt to obtain a warrant, are in for a big ration of shit. This has nothing to do with "liberal media" or excited politically correct citizens. It has to do with laws, very carefully crafted by the legislature, designed to protect the people from unlawful prosecution and constrain the power of the police.

Let's face it. This is a case of a pituitary case of an officer pissed at someone not doing what he said. He was wrong. He was rude. He overstepped his authority. He overreacted. In doing so he traumatized a nurse, destroyed the department's reputation and left the city at risk for a devastating law suit. God knows what a jury would award but seven figures almost certainly.

But wait! Wait Wait Wait.

This was not this officer's prisoner! He was just called in by Logan PD to do the blood draw. He did not even have a dog in the fight and he absolutely DID NOT have personal knowledge of any crime alleged. In fact...Here is what the Logan Police Chief, whose department's case this was, said:

He didn’t tell him you must cease and desist, he simply said ‘don’t worry about it, we’ll go another way,'” Jensen told CNN. “I just don’t believe (Payne’s) actions were in the best interest of the patient, the nurses or law enforcement, quite frankly.

“He could have just packed up and gone home,” Jensen added.


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