Nurse Arrested: A Lawyer’s View on Alex Wubbels’ Arrest

Perry Examines Cop’s Arrest of Utah Nurse

In a news story that has now gone viral, University of Utah Hospital nurse Alex Wubbels was arrested, although never charged with a crime, after refusing the demands of Salt Lake City police detective Jeff Payne’s demands to draw blood from an unconscious driver who was involved in a head-on collision. The entire contentious — and later violent — exchange was captured on police officers’ body worn cameras, and the videos were released in late August.

The video captures Wubbels on the phone with a superior and printing out an agreement between the police and the hospital that defined specific circumstances when a nurse can draw blood from an individual in conjunction with a police investigation.  She displayed this document to the detective and argued law enforcement’s request fell outside the parameters of the agreement.  In response, Payne forcibly placed Wubbels under arrest and told her the police were legally permitted to obtain the suspect’s blood, regardless of the what was stated in the agreement.

This incident raises several issues.

Did Police Have a Right to Obtain the Blood?

Setting aside the question of whether Payne’s conduct was appropriate, this incident raises an important and evolving issue with respect to Fourth Amendment protections against the unreasonable seizure of evidence by the government. Did the officers have the right to seize the suspect’s blood?

Much of the uncertainty with respect to this issue can be examined in the context of a 2013 United State Supreme Court case, Missouri v. McNeely.  In that case, a suspected intoxicated driver refused to provide a breath sample, and the officer drove him to a hospital and instructed a medical professional to draw a sample of his blood, which later proved he was intoxicated.  

Prosecutors argued the blood draw was necessary, as a person’s blood alcohol content will naturally dissipate over time. A sample obtained at a later time would not accurately reflect the amount of alcohol in the defendant’s blood stream.  The prosecutors argued this alone constituted exigent circumstances — an emergency situation that could help a suspect escape or destroy evidence — that permitted a search and seizure of evidence without first obtaining a warrant. The United States Supreme Court disagreed, and held that the natural dissipation of alcohol in a person’s blood stream was not exigent circumstances that permit police to obtain evidence without a warrant or consent.

However, the court did not rule that any warrantless seizure of a person’s blood is unconstitutional.  Rather, the court held these issues must be addressed on “case by case based on the totality of the circumstances.”  The Supreme Court focused on whether the circumstances rendered obtaining a search warrant impractical, and noted that technology has made it measurably easier for law enforcement to obtain a warrant by telephone and other means.  

In the Utah case, law enforcement officers were seeking evidence from someone who was not a suspect. To the contrary, the driver in the hospital was a victim in the crash. According to the hospital’s agreement with police, the hospital may only draw blood when a warrant has been issued, the patient consents or the patient is under arrest. Because none of these facts were present, Wubbels refused to draw blood.  

This may be an example of law enforcement having good intentions while behaving inappropriately; these officers may have sought the blood sample to clear the driver from any allegation of wrongdoing. I don’t practice law in Utah, so I don’t know if there was a mechanism to obtain a warrant for a victim or witness. However, if they lacked a legal mechanism for obtaining a blood sample, this certainly would have presented a problem for police. It is being reported Payne waited for approximately an hour prior to placing Wubbels under arrest.  It is at least possible that he could have sought and obtained a search warrant from a judge prior to taking matters into his own hands.  

If this event had occurred in New Jersey, and the blood was being sought from a suspect, I would forcefully argue that any exigency here was created by the detective’s failure to obtain a warrant, and the results of the blood draw must be suppressed as evidence.

Should Wubbels Have Been Placed Under Arrest?

On its face, the video depicting Wubbels’ arrest is disturbing.  She is plainly trying to follow protocol, involving her superiors and reviewing the agreement between the police and the hospital. Payne lost his patience, forcibly handcuffed her and placed her in a patrol vehicle. The detective justified this action by asserting his superior ordered him to place her under arrest for interfering with the investigation.  

I won’t presume to be an expert in Utah law; however, in New Jersey, it is illegal to obstruct the administration of law or hinder the investigation of another person.  It is being reported that Wubbels refused to have hospital staff draw the blood, and also refused law enforcement to draw blood themselves.

Is this obstructing or hindering the investigation of another person? There are arguments to be made on both sides.

From law enforcement’s perspective, I suspect they were attempting to clear the driver from any allegations of illegal conduct and were concerned that the passage of time would impair their ability to adequately investigate the incident.  In New Jersey, it is not a defense to obstruct police action so long as law enforcement is acting in good faith.  As I often tell my clients, you don’t win arguments with cops on the street. You win them in court.

However, it is difficult to justify placing a nurse under arrest for following her employer’s protocols, in particular because she was following the instructions of her superior.  This raises the question of whether nurse Wubbels was “purposefully” obstructing the investigation, which would be a requirement to convict her under New Jersey law.  It appears clear that her intention was not to obstruct the investigation, but rather to follow what the hospital perceived to be the law.  Regardless of whether the nurse’s actions met the criteria for a criminal charge, the circumstances called for the exercise of discretion on law enforcement’s part.  

It is easy to watch the video and be critical of Payne conduct in this case, and criticism is almost certainly deserved.  From a legal standpoint, however, it’s not as simple as it seems.  

Body Worn Cameras

There is no question that body worn cameras (BWC) are the wave of the future in law enforcement.  This is a blessing and a curse for both police and citizens.  One benefit of BWC is that it memorializes police/citizen interactions and eliminates much of the “he said/she said” factual determination that accompanies litigation after an arrest.  This protects citizens from improper police action and protects law enforcement from false allegations of misconduct.  

Police have a difficult, stressful and dangerous job.  Most people would prefer that they not have every moment of their work day recorded.  On balance, the implementation of BWC is a beneficial tool in both law enforcement and policing the police.  

It is worth noting in this particular case that one officer subtly notified the other officers present that his BWC was activated prior to the arrest.  Also, it is doubtful that this incident would have made national news had it not been for the audio/video memorialization of the entire event.  Regardless, the addition of BWC presents a dramatically different landscape for both police and citizens than that before their introduction.  

Was Wubbels Right?

The answer to this question may depend on your particular vantage point.  For police, she may have been obstructing law enforcement from performing a legal function in clearing an innocent person from allegations of wrongdoing.  For others, Payne’s actions may have been wholly improper and unwarranted.  Regardless, the answer is not as simple as it may seem.

Any case where a suspect’s blood is seized raise questions of constitutional concern.  It is not uncommon for the issue to arise in DWI cases throughout the country, and the state of New Jersey.  Likewise, citizens who are arrested are entitled to due process and aggressive representation at every stage of a criminal case.  If you or a loved one has been arrested for DWI or criminal activity, the attorneys at Daniel M. Rosenberg & Associates are on the front lines of this evolving issue and offer free consultations.

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