Wednesday, June 26, 2013

McNeely, More Thoughts

In addition to presumed warrantlessness of blood draws [and other chemical evidence collections], the Supreme Court, in Schmerber, allowed that any blood draw had to be performed according to accepted medical practices, which they there noted was by a physician in a hospital.
The opinion made it clear that any lesser standard would trigger Fourth Amendment concerns; it was only on the facts of that case that the blood draw, and a warrantless draw, was deemed to be constitutional.
In McNeely, all of the justices, majority, concurring, and dissenting, evidenced a belief that such draws were being carried out as they ordered 47 years ago, by medical personnel in a medical facility or hospital.  Are they?  Uh..., NO.
The "accepted medical practices" standard has degenerated here into "medically approved manner."  And that is found to be satisfied if a police contractor phlebotomist comes to the jail, or a police car outside of the jail, and draws the blood.  It is clear that the Supreme Court would be appalled by such cavalier disregard of their express expectations.
I had one case where the cop, who had commanded a blood draw, was met by someone he didn't know and about whom he knew nothing, whose credentials were nowhere in evidence, whose name he did not even know, and the Court found that her "work" was constitutional.  Accepted medical practices?  Accepted by whom? What licensed physician would stake his medical license on the acceptability of that sort of chicanery?
Are DUIs so important to the state that we care not about the Constitution?  Judges and DAs should hang their heads in shame for increasingly defaulting away from liberty and in the direction of power. But they have no shame.

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