[Vision2020] Idaho "implied consent" theory and practice

[Kenneth Marcy]

On Monday 10 November 2008 11:41:01 Dan Carscallen wrote:
> Sunil says:
>
> "Like other states, Idaho has 'Implied consent.'  That means if you
> drive on our roads, it's implied that you have already consented to
> providing a breath, alcohol, or urine sample if you are arrested for
> DUI.

Does this mean that a driver can refuse a test if he or she is not under 
arrest? Must the officer arrest the person first? And under what charge may 
the officer arrest, if he or she has no evidence yet from a test result?

> Someone in Southern Idaho got picked up, and taken to the hospital after
> refusing to provide a blood sample.  Officer gets a nurse to get a
> sample, while guy is lying handcuffed on a gurney.  (Our courts have
> said it's okay to get this sample by force, if the driver won't
> willingly provide it.)

Does implied consent apply to nurses? If an officer asks for assistance from a 
nurse, must the nurse comply? Has not the nurse some professional prerogative 
to exercise some independent judgment? Since when do law enforcement officers 
order medical professionals to do this, that, or the other thing?

What, exactly, precisely, does 'get this sample by force' mean? Do officers 
believe they have the authority to extract a test sample from an individual 
by force? Considering the variety of characteristics of human bodies, sober 
or otherwise, might not empowering an officer with this level of authority 
place that officer in professional, legal, and moral positions untenable?

> Officer asks for a urine sample, which the driver refuses to provide.
> Officer then orders the nurse to catheterize the driver for a sample,
> which is done."

How many hospitals, and their insurance companies, have been sued as a result 
of the driver's expectation that his or her person will not be violated 
against his or her will by medical professionals, regardless of what a law 
enforcement officer requests?

> Now, I don't know about the case you speak of in South Idaho, but I do
> know that up here the nurses won't go to that extent.  First off, there
> is a modicum of privacy when you are in a hospital (I'm sure HIPAA has
> something to do with it), and secondly, none of them want to testify in
> court.  As EMS personnel, we also have that same confidentiality (HIPAA
> again) when it comes to patients.

How many EMS personnel want to pay for professional liability insurance and 
additional legal fees to maintain specialized attorneys on retainer to assist 
them in case of unforeseen circumstances related to private work?

And how is an Idaho driver to know whether an EMS person is working for the 
hospital or working privately for his or her own account? And if the answer 
is not what the injured would prefer, what is he or she to do? Re-call 911?

It seems to me there are more than enough conflicts of interest here to fill 
one e-mail message quite full.

> Perhaps the example Sunil speaks of doesn't necessarily deal with the
> nurses at the ER, but more with someone the State Police brings in from
> outside.  I know there have been rumblings about ISP contracting with
> local EMS professionals (as individuals, not with their departments) to
> do blood draws to get blood alcohol levels.  Again, I don't think there
> has been much success up here because people don't want to be called
> into court.

That's probably not the first half of the story, much less the rest of it.


Ken