***ANOTHER LONG LEGAL POST***

According to this article in the Press Citizen:



"James Arthur wants the test results kept out of his July 26 trial, in which he faces vehicular homicide and serious injury by motor vehicle charges. Arthur filed the motion to suppress earlier this month. According to police: On Sept. 28, Arthur, 18, drove his black 1997 Ford Thunderbird down Taft Speedway at speeds between 61 mph and 74 mph. He apparently missed a curve and smashed into a massive ash tree. The speed limit on road is 25 mph. Brian Barry, who sat in the right rear seat, died at the scene. He roomed with Arthur at Mayflower Residence Hall, and the pair were classmates and 2003 graduates of West High. Two others, Betsy Sweeting and Mackenzie Sedlacek, were injured in the crash. . . . Toxicology reports showed Arthur had a .163 blood alcohol content at the time of the crash, more than double the legal limit of .08. "Dr. Lorenzo, through her deposition testimony, has now confirmed that the certification form was incorrect at the time she signed it," Arthur's lawyer David Brown wrote in the motion to suppress. "Dr. Lorenzo testified in her deposition that rather than being unconscious as certified to on said form, (Arthur) was conscious at the time that she signed the form." Brown argued that police failed to follow proper procedure to permit withdrawal of Arthur's blood and did so without his consent."



In looking at Iowa cases, the law allows the doctor to sign a form for withdrawal of blood for a blood test if the doctor feels the patient is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal. That means there could be a basis for the form even if he was conscious at the time.



I pulled these three up right away:



Hafits v. Iowa Dept. of Transp., Motor Vehicle Div. 605 N.W.2d 1 (Iowa 2000)



THE FACTS:

Hafits was involved in a one-vehicle accident when his truck went off a retaining wall and caught fire. Emergency personnel who responded to the scene described Hafits as being "conscious, alert, [and] orientated x3." This means they felt he was fully alert. A doctor at the hospital, however, had a different view. The doctor concluded Hafits was intoxicated and certified he was incapable of making a decision consenting to or refusing a blood test. The Iowa Department of Transportation (DOT) revoked the driver's license of Gerald L. Hafits under Iowa Code section 321J.12 (1997) for driving with blood alcohol above .10. On judicial review, the district court reversed, ruling that the revocation was not supported by substantial evidence.



THE LAW:

Iowa Code Section 321J.6:

"1. A person who operates a motor vehicle in this state under circumstances which give reasonable grounds to believe that the person has been operating a motor vehicle in violation of section 321J.2 or 321J.2A is deemed to have given consent to the withdrawal of specimens of the person's blood, breath, or urine and to a chemical test or tests of the specimens for the purpose of determining the alcohol concentration or presence of a controlled substance or other drugs, subject to this section. The withdrawal of the body substances and the test or tests shall be administered at the written request of a peace officer having reasonable grounds to believe that the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A, and if any of the following conditions exist:

. . .

b. The person has been involved in a motor vehicle accident or collision resulting in personal injury or death."



Iowa Code Section 321J.7:

“A person who is dead, unconscious, or otherwise in a condition rendering the person incapable of consent or refusal is deemed not to have withdrawn the consent provided by section 321J.6, and the test may be given if a licensed physician certifies in advance of the test that the person is dead, unconscious, or otherwise in a condition rendering that person incapable of consent or refusal. If the certification is oral, a written certification shall be completed by the physician within a reasonable time of the test.”



THE RULING:

"[W]e conclude that the DOT's finding of incapability is supported by substantial evidence. We start, of course, with the "strong evidence" presented by the certificate itself. The doctor concluded Hafits was incapable of consenting or refusing and conveyed that opinion to the officer, who then suggested the doctor consider signing a certificate under section 321J.7. Even Hafits' own evidence that he was alert is cast in some doubt by evidence that he did not remember the accident, even though he was burned as a result of it. Because we believe there was substantial evidence to support the finding of incapability, we reverse the district court's ruling to the contrary and remand for reinstatement of the revocation."





State v. Axline, 450 N.W.2d 857 (Iowa 1990) - NOTE: This is too old for the archives, pulled it from Westlaw.



THE FACTS:

Axline was the driver of a car which left the road and turned over, killing a passenger. Officers and a doctor on the scene detected an odor of alcohol about Axline. The accident occurred at approximately 9:30 to 9:45 p.m. Dr. Dennis Mallory, the Tama County medical examiner, was called to the scene at approximately 10:00 p.m. He examined the body of Axline's passenger and pronounced him dead. He also examined the defendant at the scene, finding him to be excited and somewhat uncooperative. Dr. Mallory determined that Axline had suffered multiple blunt trauma to his chest and abdomen and feared that he was experiencing severe internal hemorrhaging and shock. The doctor began an intravenous drip and administered oxygen. Axline was placed in an ambulance to be taken to the hospital. Dr. Mallory called ahead and requested that a trauma surgeon meet the ambulance at the hospital. When Axline arrived at the hospital shortly after 11:00 p.m., a trauma doctor, Dr. Kolinsky, began treating him. X rays were taken to determine the extent of any spinal injury and a peritoneal tap was used to assess the extent of any internal bleeding. While these proceedings were in progress, Dr. Mallory asked a sheriff's deputy, Myron Obereu, whether Obereu was there to request Axline's consent for a blood test. Obereu said that he was. Dr. Mallory said that Axline was "in no shape to understand or give consent." Pursuant to Iowa Code section 321J.7, Dr. Mallory certified that Axline was incapable of giving or refusing consent to the withdrawal of his blood. The blood sample was then taken.



THE LAW:

Same as above



THE RULING:

Without elaborating on the evidence, we simply observe that the blood test rulings were sufficiently supported by the record. The court found that, even though Axline was conscious at the time, he was nevertheless in a condition rendering him incapable of giving or refusing consent. This is not necessarily inconsistent with Axline's evidence that he was conscious, awake, and responsive to questions. While the evidence relied on by Axline would justify a different conclusion by the trial court, it found otherwise. Under our standard of review, we conclude that the trial court's order denying suppression was supported by substantial evidence and therefore affirm on that issue.





State v. Weidner, 418 N.W.2d 47 (Iowa 1988) - NOTE: This is too old for the archives, pulled it from Westlaw.



THE FACTS:

On June 27, 1986, defendant was involved in an automobile accident in which two people were killed. Eyewitnesses testified to observing him driving erratically at a high rate of speed on Second Avenue in the city of Des Moines, running through a red light, and colliding with the vehicle in which the victims were riding. Because defendant himself sustained serious injuries in the accident, he was taken to a hospital. There the Polk County Medical Examiner, a licensed physician, certified that he was semi-conscious and incapable of giving consent or refusal to an extraction of blood. Based upon that certification, the Des Moines police officer made a written request for a specimen of defendant's blood. That request resulted in obtaining a specimen which was chemically analyzed. The results, showing a blood alcohol level of .166, were used in the resulting criminal prosecution. . . . An emergency room nurse testified that, in her opinion, defendant was beginning to come out of his unconsciousness at or about the time of his admission to the hospital. She indicated that she had charted him as "talking to us, drowsy but remained oriented." The district court determined that the conditions for a withdrawal of blood pursuant to section 321B.11 had been established by the State and admitted the test results in evidence at defendant's trial.



THE LAW:

The portions of Iowa Code Section 321B11 dealt with here are essentially the same as above.



THE RULING:

The Court found that “although the medical examiner's conclusions concerning defendant's capability of consenting to the test were challenged, there was substantial evidence to support the district court's finding that the certificate correctly reflected his incapability of so doing. Findings of fact by the court on preliminary evidentiary issues must be sustained if supported by substantial evidence. State v. Florie, 411 N.W.2d 689, 695 (Iowa 1987). We have considered all arguments presented and find no basis for overturning the judgments of the district court.”



I can see two avenues of attack here: 1) That he was conscious, coherent and capable of consent; or 2) That the state's filling out the form for the doctor in a false manner somehow rises to the level of an illegal search that we must punish by suppression of the evidence obtained from it, in order to preserve the liberties outlined in the 4th or 6th amendments.



There's not enough information in the article to assess the first one. It will all depend on what the doc says. The second point is tied in with the first to some degree. If the defendant had been unconsious, but was in the process of waking up at the time unbeknownst to the officer, would the Court label this an illegal search simply because the officer filled the form out for the doctor's convenience? I suspect it would have to rise to the level of a deliberate falsehood or a reckless disregard for the truth - which would mean that the defendant would have to actually be conscious, coherent, and capable, or the officer had some reason to believe he was although he was not.