Friday, May 27, 2011

DUI Appeal - Idaho Denies Suit After Forced Catheterization

In Miller v. Idaho State Patrol, --- P.3d ----, 2011 WL 1881954 (Idaho) the officers performed a forced catheterization of the plaintiff for a drug test of her urine. The facts of the underlying case were reported as follows:

"In May of 2007, a trooper with the Idaho State Police was driving by a gas station in Priest River, Idaho, when he saw Jason Miller, Respondent, staggering around as he entered his car. The officer contacted Idaho State Trooper Christopher Yount, who arrived to see Miller sitting in the driver's seat of his car. Yount observed that Miller's pupils were dilated and requested that he perform some field sobriety tests, which Miller failed.

Yount put Miller under arrest for DUI, after which Yount discovered scissors in Miller's pocket that he used for cleaning a marijuana pipe. Miller also admitted to smoking marijuana “every day.” Yount took Miller to a hospital in Sandpoint, Idaho, for a urine test. At the hospital, Miller refused to provide a urine sample, saying “I will not fight you, but I will not give you a sample voluntarily.” A registered nurse at the hospital then catheterized Miller at Yount's request and extracted a urine sample. Afterward, Yount found a pipe in Miller's shirt pocket containing methamphetamine residue. Yount also administered a drug-recognition evaluation on Miller at the jail that indicated Miller was under the influence of marijuana and a central-nervous-system stimulant. Miller later pled guilty to felony possession of methamphetamine, possession of drug paraphernalia, and misdemeanor DUI.

There is no indication that Miller struggled while the hospital nurse inserted the catheter. The record is silent as to how or where the nurse extracted the sample or who was present in the room. There is nothing in the record to indicate whether the urine sample tested positive for any controlled substances. It is also unclear why Yount chose to have Miller catheterized rather than performing a blood draw."

Miller eventually sued the police for a violation of her civil rights. The court first acknowledged that suspicionless forced catheterizations are undoubtedly illegal:

"Even though courts nationwide have not had many opportunities to address forced catheterizations, there are some areas where cases appear to be coalescing into universal rules. For instance, it is objectively well-established that a suspicionless catheterization, like any suspicionless bodily search, would be unconstitutional. Ellis v. City of San Diego, 176 F.3d 1183, 1192 (9th Cir.1999); Ohio v. Funk, 177 Ohio App.3d 814, 896 N.E.2d 203, 207–08 (Ohio Ct.App.2008); see also Hammer v. Gross, 932 F.2d 842, 844 (9th Cir.1991) (stating that a warrantless blood draw requires probable cause). If the police have probable cause to search for something that is not likely to dissipate from the body, then a warrantless search for bodily fluids would be unconstitutional. See Barlow v. Ground, 943 F.2d 1132, 1138 (9th Cir.1991) (discussing blood draws); Graves v. Beto, 424 F.2d 524, 525 (5th Cir.1970) (similar). On the other hand, a forced catheterization performed on arrestees solely for medical screening or treatment, and not for investigatory reasons, is constitutional. Sullivan v. Bornemann, 384 F.3d 372, 377 (2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into county jail); Meyer v. Woodward, 617 F.Supp.2d 554, 565 (E.D.Mich.2008); Tinius v. Carroll Cnty. Sheriff Dep't, 321 F.Supp.2d 1064, 1075–76 (N.D.Iowa 2004) (upholding a catheterization performed by hospital personnel on a person detained under the police community-caretaking function); see also United States v. Attson, 900 F.2d 1427, 1433 (9th Cir.1990) (stating that a blood draw performed by medical personnel for purely medical reasons was permissible).

Idaho also acknowledged that blood draws and catheterizations are qualitatively different:

"[B]lood draws and catheterizations also have significant differences[:]

"First, catheters impinge on a person's dignity much more severely than a blood draw. “[T]he forceful use of a catheter is a ‘gross personal indignity’ far exceeding that involved in a simple blood test.” Ellis, 176 F.3d at 1192 (quoting Yanez v. Romero, 619 F.2d 851, 855 (10th Cir.1980)). A person being catheterized must pull his or her pants down to expose the genitalia, potentially in front of members of the opposite sex, and allow a stranger to handle very private parts of his or her body, not for consensual medical treatment, but at the behest of the State. See Hooper v. Pearson, No. 2:08–CV–871, 2010 WL 2990809, at *5 (D.Utah 2010) (describing how male officers restrained a female suspect while two women pulled her pants down and catheterized her). Blood draws, by contrast, occur not just in private doctors' offices but also at public blood drives. They typically do not require the person being tested to remove sensitive articles of clothing or otherwise be subjected to private or embarrassing activity.

Second, catheters involve a significantly greater amount of physical trauma. Unlike a needle, which punctures the skin to reach a blood vessel just below the surface, a catheter is a tube that must pass all the way through the urethra and enter the bladder. Even though catheterization is fairly commonplace, it can certainly hurt more than inserting a small needle into the arm. See LeVine v. Roebuck, 550 F.3d 684, 689 (8th Cir.2008) (noting that catheterization is a painful procedure). A catheter may also carry a greater risk of infecting the recipient. See Go Med. Indus. Pty., Ltd. v. Inmed Corp., 471 F.3d 1264, 1267 (Fed.Cir.2006) (“Urinary catheters typically increase the risk of urinary tract infections because inserting a catheter can push bacteria into the normally sterile bladder.”). It would be reasonable for many people to experience anxiety while enduring such an experience.
According to federal caselaw, such a lawsuit cannot stand unless the law was clear and settled that such a process was in fact illegal. The Supreme Court of Idaho, seizing on that principle, dismissed the plaintiff's claim against the police, noting that the law on the subject was unsettled. In so writing, the court mentioned several out of state cases previously deciding similar issues:

"The New Jersey Superior Court refused to grant § 1983 immunity to two police officers who catheterized a DUI suspect after taking a blood draw, holding instead that a factual issue existed as to whether any exigent circumstances justified the procedure. Jiosi v. Township of Nutley, 332 N.J.Super. 169, 753 A.2d 132, 140 (N.J.Super.Ct.App.Div.2000). Similarly, in a § 1983 case decided after the events in this case, a federal district court found that a forced catheterization, if proven, would be impermissible even though the police had obtained a warrant to extract bodily fluids because the test is so intrusive and a blood draw had already been performed. Elliott v. Sheriff of Rush Cnty., 686 F.Supp.2d 840, 859–60 (S.D.Ind.2010). The court further held that the case fell in the “obvious” category of well-established law, preventing the officers from receiving qualified immunity under § 1983. Id. at 863; see also Elliott v. Rush Mem'l Hosp., 928 N.E.2d 634, 643–44 (Ind.Ct.App.2010) (finding no immunity under a state medical-malpractice statute for a hospital that forcibly catheterized a DUI suspect because there was a material fact issue as to whether catheterization was a reasonable medical procedure for obtaining a urine sample).

"Compare these cases with a different decision in which another federal district court upheld a forced, warrantless catheterization that was supported by probable cause. Ellis v. Cotten, No. 3:06–CV–283–K, 2008 WL 4182359, at *6 (N.D.Tex. Sep.9, 2008). The court held that the test was permissible under the Fourth Amendment despite the fact that the police simultaneously drew blood because probable cause existed. Id. The court there even stated that the involuntary catheterization was “remarkably similar” to the blood draw in Schmerber. Id. That this small but significant division of authority has continued to develop since the events in this case simply illustrates how difficult it would have been for Yount to know what his legal obligations were.

In dismissing the charges, the court concluded:

"Because American search-and-seizure law is undeveloped as to when an officer may administer an involuntary warrantless catheterization on a suspect, Officer Yount was entitled to qualified immunity for the § 1983 claim. Further, Yount did not act with malicious or criminal intent, so he was entitled to immunity from Miller's tort claims under the Idaho Tort Claims Act."

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