Blood-Draw Brouhaha, Continued: More on Payne v. Wubbels
By Ken K. Gourdin
As I previously noted in a post from a few days ago, Salt Lake City Police Detective Jeff Payne’s body-cam footage of his arrest of University of Utah Hospital Burn Unit Charge Nurse Alex Wubbels has created a large stir far and wide on the Internet after the released footage shows Nurse Wubbels refusing to allow a blood draw from William Gray, a comatose burn patient/truck driver/Rigby ID reserve police officer because Mr. Gray could not and did not consent, nor was there probable cause to justify the blood draw, nor had a warrant been issued authorizing it, nor were there exigent circumstances to justify it. (Indeed, Mr. Gray is not suspected of any wrongdoing whatsoever, whether civil or criminal.)
As I also previously noted, Mr. Gray was seriously burned when his truck caught fire before he could get out after it collided with a vehicle whose driver was a felon fleeing from pursuing Utah Highway Patrol Troopers. The other driver died in the collision, which Logan (Utah) Police have been tasked with investigating. Originally, Logan Police sought Salt Lake Police assistance in obtaining Mr. Gray’s blood.
As I previously noted, although Nurse Wubbels and her superiors acted in good faith, they were mistaken about the applicability of the hospital policy they invoked to forbid the blood-draw because Mr. Gray, an innocent victim, was not suspected of criminal wrongdoing. (However, as I also noted previously, other law, such as the Health Insurance Portability & Accountability Act of 1996, aka HIPAA, may well—indeed, it likely does—preclude drawing blood under circumstances such as these, as well). Detective Payne has retained Salt Lake City attorney Greg Skordas. (Full disclosure: I know Greg Skordas, who, as an adjunct professor, taught me in law school—though he definitely wouldn’t remember me.)
Things looked bad enough for Salt Lake Police, for Watch Commander Lieutenant James Tracy (who ordered Detective Payne to arrest Nurse Wubbels if she refused to allow the blood draw) and for Detective Payne already. But given the revelation by Logan Police Chief Gary Jensen that his office had backed off of its original request for the truck driver’s blood once he realized that the driver was unconscious and therefore unable to consent to a blood draw, and that Logan Police told Detective Payne to not worry about procuring the sample and that they would get it through other means, now, they look even worse.
As Salt Lake Tribune reporter Luke Ramseth noted in a story about Logan P.D.’s interactions with Salt Lake P.D. regarding the matter of obtaining Mr. Gray’s blood, “[Logan Police Chief] Jensen said one of his detectives investigating the crash told Payne not to worry about pushing for the blood draw because Logan could get the blood through other means. He said Logan officers didn’t initially realize the crash victim, 43-year-old William Gray, was unconscious and thus unable to consent to a blood draw.” Indeed, in a conversation caught on Detective Payne’s body-cam, Detective Payne admitted that he already knew Logan Police had asked him to back off. See the following address (this and all other links last accessed September 9, 2017): http://www.sltrib.com/news/2017/09/08/detectives-body-camera-confirms-that-logan-police-asked-him-to-back-off-blood-draw/.
Though it should go without saying that I don’t agree with every position Mr. Skordas stakes out on behalf of his clients, I’ve found him to be a likeable fellow, a capable and entertaining instructor, and (from my distant observation) an able advocate for his clients. I have no reason to believe Mr. Skordas is not well regarded by his fellow members of the Bar, by both prosecutors and defense attorneys alike. That said, while, I don’t know for sure, I suspect Mr. Skordas’s approach to advocating for someone like Detective Payne, who has been brutalized both in the media and in the court of public opinion for his actions, is “Any port in a storm.”
Now comes word from Mr. Skordas that the real reason why Detective Payne wanted the truck driver’s blood is to preserve the driver’s commercial driver license (CDL). See the following address: http://www.sltrib.com/news/2017/09/09/slc-detectives-attorney-says-officer-wanted-blood-drawn-to-help-the-unconscious-patient-keep-his-commercial-driver-license/. As much respect as I have for Mr. Skordas, I find that explanation for Detective Payne’s actions highly suspect. I don’t think it passes the smell test, the laugh test (though this is, of course, no laughing matter), or several other, similar tests.
In on-line comments to the story linked in the foregoing paragraph, I commented:
I might laud Detective Payne for his desire to be proactive in looking out for the interests of the truck driver/Rigby ID reserve officer/burn patient [William Gray], but here’s the problem with that position, Counselor: It’s not the job of public officials and entities to vindicate private interests. That’s why all entities and all parties involved have legal counsel (or can retain such counsel, if they feel it is necessary). And it certainly isn’t necessary for a government actor (i.e., Detective Payne) to go so far in his attempt to vindicate private interests as to arrest a private citizen who simply was attempting to be conscientious in doing her job and was following orders from her superiors.
The way for Detective Payne to be proactive in his attempt to help this patient [Mr. Gray] keep his Commercial Driver License is to speak with those closest to [Mr. Gray] and to suggest that anyone empowered to make medical decisions for him help vindicate his interest in retaining his CDL by allowing a blood draw.
In the interest of fairness, I should reiterate that Detective Payne, too, was simply following the order of his superior officer, Lieutenant Tracy, in arresting Nurse Wubbels. Though the change came too late to help Nurse Wubbels, the University of Utah and the Hospital were absolutely right to change policies which come into play in incidents such as this to ensure that administrators, not nurses, are responsible for dealing with law enforcement and for handling demands for evidence.