Blood-Draw Brouhaha, Payne v. Wubbels, Revisited
By Ken K. Gourdin
The blood-draw brouhaha that ensued when then Salt Lake Police Detective Jeff Payne arrested University of Utah Hospital Burn Unit Charge Nurse Alex Wubbels after the latter refused to violate hospital policy by allowing Mr. Payne to draw blood from truck driver and Rigby ID reserve police Officer Bill Gray, who was injured—fatally, it turned out—when a suspect fleeing police in a vehicle collided with Mr. Gray’s truck, is back in the news.
Mr. Payne is suing the city and the department for wrongful termination. See coverage of Mr. Payne’s suit in Salt Lake City’s Deseret News, available here and last accessed October 12, 2019:
When another poster mischaracterized Mr. Gray’s involvement in the incident by referring to him as a “perp”—perhaps the poster is someone who watches too many police procedurals (although I, too, might have to plead guilty if someone were to level the same accusation against me)—I responded:
Vanka: “I agree. Neither the nurse nor the perp (who later died) were an immediate threat to anyone, nor were they going anywhere.”
I know you’re not on the side of Salt Lake City Police Department nor of former Detective Jeff Payne; neither am I. There’s the “what,” the thing his superior, then-Lieutenant Tracy ordered him to do in taking Nurse Wubbels into custody for obstruction of justice, and then there’s the “how”: Even if he was “just following orders” (my phrase) in accomplishing the “what,” still, he was completely and totally in control of the “how.” Nurse Wubbels wasn’t just some below-average street thug who is determined to display her contempt for the police: she was trying to do her job as she understood it and, perhaps most importantly, as her superiors had explained it to her.
And Detective Payne should have recognized the sensitivity involved in a situation in which Nurse Wubbels concludes she’s being put in an impossible position (Obey the order of then-Detective Payne, thereby violating hospital policy as it had been explained to her and lose her job, or disobey the order of then-Detective Payne and go to jail).
All of that having been said, still, you’re characterizing events inaccurately when you refer to the “perp.” Are you talking about Bill Gray, the Rigby ID reserve police officer and truck driver who is the victim of the suspect who crashed into Mr. Gray’s truck while fleeing from police? “Perp” of what? What crime, exactly, did he “perpetrate”? Such a mischaracterization contributes to observers, perhaps, missing one of the central points here: Mr. Gray did nothing wrong. I give then-Detective Payne and his attorney credit for creativity of the post hoc explanation that the former simply was trying to clear Mr. Gray and to help him keep his CDL, but it doesn’t wash, especially since Logan PD already had told Mr. Payne that the department would get Mr. Gray’s blood some other way.
Another poster, from whom I quoted an excerpt before responding, then replied:
Flashback: “It is normal procedure to draw blood from all drivers in a fatal traffic accident.”
Under what law? Are you speaking of Utah’s implied consent law? While implied consent law and the policies intended to facilitate its implementation (such as agreements between medical providers such as the University of Utah Health system and law enforcement agencies Salt Lake City Police Department) were murky when this incident occurred and have since been clarified, implied consent law comes into play only when there is probable cause to believe that the person whose blood police are seeking was operating a vehicle while under the influence at the time of the collision. (But even if implied consent law wasn’t violated or doesn’t come into play here, other laws, such as the Health Insurance Portability and Accountability Act of 1996 and potentially other laws that protect patient privacy might well prevent, in fact, they likely do prevent, police from drawing blood without probable cause, without a warrant, or without exigent circumstances.)
Logan Police Department officials are on record as saying that they told Salt Lake City Police that they were unaware that Mr. Gray was unconscious at the time and therefore unable to consent to a blood draw. When presented with that information, Logan PD officials told their Salt Lake PD counterparts to not worry about getting Mr. Gray’s blood, and that they would get it some other way. If what you say is true, then I have four questions:
1. Are you referring to implied consent law?
2. Are you sure implied consent law applies to Mr. Gray, who, as I understand it, was suspected of no wrongdoing whatsoever (else why then-Det. Payne’s post hoc explanation of wanting to help Mr. Gray keep his CDL)?
3. If you’re not referring to implied consent law, what law justifies or mandates a routine post-fatal-accident blood draw?
4. Why was then-Lt. Tracy demoted and then-Det. Payne fired?