{"id":3883,"date":"2010-05-18T22:58:16","date_gmt":"2010-02-22T06:04:04","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-02-22T06:00:41","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3883","title":{"rendered":"UT: Forced blood draw was without PC or exigent circumstances, and finding of consent was clearly erroneous"},"content":{"rendered":"

Under the totality of circumstances, the officer did not have probable cause to force a blood draw from the defendant at the scene of an accident under exigent circumstances. The trial court\u2019s finding of consent, reversed by the Court of Appeals as clearly erroneous, was also affirmed. Defendant was clearly not free to go, and the officer effectively arrested her to isolate her from friends with her telling her not to consent to a blood draw. He asked three times, was rebuffed three times, and \u201ctook control of\u201d her. State v. Tripp<\/a>, 2010 UT 9, 227 P.3d 1251, 650 Utah Adv. Rep. 18 (2010), affg State v. Tripp<\/a>, 2008 UT App 388, 197 P.3d 99: <\/p>\n

[*P49] Here, the court of appeals correctly concluded that the police lacked probable cause to perform the blood draw under the totality of the circumstances. The court of appeals considered the testimony of Detective Roberts, Officer Saunders, and Officer Monson. See State v. Tripp, 2008 UT App 388, P 22, 197 P.3d 99. All testified that they did not detect an odor of alcohol or any signs of impairment. Also, the court of appeals was not convinced by Detective Roberts’s observation of Ms. Tripp’s red eyes and nervousness. See id.<\/p>\n

[*P50] Nonetheless, the State contends that the court of appeals ignored these and other facts. Detective Roberts grew concerned that Ms. Tripp was impaired when he observed that the redness of her eyes was not dissipating and that he had not seen Ms. Tripp cry. He also observed that Ms. Tripp continually smoked and that she lacked any concern for the victim. The State argues that Ms. Tripp’s red eyes were a sign of impairment, her continuous smoking was used to mask the odor of alcohol, and her lack of concern suggested her preoccupation with guilt. Also, the State points out that Ms. Tripp failed to yield the right of way to the victim despite an apparently unobstructed view of the intersection. Finally, the State emphasizes that Ms. Budd and Mr. Davis detected an odor of alcohol from Ms. Tripp.<\/p>\n

[*P51] Although the court of appeals did not specifically mention these facts in its analysis, we conclude under the totality of the circumstances review that the result remains the same. The State isolates a few facts within the totality of the circumstances to the exclusion of others. <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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