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May 2019
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Electronic Warrants And Roadside Blood Draws Are The New Normal For DUI Checkpoints

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A few years ago, the National Highway Traffic Safety Administration brought down the heat on itself by teaming with local law enforcement to set up roadside blood/saliva draws. The plan was to compile data on impaired driving, but the "voluntary" sample stations were staffed by cops who flagged motorists down, leading many to believe this was just another DUI checkpoint.Now that the NHTSA is out of the picture, local law enforcement is taking care of this itself. Only it very definitely is mandatory and any data-gathering would be incidental to the real purpose of these checkpoints: arresting impaired drivers. It's 2019 in America and we can only now proudly say we're the Home of the Roadside Blood Draw.

It was about 6:30 on a Friday night in January when Phoenix Police Det. Kemp Layden pulled over a white Jeep Cherokee that was speeding and weaving in and out of its lane.The 47-year-old driver spoke slowly, his eyes were red and watery, and his pupils were dilated. The inside of the Jeep reeked of marijuana, and the driver failed a field sobriety test, which includes walking heel-to-toe and standing on one leg.He told the officer he had smoked marijuana a few hours earlier and taken a prescription sedative the night before, police say. The man passed a portable breath test — he wasn’t drunk. But Layden suspected he was impaired by drugs, which the test can’t detect.A DUI police van equipped with a special chair and table for blood testing pulled up. The man refused to submit to a blood draw. So Layden grabbed his laptop and filled out an electronic warrant, or e-warrant, which was transmitted directly to a judge.Within 10 minutes, Layden had a search warrant. Another officer drew the man’s blood. A lab report later confirmed he had active THC and a sedative in his blood.
Roughly 80 minutes after he was stopped, this driver had traded his vehicle for a DUI citation.This will become more common as time goes on. With the legalization of marijuana use in several states, there's a new form of impairment that can't be caught with a breathalyzer. While there's definitely a law enforcement interest in limiting impaired driving, there's also a lot of fiduciary pressure to continue to bust drivers generate revenue even when the driver's drug of choice isn't alcohol... and the driver may not even actually be impaired.This is leading to two things: an increase in electronic warrants sent at odd hours to judges who will likely approve any boilerplate sent from a DUI checkpoint... and a whole bunch of minimally-trained officers running roadside blood drives out of police vans.The good news is some training is actually happening. The bad news is certified training is the exception, not the rule.
At least nine states have law enforcement phlebotomy programs: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah and Washington state, and Illinois is starting one, according to the national highway safety agency.
That doesn't mean every ad hoc blood draw is a communicable disease vector staffed by officers using your arm to rack up OJT hours. In Arizona, for instance, officers must have 100 hours of training before they perform blood draws and must perform the job in OSHA-approved environments. But that doesn't mean every agency is as demanding as the ones in Arizona are, so the experience may be far more unpleasant than a normal DUI checkpoint.
[S]ince officers aren’t in the healing profession, [defense attorney Donald] Ramsell said, they’re not concerned about pain reduction or hitting a vein. He cited the case of a client arrested in Arizona who had a blood draw in a police DUI van.“The officer poked him at least 15 times, and because he has a medical condition it was next to impossible to draw enough blood to fill a 10-cc tube,” he said, referring to the size of the tube in cubic centimeters. “Those knuckleheads just kept poking the hell out of him. They only got 3 ccs.”
The only thing keeping this from being even worse is a 2016 Supreme Court decision. Without it, these blood draws wouldn't even have a hasty judicial scrawl at the bottom of a dozen pages of boilerplate authorizing Officer Nurse to take blood from drivers' arms. Meanwhile, officers are touting the speed of this new dystopian feature as a win for the public, since the guilty parties will be able to processed into the criminal justice system in less than half the time.
According to Utah Highway Patrol Trooper Janet Miller, a certified phlebotomist, “It’s been a great tool not only for law enforcement but for the individual placed under arrest.“Instead of spending three to six hours with the officer, it’s been cut down to one to two,” she said. “They can get to the jail sooner and get out sooner.
Win-win, I guess.

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Broad Coalition Tells Congress To Bring Back The Office Of Technology Assessment

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For many, many years now we've been talking about why Congress needs to bring back the Office of Technology Assessment that existed from 1972 until 1995 when Newt Gingrich defunded it as part of his "Contract with America" which apparently (who knew?) included making Congress more ignorant and less informed about technology. Year after year, some in Congress have proposed bringing back the OTA, but it keeps getting voted down. Just recently, we had two Congressional Representatives -- Rep. Mark Takano and Rep. Sean Casten -- write a piece here at Techdirt arguing why we need to bring back the OTA.And it might actually be happening. While Gingrich defunded the OTA in 1995, the law creating it is still on the books. Congress doesn't need to pass any new law to bring it back, it just needs to fund it again. And, perhaps surprisingly, the House put forth an appropriations bill that includes $6 million towards reviving the OTA.Earlier today, a very broad coalition of organizations and individuals (including our sister organization, The Copia Institute) sent a letter to the Senate urging it to support this small level of funding to better educate themselves on technology and technology policy issues. This is not a partisan issue in the slightest (as should be obvious from the coalition of signatories on the letter). This is an issue about spending a very small amount of money to make sure that our legislators actually know what the fuck they're talking about when they're trying to understand and regulate around technology issues.

On behalf of the undersigned organizations and individuals, we write to express our concernthat Congress does not have sufficient capacity to tackle 21st century science and technologypolicy challenges. Accordingly, we urge you to prioritize efforts to augment this institutionalcapacity, including providing funding for the Office of Technology Assessment (OTA), as part ofthe fiscal year 2020 Legislative Branch Appropriations bill.The Senate has played a leading institutional role in promoting science and technologycapacity in Congress. We note with favor the recently created Science, Technology Assessmentand Analytics (STAA) team inside the Government Accountability Office, and its expandingcapabilities to serve Members of Congress with expert advice and analysis. We also lookforward to the forthcoming report from the National Academy of Public Administration laterthis year.But OTA and STAA have different comparative advantages: the former in foresight andemerging technologies, and the latter in oversight and evaluating federal government programsand expenditures. Congress must have both these capabilities to meet the ever-increasingdemands on its oversight and legislative responsibilities.
Hopefully, this time, Congress will pay attention, and proactively choose to better educate themselves.

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