Police blood draw under review

LIHUE — The police commission is investigating the Kauai Police Department after officers obtained a blood draw from a 25-year-old man involved in a car accident even though a judge denied a warrant request.

A KPD report obtained by The Garden Island said after officers investigated an accident near the entrance of Kikialoa Small Boat Harbor in Kekaha on Feb. 27 in which a 23-year-old Koloa woman died, they sought a judge’s consent for a blood draw from the operator of a Honda Civic.

When the judge denied the request for the search warrant, a decision was made by police to go ahead with the blood draw.

Kauai officers obtained blood from the man, who was in critical condition, at the Wilcox Memorial Hospital Emergency Room.

The commission is scheduled for an executive session today to discuss the matter.

County spokeswoman Sarah Blane said the police would conduct an internal review and follow-up with the appropriate parties.

Kekailani Pau died in the accident after the driver of the car she was in “lost control of his vehicle, crossed the centerline and crashed sideways into a Ford Ranger heading west,” according to a news release from the county.

An officer found paramedics and firemen pulling the individuals out of the car that had crashed against a guardrail, the report showed. He was told to follow the ambulance after the operator of the Honda Civic had been removed from the crashed vehicle and placed inside the ambulance, the report showed.

Another officer attempted to get consent from the operator of the Civic for a blood draw, but “the operator was not in any condition to sign off on a consent form,” according to the report. The officer then called a district judge to obtain a telephonic warrant for the operator of the Honda Civic, the report showed.

But the judge denied it and officers proceeded in obtaining the blood draw, according to the report.

It’s not known why the warrant for a blood draw in this case was denied.

Hawaii Revised Statutes 291E-21 states that an officer has the right to obtain a mandatory blood draw in the event of a collision resulting in injury or death and the officer has reason to believe that the individual is impaired.

In November, the Hawaii Supreme court ruled in State vs. Won that officers could no longer penalize those who refused to submit to testing.

“There is a separate provision to State vs. Won, where if there is a car accident and the person was injured or someone was killed, then they can do a blood draw without the consent of the court,” said Honolulu attorney Myles Breiner. “The difficulty is that if someone actually requested a blood draw and the state turned them down, that raises an interesting issue.”

In January, the Office of the Prosecuting Attorney began training KPD officers to obtain telephonic warrants for blood draws — according to the Hawaii Rules of Penal Procedures Rule 41 (h), which permits police to seek telephonic warrants — after it said several “court cases casted doubt on its ability to prosecute motorists who refused to submit to testing for breath or alcohol content under HRS 291E-68,” which made refusal a petty misdemeanor.

It asked KPD to “properly document exigent circumstances” when it obtained a warrantless search.

HRS 291 E-3 states the impairing drug has to be detected “within three hours after the time of the alleged violation as shown by chemical analysis or other approved analytical techniques of the person’s blood, breath or urine” to be competent evidence.

In Missouri vs. McNeely, the Supreme Court ruled that exigent circumstances must apply for an officer to conduct a warrantless search and that “the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.”

Doing so would violate the Fourth Amendment of the U.S. Constitution, the justices said.

Based on these arguments, Prosecuting Attorney Justin Kollar in his Jan. 4 training memo to KPD said to officers that they now needed a warrant before drawing blood whether there was an accident or not. Officers must contact the judge to obtain the telephonic warrant and read an affidavit to them. The judge would then decide whether there was probable cause for a warrant.

In the OPA’s memo, KPD officers “investigating crashes where probable cause exists for a negligent homicide, negligent injury or OVUII charge” must first try to get consent for the blood or breath test “even if the person is unresponsive or semi-responsive.”

Kollar declined to comment for this article.

It’s not known if the driver of the Honda Civic in this case was impaired, as the blood results have not been released to the public. The Kekaha man has not been arrested or charged with a crime. Police have not released the name of the driver and the name of 55-year-old who was driving the Ford Ranger.

“It’s a legal dilemma, a conundrum as they say,” Breiner said. “Certainly police thought that they required a warrant, otherwise they wouldn’t have requested one from the judge. And separately, they decided the hell with it, because there’s this statute that says we can do this.”

The judge could not be reached for comment.

Civil rights lawyer Eric Seitz, who is also a lecturer at the William S Richardson School of Law at the University of Hawaii at Manoa, called it an invasion of privacy.

“If (the officers) went ahead and did it with a mistaken view that it was permissible thing to do, then that’s one thing,” Seitz said. “But if a judge went ahead and denied a warrant and they went ahead and did it anyway, that’s just outrageous.”

Neither Breiner nor Seitz are involved in the case.

KPD could not comment because the crash is part of an ongoing investigation.

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