A Stiff Punishment For Drunk Driving

Irksome, Law

Why is it that a civilian who inserts a foreign object into the private parts of an unwilling person is guilty of "first degree rape" or "sexual offense," but  a cop who does it is acting in the line of duty?

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunken driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claim in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine and blood test.

Police said they obtained a warrant, but Lockard's attorney said his client was shackled to a gurney and had a catheter inserted against his will.

If the story is true, the magistrate who issued the warrant should be fired.  I've received catheter insertion during kidneystone treatment, and found the experience rather humiliating and painful, despite anesthesia.  I can't imagine what feelings an involuntary catheterization would provoke, apart from the natural feeling of "sue the bastard" or perhaps, "kill the bastard."

Assuming Indiana is like other states, drunk driving is an "implied consent offense."  By driving, one impliedly consents to the revocation of one's driver's license for refusing to consent to a reasonable search such as a breathalyzer test.

Which Lockard had already passed.  What about the hospital?  They're being sued as well.  I don't know anything about Indiana law, but query whether a doctor is under a duty to assist the police in an involuntary catheterization for a "patient" sober enough to know he doesn't want it.  It certainly violates the Hippocratic oath.  Is it a tort?

As for the police, I'm not inclined to do much searching for case law on whether involuntary catheterization, for an offense as trivial as drunk driving when one has already passed the breathalyzer, is reasonable.  According to Sullivan v. Bornemann, 384 F.3d 372 (7th Cir., 2004) it may be.

But if it is, something is wrong with this country.

Last 5 posts by Patrick Non-White

5 Comments

4 Comments

  1. Cloudesley Shovell  •  Sep 3, 2009 @9:24 am

    Assuming the Lockard facts are correct, then Sullivan v. Bornemann is easily distiguishable on its facts. In Sullivan, the ER doctor, on his own, for medical reasons, not requested by the police, ordered the catheterization (the doctor was not a party to that case–should have been). That's an entirely different case than one where a magistrate orders a catheterization pursuant to a warrant after the guy passed a breathalyzer.

    Incidentally, if the cop doubted the "not drunk" breathalyzer results, he has now set himself up for a lifetime of cross-examination in cases where he does not doubt "drunk" breathalyzer results. Smooth move there, Officer Miller. Have fun coming up with an answer why you doubt exculpatory results but trust inculpatory results.

  2. Ken  •  Sep 3, 2009 @9:31 am

    Wow.

    To use our friend TJIC's terminology, rope.

  3. mojo  •  Sep 3, 2009 @11:08 am

    Judge in North Dakota once issued a search warrant to have a man's stomach pumped looking for a marijuana roach he had allegedly swallowed.

  4. Mike  •  Sep 3, 2009 @3:07 pm

    A non-consensual touching of genitalia is, as you note, sexual assault. Therefore, I would sue all involved not only under 1983, but common law. I'd plead it as sexual assault. I then would issue a very Googleable press release saying, "[Insert names of doctor, hospital, and police officers] sued for sexual assault."

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