officer for he admitted they didn't know what it would test for versus what you could get from your versus what you could get from blood but more importantly back when this was going to leave it your position that you could evidence one way or the other but the issue here your honor is cheap shot him believe the guy was on drugs what he told the civil service or the shrink or civil service board shortly after happened which he quote he believed officer he was he was in custody this time this he was and he wasn't even drive they can somebody called and say they saw a police officer driving a vehicle after they smelled alcohol they go to this house they investigate they place him in cuffs they arrest him for d w i before he can get bonded out the cheap interrupts the bonding process to start and i as a geisha without officer talk to an attorney which under state still serves laws he has a right to have an sions didn't let him do that took him to have his officers take him to the hospital in handcuffs while i'm custody and said you take the test he had it was coerced into type and take the test or you can be terminated that's undisputed that those things were told him the district court agreed that there was issues of fact whether he had consented to a blood test the evidence actually shows he didn't he did not want to he did not want to he had read have your agreement you can give i'll take a breathalyzer out i'll take the urine test but i don't want a meeting with me they did anyway and there was no grounds to there was there's no there's no reasonable suspicion to believe he was on drugs you ask him about his consumption of alcohol and he just flatly denies it irrespective of what the field sobriety test was showing he flatly denies it and so wouldn't it just be prudent to take some blood to see needed from his urine he admitted to have taken night and he admitted to take an allergy pills they smelled alcohol on him they believed parents correctly that he would have been under the influence of alcohol issue is whether or not first off they always e and a has a public employee drug testing policy statute that requires any drug screening to be pursued to written policies and the city's report has a written policy and so might know the difference the chief didn't understand the chief just saying take blood take your intake take a breathalyzer even lab never asked any other officer to give blood before the get it from you even though you're terrified of needles you give up blood that he was drunk and sticking a needle in his pants all arm who's terrified of needles is unnecessary and it's certainly not reasonably related to the needs of the city there was no the market i was not at that point in time on duty he was not carrying a gun all the things it when you have exigency did not have a car accident this was not a suspicion of test issue this was he was arrested for because that's the officer who smelled alcohol on my clients breath and nobody told chief shah they suspected him of drug use there's not a single affidavit of any model that the only person who made the decision to stick a needle in no indication that anybody ever told chief show that they thought that  human resources people pursuant to their written policy negated their suspect their reasonable suspicion and that that that has to not only used against that officer and what here it's more the issue is you stuck a needle in somebody w any test or that you're in for drugs he also consume it to a breathalyzer which showed he was tested positive for alcohol therefore there was no need at that point to stick a needle in his arm and that there is the problem qualified immunity he chose to ignore his own policy he george will ignore the city's policy that both required him to contact the person of department before he ordered somebody to go i think that the issue really is as i think we've discussed so far reasonable suspicion it's more than a fishing expedition it's more than a hunch but it's less than probable i can imagine and a full set of circumstances that you could have more reasonable suspicion of some type of substance other than alcohol we know we have a trial call because we do have the odor with respect to how this all started is pretty important and i think that was a little bit soft sold us to the details a citizen complains that officer at a marked unit is acting was unusual bizarrely he's banging on the door of a house and then sat down in fear to be exhausted after doing so now we know he's not on duty but he's in a martinet he claims officer in a marked unit is that that the possibility of him being coming involved in some law enforcement activity is is pretty likely or it's not unusual so that's why these rules are so important so there we have  citizen complaining that there's some unusual behavior go on with this guy the officers that first encounter him he tells them it's all on him to yes on the mobile video system he tells them i'm not drunk i haven't had any alcohol in the system actually watch the right right after he got up from the porch and this isn't even talked to so he's telling these officers that first arrived in response to the call and i'm one call but i haven't had any alcohol but i have had allergy medicine and nyquil well obviously those are substances that could be impairing i guess but i think it's pretty easy to understand why more than simply a urine test would be appropriate more than a breath test would be appropriate and that's why the state of the reasonable suspicion is the is the answer to have if there's a reasonable suspicion of something some substance that may be impairing the officer then the pot there's no dispute that the policies would permit the taking of blood under those circumstances with respect to what she shot and knew i think there's a the record the affidavit is pretty clear he doesn't know exactly what it is and he was candid and truthful when he's testifying about that he knows it's a substance he used the word  knew that the guy was claiming to have taken michael if you look at his deposition he says i don't know if it was and i quote if it's alcohol it's something else but i know that blood tests more than other things he's not a scientist but that's a commonly known issue that you get a urine test it's going to test for metabolites we know that you get the blood it could test for other substances and he was just wants to make sure we know exactly what's going on again he says i think he's on pain meds that's not made up after the fact that's contemporaneous recording from the mobile video system of them trying to figure out what is this his doesn't he says he's not it's not alcohol and we know that when carolyn deal the detective who takes him for the administrative part of this she's on the phone with the chief while she's talking to him so there's a lot of interaction between the chief and these officers as to what they've got here it's pretty it's pretty important circumstance are pretty big deal to have a an officer under these circumstances acting like that with respect to the consent issue i'm not quite sure i understand that suggest that in the ministry of said ng you can be held down and blood drawn from you that's not a realistic climb to make it clearly he was given his garrity warning he testified that he understood the implications of garrity he's being directed to do this if he doesn't do it there could be sibs you know administrative ramifications whether he would have been terminated or not who knows but obviously it would be a serious thing to deny the request of the agency because at this point you know he's refused with a sobriety test he's been taken to the dui unities refuse that he's refused to give blood to give breath in the criminal or you're the criminal so that at that point is when deal does the charity which is just this can't be used against you criminally i think i know that there was a lot of briefing below about the special needs task and i think that was really kind of a fallback position in the sense that this is clearly reasonable suspicion but for the federal clients even if it's not there is a triggering event here and under the policy you could test without reasonable suspicion the trigger event being an investigation of possible misconduct associated with this that's that one hundred point one two of this of the city policy on that so even if there was a reasonable suspicion for purposes of the federal crimes you've got a skinner type setting where safety sensitive person with a triggering event it's not just an arbitrary set this guy and make him do this he's got a reason and that's what skinner was that said it was the accident policy report has an accident provision in there but it's also got other circumstances where administrative investigation occurs  so that was really kind of a it was a it's not necessary for the court to get to that point if there's a reasonable suspicion of a substance other than alcohol  with respect to contacting of the h o r's somehow that would invalidate all this one thing that you don't want to forget we know he's not complaining that he give his job back there's not a dispute this is a terminations clime it's simply the search of the seizure for us but with respect to the you didn't contact h r s who's that if anything it could invalidate some of the tests perhaps but what's really important is that provision says it has kind of  under the circumstances kind of a of language you contact h r and they'll oversee the testing to the depending upon the circumstance i think is what it says well these circumstances is the department of water and sewage worker who they found sleeping in suspect he may be on something this is so this guy has already been charged with arrested for dui and they're trying to reasonable suspicion essentially it answers all the questions and i don't want to repeat myself that when i think could not be more clear to me i can't imagine a circumstance under which you would have more basis to ask for a drug test unless you found him with some drug paraphernalia perhaps or you found him with someone saying he smells like marijuana or something like that for a kind of a circumstantial case with denying that he's drinking is pretty important but we know he's on something and i think it's unreasonable to suggest that a conscientious police chief is should not be entitled to use whatever tools that policy would permit one of which is see or hear what was being said out on the scene there's no evidence that the chief knew about this the triggering event and i investigate doesn't trigger just suspicion list it doesn't a suspicion of search it doesn't overrule the requirements of the s p d general orders regarding what you must do for drug screening which required the chief and the police department to contact city h r and the logical reason for that is because  city h r people might actually be able to understand what is necessary to be tested at that time instead of the chief just ordering everything when he's never done that before to any other officer despite other officers street or h r department and he was supposed to contact somebody over there before he ordered a drug screen yes in his own general orders as well as the citywide drug screening policy which was generated in accordance with the state statute to test consented to and waited till he got a hole to my in a jar before he ordered blood be drawn as we all know blood things dissipate in blood at a much different rate waiting overnight to talk to city h r was not going to was necessary in that i don't believe you have reasonable suspicion for drug use but if you even if you do you to balancing test wasn't met because there was no need to take this make stick in the needle in this man's arm or thank you