“Lie still – Life Flight’s on the way.”
Doug Towell vaguely remembers hearing those words while prone and bleeding from a head wound on Idaho State Highway 21. His next memory is of being seized by irrepressible panic.
“My wife!” he exclaimed. “Where’s my wife?”
Chellus, Doug’ wife of 25 years, had been riding on the backseat of Doug’s Harley-Davidson motorcycle.
“She’s over there with my friend,” Doug was told. “My friend is a nurse, and your wife will be all right.”
That comforting voice was immediately eclipsed by another in the distance.
“We’ve got to control her bleeding,” the second voice said, the words drawn taut with urgency.
Doug’s next memory is waking up in the emergency room, his body a mass of pain and his heart burdened with guilt.
“It took me a couple years to get her on the bike,” Doug pointed out as he described the September 14 accident during an interview in his home in Ontario, Oregon. “I told her, `as long as you ride with me, nothing’s going to happen.’ And now, all of a sudden, we’re in a crash. I don’t know her condition, and I’m thinking, `Man, I hurt my wife’.”
At the time, Doug was dealing with the immediate after-effects of a concussion, a broken scapula, and several broken ribs. He was on pain medication and had staples in his scalp. As Doug bobbed in and out of consciousness, he was asked questions by figures he only dimly saw, and could not recognize: Had he been drinking? Would he consent to a blood sample?
“I thought those people were doctors,” Doug recalls.
It’s quite likely that they were deputies from the Boise County Sheriff’s Office, whose colleague, Reserve Deputy David Lee, caused the accident that nearly killed Doug and Chellus.
Lee, who is still a reserve deputy with the force, executed an illegal U-turn on a narrow stretch of Highway 21 in order to pursue a speeder. According to eyewitnesses, he didn’t activate his lights or siren until after that catastrophic maneuver. The witnesses also insist that Doug was following at a safe distance before Deputy Lee’s actions caused him to hit the brakes.
“I saw the bike fishtail and wobble,” reported Anne Pelletier, who was traveling behind the Towells. “It just happened so quick. It was like no one had a chance to do anything.”
From her vantage point, it seemed clear that Lee “was just trying to catch the speeders on Highway 21,” and made the abrupt U-turn without giving Towell -- or the other motorists -- time to adjust.
Doug’s Harley rolled over him, causing significant injuries from which he has largely recovered. Chellus, however, was thrown head-first to the pavement, resulting in traumatic brain injury that may leave her permanently disabled.
According to Boise County Sheriff Ben Roeber, David Lee – whose actions caused the accident -- is still a reserve deputy. He has been cited for unsafe operation of an emergency vehicle, a violation that carries a $40 fine.
Doug Towell has been charged with Aggravated Driving under the Influence, a felony that carries a potential prison sentence of 15 years in prison.
The work of official fiction composed by the Boise County Prosecuting Attorney claims that Doug, while operating his Harley in an impaired state, caused “great bodily harm [and] permanent disability” to his wife Chellus.
The proximate cause of that nearly fatal crash was the culpable negligence of an opportunistic reserve deputy employed by a county government that is ravenous for revenue. Nothing in Doug Towell’s bloodstream contributed to Deputy Lee’s misconduct, and Deputy Lee’s comrades have no legal right to use the results of the blood analysis performed in the emergency room.
The toxicology report by Boise’s Saint Alphonsus Regional Medical Center states, in English simple enough to be understood by police officers and clear enough to defy prosecutorial sophistry, that “[The] analysis was performed without chain of custody. These results should be used for medical purposes only and not for any legal or employment evaluative purposes.” (Emphasis added.)
It is possible that the police siphoned away a specimen of their own after deceiving Doug into believing that they were ER doctors. In any case, it will be impossible for the prosecution to demonstrate that this was done with the voluntary consent of a man who was drugged and had just suffered a concussion.
Apart from the physical effects of the crash and the drugs administered by the ER staff, Doug was also overwrought with unearned self-reproach. He didn’t learn any of the details of the accident until several days later.
A wiry, energetic man who turns 54 in May, Doug is a native of Willowcreek, Oregon. After graduating from Vale High School in 1979, he spent four years in the Army before returning to eastern Oregon. He met Chellus while the two of them were working at a mushroom processing plant in Vale.
“I didn’t have a car at the time, and one Friday night she invited me to a party she and her friends were having at her house,” Doug recounts. They were married a little more than a year later. Were it not for the accident last September, the couple would have celebrated their 25th anniversary with a trip to the Dominican Republic.
For the past several years, Doug has worked at a shelter home operated by his family for mentally troubled adults. Since the accident last September, he has spent all of his free time working as primary caretaker for Chellus, who is – temporarily, let us pray –incapacitated and unable to speak.
Earlier this year, Doug filed a notice of tort claim against Boise County, seeking compensation for the enormous – and growing – medical expenses involved in his wife’s rehabilitation. A few weeks later, he received a phone call from the County Prosecutor informing him that a felony charge had been filed against him, and inviting him to make the 85-mile trip from Ontario, Oregon to Idaho City to turn himself in.
One need not be bent double beneath the weight of cynicism to suspect that the criminal charge was inspired, at least in part, by a desire to head off a potentially troublesome lawsuit – just as the Boise County deputies who visited Doug in the ER immediately treated him as a suspect, rather than a victim.
In this connection it is important to note that the Boise County Sheriff’s Office has a pattern and practice of extorting self-incriminating samples in hospitals from people frantic to know the condition of loved ones.
Last May 23, Lawrence Lutton was in a crash at Arrowrock Reservoir. He was sitting in a hospital room, when he saw grim-faced emergency personnel pushing a gurney containing his traumatized two-year-old son, Riley. At the time, hospital chaplain Karla Sampson testified, Lutton was surrounded by officers – two in the hospital room, two more outside. In her nine years as chaplain at St. Luke’s Hospital, Karla told Fourth District Judge Patrick Owen, she had never seen a patient confined in that fashion.
“I started getting up and was told to sit back down,” Lutton explained during a March 13 hearing at the Boise County Courthouse. The officers told him that he wouldn’t be allowed to see his son “until I gave a blood sample.”
Riley didn’t survive.
The test revealed that Lutton’s blood alcohol level was .09, barely above the state legal limit. He has been charged with felony vehicular manslaughter. Lutton has filed a motion to suppress the test results. If Judge Owen has any respect for recent state Supreme Court precedent, he will have to uphold that motion – and any similar one that might be filed on behalf of Doug Towell.
Like many other subdivisions within the Soyuz, Idaho has an “implied consent” law under which the helots are told that they give “irrevocable consent” to an invasive, self-incriminating procedure – such as a blood test – in exchange for using the state’s roads.
This is the logic of the sexual predator, as capably expounded by the sitcom character Dennis Reynolds: The implicit threat of lethal violence by a prohibitively stronger party
vitiates the need for conscious consent on the part of the weaker one.
Last October, in Idaho v. Wulff, the state Supreme Court ruled against what might be called the Dennis Reynolds Doctrine of Implied Consent by suppressing DUI evidence obtained through an involuntary, warrantless blood draw. The Court reiterated that reasoning a few months later in Idaho v. Halseth. Both of those decisions apply the same principles upheld by the US Supreme Court in Missouri v. McNeely (2013), which affirmed a state court’s ruling that a nonconsensual DUI blood draw conducted without a warrant violates the Fourth Amendment.
More recently, Idaho’s Second District Court threw out a warrantless, non-consensual blood draw imposed on Kyle N. Rios, who was charged with vehicular manslaughter following a fatal crash in 2013. After Rios refused to sign a waiver, police ordered a medical technician to carry out the test, which reportedly yielded a BAC of 0.263, roughly three times the legal limit. If the prosecution wants to make a case against Rios, it will have to do so with evidence obtained through constitutionally suitable means.
An individual admitted to a hospital for treatment is a patient, not a suspect. Medical practitioners have a Hippocratic obligation to treat the patient, rather than acting as a deputized member of the State’s enforcement caste. As neurosurgeon and medical ethicist Dr. Miguel Faria puts it, “The doctor must act in the interest of the patient first; society, the government, and the police come second.”
When there is a conflict between the medical needs of the patient and the investigative demands of the police, the latter finish a distant second – distant to the point of invisibility, in fact. Notes the American College of Emergency Physicians’ Code of Ethics:
"Courage is the ability to carry out one’s obligations despite personal risk or danger. The courageous physician advocates for patients against managed care gatekeepers, demanding employers [and] interrogating police…." (Emphasis added.)
In Doug Towell’s case, a conscientious medical professional would have ordered the police away from the traumatized and drugged patient. This would mean parrying the predictable plea that the test is justified by the perishable nature of blood alcohol evidence. As it happens, this “exigent circumstances” claim was addressed, and rejected, in the Supreme Court’s Neely decision.
The indecent eagerness of the officers to subject Doug Towell to a blood draw was probably inspired not only by their desire to inculpate the patient, but also by their frantic efforts to exonerate their comrade. Deputy Lee’s conduct, furthermore, reflects the torqued priorities of a county government facing a severe revenue drought.
About five years ago, Boise County (population 6,795) was slammed with a $5.4 million civil judgment on behalf of the property development firm Oaas Laney. The firm sued the county under the Fair Housing Act in a dispute over construction of a proposed teen treatment center called Alamar Ranch. Shortly thereafter, Chief Judge Terry L. Meyers of the US Bankruptcy Court ruled against the county’s request for bankruptcy protection.
Boise County’s annual operating budget is about $9.2 million. Threatened with the confiscation of county funds, in 2012 the county commission began issuing $450,000 annual bonds to pay off the judgment.
“Budgeting is not easy in a county where there is no money,” explains Boise County Commissioner Barbara Balding. The only viable industry in the historic and picturesque county is tourism. Last November, voters approved a proposal to allow gambling in the county, something that would require an amendment to the Idaho state constitution.
“We need something that helps us a little bit,” Idaho City restaurant owner Skip Myers told Boise’s CBS affiliate. “The only money that we can get into our county is by taxation. Property taxation is … where we make our money for our road department, for our commissioners to work with, and so we’re going broke as we speak. We need to do something other [than that] to gather that up.”
David Lee was acting as a tax-gatherer last September 14 when he caused the accident that nearly killed Doug and Chellus Towell. Lee’s colleagues – who have displayed a sadistic ingenuity in forcing desperate, traumatized people to incriminate themselves -- are determined to make the victims absorb the costs of the deputy’s actions.
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Dum spiro, pugno!