Attorney: DUI blood sample wasn’t necessary

Kim Smith

Monday, Sept. 27, 1999 | 11:11 a.m.

A Las Vegas attorney suing Metro Police in connection with last November's in-custody death of a drunken driving suspect said last week officers killed Terry Jones over a blood sample that they didn't even need.

Christopher Gellner spoke out days after the results of a second autopsy on Jones were released.

The first autopsy, performed by Dr. Sheldon Green, showed that Jones died from acute cardiac arrhythmia because of coronary artery insufficiency. The second, performed by Dr. Robert Bucklin, showed that Jones suffered severe blunt force trauma to his head, and it was a "significant" factor in his death.

Jones, 33, died Nov. 21, two hours after he was arrested on suspicion of felony drunken driving.

Police said Jones threatened corrections officers at the Clark County Detention Center and became combative when medical staff tried to take a blood sample. Five officers tried to restrain Jones, who continued to struggle and apparently went into cardiac arrest and died.

Gellner hired Bucklin to conduct a second autopsy, which was done in May, one month after Gellner filed a wrongful death suit against Metro, the company that supplies medical care at the jail and the individual officers and medical staff involved.

Gellner said Green had not been told that Jones had been kicked in the head or that someone had stood on Jones' head during the struggle.

A Metro Police Internal Affairs investigation revealed that corrections officer David Devaney violated departmental policy by kicking Jones in the head and standing on him. He was disciplined by the department but not prosecuted criminally.

Named as plaintiffs in the suit are Andrea Jones, Jones' wife and his two children, Terry Jr., 12, and Francesca, 7.

What's ironic, Gellner said, is that the police department had enough evidence to convict Jones without the blood sample.

Patrol Officer D. Giersdorf found Jones passed out behind the wheel of his car, which had its engine running, he said. Jones was unsteady on his feet, had glassy eyes and said he had been drinking. In addition, an open 22-ounce beer was in the car.

"They probably could've gotten a conviction anyway," and yet officers insisted on fighting with Jones over the sample, Gellner said. "They probably should've put him in a holding cell until he cooled off."

Or they just should've forgotten about it, Gellner said.

"It's not like he was in a drunk driving accident, and he killed three people," Gellner said.

Gellner also noted that even after Jones lost consciousness, or possibly died, the nurse was unable to find a vein in order to withdraw blood. Ultimately, authorities got his blood sample at his initial autopsy. It showed .13 grams of ethanol was in his system.

However, forgetting about it was not an option, according to the law.

Metro spokesman Lt. Mark Joseph, while declining to comment on the Jones case specifically, said state law requires police to obtain either a breath or blood sample when someone is suspected of felony drunk driving.

Officers have two hours after the arrest to get an initial sample and then must get another within the following hour, Joseph said.

In order to get a blood sample by force in a DUI case, Joseph said the officer must first believe the suspect is under the influence, then the suspect must refuse to submit to either the blood or breath sample. The officer must also determine if the suspect is on anti-coagulants or is a hemophiliac or heart patient. Finally, the officer must only use "reasonable force" to get the sample.

"Obviously humane efforts have to be taken into consideration when it's not a voluntary but a forced blood withdrawal," Joseph said. "We try to obtain the sample in the least intrusive manner."

In other cases in which an officer believes the suspect is under the influence of a controlled substance and the suspect refuses to provide a blood sample, a search warrant must be obtained, Joseph said.

Whether an officer seeks a search warrant is contingent upon the practicality of doing so, Joseph said.

For example, search warrants are sometimes pursued because of fear the controlled substance will leave the suspect's system quickly and it is a crucial piece of evidence, such as in a homicide or sexual assault case, Joseph said.

In other cases, perhaps less serious cases, the officer may not get a search warrant if it would require waking a judge in the middle of the night.