Ocean City police believed Norma Powell was intoxicated after she allegedly drove her Nissan Sentra the wrong way through the toll lane and then struck a concrete barrier wall on the Ocean City-Longport Bridge shortly after noon on July 11, 2012.
A witness following the vehicle told police Powell had been driving erratically across the bridge and nearly struck a pedestrian. Powell continued driving into Longport, where local police eventually pulled her over.
Powell failed field sobriety tests, according to a police report, and was taken to the Ocean City police station. Powell was unable complete a Breathalyzer test at the station because she suffered from chronic obstructive pulmonary disease (COPD), she told police.
Powell, an Ocean City resident, alleges in a federal lawsuit that what happened next was a violation of her civil rights.
Police took her to Shore Medical Center in Somers Point, where hospital staff drew her blood, and she was forcibly catheterized without a warrant and without her consent, Powell alleges in her lawsuit, filed in U.S. District Court in July 2014. To make matters worse, Powell alleges, the arresting officer helped perform the catheterization, while in uniform. Powell, now 58, contends this process caused her to contract a staph infection.
As the case inches closer to trial, local taxpayers again are on the hook for mounting legal bills. The city has offered settlements to end a number of other high-profile lawsuits, but no settlement conference has been scheduled in Powell’s case.
Involuntary blood and urine testing on drunken-driving suspects has been the subject of a number of recent high-court rulings in other cases.
In April 2013, the U.S. Supreme Court ruled police officers must obtain a search warrant before having blood drawn from a suspected drunken driver.
Last week, the New Jersey Supreme Court ruled the high court’s decision not only applies to current and future cases, but also to any cases still unresolved at the time of the 2013 ruling.
However, neither ruling directly addressed involuntary catheterization in drunken driving cases.
Previously, lower courts had held that police had the right to have blood drawn from suspects in DWI cases without a warrant because alcohol dissipates relatively quickly in blood, creating an "exigent," or emergency, circumstance.
Ocean City Police Officer Laura Hall's report indicated Powell "did not know what time of the day it was, the day of the week or the year" after she was stopped in Longport in July 2012. Powell told police she was taking medication to treat arthritis, a thyroid disorder and anxiety. Hall noted in her report that she detected no odor of alcohol from Powell on the ride to the station.
Powell, who was initially charged with driving under the influence of narcotics and related offenses, pleaded guilty in June 2013 to a lesser charge of reckless driving, according to court records. A municipal judge fined her $200 and suspended her license for 90 days.
Powell’s lawsuit names as defendants the City of Ocean City, Hall, Sgt. Daniel Dubbs, Shore Medical Center, and two hospital employees: Kathryn Page, a registered nurse, and Jessica Ruiz, an advanced practice nurse.
Brian Cahill, a Shore Medical Center spokesman, said Tuesday the hospital does not comment on pending litigation. However, attorneys for the hospital have filed a motion to have the case dismissed. Their argument is based on a state law that provides immunity for medical personnel who withdraw samples at the request of police.
Attorney Richard A. Stoloff of Linwood filed the lawsuit on Powell’s behalf. The lawsuit seeks unspecified compensatory and punitive damages, as well as attorney’s fees.
The complaint alleges that after police took Powell to the station, Hall forced her to drink 10 cups of water in an attempt to help her provide a urine sample. When that failed, police Dubbs directed Hall to take Powell to the hospital, “where blood was extracted, and urine extracted against plaintiff’s will and without a warrant … in a medically unreasonable and unsafe manner, so that plaintiff, among other damages, contracted MRSA,” the complaint claims.
According to the lawsuit, Page and Ruiz, along with Hall, catheterized Powell “to forcefully extract a urine sample for the sole purpose of testing for substances for a potential DUI conviction, despite that a blood sample was taken, which would have sufficed, and in fact, have been more exacting for such purposes.
“During the catheterization … Officer Hall, while in her police uniform she had been wearing for her shift out on the street, physically assisted with catheterizing of plaintiff, including holding the tube and collection bag.”
Hall was not properly trained to assist with the procedure, did not use proper sterilizing procedures, and was not properly attired, the lawsuit alleges.
A. Michael Barker, the attorney representing the city’s insurance carrier, filed a motion in October 2014 seeking to have some of the counts in the lawsuit dismissed.
Barker argued in his motion that the count in which Powell alleges malicious prosecution and due-process violations should be thrown out because her guilty plea “precludes her from asserting a lack of probable cause” for the testing.
Barker also argued that the excessive force count against the officers should be thrown out because “plaintiff does not allege that she was physically restrained or otherwise physically forced to provide the sample.”
Last month, a federal judge declined to dismiss the excessive force count, but did dismiss the count alleging malicious prosecution, as well as several other counts in the complaint against Ocean City, Hall and Dubbs.
