United States v. Daniel G. Chapel

Per Curiam; concurrence by Judge KOZINSKI.

Daniel Chapel was severely injured in a single-vehicle motorcycle accident in a remote part of Glacier National Park. Several park rangers and a park medic came to his assistance. The rangers administered first aid and the medic radioed a helicopter to evacuate Chapel to the regional hospital. The medic also prepared an I.V. as a routine life support measure.

While administering first aid, the rangers noticed telltale signs that Chapel had been drinking: his breath smelled of alcohol, his speech was slurred, his eyes were bloodshot. The rangers sought to gather hard evidence of Chapel’s intoxication. They first asked Chapel to take a breathalyzer test, but he refused. Knowing that Chapel’s blood alcohol content (“BAC”) would dissipate, the rangers instructed the medic to obtain a blood sample for later testing. The medic, who had already inserted a sterile needle into Chapel’s arm to administer the I.V., withdrew a small sample of Chapel’s blood.

The rangers’ suspicions turned out to be only too well-founded. The Montana Forensic Science Lab examined Chapel’s blood sample and determined that he had a BAC of 0.21 grams of alcohol per…

concurring.

Eleven years ago, Judge Kennedy had the following to say about Harvey:

United States v. Harvey, 711 F.2d 144, 144-45 (9th Cir.1983) (Kennedy, J., dissenting from denial of rehearing en banc). His observations are only more apt today in light of Winston v. Lee, 470 U.S. 753, 759 , 105 S.Ct. 1611, 1616 , 84 L.Ed.2d 662 (1985), where the Court remarked that Schmerber “fell within the exigent-circumstances exception to the warrant requirement.”

We should have taken Harvey en banc in 1983. It’s not too late.

34 F.3d 893 UNITED STATES of America, Plaintiff-Appellee, v. Daniel G. CHAPEL, Defendant-Appellant. No. 93-30236. United States Court of Appeals, Ninth Circuit. Submitted Aug. 1, 1994 * . Decided Sept. 8, 1994. David M. Ortley, Kalispell, MT, for defendant-appellant. Dennis Hester, Kalispell, MT, for plaintiff-appellee. Appeal from the United States District Court for the District of Montana. Before: WRIGHT, KOZINSKI and FERNANDEZ, Circuit Judges. Per Curiam; concurrence by Judge KOZINSKI. PER CURIAM. 1 Daniel Chapel was severely injured in a single-vehicle motorcycle accident in a remote part of Glacier National Park. Several park rangers and a park medic came to his assistance. The rangers administered first aid and the medic radioed a helicopter to evacuate Chapel to the regional hospital. The medic also prepared an I.V. as a routine life support measure. 2 While administering first aid, the rangers noticed telltale signs that Chapel had been drinking: his breath smelled of alcohol, his speech was slurred, his eyes were bloodshot. The rangers sought to gather hard evidence of Chapel's intoxication. They first asked Chapel to take a breathalyzer test, but he refused. Knowing…