Thomas Poor Bear, vice president of the Oglala Sioux Tribe

Oglala Sioux VP Thomas Poor Bear Refutes Intoxication Charges

Vincent Schilling

On February 19th, 2012 Thomas Poor Bear, Vice President of the Oglala Sioux tribe, was arrested by tribal Public Safety Officer Chad Roe at the Indian Health Services Pine Ridge Hospital for what Pine Ridge Police Chief Richard Greenwald told Indian Country Today Media Network was a liquor-related violation. The arresting officer reported that Poor Bear showed signs of intoxication and had a blood-alcohol reading (BAC) of nearly four times the legal limit. Poor Bear and his Tribal Attorney, Tom Clifford, are refuting the charges.

The criminal complaint released to ICTMN from the Oglala Sioux Tribal Court states that Poor Bear was charged with “Sale and Possession of Alcoholic Beverage” and “Obstructing Governmental Function.”

According to the police report, Officer Roe was on patrol when he was dispatched to the hospital’s Emergency Room in response to a request by the hospital staff. When he got there, Roe reported that Poor Bear was passed out on a bed in the Emergency Room, smelled of alcohol, had bloodshot eyes and a blood-draw alcohol level of .306, nearly four times South Dakota’s legal limit of .08. Roe  arrested Poor Bear on the alcohol-related charge. According to the report, the second charge came after Poor Bear was uncooperative during the arrest.

In response to the charges, Poor Bear states he was not drinking, but instead had been suffering from flu symptoms and chest pains throughout the weekend, had ingested a large amount of NyQuil and was passed out because the emergency room staff had given him a sedative.

While under the care of the ER staff, Poor Bear says he woke up to Roe stating that he was being arrested. “[Roe] said, ‘You smell of alcohol.’ I said, ‘Nyquil cough syrup smells of alcohol.’”

Poor Bear said he was concerned because the arresting officer was not Native. “I admit I was a bit drugged up from what they gave me, and I'm not certain of the exact words, but I said I am not going to allow a white man to arrest me on my own land here.”

“I told him to get an Indian officer and to bring him up here so that I could find out why I'm being arrested. He told me he had a warrant for my arrest. I asked if I could deal with this when I got well and he said, ‘I am not going to allow that.’ We got into a little argument and he said, ‘Don't make it hard on yourself.’ I told him, ‘I don't feel good and I don't think going to jail is going to make me feel any better.’ People have died in that jail. A few months ago a guy was put in jail and had a heart attack and died.”

When doctors and nurses came in and expressed concern to Roe, explaining that Poor Bear was sedated, Poor Bear says the officer replied, “It doesn't matter; we have to take him.”

“He handcuffed me in the emergency room and took me to jail,” says Poor Bear.

After spending four days in jail, because there was a mix up in the charges, Poor Bear was arrested over a three-day weekend and it took until Wednesday to set a bond, Poor Bear was finally released.  Upon his release, he learned that a Native Sun News article written by Jeff Whalen about his arrest had been picked up by several national news outlets. Most of the articles mentioned that the Oglala Sioux tribes are suing the beer makers, distributors and vendors of nearby Whiteclay, Nebraska for selling alcohol to tribal members on the dry reservation.

“I called Native Sun News when I read the article and I told them, ‘How can you believe a guy that has been convicted of statutory rape?’ I said, "You printed his lies.” I received a message [that] they apologized, and they said if I wanted to respond they would publish it.”

Whalen is a registered sex offender in the state of South Dakota and appears on the state’s registry.

A source at Native Sun News confirmed that Whalen has submitted and published, opinion pieces for approximately one year, and that they would definitely allow Tom Poor Bear to respond to Whalen’s article.

Tribal Attorney Tom Clifford says there were not sufficient grounds to arrest Poor Bear and contends that because the blood alcohol level test was performed by the hospital as part of Poor Bear’s treatment, and was not requested by police, the legitimacy of it as grounds for an arrest is questionable.

“Since the BAC was performed as part of his treatment, the result is part of the doctor-patient confidentiality and is [inadmissible],” says Clifford. Clifford also claims that the police attempted to give Poor Bear a breathalyzer test three times at the jail, but threw away the results after they could not get the results to match the hospital’s BAC level.” Roe’s police report does not mention any breathalyzer tests given to Poor Bear.

“Everything that they have against Tom is meaningless and has to be dismissed,” says Clifford.

According to an August, 2003 Michigan Bar Journal article entitled “Blood Alcohol Testing,” Michigan Attorney Patrick T. Barone and Jeffrey S. Crampton state that cases involving blood draws are considerably more complicated to litigate than those involving breath testing, because there are more steps and protocols to follow to avoid false blood alcohol readings.

According to Barone, “the state police kit contains a non-alcohol swab, and it should be determined whether or not this swab was used.” In Barone’s article, if an alcohol swab is used in the collection process, a false BAC reading could occur.

There is nothing in the police report or criminal complaint against Poor Bear that indicates proper procedures were or were not followed or that a non-alcohol swab was or was not used in the blood collection process because the hospital conducted the test.

Poor Bear’s pre-trial arraignment is scheduled for March 16th, 2012.

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patrickbarone's picture
Submitted by patrickbarone on
There are many reasons why any blood draw can produce false results, and this is particularly true of hospital blood draws and tests. With hospital testing the goal is to determine the approximate presence of alcohol not its definitive quantity. This is because alcohol may contra-indicate certain medications or treatment and for this use it is not important to have an exact amount. Unlike forensic testing in a laboratory using headspace gas chromatography, hospitals most often use serum/enzyme testing. With this type of testing an enzyme that reacts with alcohol is placed into the blood sample after it is spun to remove the solids. This spinning causes the alcohol to be artificially concentrated into the liquid left over after the solids have spun out. The enzyme placed into this liquid (serum) causes a color change in the liquid, and the amount of color change is converted into a blood alcohol level. The more the color changes, the more alcohol that is thought to be present. One of many problems is that the enzyme is sensitive to alcohol, but not specific to alcohol. Many other things in human blood can cause a color change, which can then be misread as alcohol. Additionally, the equipment used to run the hospital test is not subjected to the same rigorous maintenance and calibration as should occur in the criminal lab, and the hospital personnel running the tests are rarely well qualified as it relates to the criminal law setting. There are a multitude of other possible problems with enzyme testing, and therefore, hospital blood tests should never be used for the prosecution of a crime. They are simply not forensically reliable. And yes, because of all these problems, it is possible for a person with such an exceedingly high serum test result, such as Poor Bear's, to actually be not guilty of the crime of DUI.

redwolf48's picture
Submitted by redwolf48 on
Clearly this is a frame up. If Mr. Poor Bear's BAL was 4 times the legal limit then Mr. Poor Bear would have been dead. This is obviously in retaliation for his lawsuit against the distributors who feed the sewer in White Clay.