Under the carefully balanced regimen to collect evidence of drunk driving, a police officer can request that a driver submit to a breathalyser test and a driver can refuse. If the driver refuses, there is a giveback that he will lose his driving privileges for a period of time as well as have his refusal available for use as evidence against him. For anyone still wondering how the trade-off plays out, no cop stopped for drunk driving has ever agreed to blow unless he was certain he would pass.
Nampa police are being trained so they can take blood draws in the field to determine whether drivers are under the influence of alcohol or drugs.
Sgt. Matthew Pavelek said in a news release Monday the Police Department recently took part in a program that trains officers to be qualified phlebotomists — blood-draw technicians. The training is funded by the National Highway Traffic Safety Administration and is presented by the College of Western Idaho.
Pavelek said that by having police officers trained to take blood, they are able to conduct blood draws on suspected DUI motorists who do not consent to breath or other chemical testing during impaired-driver related investigations.
The consequence for refusal to blow into the magic black box just became a whole lot more serious. The point of the program is to reduce the cost of obtaining a blood test by eliminating the middle man, the cost of having the blood test done at a hospital, and allowing the cop on the street to do it himself.
The article makes no mention, but I would assume that a search warrant would still be required before a police officer would be permitted to stick a needle in anyone’s arm. I’m going to proceed on this assumption because the alternative is unthinkable. Given that the Washington State Supreme Court has just upheld the use of forced blood testing pursuant to a warrant, it seems to be the trend. Whether it’s a better trend than forced catheterization is a personal matter.
On one level, this spells the death of refusal. Whereas our right to say no was once part of a arguably balanced scheme designed to allow the individual some measure of personal freedom, it now succumbs to forced intrusion into our veins at the hands of the police. While a warrant requirement might remove some taint of police use at will, these warrants will be provided over the phone, ex parte. You can bet that the call won’t be made to the judge who is inclined to scrutinize such applications, if there is such a judge, and that the carefully scripted mantra to obtain a warrant will be memorized by every officer on the road. In other words, don’t expect many warrants to be refused.
But consider the image of roadside blood draws on dash cam videos. Whether it’s mom with three kids in the minivan, or grandma moving too slowly, or a large man unhappy about being stopped, the vision of police officers thrusting a needle into the arm of the suspect is shocking. It’s hard enough to find a vein and draw blood under normal circumstances. At least it’s hygienic in a hospital. Picture it with a struggling suspect on the roadside.
In the quest to eliminate drunk driving, the tools are expanding as the rights are diminishing. Whether this tool is too reminiscent of Marathon Man, too painful and potentially harmful, has yet to be seen, though its potential for error and abuse is palpable. And the liability may dwarf even the handiest of law enforcement tools, the taser.
Is there no line beyond which the zeal to nail drunk drivers won’t cross? While the MADD activists will invoke the image of dead children to justify the forced roadside blood draws, this won’t bring much comfort to the driver forcibly held on the ground while a cop jabs a needle in his arm.
And if this goes too far when it comes to drunk drivers, imagine how it will be for those who pissed off a cop and are “tested” to remind them who’s boss? This is a very bad idea, and I hope one that finally pushes the envelope too far.
Update: And the New York Times catches up to this story. Some additional background, and note the simplistic explanation of Schmerber (per Gamso’s comment). The Times story also makes clear that this isn’t about the officer taking the suspect to the hospital to draw blood, but doing it on the spot:
I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle,” said Steve Oberman, chairman of the National Association of Criminal Defense Lawyers’ committee on driving while intoxicated.
Once they are back on patrol in Nampa, in southwestern Idaho, they will draw blood from any suspected drunken driver who refuses a breath test. They will use force if necessary, including getting help from another officer to pin down a suspect, Ms. Watson said.
There’s a roadside image for you, not to mention an interesting trade-off of law enforcement versus the right not to have the government stick a needle in your arm.