Refuse in Vein; Cops To Draw Blood (Update)

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.

Apparently, this regimen isn’t good enough anymore in the war against drunk driving.  From the “>Idaho Press-Tribune, via Packratt at Injustice Everywhere :

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.

11 comments on “Refuse in Vein; Cops To Draw Blood (Update)

  1. Jeff Gamso

    Ah, warrants, those pesky things. In Ohio, and a growing number of other states, they don’t always need them. Here, if the cop determines you have two priors, the law says (there are some exceptions) you will give a blood or urine sample. We won’t bother with warrants because we misread Schmerber v. California to mean that if there’s probable cause cops always can order the taking of blood without one.

    It’s a new piece of law, not yet much tested. I’m watching to see how it develops.

  2. SHG

    You’ve got to be kidding.  No warrants needed with 2 priors is absurd. And this hasn’t been stayed pending challenge by some institutional defense organization or the ACLU?

  3. Jeff Gamso

    ACLU (via me) was all over this, and what passed is far less extreme than what was proposed. Litigation strategy, per the ACLU and other groups, can’t really be spoken about this publicly. But it turns out that Ohio isn’t the only state that permits warrentless blood draws for categories of prospective DUI offenders.

    So I wouldn’t count on Idaho’s phlebotocops (a term I first heard from I think an Arizona lawyer) needing warrants.

    You just live in the rarefied New York air.

  4. SHG

    Apparently so.  I’m truly shocked by this.  And people don’t have a problem with cops taking blood from drivers at will?  I can’t imagine a Texan allowing this while he’s still breathing.

  5. John

    I don’t read where this change is to authorize roadside draws. Isn’t it more likely–as is the practice in CA–that blood would be drawn at the station, in a somewhat more controllable environment?

    No one, apparently, has seen fit to challenge the intrusiveness of the practice. I’d be surprised if 9th Circuit allowed it continue, so it seems that they’ve never had it before them.

  6. SHG
    From the Spokesman-Review :

    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.

  7. Libertarian Advocate

    Scott:

    Surely the cops’ll will be entitled to taze any non-compliant driver into cooperation so they can be properly prepped for a blood draw.

    On a different point, isn’t it odd how on one hand most of us abhor the use of “water-boarding” on self-identified foreign enemies of the nation dedicated to the murder of innocents (e.g. KSM) to extract information, and on the other we seem to be totally cool with giving cops here at home the power, authority and impunity to subdue un-cooperative fellow citizens repeated shocks with high voltage with occasional lethal results?

    Just a thought.

  8. Jeff Gamso

    And the answer is: They don’t want no stinkin’ warrants. http://www.nytimes.com/aponline/2009/09/13/us/AP-US-Police-DUI-Blood.html

    As these always are, the plan is justified based on a misreading of Brennan’s majority opinion in Schmerber. He did not say PC is sufficient, without more, to draw blood.

    He said that under the peculiar circumstances of the case there was an exigency. And PC + exigency is a long-settled exception to the warrant clause. But it wasn’t the automobile exception, wasn’t a DUI exception, it was a facts of the case exception. And they’re the sort of facts that simply don’t arise much (and really should almost never arise) given today’s technology.

  9. LJ Davidson

    “The Phoenix Police Department only uses blood tests for impaired driving cases. Detective Kemp Layden, who oversees drug recognition, phlebotomy and field sobriety, said the city now has about 120 officers certified to draw blood. Typically, a suspect is brought to a precinct or mobile booking van for the blood draw.

    Under the state’s implied consent law, drivers who refuse to voluntarily submit to the test lose their license for a year, so most comply. For the approximately 5 percent who refuse, the officer obtains a search warrant from an on-call judge and the suspect can be restrained if needed to obtain a sample, Layden said.

    Between 300 to 400 blood tests are done in an average month in the nation’s fifth-largest city.

    During holiday months that number can rise to 500, said Layden, who reviews each case to make sure legal procedures were followed.”
    —————————-
    “Though most legal experts agree blood tests measure blood alcohol more accurately than breath tests, Oberman said the tests can be fraught with problems, too.

    Vials can be mixed up, preservative levels in the tubes used to collect the blood can be off, or the blood can be stored improperly, causing it to ferment and boosting the alcohol content.

    Oberman said law enforcement agencies should also be concerned “about possible malpractice cases over somebody who was not properly trained.”
    ——————————

    Here are a few ridbits from the article on off****.com

    How many of those people with the “legal authority” to force compliance would we find to be of “questionable hygiene”?

  10. Elliot

    May 24, 2009 two Arizona Department of Public Safety officers stopped me for suspected DUI. The problem is that I do not drink liquor and do not do any drugs.
    After failing the field sobriety test. I was required to submit to a blood test. The officer said he had done 150 blood draws. He also said that he had been an EMT (emergency medical tech).
    He attempted to draw blood from my right arm. The pain was horrible. He could not get more than 1/4 inch of blood is that much. When he drew the blood the needle connected to a syringe was at a 60 degree angle to my arm. He must have hit a nerve and went through the blood vessel if he even hit the blood vessel. From that moment on until today I have pain in my upper right arm. When he took blood from my left arm he caused so much pain that I can remember the experience today.

    These officers have a one week forty hour course at Phoenix College in Phoenix, AZ. To get a certification from the same school to become a phlebotomist requires a three month course with one month being an intern. A professional phlebotomist performs 30 to 60 blood draws a day. These cops are required to do 24 blood draws a YEAR.

    I attempted to get a lawyer to represent me. None would be willing to take the case. How about a Medical Doctor supporting my case. None will step and say the cop did not perform the blood draw correctly. The doctors say “I was not there to see the procedure, therefore I do not know if the cop did it wrong”.

    I am suing the State of Arizona now. The state has offered me $10,001 to drop the case. This is the wonderful justice system we have in the US.

    The assistant attorney general for the state of Arizona has told me he would not like a cop to draw blood from him.

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