What is the Legal Blood Draw Process?
A legal blood draw refers to the type of blood draw permitted by law enforcement authorities. Confusingly, the term can also refer to blood draws performed by hospitals, doctors, or laboratories for other purposes, such as hospital visits, pathology tests, or lab work.
Here, we will use the term legal blood draw in its most common context – that of a police blood draw taken under the authority of a search warrant. This meaning is by far the most common meaning of legal blood draw and is the term’s usage in the below sections.
Legal blood draws are by far the most common form of blood draws in Colorado DUI cases. They are governed by C.R.S. 16-3-309(5), which states:
Except as provided in subsection (5)(c) of this section, if the continued restraint of a person is necessitated for the purpose of seeking a legal blood draw, such restrain shall be done in accordance with C.R.S. 42-4-130.3.
Subsection (5)(c) provides for statewide implementation of the blood draw statute, including the taking of blood from unresponsive persons and implied consent. However, it only allows the state to take blood with the appropriate consent of the person whose blood is to be drawn or after a warrant has been issued to obtain the blood.
In most criminal cases, police officers encounter defendant blood draws taken in the context of a DUI. In the DUI tests and observations test, officers will administer a breath test and/or blood test to determine the degree of intoxication of a defendant. DUI blood tests fall under a category known as "evidentiary blood tests."
These tests are typically administered under one of two commonly used statutes: DUI implied consent and DUI search warrant . They both operate under the assumption of defendant consent, although the methods in which this consent is acquired differ.
DUI implied consent is a procedure in which an officer takes a blood test after offering a suspect the choice of taking the legal blood draw. At this point, the police officer would read an advisement to the suspect. The advisement, C.R.S. 42-4-130.1(2), provides a warning of the penalties for refusing a blood test; the penalty may include administrative revocation of their drivers licenses.
If the suspect agrees to take the test, it is administered at the police station, hospital, or doctor’s office. The results of the blood draw are then used in court against the defendant to prove DUI.
In implied consent, the defendant is offered all of his constitutional rights, including the right to refuse any searches. He must expressly consent to the taking of a blood test for purposes of being allowed to. In any case, if the defendant consents to the blood test, but it is found to be improper, this fact cannot be used against him in court. In this case, it is a question for a judge on how to handle this improper blood draw.
In Colorado, "the State has the burden to show that the blood test was performed in compliance with C.R.S. § 42-4-130.1(4) and the regulations implementing the statute." Lovato v. DMV, 89 P.3d 490, 495 (Colo. App. 2004). The key is whether or not the blood was drawn or tested in accordance with the Colorado Blood Alcohol Concentration Statutes.
In short, legal blood draws are blood tests ordered by police officers under a search warrant. These tests are either implied consent or search warrant blood tests, and are administered by law enforcement officials at the police station, hospital, or doctor’s office.
Legal Predicates for Blood Draws
In order for a blood draw to be used as evidence in the prosecution of an Oregon DUII (driving under the influence of intoxicants) case, it must have been performed under "proper circumstances" as required by law. The method used in most DUII cases is the standard "urine, breath or blood test." This is generally now accomplished through the blood test.
Under Oregon state law, a blood draw sought to be used as evidence under the "implied consent law" must have been performed pursuant to a warrant or out of the presence of a police officer: If a person refused the requested test and the police officer requested a warrant, then the blood test must be drawn in anticipation of a warrant. If the arresting officer was in possession of a warrant authorizing the blood draw, a warrant for a blood draw obtained after a DUII arrest could be considered proper for the imposition of the DUII Refusal.
However, given that a warrant is a court order, a person has a right under the United States Constitution (4th Amendment) to know either: The person’s answer to this question had a significant bearing on whether or not there was probable cause. If he/she had not given an affirmative reply to the question, there would have likely been no probable cause for the arrest, and thus a warrant might not have been required: The probable cause determination was found to be corroborated by the refusal. State v. Langan, 218 Or App 184.
However, refusal does not end the totality of the circumstances analysis that courts use to determine the existence of probable cause. State v. Langenberg, 160 Or App 611; Papciak/ Sullivan; State v. Pfister; Sturnhagen, 2003. Warrants may be obtained after a blood draw and at any point in time if there is some probable cause bringing the warrant in conjunction with the arrest and the refusal. The warrant must be used to justify the blood test that was requested.
Procedural Steps in the Legal Blood Draw
The officer is responsible for initiating the procedure, reminding the person of the implied consent statutory language, and asking a trained and certified technician to conduct a blood drawer. It is very important that the officer does not have any influence whatsoever on the timing, process, or manner in which the blood is drawn.
Firstly, the gathering of the blood must be conducted by either a licensed medical doctor (MD), licensed practical nurse (LPN), registered nurse (RN), and/or a certified medical technician (CMT). In many law offices throughout the country, including in New Jersey, the Process Services and Nurses are RNs.
The doctor or nurse usually has one of two choices available to them. Either the doctor/nurse will administer the blood collection him or herself, or they may actually observe a "trained and/or certified technician" conduct the blood draw while the doctor/nurse observes.
All officers need to know that the person who is drawing the blood, whether a doctor, nurse, or technician, must be licensed and certified in the State of New Jersey. Even if the blood draw is conducted in a hospital, the hospitals will not be given immunity from the laws governing DWI in New Jersey.
Should the government make a mistake and obtain a sample that is considered "tainted" or "poisoned," the court will not permit the government to introduce into evidence any of the blood collected at the doctor’s office, hospital, or laboratory. If the blood is tainted, the government’s case concerning the blood alcohol content is practically over.
First, the officer observes the doctor to see if he/she is licensed, and then the officer must hand the doctor a copy of the Implied Consent Statute. Once the officer does this, the doctor is well within his/her rights to draw blood from the suspect (in most instances).
In short, the officer should stand back from the person to observe the doctor, while the doctor draws the blood. The officer should not interfere with this procedure in any way.
Once the blood is drawn, allege the cops, it is placed into vials correctly labeled red, gray, and green. The green vials are used for testing, the gray vials are to be tested only if the blood alcohol content is less than 0.10, and the red vial is placed in a manner mandating potential criminal prosecution under N.J.S.A. 39:4-50.4a.
It is very important that the officer have no knowledge whatsoever regarding the doctor, nurse, or technician. This is why the officer should not see the doctor in the first place. The officer would be taking too much of an interest in the situation should it be determined that he/she knew the doctor in the first place. This could lead to a potentially bad situation for the officer, which is why the officer should remain a distance away from the situation at all times.
At this time, the officer should leave the room and have the doctor, nurse, or technician wrap up the blood draw, labeling all the vials, and sending the samples to the lab safely in a sealed envelope or container. It is strongly advised that there be no discussion whatsoever about the blood from that point on.
The doctor, nurse, or technician should report to the testing facility whether it is a private laboratory, or a State Police Laboratory, what they believe the blood alcohol content to be.
Rights of the Subject of the Blood Draw
As mentioned above, the suspect does have the right to refuse to consent to the drawing of blood. However, California law imposes severe consequences for refusing a blood draw when requested. California Vehicle Code 23612(a) provides that: "A person so requested to submit to and who refuses to give either a breath or blood sample upon the request of a peace officer . . . shall have his or her driving privilege immediately revoked." The penalties for a refusal are the same as if the driver did not have a license. In addition, the court will notify the Department of Motor Vehicles of the individual’s refusal and they will suspend their right to operate a motor vehicle for one year. An implied consent waiver is a law that is in effect for all licensed drivers that says, essentially, that by obtaining a driver license you have automatically consented to a blood, breath, or urine test for any law enforcement officer who has reason to suspect you of driving under the influence . Even though it is a law that is already in effect, law enforcement officials do not have carte blanche to collect blood from suspected drunk drivers. When law enforcement officials seek to collect a blood sample from a suspect in the field, they must first obtain a warrant from a judge or simply ask the suspect to consent to the test. If the suspect refuses to consent, law enforcement officials must go back to the precinct and get a warrant. This is what is called a warrantless blood draw in view of the above, there is no "blood draw exception" to the Fourth Amendment. If an officer wants to obtain blood from a suspected drunk driver without a warrant, consent is required. Simply put, the law presumes that you do not want any needles anywhere near you unless you consent to it. If the officer has a warrant, consent is not necessary.
Complications and Controversies
Despite these guidelines, the process of blood sampling continues to prompt challenges and controversies on a variety of levels. Among the most common is the Fourth Amendment which, while currently decided, has been the subject of much debate in the legal community. Traditionally, a duly exercised warrant may be used by police to allegedly bypass this policy, but a new Supreme Court ruling (Missouri v. McNeely, 2013) aims to put a crimp in this practice, despite the fact that some exceptions have been granted. These include exigent circumstances (crime in progress), arrest exception and search incident to arrest. In Missouri v. McNeely, the court ruled that blood tests took long enough that, by the time the warrant was obtained, the alcohol in the defendant’s blood could have dropped significantly, rendering the test invalid. The exception being that there is a danger to destruction of the evidence, such as when a drunk driver threatens the lives of others while driving under the influence. Even if the challenge to warrantless searches is ultimately decided, the process of blood testing is rife with potential for errors, fraud and even illegal methods of drawing blood. Errors in technique can lead to the presence of traces of alcohol where none exists. Statistically, 51% of breath tests are within .03% of the actual BAC, while only 35% of blood tests are within the same range % (National Highway Traffic Safety Administration, U.S. Department of Transportation 2000). Thus, the BAC may be higher or lower than indicated. If challenges to warrantless searches continue or blood testing remains identified as problematic, the courts may favor alternative means of determining blood alcohol content, such as breathalyzers or the more scientifically-advanced gas chromatography. Gas chromatography is currently the least-adopted method, garnering only 33% of the blood alcohol testing market (National Highway Traffic Safety Administration, U.S. Department of Transportation 2000). Its use may help to minimize the problems resulting from problems with blood testing.
A number of new methods for actually obtaining blood exist, which may help to simplify the process and address some of the current controversies. Automated needle systems (e.g. Becton-Dickinson’s B-D Adapta-Cuff) are one option, though costs may deter adoption. Another involves a variation of the heel stick method used on infants, known as a fingerstick method. This method was promoted by the National Highway Traffic Safety Administration as a way to reduce the current need for needles and might address concerns that testing could be administered by unqualified personnel.
Legal Conclusions & Case Examples
In analyzing the legal blood draw procedure, understanding notable past cases and rulings can provide insight into the present legal framework. One such precedent-setting ruling came in a case heard by the United States Supreme Court in 1971. Schmerber v. California determined that "The rule to be applied in this case is plain and simple. In order to secure evidence of blood alcohol content through a forced blood draw, the state must grant the defendant a fair opportunity to refuse."
It added that "The seriousness of the offense necessarily includes the danger to the community that attaches to drunken drivers," and concluded that "… the interests of the State in statistical compilations, the enforcement of laws protecting the health of the community, and in the use of evidence in court proceedings involving drunk driving, are all interested in permitting blood to be used as evidence only when the conditions mentioned earlier have been met," before ultimately ruling against the defendant.
The view expressed in this decision has stood the test of time, and case law continues to support it. In 2008, the Wisconsin Supreme Court case State v. Bohling upheld the forced blood draw of a 44-year-old man following an accident, upholding Schmerber’s requirements in full.
In April 2009, the Maryland Court of Special Appeals ruled in Jones v. State of Maryland that: "The imposition of a venous blood draw test constitutes a search within the meaning of the Fourth Amendment of the Constitution of the United States." It goes on to stipulate that " to comply with the mandates of Schmerber, a law enforcement officer must meet the following four requirements":
The defendant’s argument that the blood draw would not be admissible even if taken by a warrant was based on the conclusion of the trial court that: "The majority of our sister states considering this issue…conclude that there is no substitute for a warrant when the offense involved is potentially punishable by less than a year incarceration."
In other words, despite having met the criteria of Schmerber, the lower court offered an additional level of protection to the defendant by requiring the warrant .
In September 2011, the Oregon Supreme Court case State v. Gathright involved the case of a man who had medications prescribed by his doctor for chronic pain syndrome, which were detected in a blood test that he was compelled to submit to. All panelists of the Supreme Court hearing the case found that sufficient probable cause existed for the arrest, and that the warrantless blood draw was reasonable due to the fact that the doctor had been present at the scene and "could have administered the medication." The decision held 6-1 to affirm the Court of Appeals decision.
The majority view argued that "There were exigent circumstances at the scene that in combination, created a risk that evidence in the form of blood could have been lost if immediate action were not taken by the officers," and that "We conclude that the warrantless blood sample was reasonable under the circumstances presented" but justices also accepted the argument that a warrant was required because "the medications Gathright was taking did not continue to affect him."
This case is particularly noteworthy as it presents a counterpoint to those cited above over the expected effects of various drugs, instead siding with the defendant and refusing to apply "present day knowledge of the effects of drugs" to the current case. "We do not think that the subjective observations or expert opinions of witnesses who were not subject to cross-examination, reported to the district attorney, and never made part of the record of the trial court, provide a sufficient predicate to establish exigent circumstances. Trial courts may and should make findings of fact based on factual information in the record related to the occurrence — not on unsigned reports from witnesses that were not subject to cross-examination."
While the general consensus is that a warrantless blood draw may be accepted if approved by a judge beforehand, and even if a warrant cannot be obtained immediately, both the language of Schmerber and the majority opinion in Gathright will influence your state’s legal requirements for blood draw procedures.