medical driving
Legality of DUI blood tests
<p>I was reading a bit about this subject and was wondering about the specific status of the medical professionals involved.</p>
<p>If I am pulled over for a DUI and the cops take me back to the police station and subject me to a blood test, presumably a trained medical professional such as a nurse or a phlebotomist does the needle stick and draws the blood.</p>
<p>I wonder though what are the legal and ethical considerations for that medical professional? A medical professional's job is to provide care and support for their patients -- &quot;first do no harm&quot;. But plainly their actions in this case can at best do nothing and at worst get them in a lot of legal trouble, or perhaps at worst damage the blood vessel or give them an infection -- though obviously that is VERY rare.</p>
<p>Given that you are innocent until proven guilty the only purpose of the test is to prove you guilty, and so the person administering the test is doing so with the intent of doing you harm.</p>
<p><strong>Are medical personnel required to draw blood in support of police investigations even when the patient/suspect is unable to provide consent?</strong></p>

<p>We can look at Missouri law as an example. <a href="https://revisor.mo.gov/main/OneSection.aspx?section=577.029" rel="nofollow noreferrer">Missouri Statutes §577.029</a> says</p>
<blockquote>
<p>A licensed physician, registered nurse, phlebotomist, or trained
medical technician, acting at the request and direction of the law
enforcement officer under section 577.020, shall, with the consent of
the patient or a warrant issued by a court of competent jurisdiction,
withdraw blood for the purpose of determining the alcohol content of
the blood, unless such medical personnel, in his or her good faith
medical judgment, believes such procedure would endanger the life or
health of the person in custody.  Blood may be withdrawn only by such
medical personnel, but such restriction shall not apply to the taking
of a breath test, a saliva specimen, or a urine specimen.  In
withdrawing blood for the purpose of determining the alcohol content
thereof, only a previously unused and sterile needle and sterile
vessel shall be utilized and the withdrawal shall otherwise be in
strict accord with accepted medical practices.  Upon the request of
the person who is tested, full information concerning the test taken
at the direction of the law enforcement officer shall be made
available to him or her.</p>
</blockquote>
<p>&quot;Shall&quot; means &quot;must&quot; – if there is a warrant (we assume there is no consent). Then the question is, what happens if the phlebotomist (etc) refuses? First, <a href="https://revisor.mo.gov/main/OneSection.aspx?section=577.031&amp;bid=29960" rel="nofollow noreferrer">§577.031</a> immunizes the medical-person from legal liability when they act in compliance with a request from a LEO (a simple request, not necessarily accompanied by a warrant). <a href="https://revisor.mo.gov/main/OneSection.aspx?section=577.033&amp;bid=29962" rel="nofollow noreferrer">§577.033</a> says that being dead, unconscious or otherwise incapable of refusing does not constitute withdrawal of consent (which is implied, by law). No specific penalty is prescribed for refusal to administer a court-ordered blood draw. There is no penalty for complying, there is no prescribed criminal penalty for refusing to comply with a court order (there is the possibility of a finding of contempt of court).</p>
<p>Not every state is Missouri: I understand that Utah is different.</p>

<p>As discussed in the article linked in comments by @Michael Hall the nurse in question informs the police officer that they hospital policy is to not draw blood without consent, unless there is a warrant signed by a judge, or the police have arrested the patient in question. As such, when the police bring a DUI suspect in for a blood test for alcohol content, they have made already made an arrest for DUI. Typically, the suspect has already blown a failing score on the breathalyzer and failed field sobriety tests which are grounds enough to affect the arrest and the officer is getting the blood test for additional evidence at this point (while grounds for an arrest are met, the grounds for conviction may not be satisfied.  The BAC from a blood test will aide in adding further evidence against the drunk driver)
Additionally, the DUI does not always mean the driver is under the influence of Alcohol, and certain drug tests look for chemicals that are byproducts of use and may not be as timely as a blood test. For example, any drug test that requires a hair sample and tests positive for the drugs tested means that you took the drug sometime in a period of months, which fails to show what the breathalyzer does which is recent immediate use.</p>
<p>Another reason to get the blood test done is that the breathalyzer can give a false positive if you have been using certain products (For example, Mouth Wash uses a strong alcohol to kill germs, but you're not supposed to swallow it.  It will still read higher on the breathalyzer test if you blow shortly after using mouthwash correctly.  A defense attorney can argue that the breathalyzer will point to this which is enough doubt to let the suspect walk, where as a blood test will show how much alcohol is in the your blood real if done quickly).  In this case, the nurse drawling the blood might actually be doing good as if you blew a false positive on your breathalyzer, this could spare you from having to pay an attorney at all.</p>
