DUI Blood Tests & Accepted Medical Practices

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After making a DUI arrest, law enforcement will request that the driver provide a "chemical test."  This means law enforcement will request that the person provide a sample of their blood or breath to determine the alcohol concentration of their blood.  

If law enforcement takes a blood sample from a suspect, the blood must be drawn in accordance with "accepted medical practices."  This phrase comes from the United States Supreme Court case Schmerber v. California.  There the court held that if law enforcement is going to take a DUI suspect's blood, they must do it in a reasonable manner according to accepted medical practices.  This rule is in place to protect people from unnecessary risk of pain or infection resulting from deviation from accepted medical practices.  If someone's blood is not draw in accordance with medical practices, the blood and analysis thereof cannot be used against them in court.  

Drawing blood is a medical procedure, and, if done improperly, can expose people to serious risk of pain or infection.  Circumstances that may expose someone to risk of infection or pain in a blood draw include: (1) lack of hand washing; (2) improper environmental conditions; (3) improper clothing; (4) lack of sterilization of blood draw supplies; (5) reusing materials on multiple subjects; (6) lack of proper training for the phlebotomist; and (7) phlebotomist fails to follow training.  

Often, DUI suspects have their blood drawn in deplorable conditions.  I have seen videos of blood draws occur in: (1) the backseat of police patrol cars; (2) AMPM parking lots; (3) next to toilets in a jailhouse; (4) outside of a jail on a bench sat on by all suspects; (5) on the side of a freeway in a tow truck.  

Moreover, I've seen blood drawn by supposedly trained phlebotomists that deviates so far from accepted medical practices that it makes my head turn.  I have seen videos of phlebotomists: (1) failing to wash their hands; (2) putting "sterile" equipment on the floorboard of police patrol car then using that equipment to stick in somebody's arm; (3) dropping a tourniquet on the jailhouse floor then tying it around a suspect's arm to draw blood.  The list goes on.  

Blood cannot be drawn like this.  It is unconstitutional in violation of the Fourth Amendment.  Recently, I fought a DUI blood draw where my client's blood was drawn in the back of a patrol car at an AMPM gas station in the rain.  The phlebotomist failed to wash his hands, wore street clothes, and failed to exercise any sense of ordinary caution in drawing my client's blood.  The court agreed with my position that my client's blood was not drawn in accordance with accepted medical practices, and the blood was suppressed, or thrown out of evidence.  

Persons arrested for DUI who have had their blood drawn should exercise their Fourth Amendment right to be free from constitutionally deficient and dangerous blood draws.  

 

 

Posted by Mike Donaldson.