September 2, 2022

In 2019, the U.S. Supreme Court ruled in Mitchell v. Wisconsin that the police don’t need a search warrant to have medical personnel draw the blood of an unconscious person suspected of DUI.  This ruling significantly complicates life for emergency room doctors and nurses because if the patient is unconscious, the blood draw is legal, but if the patient is awake, verbal consent or a search warrant is required.

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609268089992-0’); }); }

Justices Alito, Thomas, Breyer, and Kavanaugh, along with Chief Justice Roberts, formed the majority opinion.  Justice Thomas wrote that the evidence dissipates over time, and thus the states can invoke the “exigent circumstances doctrine” to allow for the exception to Fourth Amendment protections because the suspect could become sober by the time he finally regains consciousness.

However, the Court ruled only that police officers can ask medical personnel to draw blood without requiring a warrant.  The ruling doesn’t say anything about the police officers drawing the blood themselves.  Using the excuse of conserving resources, police in certain jurisdictions have started allowing police officers to draw blood from suspects, effectively cutting out the middleman at the hospital and working around the Fourth Amendment’s prohibition against illegal searches and seizures.

DUI suspect Jonathan Moore killed two passengers in another car after he drove the wrong way down a busy street in Dallas, Texas.  Moore had five previous DUI convictions but blew 0.0 on the Breathalyzer when the police tested him at the scene.  He told the arresting officers he’d taken a prescription for Xanax.  Police took Moore to the hospital for a blood test, but a nurse at the hospital refused to draw Moore’s blood without a warrant because she judged him intoxicated and incapable of giving consent.  So the police finally got a warrant and got Moore’s blood the legal way.  The police were not happy, however.  A police spokesman complained, “That’s not their job.  Their job is to provide care for their health, not their legal status.”

‘); googletag.cmd.push(function () { googletag.display(‘div-gpt-ad-1609270365559-0’); }); }

Then a high-profile court case ended very badly for law enforcement in 2017: an emergency room nurse following hospital policy was arrested and handcuffed for refusing to draw blood from an unconscious patient, an off-duty reserve police officer from Idaho who had been struck by a man fleeing from police in a pickup truck.  The nurse sued the police department and won the case.  The arresting officer was fired, his supervisor was demoted, and the nurse was awarded a $500K settlement.  Why take a chance on getting an uncooperative nurse when you can just slap on a pair of gloves, grab a needle, and jab the suspect yourself?

That’s exactly what the cops in as many as twenty-eight states are doing these days.  One thing is certain: this will not end well.

Can’t you just see an officer deciding a citizen is drunk when in reality he’s experiencing a petit mal seizure, a diabetic issue, or a stroke, and the officer uses force to subdue them?  As officers pin that person down and fight with him, they could cause a full blown grand mal seizure or a debilitating stroke.  The police have zero assessment skills, and they are trying to do two jobs at the same time.  Going to phlebotomy school to learn how to take blood from people doesn’t make one a medical professional.  This is a disaster waiting to happen.

A fully qualified registered nurse can’t act without a doctor’s orders, but police officers believe they can circumvent consent laws by drawing blood themselves.

Officer Ryan Preston of the Clark County Sheriff’s Office thinks having deputies take blood from suspects is a good, efficient idea.  “One of the options is obtaining blood through a search warrant,” Preston concedes.  “Right now, we’re using American Medical Response as well as the hospitals, and it kind of attacks everyone else’s service.  We know through other states and some other law enforcement agencies in Clark County that they’ve been doing blood draws for several years.  So it’s nothing new that we’re inventing.  We’re just taking these programs from other places and putting them into our county to make everything a little more efficient.”

Should police arrive on the scene of an accident and discover an unconscious victim, their one and only priority should be getting that victim to the hospital as soon as possible.  Blood can be drawn upon arrival at the medical facility, by trained doctors and nurses, not in the field by a cop.