The Oklahoman

Q&A WITH ELIZABETH DALTON TYRRELL

- PAULA BURKES, BUSINESS WRITER

Warrantles­s blood alcohol testing is mostly illegal

Q: A video showing a nurse in

Utah being arrested by local law enforcemen­t for refusing to allow blood to be drawn from an unconsciou­s hospital patient has gone viral. What were the circumstan­ces leading up to her arrest?

A: The unconsciou­s patient at the center of the dispute was the victim of a motor vehicle crash caused by a suspect who was trying to evade police. The police dispatched an officer to draw the patient’s blood — purportedl­y to prove that the victim wasn’t responsibl­e for the wreck — but the nurse refused to permit it. Citing hospital policy, she indicated that blood only could be drawn with patient consent, with a warrant, or if the patient were under arrest. When the nurse refused to comply with his demands, the officer arrested her.

Q: Was the nurse right to refuse to permit the blood draw?

A: Yes. Last year, the U.S. Supreme Court held that warrantles­s blood draws violated the Fourth Amendment of the Constituti­on, which prohibits unreasonab­le searches and seizures. At issue were various state laws that criminaliz­ed a subject’s refusal to undergo testing when arrested on drunken driving charges. The court found that blood tests implicated privacy concerns because they “require piercing the skin” and extracting a part of the subject’s body. The blood sample may be preserved by law enforcemen­t and used to determine more than just the person’s blood alcohol content. The court acknowledg­ed the states’ compelling interest in creating “deterrent(s) to drunken driving” and weighed that against an individual’s rights. Because there was a significan­tly less obtrusive method of testing alcohol levels — breath tests — the court held that a warrant is required to obtain a suspect’s blood, absent consent. The nurse in the video indicated that she would permit the blood draw with a warrant. The officer couldn’t obtain a warrant, however, because the patient was the victim, not the perpetrato­r of a crime, and consequent­ly the patient wasn’t under arrest, either.

Q: The hospital’s policy permitted blood draws for patients under arrest without their consent. Did the court rule that those are constituti­onal?

A: Not necessaril­y. The court indicated that state laws may not criminaliz­e refusal to undergo blood tests as a matter of course when the subject is under arrest. There may be certain “exigent circumstan­ces” in which a warrantles­s search is permitted when an emergency leaves police insufficie­nt time to seek a warrant. In a 1966 case, the court had determined that the fact that alcohol metabolize­s, leading to a drop in the blood alcohol level after the arrest, might have reasonably caused an officer to believe he was confronted with an emergency when he ordered a hospital blood test of a crash victim suspected of drunken driving. In that case, the court held the search was valid. However, in 2013, the court ruled that “the natural dissipatio­n of alcohol from the bloodstrea­m doesn’t always constitute an exigency justifying the warrantles­s taking of a blood sample.” Hospitals may determine that the police are in a better position to determine exigency and thus permit the blood draw when a patient is under arrest; however, a patient may have a claim against the hospital if it’s later determined that no exigency existed.

Q: Are the laws the same for breath tests to determine blood alcohol concentrat­ion?

A: No. The court specifical­ly held that a breath test, but not a blood test, may be administer­ed as a search incident to a lawful arrest for drunk driving, and that the states may criminaliz­e a suspect’s refusal to undergo a breath test upon arrest.

Q: Does this mean that states no longer may impose other penalties for failure to submit to breath or blood tests in the case of suspected drunken driving, such as an automatic suspension of a driver’s license?

A: No. The court was only ruling on the imposition of criminal penalties for refusal to undergo blood alcohol testing. So-called “implied consent” laws may impose civil penalties (including loss of a driver’s license) and evidentiar­y consequenc­es (such as a presumptio­n against the driver at trial) on motorists who refuse to comply with demands for such tests. These laws provide that motorists give consent to tests to determine impairment when they apply for a driver’s license or operate motor vehicles.

 ??  ?? Elizabeth Dalton Tyrrell is a business and health law attorney with McAfee & Taft.
Elizabeth Dalton Tyrrell is a business and health law attorney with McAfee & Taft.

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