Q&A WITH ELIZABETH DALTON TYRRELL
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.