Forced Blood Draw With Warrant

Mo Med. 2019 Jul-Aug; 116(4): 274–277.

Mandatory Blood Testing: When can police compel a health provider to draw a patient's blood to determine blood levels of alcohol or other intoxicants?

Introduction

In 2017, 304 of the 930 motor vehicle traffic fatalities in the state of Missouri were alcohol-related. During the same year, there were 12,747 alcohol-related traffic fatalities nationwide.¹ It is no surprise that legislators and law enforcement have taken steps to combat this severe problem. Unfortunately, while providers undoubtedly support the cause, the approach taken in many states has created some tension between the legal and medical worlds.²

Health care providers are accustomed to the uncertainty that inevitably accompanies patient care. Consider the following hypothetical situation: an individual involved in a car accident is escorted to the hospital by police who demand the physician take a blood sample. If the patient refuses to consent to testing, the physician may be left in an ethical gray zone with potentially serious legal implications. A question presented the physician might be: "Am I required to perform a blood draw?" This is more than just an anecdote to illustrate the competing responsibilities of health care providers. Alex Wubbels, an emergency room nurse at the University of Utah, experienced this quandary firsthand in 2017.

After reporting to the scene of a fiery car crash, Salt Lake City Detective Jeff Payne transported an unconscious patient, a semi-truck driver and crash victim, to the emergency room. Though the patient was not under arrest, Payne communicated to Wubbels that he wanted to take a blood sample to determine whether or not the patient was impaired. Wubbels calmly refused, citing an internal policy that required either an arrest or a warrant to draw blood from an unconscious patient. Payne responded by explaining Utah law and arguing a blood draw was appropriate under the circumstances. Disagreement then escalated into dispute, and in the highly-publicized body camera footage, Payne can be seen handcuffing Wubbels and forcibly removing her from the ER for failure to comply with his orders.³

Heath care providers have dual loyalties that require them to uphold and respect patient autonomy while also serving the public at large by reporting certain public health hazards.⁴ As evidenced by Wubbels' story, mandatory blood draw statutes bring these co-existing duties into conflict. "I don't hold any animosity towards [Wubbels]," said Payne in a 2018 interview. "She was doing her job. I was doing my job. Unfortunately, it conflicted."⁵ The following article discusses the dilemma Missouri providers may face in adhering to similar laws.

Competing Theories on Mandatory Blood Draws

Should providers comply with police orders against a patient's expressed wishes and risk exposing themselves to a battery lawsuit, or accept patient refusal in spite of police orders and face potential obstruction charges? There is, unsurprisingly, no easy answer. Not every situation will be like Alex Wubbels'. First, Missouri law, discussed below, at least marginally differs from Utah law in ways beyond the scope of this article. Second, internal policies on the subject are inevitably diverse across localities and types of institutions. Third, the circumstances of the accidents precipitating the blood draw requests, as well as the conditions of the patients involved and the training of the requesting officers, will vary widely between each situation. Therefore, it is important that providers seek to understand their specific health care institution's policies regarding mandatory blood draws. Regardless of the nuances of your institution's unique policy, it is important to be aware there are two broad, competing theories on the matter, the details of which may help you decide what to do if similar situations arise in your own health care practice.

I. Providers should follow the requests of law enforcement

Missouri, along with all 49 other states, is an implied consent state, meaning anyone driving on Missouri's roads has presumptively consented to various chemical tests for intoxicants (including breath and blood tests) unless consent is expressly revoked.⁶ Accordingly, Missouri statute Section 577.029 states, in pertinent part: "A licensed physician, registered nurse, phlebotomist, or trained medical technician, acting at the request and direction of the law enforcement officer . . . 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."

Consent

When patients are cooperative and do not object to blood tests, no problem arises. Similarly, in cases of patient death, unconsciousness, or incapacity, implied consent laws allow police to order providers to perform blood tests.⁷ Section 577.033 provides that patients "incapable of refusing to take a test" have not withdrawn consent. Note that even in cases where a patient can and does withdraw consent, "[t]he absence of consent, implied or otherwise, is not an absolute barrier to the admissibility of the results of a blood test."⁸ A properly-issued warrant overrides patient refusal.⁹ Thus, consent is not generally a requirement if officers present a warrant to obtain blood.

Warrant

While a warrant is the "gold standard" in this context, it is also not necessarily a prerequisite to drawing the blood of an objecting patient. Decisions from both the Missouri and U.S. Supreme Court have carved out a narrow exception to the warrant requirement. The court may determine from the totality of the circumstances (a combination of factors that prevent officers from obtaining warrants quickly thereby impeding the preservation of blood evidence) that a warrantless blood draw is reasonable.¹⁰ Improvements in technology in the past decade have decreased the time and effort required to obtain a warrant, making this scenario less likely.¹¹ Nevertheless, a warrantless blood draw may be appropriate when an officer reasonably believes there to be an exigency, beyond just the natural metabolism of alcohol in the bloodstream, because the delay necessary to obtain a warrant threatens destruction of evidence.¹²

II. Providers should refuse to follow the requests of law enforcement

Although Missouri statute Section 577.031 provides immunity to persons ordered by the police to draw blood, "willful or wanton acts" are not protected from civil liability. The statute states, in relevant part: "No person who administers any test . . . upon the request of a law enforcement officer, [and] no hospital in or with which such person is employed or is otherwise associated or in which such test is administered . . . shall be civilly liable in damages to the person tested unless for gross negligence, willful or wanton act, or omission." A provider's decision to comply with police orders against a patient's expressed wishes might be under the circumstances found to be a "willful or wanton act" that takes the provider outside the realm of immunity. Based on the language in Section 577.029 and other relevant Missouri statutes, however, providers may be able to refuse to draw a patient's blood absent the patient's consent or, alternatively, a warrant (but see previous discussion regarding warrants). ¹³

Consent

Even absent outright refusal from a patient, a provision of Section 577.029 allows providers to decline to draw blood in circumstances where he or she believes, based on his or her good faith medical judgment, that doing so would "endanger the life or health of the person in custody." This is further buttressed by medical ethics requiring providers to do no harm.¹⁴

Warrant

If the police do not have a warrant, a patient typically maintains a right of refusal to participate in blood alcohol tests in spite of Missouri's mandatory blood draw statutes.¹⁵ Should a patient choose to exercise that right, however, they may face severe legal repercussions regardless of their reasons for doing so (i.e., a patient who refuses testing because of a fear of needles will face the same consequences as a patient refusing because of what the test will reveal).¹⁶ Missouri statute Section 577.041 evidences the consequences to patients for revoking consent: if a patient who has been arrested or detained for suspected drunk driving refuses to submit to a blood test, then (1) "evidence of the refusal shall be admissible in any proceeding related to the acts resulting in such detention, stop, or arrest," and (2) "his or her license shall be immediately revoked." This same statute requires that the requesting officer inform the patient of these potential consequences of refusal.

Best Practices

Based on the above information, what can health care institutions and providers do to resolve the conflict between their competing obligations? We suggest the following be considered.

Health care institutions, such as hospitals, can:_

• Educate providers on the applicable laws and clarify institutional positions and policies with regard to mandatory testing.

• Notify local law enforcement of internal policies in advance and work with authorities to establish guidelines that meet both police and provider needs.

• Explore options for joint training to facilitate ethical collaboration and overcome barriers to police-provider partnerships.

• Consider designating an emergency department liaison to work directly with police to optimize communication.

• According to certain literature, consider requesting law enforcement affirm all involuntary blood samples are used solely to determine patient blood alcohol content or asking for written confirmation of sample destruction after testing to further protect patient privacy.¹⁷

Individual providers can:

• Upon refusing a request, clearly communicate his or her rationale for doing so—including citing internal policies, if applicable—and carefully document conversations and interactions with the police on internal forms.

• Involve the hospital's legal or risk management department(s) as early as possible when mandatory blood draw situations arise.

• Inform the patient, if possible, which actions are primarily intended to ascertain or improve his condition and which are intended to serve the interests of the public.¹⁸

• Consider not participating in the treatment of a patient whose blood he or she drew on behalf of police to prevent an overlap between law enforcement functions and the provision of medical care.¹⁹

• Avoid physically restraining patients or performing blood draws on patients who have been restrained by law enforcement.²⁰

Conclusion

Though the circumstances of each patient encounter and blood draw request will be unique, this article offers some general insight into the practical effects of mandatory blood draw statutes for hospitals and health care providers. Hospitals should develop policies and procedures in this regard and communicate these policies to law enforcement before a mandatory blood draw situation arises.

Footnotes

Wakaba Tessier, (left), is a Partner in the Kansas City, Missouri office, and Wendy Keegan, (right), is Senior Counsel in the Austin, Texas office of Husch Blackwell. The authors wish to acknowledge the invaluable assistance of Zaina Afrassiab, a JD/MBA student and Summer Associate in the Firm's Kansas City, Mo. The contents are intended for general information purposes only, and readers are encouraged to consult their own attorney concerning their specific situation and specific legal questions.

Contact: moc.llewkcalbhcsuh@reisset.abakaw

References

1. Nat'l Highway Traffic Safety Admin, Traffic Safety Facts: Alcohol-Impaired Driving (2018). Missouri number includes drivers with a 0.01 BAC or higher; 254 of the 304 fatalities involved "alcohol-impaired" drivers with BACs of 0.08 or higher. National number includes drivers with a 0.01 BAC or higher; 10,874 of the 12,747 fatalities involved "alcohol-impaired" drivers with BACs of 0.08 or higher.

2. John Wherry E., Jr DWI Blood Alcohol Testing: Responding to a Proposal Compelling Medical Personnel to Withdraw Blood. 18 Seton Hall Legis. J. 1993;655:658. [Google Scholar]

4. Jacob M. Appel, Nonconsensual Blood Draws and Dual Loyalty: When Bodily Integrity Conflicts with the Public Health. 17 J. Health Care L. & Pol'y. 2014;129:149–50. "The act of inflicting unwanted medical care on a competent adult—a violent intrusion that contrasts strikingly with the general norms of the healing trades—is likely to prove disturbing and objectionable to many professional caregivers.". [Google Scholar]

6. Mo. Hosp. Ass'n, State Issue Brief: Changes in State Law Affect Patient Blood Draws for Alcohol Levels (2010). Missouri is an implied consent state, meaning "[a]nyone operating a motor vehicle on Missouri's roads is presumed to have consented to various chemical tests to determine alcohol or drug content in the driver's system" unless consent is revoked. See also Hiemstra Cheryl F. Keeping DUI Implied Consent Laws Implied. 48 Willamette L Rev. 2012;521:522. "[W]hen a driver turns his vehicle onto a public road, the driver has automatically consented to being tested for intoxicants by blood or breath.". [Google Scholar]

7. R.S.Mo. § 577.0331982

8. State v. Waring, 779 S.W. 2d 736, 741 (Mo. App. 1989)

9. Mo. Hosp. Ass'n, supra note 6. See also State v. Smith, 134 S.W. 3d 35, 36 (2003). Missouri's implied consent law "prohibits warrantless tests authorized by law enforcement officers pursuant to Chapter 577, but does not prohibit a court from issuing a search warrant to obtain samples of a defendant's blood for chemical testing."

10. To view applicable court opinions, see Schmerber v. Cal., 384 U.S. 757 (1966) and Missouri v. McNeely 569 U.S. 141 (2013). For commentary, see Stockmann Kevin. Drawing on the Constitution: An Empirical Inquiry into the Constitutionality of Warrantless and Nonconsensual DWI Blood Draws. 78 Mo. L. Rev. 2013;351:356. [Google Scholar] and Valenti Kendall. The Luck of the Draw: Inconsistencies of Blood Draws in DWI Investigations, and the Small Odds Missouri v. McNeely Resolved the Conflict. 56 S. TEX. L. REV. 2014;423:424. [Google Scholar]

12. Thomas Crocco, Exigent Circumstances, I Mo. DWI Law and Practice § 6.24 (2014). "There must be circumstances, or special facts, such that the police officer seeking to conduct a search does not have time to obtain a warrant before the evidence may be lost."

13. State v. Smith, 134 S.W. 3d at 37. "[A] warrantless search conducted with proper consent, voluntarily given, is constitutionally valid."

14. Hinte Holly. Drunk Drivers and Vampire Cops: The Gold Standard. 37 New Eng. J. on Crim. & Civ Confinement. 2011;159:174. "The Hippocratic Oath requires doctors to put the needs of the patient first, including the patient's privacy and their decision to refuse medical procedures.". [Google Scholar]

15. State v Smith, 134 SW 3d at 40 "[A] law enforcement officer is without authority to administer the test once it is refused."

16. R.S.Mo. § 577.041 (2014). See also Nat'l Highway Traffic Safety Admin., U.S. Dep't Of Transp., Traffic Safety Facts: Blood Alcohol Concentration Test Refusal Laws (2006)

17. Appel, supra note 4, at 153. See also Nedelcu Andrei. Blood and Privacy: Towards a Testing-as-Search Paradigm under the Fourth Amendment. 39 Seattle U. L. Rev. 2015;195:196. [Google Scholar]

18. Appel, supra note 4, at 153.

19. Id.

20. Missouri Hospital Association Health Institute Webinar. Federal and State Laws Related to Blood Draws and Requests from Law Enforcement. 2017. https://web.mhanet.com/Legal/Resources/MHA_Blood_Draw_Webinar.pdf. Providers should also document the name of the law enforcement officer that requested the blood draw.

Forced Blood Draw With Warrant

Source: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6699816/