Is It Worth Killing a Person to Try to Obtain a DUI Blood Test?

Wall Street Journal | March 24 2004

BROOKFIELD, Wis. -- After police stopped Robert H. Miller for driving erratically here one afternoon in February 2001, they asked for his license and registration.

Then they asked for something else: his blood. Having been convicted of drunk driving once before, Mr. Miller refused to cooperate. So after he was taken to a hospital, five officers pinned him to the floor as a medical technician stuck a needle in his arm. His blood-alcohol level was 0.266% -- more than twice the legal limit. Mr. Miller, who declined to comment, challenged the tactic in court but lost. He pleaded no contest, was sentenced to up to 90 days in jail and lost his license for 18 months.

In the past, police routinely asked suspected drunk drivers to blow into devices that extrapolated their blood's alcohol content from their breath. Now, authorities in most states are taking blood, by force if necessary.

"I've really pushed it," says John O'Boyle, district attorney of Pierce County, Wis. Lawyers sometimes successfully challenge breath tests in court or persuade juries to doubt them, but "blood tests tend to be pretty bulletproof," Mr. O'Boyle says. Moreover, it's impossible to force a breath test on someone, but taking blood requires no cooperation. "If we have to literally strap you down if you refuse, that's what can happen to you," says Lt. Tony Almaraz, a Nevada Highway Patrol spokesman.

Advocates say blood tests, once seldom used, now are a powerful weapon against drunk driving. But the tests raise two nettlesome questions: How much force should police be able to use in extracting blood from uncooperative suspects? And should medical professionals, who are honor-bound to obey patients' treatment wishes and protect their privacy, be compelled to do otherwise?

For half a century, breath tests have been the standard in the U.S. and remain in wide use. But as penalties for driving under the influence increased, many suspects started refusing to submit, figuring the penalty for declining -- often a one-year license suspension -- beats a DUI conviction.

The National Highway Traffic Safety Administration found in a 1991 survey of 40 states that 19% of drivers arrested for DUI refused to be tested. More recent figures suggest that problem persists, with nearly 8,900 Massachusetts drivers, 11,900 Missouri drivers and 23,500 Florida drivers declining tests in 2001, officials in those states say.

Frustrated by the increasing savvy of drunks and defense attorneys, at least eight states -- Alaska, Arizona, Iowa, Florida, Indiana, Michigan, Nevada and Texas -- have in recent years enacted statutes specifically permitting police to use reasonable force to obtain blood samples in DUI cases.

Laws in at least seven other states allow police to take blood without the driver's consent, without explicitly authorizing force. In most other states, court rulings have authorized reasonable force to obtain blood. Many such rulings cite a little-known fact about driving laws in the U.S.: All motorists are considered to have consented to a search of their blood, breath or urine. Such "implied consent" laws were introduced in New York in 1953, and today all 50 states and the District of Columbia have them.

The circumstances under which blood can be taken vary. In some states, blood can be taken only from repeat offenders or in cases where people are killed or injured in crashes. Some allow exceptions for members of religious groups that oppose certain medical treatments and for those with health conditions that make blood draws dangerous, such as hemophiliacs. Warrants usually aren't required because alcohol dissipates from the bloodstream, leaving police little time to seek one -- an "exigent circumstance" long allowed by courts as an exception to Fourth Amendment warrant requirements.

No national statistics exist, but in Wisconsin the number of blood samples taken from DUI suspects has doubled since 1995, to 21,418 in 2003. State officials didn't track how many were legally intoxicated, but they say that in 92% of the 38,214 DUI cases handled in 2002, the drivers were convicted.

Alarmed by what they see as diminished police vigilance, anti-DUI activists praise the trend toward increased reliance on blood evidence. As the number of licensed drivers in the U.S. climbed, DUI arrests fell to about 1.5 million in 2002 from a 1990 peak of 1.8 million, and the estimated number of alcohol-related traffic deaths edged up slightly, to 17,419 in 2002. Drunk driving remains the second-most-common crime in the U.S. behind drug offenses.

Critics of the practice see a threat to privacy and civil liberties, with judges in Rhode Island, New Jersey and Wisconsin barring, limiting or questioning the practice in recent years. In Pennsylvania, the state police say they don't take blood if a driver refuses, but might if the driver is unconscious.

The ways in which blood is drawn vary considerably. Under one common scenario, drivers are stopped by police and asked to perform a field sobriety test. If they fail this, they are taken to a medical facility, such as a hospital, and blood is drawn there.

Some physicians are alarmed when doctors or those working for them draw blood for police without consent. The doctors argue that the Hippocratic Oath requires them to put patients' needs and desires first and to respect their privacy and decisions to decline medical procedures. The American College of Emergency Physicians said in 1998 that it opposes requiring or permitting doctors to give blood-test results to police "because such reporting fundamentally conflicts with the appropriate role of physicians in the physician-patient relationship."

"For me to draw blood from a patient who is refusing to have his blood drawn, unless I have compelling medical reasons for that blood sample, I'm committing assault and battery, and I'm not going to do it," says Dr. Phil Brewer, president of the Connecticut College of Emergency Physicians and a fellow at the National Highway Traffic Safety Administration.

Dr. Brewer says some doctors fear that reporting alcohol levels to the police might violate the Health Insurance Portability and Accountability Act, which makes the unauthorized disclosure of patients' records a crime. "Who's willing to take that risk?" he asks. "I don't want to be the test case."

The law, however, has an exception for certain "disclosures for law-enforcement purposes," according to rules drafted by the Department of Health and Human Services. Richard Campanelli, director of the department's civil-rights office, says the exception permits doctors to release blood-test results in DUI cases.

Some states have amended their laws to deal with patient confidentiality, requiring doctors to hand over patients' blood in DUI cases. Indiana requires that blood and test results be given to police "even if the person has not consented to or otherwise authorized their release." At least three other states -- Hawaii, Illinois and Pennsylvania -- have similar laws. Another 14 states authorize (but do not require) such disclosures, according to Mothers Against Drunk Driving.

In practice, police face little resistance from the nurses and medical technicians who typically draw blood.

In 2000, a nurse at Community North Hospital in Indianapolis gave police and prosecutors a blood sample and the medical file of Eli Hannoy, who was in a wreck that killed two people, court records say. The hospital kept another blood sample. Tests of both revealed alcohol levels in the range of 0.2%, twice the limit, and he was convicted of operating a vehicle over the legal limit causing death, a felony. His conviction was overturned by the Indiana Court of Appeals, which found that police lacked probable cause to seek a blood sample, and the case is now set for retrial. The police sample cannot be used as evidence, the court ruled, but the hospital sample can be.

Mr. Hannoy's lawyer says his client "remains innocent until proven guilty." A Community North spokeswoman declines to comment "due to privacy considerations."

The U.S. Supreme Court last addressed taking blood against a driver's wishes in a 1966 case, Schmerber v. California. The defendant crashed his car into a tree after drinking at a tavern and a bowling alley. Injured, he was taken to the hospital. Police thought he looked drunk and directed a doctor to obtain a blood sample over the man's objection. He didn't physically resist, but challenged the action in an appeal of his DUI conviction. The Supreme Court ruled, 5-4, that the incident didn't violate his Fifth Amendment right against compelled self-incrimination or his Fourth Amendment right against unreasonable searches and seizures.

The majority stressed, however, that the decision was narrow, based on the "reasonable manner" in which the blood was obtained -- "by a physician in a hospital environment." The majority warned that "serious questions ... would arise" if the blood were extracted "in other than a medical environment -- for example, if it were administered by police in the privacy of the stationhouse" because allowing that might "invite an unjustified element of personal risk of infection and pain." It added that "more substantial intrusions, or intrusions under other conditions" might not pass muster.

These days, though, blood often is obtained under much different circumstances and sometimes via more-forceful means.

State and federal courts have countenanced a range of police conduct in obtaining blood, from putting a chokehold on the carotid artery of a suspected drunk in California to shooting one in the arm with a stun-gun in Delaware.

And blood often is extracted in police lockups and jailhouses -- just the sort of environment the Supreme Court said might be constitutionally troublesome.

Testimony in a federal suit last year shows that authorities in Las Vegas regularly obtain blood samples in the Clark County Detention Center. The suit involved a 1998 incident. Police found Terry Jones, then 33, asleep at the wheel of a parked car, an open Budweiser between his thighs. He was arrested, taken to the jail and ordered to submit to a blood test. Mr. Jones, who had two prior DUI convictions, put up a furious fight.

Guard Daniel Kresky testified that physical resistance to blood draws was a nightly event. Guards would use "whatever force is necessary," he testified, typically handcuffing defendants' arms behind their back, bending them over an examination table in the jail nurse's office and holding them down. Sometimes, drivers were held on the floor. "We always got our blood," he testified.

Mr. Jones, 270 pounds, tossed several officers off his back with a buck of his head. Two officers testified that another stood on and kicked Mr. Jones's head; that officer denied the charge. Suddenly, Mr. Jones went limp. The coroner ruled that Mr. Jones died of acute cardiac arrhythmia, a heart-rhythm disturbance. But a second autopsy, performed by a retired deputy medical examiner at the request of Mr. Jones's widow, found that his head had been beaten and his left eye crushed. "Had it not been for that trauma, he probably wouldn't have died," that doctor testified.

Last March, a jury ruled that police and jail officials weren't responsible. Paul Martin, the jail's chief, says it now uses a specially-made chair with Velcro straps to restrain drivers brought in for forced blood draws.

Encounters over drivers' blood are beginning to give some judges second thoughts.

In a Rhode Island case, police in 1997 arrested a woman on suspicion of DUI after a car she was driving struck and killed a motorcyclist. She submitted to a breath test, which found only minimal alcohol, but she refused to give blood, so the police got a warrant. Her blood tested positive for marijuana and cocaine.

In pretrial litigation, the state Supreme Court ruled in 2000 that taking her blood without consent violated a provision in the state's implied-consent law, which says that if a driver refuses to submit to a test, "none shall be given." The court said the provision was meant to "prevent a violent confrontation between an arresting officer and a suspect unwilling to submit." (The defendant later pleaded no contest to DUI resulting in death.) Some state lawmakers advocated changing the law to allow force, but the Legislature hasn't done so.

A year later, the New Jersey Supreme Court ruled that police in Edgewater went too far when they pinned a screaming, struggling suspected drunk driver to a hospital table, strapped down his legs and left arm and held him while a nurse drew eight vials of blood, which indicated that he was drunk. The court didn't bar the future use of force outright but said that under the circumstances the police used "unreasonable force." Barred from using blood evidence, prosecutors retried the man, who was convicted based on police testimony that he seemed drunk.

In Wisconsin, state Court of Appeals Judge Charles Schudson says in an interview that the state's blood-drawing practices come "painfully, painfully close to a violation of civil liberties." An outspoken critic of DUI laws he deems too lax, Judge Schudson voted to uphold the use of force to obtain blood but only because he concluded that Wisconsin legal precedent required that he do so. In a Court of Appeals opinion written in 2002, he took the unusual step of asking the state Supreme Court to reverse its previous decisions supporting forced blood draws. So far, it has not done so.

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