OpenCDA

July 4, 2017

Not a Good Idea

Filed under: Probable Cause — Tags: — Bill @ 8:01 pm

DWI-blood-drawIn its Sunday skewspaper article very distastefully headlined Police Are Out for Blood, the Coeur d’Alene Press reported that Coeur d’Alene police officers are being trained and certified as phlebotomists so they can do field blood draws on persons suspected of driving under the influence of intoxicants.

OpenCdA has some concerns and questions we believe must be addressed by the Coeur d’Alene City Council before it applies its obligatory and ceremonial rubber stamp of approval to this proposed practice.

The skewspaper article failed to report what happens to the sample after it has been obtained by the officer.  Where and by whom is the actual analysis of the sample performed?  What will the Department’s policy be regarding timely delivery of the sample to the testing laboratory?

Of considerably greater concern is the skewspaper article’s implication that this policy and procedure is being proposed to circumvent an existing requirement that officer obtain a search warrant to perform a physiologically invasive, nonconsensual search of a suspect.  Our concern is prompted by these lines of the skewspaper article:

 

If an impaired motorist refuses to submit to a breathalyzer and police have probable cause the motorist is intoxicated, they must get a search warrant to draw blood at a hospital.

“Getting a search warrant takes a while,” Hagar said. “A lot of time, things are too busy and it takes a while.”

By reducing the time — getting a blood draw at the scene — police can get more accurate BACs, which can aid in prosecution, Hagar said.

If a search warrant is required now for a hospital phlebotomist to conduct a physically intrusive, involuntary, and nonconsensual search of the suspect’s body at the hospital, why won’t a search warrant also be required for a law enforcement officer to conduct a physically intrusive involuntary and nonconsensual search of the suspect’s body in the patrol car?

A reasonable inference from the article is that a suspect in the custody of a patrol officer in the field could be persuaded (coerced) into giving “voluntary, informed consent” for  a blood draw in the field.

We are also very concerned that some people are, to put it mildly, needle averse.  They may be able to tolerate a draw using a blood collection system composed of a multi-sample vacuum collection needle and a disposable tube holder in the hands of an experienced, non-threatening phlebotomist at the hospital.  The same equipment system in the hands of an arresting police officer begins to look more like a painful interrogation tool designed to elicit an involuntary admission or involuntary consent.

Are the police going to hold the suspect down while the newly-trained police officer draws blood if the suspect objects to the search?  How is that going to look on the video from the body camera?  Policy would mandate that from the beginning of the stop through the completion of the involuntary blood draw, there must be an unbroken,  clear, and intelligible video image with audio of the entire process.  Failure to rigidly adhere to the policy ought to administratively require the exclusion of all BAC evidence by the court in that case as presumptively involuntarily and illegally obtained.  In other words, before the evidence obtained from the blood draw is admitted, the court must require the state first prove the blood draw was lawful.  The audio-video evidence from the arresting officer’s body camera is the best way to prove that.

What’s next?  Police officers trained to catheterize suspects to obtain urine samples?  Officers trained to conduct colonoscopies to search for drug packets?

6 Comments »

  1. This is such a joke. There are felons on the street now, with repeated DUI’s ect, still driving without privileges here in Kootenai County. Makes me laugh. “By reducing the time — getting a blood draw at the scene — police can get more accurate BACs, which can aid in prosecution, Hagar said.”, this really equates to hoping to make more money. They would need to charge the cost of the blood draw as well if they can ever collect. Then, what if the person is not drunk? Will they test for other substances as in a complete drug panel and charge for more after the fact? What if they miss the vein? Are they going to practice on black skin and who will volunteer? Exactly, who gets the sample to the lab and how soon will it take to get the results? Policemen can now administer Narcan to heroin addicts, are they going to get a blood sample at the same time? How about someone with diabetes? Will they get an AIC and administer insulin? This is so bad, our justice system does not belong in the medical industry. Maybe they need to consider an onboard paramedic, so they can get blood samples ect. and patch the bullet holes at the same time. Ridiculous.

    Comment by Stebbijo — July 5, 2017 @ 7:31 pm

  2. I’m curious about a few things.

    What is our local refusal rate for breathalyzer testing and other chemical testing?
    Is any one tracking the turn around times and efficiency for local blood draws?
    Is anyone tracking hospital refusals to perform such tests?

    Meaning where is the current system broken? Just off the cuff I would imagine that the Sheriff or State police in rural areas would be more significantly interested in this but the City of Coeur d’Alene given its limited size and proximity to the centrally located hospital is more then curious. What about liability and costs compared to need within the City? I fully get the contribution of law enforcement who is seeking evidence in connection with protecting the public. Especially in DUI cases and more importantly accidents and fatalities no doubt they have a serious job to do and generally do a great job as it is, so is this really needed in the City or is it over reaching and just a bad idea?

    Comment by Appalled — July 6, 2017 @ 5:32 am

  3. Stebbijo and Appalled,

    I watched the Council meeting last night on television, and there’s an article in the local skews paper this morning. Once the City puts the video of last night’s meeting up on the City’s website, I’d suggest watching it. Many of your questions will be answered, but others will be raised, too.

    One that was not answered satisfactorily but should be is, What is the provable and demonstrated need for this program in Coeur d’Alene? It would have been powerfully persuasive if Officer Knoll or Chief White had addressed that with statistical evidence explaining how many defendants were adjudicated ‘not guilty’ explicitly and exclusively because the blood draws by non-officers (e.g., hospital phlebotomists) were untimely, defective, or otherwise unpersuasive to the Court.

    The logical agency to have staff phlebotomists would be the County Sheriff, because the logical place and time to have the blood drawn is at the jail during the booking process. I believe it was Chief White who was asked that question. His answer seemed to be that the County Sheriff is watching Coeur d’Alene’s program to see how it goes.

    As this morning’s skews paper article said in correcting the erroneous impression left in its initial article linked in my original post: A search warrant will still be required to authorize the blood draw regardless of who does it.

    It seems to me that Officer Knoll raised an interesting question about using a police officer to do the blood draw. His comment was characterized and then quoted in this morning’s skewspaper article.

    Officer Nick Knoll, one of the department’s certified phlebotomists, said when it comes to taking blood samples, he puts aside his police persona and becomes a phlebotomist — a medical professional charged with drawing blood from a person in a safe manner.

    “As I draw someone’s blood, I am a phlebotomist,” Knoll said. “I am not a police officer anymore.”

    Are statements made by a suspect to the officer/phlebotomist subject to evidentiary exclusion as medical privilege? Does that privilege apply to statements made to a hospital phlebotomist by a suspect? Even if a blotto suspect has received the Miranda warnings and has indicated he understands and waives them, if he’s impaired, is he capable of informed consent to anything?

    Comment by Bill — July 6, 2017 @ 6:50 am

  4. Today’s skewspaper adds more to this saga. “As I draw someone’s blood, I am a phlebotomist,” Knoll said. “I am not a police officer anymore.” Obviously an attempt to create some separation and I ask what kind of Horse Excrement is this? When officer Knoll received training who paid for it? His arrival on scene who pays for it? The work performed who pays for it? Suddenly not law enforcement anymore does him or her then get 1099’d and carry their own workers comp insurance?

    “There will be two certified officers, and police blood draws will only occur if circumstances warrant, Chief Lee White said.” Are they a certified officer performing their duty or not? But a stated at some point they are not officers anymore according to officer Knoll. I believe that the norm is like everything else and it should be more like I am an officer specially training in the collection of this evidence. I believe that defense attorneys will eat this alive.

    Performing medical procedures absent a RN in my mind might be asking for trouble when something goes wrong. It might take a year or two but in time I see real problems with this approach. Just own it and do it right. Dancing around the responsibility that is inerrant to this activity makes matters far worse.

    Also Bill what a good point about communications with the officer who for a chosen time claims to not be an officer but acts under a sworn duty even when not on duty?

    Comment by Appalled — July 6, 2017 @ 7:32 am

  5. Although this proposal may sound like a good idea even though it can be lawful, I think the Council needs to consider whether the benefits outweigh the potential costs. I believe that even in Idaho a vehicle operator can be convicted of DUI or impaired driving without a blood, breath, or urine test. In Coeur d’Alene the officers have body cameras and some car cameras. The officer’s personal observation and testimony plus the corroboration by the audio/video from the cop-cam(s) should be sufficient in most cases. I don’t believe the law prescribes that a prosecutor must present lab results of BAC to secure a conviction.

    The Council needs to examine whether this proposal adds unnecessary risks that may jeopardize an otherwise likely successful prosecution. Is a defendant’s attorney more likely to request a jury trial in a DUI case if he believes he will be able to raise sufficient doubt about the competence of the personnel (officer/phlebotomist) or the propriety and precision of the processes and procedures used to draw, preserve, and timely deliver the sample to a laboratory?

    Comment by Bill — July 6, 2017 @ 12:51 pm

  6. It seems to me that taking a suspect to the hospital for the blood draw is least inconvenient and time-consuming for Coeur d’Alene Police Department officers. Have ISP and KCSO lost proportionately more DUI cases than CPD? ISP and KSSO’s drive times between offense location and test site are generally greater than CPD’s, so shouldn’t it be those departments who have sustained more losses as a result of the time between arrest and test?

    Comment by Bill — July 7, 2017 @ 3:33 pm

RSS feed for comments on this post.

Leave a comment

You must be logged in to post a comment.

Powered by WordPress
Copyright © 2017 by OpenCDA LLC, All Rights Reserved