The DUI Blood Test

During a DUI investigation, the investigating officer wants to obtain a blood sample that can be sent directly to the crime lab and analyzed for the presence of alcohol or controlled substances. When the driver is injured in a serious crash, the officer is not allowed to immediately make an arrest. So how does the officer get a blood sample?

Prior to the US Supreme Court Decision in Missouri v. McNeely, 569 U.S. 141 (2013), officers just required nurses and paramedics to take the legal blood sample under the theory that it was allowed as an exception to the Fourth Amendment warrant requirement. The normal exceptions to the warrant requirement include:

  1. free and voluntary consent (which is different from "implied consent");
  2. exigent circumstances;
  3. search incident to arrest.

After the McNeely decision, it became clear that officers should obtain a search warrant. After the McNeely decision, most states moved quickly to use electronic warrants to obtain blood samples in DUI investigations. Other states like, Utah and Florida, were very slow to make any changes.


Hospital Policies for Cooperating with a Forced Blood Draw

Hospitals generally cooperate with any law enforcement officers attempt to obtain a blood sample from a patient when requested to do so by the officer. This blood sample is called “legal blood” because it is not used for medical purposes. The officer will typically ask the nurse to draw two vials of blood (the "sample") that the officer then takes possession of and sends directly to the crime lab. 

Hospitals and law enforcement agencies also have written agreements used to determine when the hospital and its employees will participate in the blood draw. The public was shocked by a recent body camera video showing a discussion between a Salt Lake City police officer, named Officer Jeff L. Payne and an emergency room nurse named Alex Wubbles. The discussion took place at the University of Utah Hospital in Salt Lake City. 

Officer Payne demanded that the nurse withdraw blood from a patient that was under sedation in the burn unit as part of an investigation into a car crash. The patient was unconscious and unable to give "free and voluntary" consent. The nurse explained that the law enforcement agency had reached an agreement with the hospital that did not allow her to take the blood without one of the following conditions being met:

  1. The police had an electronic warrant;
  2. The patent gave consent; or
  3. The patient was under arrest. 

The officer accused the nurse of interfering with a criminal investigation. He can be heard on video saying: “If I don’t get to get the blood, I’m taking her to jail.” Later he said: “I either go away with blood in vials or body in tow. That’s my only two choices.” Clearly, the officer was threatening the nurse with an arrest and trip to jail if she didn't draw the blood from her patient.


What Happened in Missouri v. McNeely?

Prior the US Supreme Court’s decision in Missouri v. McNeely, law enforcement officers would enter emergency rooms and tell a nurse to draw the suspect's blood, by force, if necessary. The nurses would comply because the policy of the hospital was to cooperate with any request made by the officer for a forced blood draw. 

What if the patient couldn’t consent? In those cases, officers believed that Utah’s implied consent statute meant that the suspect had already consented and if he was unconscious, then that consent could not be withdrawn.

After the McNeely decision, it became clear that the Fourth Amendment required either a “free and voluntary” consent, a warrant, or exigent circumstances. Furthermore, exigent circumstances would not exist in every DUI case just because the alcohol concentration in the blood dissipates over time. 

Missouri v. McNeely meant that the “implied consent” statutes across the country were unconstitutional unless you read a warrant requirement into the statute. Since the statute says the taking must be "reasonable" then maybe that term means a warrant or exigent circumstances is required for the taking to be reasonable.

Can the Police Take My Blood While I’m Unconscious?

What if the police believe they have probable cause to request a blood test but the suspect is unconscious or otherwise unable to provide free and voluntary consent for the taking of blood. This problem often occurs when the driver is injured in the crash and taken to the hospital for medical treatment.

The answer in Utah might be "yes" unless the court's find Utah Code 41-6a-522 unconstitutional.

Utah Code 41-6a-522. provides: 

Any person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for in Subsection 41-6a-520(1), and the test or tests may be administered whether the person has been arrested or not. 

In a DUI case involving the taking of blood without free and voluntary consent, the criminal defense attorney will often file a motion to suppress the blood and blood test result. The motion will argue that the taking of blood was unreasonable under the Fourth Amendment of the US Constitution and that the way it was taken also violated state law.

Under Utah law, does the state of unconsciousness when the blood draw was taken renders any objection to the evidence futile? In State v. Perez-Avila, 2006 UT App 71, ¶ 8, 131 P.3d 864, 867 (Utah Ct. App. 2006) the court equated “free and voluntary” consent with “implied consent.” That case was decided long before the McNeely decision.

Utah Code section 41–6a–520 “grants peace officers the authority to obtain blood samples from drivers who operate motor vehicles while under the influence of intoxicants.” 

In re R.L.I., 771 P.2d 1068, 1069 (Utah 1989) (referring to prior numbering of statute). The statute specifically provides that a driver is considered to have given his consent to certain chemical tests, including the testing of his blood to determine if he had a blood alcohol concentration over the statutory limit. See Utah Code Ann. § 41–6a–520(1)(a) (2005). 

Section 41–6a–522 adds that “[a]ny person who is dead, unconscious, or in any other condition rendering the person incapable of refusal to submit to any chemical test or tests is considered to not have withdrawn the consent provided for” under the implied consent statute. Utah Code Ann. § 41–6a–522 (2005).

Utah Code sections 41–6a–520 and 41–6a–522, formerly appeared in the Utah Code as section 41–6–44.10, were renumbered by a 2005 amendment. See Utah Code Ann. § 41–6a–520 amendment notes (2005). The theory is that if you are unconscious when the blood is drawn, then you are incapable of withdrawing your implied consent to the blood draw.


Who Is Authorized to Draw the DUI Blood Sample for Legal Purposes?

Utah Code Section 41-6a-523. became effective on May 9, 2017. The statute explains which persons are authorized to draw blood. The statute also protects health care professionals by providing immunity from liablity.  -- Immunity from liability.

Section 41-6a-523(1) provides that the following people may draw blood to determine its alcohol or drug content including: a paramedic, a licensed practical nurse, a registered nurse, or a physician. Other emergency medical service personnel can be authorized to draw blood and receive immunity if the person with a valid permit issued by the Department of Health under Section 26-1-30.

The Utah Department of Health may designate by rule, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, which emergency medical service personnel, as defined in Section 26-8a-102, are authorized to draw blood under Subsection (1)(a)(v), based on the type of license under Section 26-8a-302.

Any health care professional listed as authorized to take blood under Utah Code Section 41-6a-523 is "immune" from civil or criminal liability arising from drawing a blood sample from a person whom a peace officer has reason to believe is driving in violation of this chapter, if the sample is drawn in accordance with standard medical practice. Those "standard" medical practices including a showing that the person was authorized to draw blood under Subsection (1)(a) and that the blood was drawn at a hospital or other medical facility.


Can the Hospital Report My Medical Blood Test Results to the Officer?

Utah Code Section 41-6a-525 gives hospitals and their employees immunity from liability if they report the results of blood test used for medical purposes to a law enforcement officer. It is important to remember, however, that the report may not be used to support a finding of probable cause that a person who is not a driver of a vehicle has committed an offense.

Section 41-6a-525 for Reporting test results -- Immunity from liability" provides that a health care provider who is providing medical care to any person involved in a motor vehicle crash may notify, as soon as reasonably possible, the nearest peace officer or law enforcement agency if the health care provider has reason to believe, as a result of any test performed in the course of medical treatment, that the:

  • person has any measurable controlled substance or metabolite of a controlled substance in the person's body which could be a violation of Subsection 41-6a-502(1)(b) or Section 41-6a-517;

  • person is younger than 21 years of age and has any measurable blood, breath, or urine alcohol concentration in the person's body; or

  • person's blood alcohol concentration meets or exceeds the limits under Subsection 41-6a-502(1)(a).

In most of these cases, the officer will testify that he received a report of the results disclosed by the test, the date and time of the administration of the test, and the name of the person being treated.

A health care provider participating in good faith in making a report or assisting an investigator from a law enforcement agency pursuant to this section is immune from any liability, civil or criminal, that otherwise might result by reason of those actions.

Under the statute, the term "health care provider" is defined as any person licensed under Title 58, Chapter 68, Utah Osteopathic Medical Practice Act, Title 58, Chapter 67, Utah Medical Practice Act, or Title 58, Chapter 31b, Nurse Practice Act.


Attorneys for a DUI Blood Case in Salt Lake City, UT

If you were arrested for DUI in a case involving a legal blood draw, then contact an experienced criminal defense attorney at Brown, Bradshaw & Moffat, LLP to discuss your case. Our attorneys are experienced in aggressively fighting DUI cases by filing and litigating motions to suppress a blood sample taken in violation of the Fourth Amendment of the United States Constitution.

Call us to discuss your case. Call (801) 532-5297.


This article was last updated on Friday, September 1, 2017.