OUR Cole County prosecutor, Mark Richardson was in the news this week as he briefed law enforcement on the new DWI law that went into effect on August 28, 2010. The story was that the new law opens the door for Missouri police to to take blood from DWI suspects, without a warrant and without consent. The story is here:
Ironically, the legislature almost certainly did not mean to permit warrantless blood draws. In fact, they removed a provision in the new law that expressly allowed the taking of blood without a search warrant. Nevertheless, whenever the legislature tinkers with the laws (and after 190 years of lawmaking, tinkering is about all that is left), we see unintended consequences.
In this case, the legislature removed a few words that (they seemed to think) would allow blood draws with a warrant. Such warrants were already legal, so the only effect of this change was to open the door (inadvertently) to warrantless blood draws.
Under the current Missouri and federal case law, the prosecutors feel that such warrantless blood draws will be upheld as legal. I tend to agree. Richardson said he still advises law officers in his county to seek a warrant until prosecutors find a favorable case to present the issue for the courts to decide.
Eventually, some adventurous prosecutor will get that court decision. Then Cole County prosecutors and police will start using warrantless blood draws. It’s probably smart not to take the lead in doing warrantless blood draws. That is because warrantless blood draws are going to present many problems.
Heatlh care professionals are mostly OK with taking blood under authority of a seach warrant. I should note that search warrants do not force them to do it, but typically–if shown a court order–they will take your blood whether you like it or not. That’s the way it is. So how are warrantless blood draws different?
A warrantless blood draw is done without any court order and against the will of the patient. It’s just a cop asking hospital staff to do it. They have no assurance that his judgment is correct (with all due respect for his 18 weeks of law enforcement training)
Another thing that bothers health care providers is that they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But it’s OK because it is done with expressed–or at least implied–consent of the patient. They are trying to help a patient.
The trouble with taking blood for evidence is that nobody suggests they are treating or helping a patient. He is not a patient. He is a suspect and he is not being given medical treatment. He does not consent.
With all these questions, our hospitals will be worrying about lawsuits. They also have to wonder who will pay for an emergency room nurse’s time when they are called to court to testify.
Missouri law enforcement will need a “plan B” when Missouri hospitals get fed up and tell them they don’t need the liability and expense of warrantless blood draws.
Plan B in Cole County will look something like this:
The County will have to hire a phlebotomist to draw blood at night and testify on weekdays. It will not be cheap.
Or they have to have police officers trained as medical professionals.
They must also assume that suspects who refuse to consent to a blood draw may not hold still for one. The courts will not admit the lab results of a warrantless blood draw if it harms the suspect.
I understand there are a couple nice ones in the gas chamber of the old penitentiary. No one seems to be using them right now
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On second thought, the game is probably not worth the candle. Perhaps the legislature will just go back and fix the mistake.