In the state of Missouri, if a police officer has probable cause to believe a person has been driving while intoxicated, the officer will arrest the suspect and request that they take a breath test to determine their blood alcohol content. If the suspect refuses to take the test, he loses his driver’s licence for one year.
Many lawyers used to advise their clients that if they were asked to take a breath test, they should refuse the test unless it was a first offense DWI where no personal injuries were involved. This was because a first offense DWI conviction will result in a 90 day suspension of a driver’s license, but anything more serious often involves a revocation of a year (or more) as well as heavier criminal punishments. In those more serious cases, it seemed smart to refuse the test and deny the police the proof of one’s blood alcohol level (which could easily make the difference in getting a conviction).
While prosecutors have long had the power to get a search warrant to take a sample of a suspect’s blood and determine his blood alcohol that way, it was seldom done, except in felony cases. For prosecutors it involved getting themselves and a judge out of bed in the middle of the night to draft and sign a search warrant.
Things have changed over the last several years as the legislature, prosecutors and pressure groups like MADD (Mothers Against Drunk Driving) have pushed for tougher prosecution. These days, obtaining search warrants for blood has become routine in any DWI case where the driver refuses to give a breath test. This development has subjected the suspected drunk driver to a triple whammy if he refuses the breath test:
- First, the police still get their blood alcohol level to use against the defendant in court (courtesy of the search warrant)
- Second, the state still revokes his driver’s license for a year because he did–after all–refuse the test (not to mention causing a prosecutor and a judge to get out of bed).
- Third, the prosecutor gets to tell the jury what a jerk the driver was for refusing the test.
Considering this result, one must carefully consider before refusing to take a breath test. I tell clients that if they refuse, the cops will take their blood anyway, and then . . . the triple whammy. I suppose there is always the chance that blood sample will be lost, or otherwise screwed up. Or the test result could get misplaced, but I wouldn’t bet money on any of those things happening.
I should mention that the cops must allow a suspect 20 minutes to call a lawyer for advice on whether to blow–if the suspect asks for it. All my lawyer friends and I may–or may not–be up waiting for that 2:00 a.m. phone call. Needless to say, being intoxicated does not enhance one’s ability in making this difficult decision.
In contemplating this situation, I’ve often wondered what I might do if I were confronted with this dicey choice to take or refuse a breath test. If I refuse, they are going wake a prosecutor, then they are going to wake a judge and then the judge is going to sign a search warrant: basically a court order telling the police officer to take a sample of my blood.
There are police officers or police technicians in some places who may be qualified to draw blood, but in my neighborhood, the police are going to take me to the local emergency room. They then show the search warrant to the nurse or technician and tell them to take two tubes of my blood. They obey and everyone is happy except me.
What if–just before the nurse sticks me–I say to her:
“Get away from me. I do not give you consent to take my blood. Take a look at the search warrant. Does that paper personally order you to take my blood, violating my rights and your professional ethics? See if your name is on it.
I am not sick; I’m not injured and I’m not your patient. Without my consent what you are doing is simply a criminal assault. If you do this, I will file a criminal complaint and I am going to sue you, this hospital and its Board of Directors for every nickel you’ve got. That warrant may be Officer Friendly’s get-out-of-jail-card, but you don’t have one. I suggest you call a lawyer.”
Or something like that, even if my speech was a bit slurred. I should note that prosecutors have been taught to insert language into a search warrant that directs some unspecified health care professional to execute the warrant. This seems questionable to me, since Missouri law requires that a search warrant: 1) be directed to a peace officer; and 2) that it “be executed only by a peace officer.”
I don’t know how all that would work out in the courts, but how many health care professionals would willingly put their licenses and their assets on the line without knowing in advance they were 100% safe in doing what some cop assures them is fine. True enough, they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But that’s OK, because it is done with expressed–or at least implied–consent of the patient. In that situation 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. Instead, he is a prisoner and he is not being given medical treatment. He does not consent; and if he physically resists the draw, the nurse may end up harming him.
Until recently, I’ve wondered what would result if a suspect tried to discourage E.R. personnel in this way. My bet was that health professionals would refuse and that law enforcement would try to bully them into obedience. That is, indeed, what is happening:
In one recent case, a man was suspected of swallowing cocaine, so police got a judge to sign a search warrant to pump the man’s stomach. The doctors advised the authorities that unless the man consented to the invasive procedure, they could kiss off. The cops had no choice but to mount a five-day vigil around the suspect’s backside, which failed to produce any evidence.
If the police did not manhandle the obstinate doctors in that case, things did not go as well for a mere nurse who applied the same professional ethics. When presented with a search warrant to draw a suspect’s blood she refused and the sheriff’s deputy arrested her and took her to jail on obstruction of justice charges. Although the charges were later dismissed, a federal jury refused to award her damages for the incident.
This issue pits police against health care workers who are being forced to act in ways that conflict with their care-giver role. A similar conflict prevents a physician from assisting in the execution of criminals. Ultimately, this ethical conflict–along with the requirement that a peace officer execute all search warrants–could cause the widespread use of some sort of peace officer paramedic, that is, someone with a badge, but unburdened by any medical ethics.