Post by Mech on Apr 13, 2004 11:41:00 GMT -5
OH YEAH.....AMERICA...THE NEW SOVIET UNION
In Push to Stop Drunk Driving, Police Draw Blood
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.
In Push to Stop Drunk Driving, Police Draw Blood
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.
