Tuesday, January 11, 2011

DUI Appeal of the Day (DAD) - When is Blood being Drawn for Medical Purposes?

In Arizona v. Hansen, Not Reported in P.3d, 2010 WL 5549045 (Ariz.App. Div. 2) the driver was involved in a single-car accident and eventually transported by ambulance to a hospital. (Interestingly, no injuries to this driver are ever described or mentioned in the opinion). At the hospital, the officer requested that if hospital personnel drew Hansen's blood for any medical reason, they also retain a sample for DPS purposes. A hospital employee then drew blood from Hansen apparently using two needles, one for a blood draw ordered by the attending physician and the other to fill two vials provided by the officer. DPS analysis of the second sample revealed a blood alcohol concentration of .207.

In Arizona, the admissibility of a blood alcohol test varies greatly between that drawn for hospital/medical purposes, and that drawn for police/criminal purposes. At hearing, the defendant Hansen first contended that the trial court erred in determining the blood draw comported with the hospital blood purposes statute, asserting the use of “an additional needle puncture” violated the statute and that the second puncture was not for medical purposes. Amazingly, the Arizona court found that the second needle puncture (and resultant draw) were for medical purposes, stating as follows:

Hansen's contention that the second puncture was not for a medical purpose is similarly unpersuasive both in view of our reasoning in Lind and the factual backdrop of this case. In Lind, hospital personnel drew a blood sample in excess of what was needed for medical purposes in order to set a portion aside for law enforcement use, in keeping with the hospital's established policy. Id. ¶¶ 3-7. We held that the entire sample was for medical purposes within the meaning of the statute, and stressed that the blood draw was not for a legal purpose until law enforcement requested and received the sample. Id. ¶ 19.

¶ 7 Here, the officer arrived at the hospital and requested a blood sample after an attending physician had already ordered a blood draw “for a CBC” (complete blood count), which the hospital's blood technician testified was solely for medical purposes. As in Lind, the officer did not initiate the blood draw but was provided a sample drawn in excess of what was drawn for medical purposes. Although the officer supplied two “gray-topped vials” for the sample, he had no role in the hospital employee's choosing to make two separate punctures; the evidence showed the employee did so according to his own or the hospital's preexisting protocol. And nothing in the record suggests the officer contemplated an additional puncture or was aware of the technician's methods. Because the record shows the officer had no control over the procedure chosen by medical personnel to comply with his request under the statute, and Hansen does not meaningfully challenge any other aspect of the blood draw procedure, the trial court did not err in concluding the blood draw did not violate § 28-1388. Cf. Lind, 191 Ariz. 233, ¶ 19, 954 P.2d at 1062 (hospital's custody and control of all blood drawn factor in concluding portion specifically set aside for police satisfied “medical purposes” requirement of statute).

IMHO, only those persons who have followed Alice down the wormhole could honestly believe that this blood draw was not for police purposes. And in another ringing of the death knell to the exclusionary rule, the court stated:

Hansen also claims the second needle puncture constituted an unconstitutional police intrusion, in violation of her Fourth Amendment rights, citing Cocio. We need not explore this issue, however, because under the circumstances of this case, even if the additional puncture raised constitutional concerns, suppression of the blood test evidence was not required. “A Fourth Amendment violation does not mandate reflexive exclusion of evidence.” State v. Booker, 212 Ariz. 502, ¶ 12, 135 P.3d 57, 59 (App.2006). Instead, the primary purpose of the exclusionary rule is to deter police misconduct. Id. ¶ 13. The exclusionary rule is not a personal right and applies only as a last resort and when it will result in appreciable deterrence. Herring v. United States, 555 U.S. 135, ----, 129 S.Ct. 695, 700 (2009). And “the benefits of deterrence must outweigh the costs.” Id.

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