A few years ago, citizens suspected of DUI were given a choice to submit to either breath, blood or urine testing for alcohol concentration. In the hysteria of MADD’s "War on Drunk Driving", however, things have changed. Today, citizens (supposedly presumed innocent) are being told they must submit to a blood test — and, if they refuse, are being forcefully restrained by a blood technician (referred to as a phlebotomist). See my post Taking Blood by Force.
Why? Well, cops are aware that breathalyzers are relatively inaccurate and unreliable, and take time to set up, administer and keep records. But they still preferred breath testing because they didn’t have to find a phlebotomist to draw the blood sample, usually requiring a trip to a hospital.
The solution: draw the blood sample yourself. Cops are throwing suspects across the hoods of cars or pinning them down in back seats and forcefully jamming needles into screaming citizens suspected of having a .08% blood-alcohol level. And this is a growing practice across our country. See, for example, Forced Blood Draws by Cops in Back Seat, Forced Blood Draws by Cops Spreading and Catheter Forced Up Penis After DUI Arrest.
Judges, of course, are generally cowed by MADD and the political consequences of appearing "soft on drunk driving" at the next election. But once in awhile, some judge remembers why he’s wearing black robes….
Judge: Troopers’ DUI Blood Tests Unconstitutional
Collecting sample in squad car with flashlight called inadequate
Tucson, AZ. Aug. 30 - A Pima County Superior Court judge tossed out blood-alcohol evidence in an alleged drunken driving case, saying the state’s method of field blood draws is unconstitutional.
"Romantic though it may sound, phlebotomy in the back seat by the dashboard lights is, in this humble trial judge’s opinion, unconstitutional," Judge Richard S. Fields wrote in his opinion, issued Wednesday…
Chief Criminal Deputy County Attorney David Berkman said prosecutors will dismiss Noceo’s DUI charges and appeal Fields’ ruling. "It’s just Judge Fields’ opinion," Berkman said Friday. "It doesn’t change anything."
Noceo’s blood was drawn as he sat in the dimly lit back seat of a DPS cruiser, with one officer holding a flashlight, Fields wrote in his ruling. The officer drawing the blood noted he wore gloves, but didn’t indicate whether he washed his hands beforehand.
The former director of University Medical Center’s emergency medicine unit, Dr. Kenneth Iverson, testified in an evidentiary hearing that blood draws by law enforcement officers are "degraded medicine," Fields wrote.
"Lack of medical oversight and self-correction were noted as criticisms of the program," Fields wrote. "Dr. Iverson noted that the law enforcement phlebotomists failed to follow protocols which themselves were drafted without medical input."
Blood draws "carried out in roadside situations with poor lighting and in less than sanitary conditions" subject suspects to "an unreasonable risk of infection and injury," Fields wrote.
The state police agency’s failure to ensure procedures are being followed, Fields wrote, violates the Fourth Amendment right against unreasonable search and seizure.
Fields said law enforcement agencies have alternatives such as using breath testers or having medical providers draw blood. "The goal of obtaining evidence cannot be allowed to wholly trump the goals of medical safety and human dignity if the intrusion is to pass Fourth Amendment muster," Fields wrote.
Try to imagine yourself, an American citizen, stopped late at night on a highway with alcohol on your breath, thrown in the dark back seat of a police car, pinned down and struggling while a cop keeps trying to find your vein with a needle…
