Archive for September 3rd, 2013

Court Decides Cops Qualified to Decide Medical Propriety of Blood Draws

Tuesday, September 3rd, 2013

The United States Supreme Court decided many years ago in the case of Schmerber v. California (1966; 394 U.S. 757) that a forcible blood draw from a drunk driving suspect must be performed in a manner that is "humane and medically acceptable".  See Taking Blood by Force.  Unfortunately, this standard has been increasingly ignored in recent years…as show by the following article reporting on a recent decision by the California Court of Appeal:


California's second highest court on Thursday made it easier for police to forcibly draw blood from motorists suspected of driving under the influence of alcohol (DUI). In coming to this conclusion, the Court of Appeal overturned the decision in seven Alameda County cases brought before the Superior Court's Appellate Division where drivers had their blood taken at a jail facility.

Though the drivers in these cases consented to the blood draw, the circumstances raised enough of a Fourth Amendment consideration for the lower court to find the government's actions illegal. In particular, the judges did not believe that a police officer was qualified to testify that the blood draw was performed by a medical professional in an appropriate manner, as required under state law. The Court of Appeal stepped in to set a precedent restoring the state's ability to perform warrantless blood draws in a wider variety of circumstances.

"We concur with the reasoning, implicit in Sugarman, that the testimony of a police officer, when he or she is a percipient witness to the blood draw in question, may properly be considered in evaluating whether that blood draw was conducted in a constitutionally reasonable manner," Judge Sandra L. Margulies wrote for the three-judge Court of Appeal panel.

The panel insisted that the state should not be forced to produce expert witnesses to testify that the blood draw met legal requirements. In each of the cases at hand, a police officer testified that the blood was drawn by someone the officer believed was a trained blood technician and that the draws were performed in a routine manner. 

"In sum, under the totality of the circumstances presented, in each case we conclude the officer's un-rebutted testimony shows the blood draw did not expose the defendant to an unjustified element of personal risk of infection or pain and was not performed in a manner which created any undue harm or risk to defendant," Judge Margulies wrote. "In sum, we are persuaded the blood draws in these cases were conducted in a constitutionally reasonable manner." 

The court reversed the decisions upholding motions to suppress the blood draw evidence.


So…a patrol cop with maybe a high school degree is now an expert in determining whether medical personnel performing a blood draw are qualified and whether the proper medical procedures were followed.  Amazing…  

For the full appellate court decision, see People v. Cuevas.
 

(Thanks to Joe.)
 

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