- Jurisdiction
- Alabama
Let me introduce...I'm a 30+ year veteran RN (Registered Nurse) in the operating room (recently retired). Consents are a big deal, particularly in cases where a person is judged to be unfit to make decisions. As an extremely meticulous judge of valid or invalid consents and consenting processes, I made it my top priority to ensure that the process and the consent were within the parameters of being medically and lawfully sound. After all, as a nurse, I do not have the luxury of qualified immunity should I make a mistake and is why I carry millions of dollars in malpractice insurance.
Law enforcement has adopted the use of implied consent and unfortunately, their 'slip' is showing. They are doing it WRONG. In case you are unaware, many states, if not all, proclaim that upon the acceptance of your driver's license, you are implying consent to officers should they use their 'discretion' (God help you) to determine a blood alcohol level is indicated, and don't be surprised if the officer whips out his 'phlebo-kit' and pulls out a tourniquet and a hypodermic needle. In some cases, when there are five and six officers, it gets pretty brutal for those suspects who resist, refuse and will not cooperate. Those possessing this special skill in needle wizardry are called 'Phlebotomy Officers". He is paid more for his special skills and he may be on patrol, stationed at the precinct or he may be summoned to the 'field' at the behest of another officer who needs a blood draw. If there are no phlebo officers around, the department may develop policy to call members of the Fire and Rescue team to draw the blood. Why don't they just get a doctor or nurse to draw the blood? Good question...and there is an answer coming...
DILEMMAS:
Implied consent can be withdrawn at any time and for any reason. So, your DUI suspect can simply withdraw the 'implied consent' as represented by his driver's license.
Implied consent can only be applied under 'exigent circumstances'. What would be the 'exigent circumstances' for an officer to draw blood? The suspect is not injured, although may need some assistance. He isn't in distress, injured or bleeding. What would be the exigency here? The officer's need for solid evidence does NOT meet the criteria for exigency. Law enforcement has made this provision of law a convenience in serving their need for evidence, rather than the purpose of preserving life, limb and well being of a person.
Implied consent, used in this way, violates constitutional law and violates the person's rights. You have a right against self-incrimination. You have a right to be secure in your person, papers and property. Blood is property and tissue theft is a felony. Forcibly drawing blood from a person in the interest of other people is a true abomination of both man and the law. There are just lines you DO NOT cross.
DOCTORS, NURSES AND HIPAA
We all take oaths too. This has created one hell of an obstruction for law enforcement officers who are hell bent on getting that blood alcohol level. Breathalyzer tests get thrown out as 'iffy', but blood on the other hand is the holy grail of solid proof and wins the case.
Venipuncture is an invasive procedure that is used to obtain blood directly from the blood vessel. This procedure requires a doctor's order. Here is yet another dilemma for law enforcement officers. Who are the medical doctors providing their signature to the order? I want their names. No reputable medical doctors would write orders for medical procedures on someone that he does not supervise, inspect and assess. Who can carry out a doctor's order? Only those nurses and staff authorized can legally act on a physician's order. To my knowledge there are no law enforcement officers who are authorized to 'act' on the order of a physician. A judge is NOT a physician and is NOT authorized to order blood draws. He may order a warrant to set some things in motion but that is the extent to which the judge can act.
Doctors and nurses are bound by ethics and law to keep a person's information above top secret. Law enforcement continually get rejected when asking for lab results. We can't tell you. Stop asking. Come back with a warrant...even then it's likely going to be questionable.
Remember the nurse in Utah? Alex Wubbels. That case was all about blood. Officer Jeff Payne roughed up the nurse, handcuffed her and arrested her for obstruction because she would not comply with his 'lawful order' for blood evidence against her unconscious patient who was also Payne's DUI suspect. You can hear Payne claiming exigent circumstances and implied consent. So how did that end up? Payne was fired after 20+ years on the force, his supervising Lt. was demoted and took Payne's place....and the nurse ran away with the spoon and half a million dollars. There's a REASON law enforcement got severely spanked on that deal. They're doing it wrong.
That's not all. Payne (previously and EMT) can be seen on hospital surveillance footage entering the hospital with a 'phlebo-kit' in hand. I guess you might say he was going to be prepared to get what he needed even if he had to do it himself. This whole case is disturbing but then when it occurs to you to ask, "What would make Payne think he could just walk in there, lugging germs from the filthy trunk of his unit...into the room of a patient who is burned over 80% of his body? No skin=no protection from germs. It's absurd! Law enforcement should keep their skills confined to the corpse on the table of the medical examiner's office. It is so obviously an egregious conflict of interest to have officers going outside their scope of practice. Are they prepared to accept the consequences should they cause phlebitis that turns to gangrene and amputation? I doubt they even know there is a risk...and because they are so clearly outside their scope and that it is such a conflict of interest...qualified immunity will not save them...it doesn't save doctors and nurses either.
The intent and purpose of implied consent is to assume a person unable to care for self would consent, if able to measures that either improves their condition or saves their life. Police blood draws for alcohol do neither of these things. Performing their own blood draws allows them to circumvent HIPAA and all the other medical laws that prevent them from doing just what they are doing. It is illegal. They are breaking the law. It needs to stop. I am all for getting drunk drivers off the road, but it most assuredly does not require their blood to accomplish that. You simply cannot break the law over there to uphold it over here and then call it justice. It is incumbent upon law enforcement to figure out how to uphold their oath and the law without breaking either one. That is THEIR dilemma to solve.
As for the rest of us, we don't want to see 6 cops pile on top of an uncooperative DUI suspect having his blood drawn. Bad things can happen. Edward Bronstein uttered the words, "I can't breath" two months BEFORE George Floyd made them famous. I predicted they would eventually kill someone...and they did. Law enforcement needs to stay in their own lane here.
Law enforcement has adopted the use of implied consent and unfortunately, their 'slip' is showing. They are doing it WRONG. In case you are unaware, many states, if not all, proclaim that upon the acceptance of your driver's license, you are implying consent to officers should they use their 'discretion' (God help you) to determine a blood alcohol level is indicated, and don't be surprised if the officer whips out his 'phlebo-kit' and pulls out a tourniquet and a hypodermic needle. In some cases, when there are five and six officers, it gets pretty brutal for those suspects who resist, refuse and will not cooperate. Those possessing this special skill in needle wizardry are called 'Phlebotomy Officers". He is paid more for his special skills and he may be on patrol, stationed at the precinct or he may be summoned to the 'field' at the behest of another officer who needs a blood draw. If there are no phlebo officers around, the department may develop policy to call members of the Fire and Rescue team to draw the blood. Why don't they just get a doctor or nurse to draw the blood? Good question...and there is an answer coming...
DILEMMAS:
Implied consent can be withdrawn at any time and for any reason. So, your DUI suspect can simply withdraw the 'implied consent' as represented by his driver's license.
Implied consent can only be applied under 'exigent circumstances'. What would be the 'exigent circumstances' for an officer to draw blood? The suspect is not injured, although may need some assistance. He isn't in distress, injured or bleeding. What would be the exigency here? The officer's need for solid evidence does NOT meet the criteria for exigency. Law enforcement has made this provision of law a convenience in serving their need for evidence, rather than the purpose of preserving life, limb and well being of a person.
Implied consent, used in this way, violates constitutional law and violates the person's rights. You have a right against self-incrimination. You have a right to be secure in your person, papers and property. Blood is property and tissue theft is a felony. Forcibly drawing blood from a person in the interest of other people is a true abomination of both man and the law. There are just lines you DO NOT cross.
DOCTORS, NURSES AND HIPAA
We all take oaths too. This has created one hell of an obstruction for law enforcement officers who are hell bent on getting that blood alcohol level. Breathalyzer tests get thrown out as 'iffy', but blood on the other hand is the holy grail of solid proof and wins the case.
Venipuncture is an invasive procedure that is used to obtain blood directly from the blood vessel. This procedure requires a doctor's order. Here is yet another dilemma for law enforcement officers. Who are the medical doctors providing their signature to the order? I want their names. No reputable medical doctors would write orders for medical procedures on someone that he does not supervise, inspect and assess. Who can carry out a doctor's order? Only those nurses and staff authorized can legally act on a physician's order. To my knowledge there are no law enforcement officers who are authorized to 'act' on the order of a physician. A judge is NOT a physician and is NOT authorized to order blood draws. He may order a warrant to set some things in motion but that is the extent to which the judge can act.
Doctors and nurses are bound by ethics and law to keep a person's information above top secret. Law enforcement continually get rejected when asking for lab results. We can't tell you. Stop asking. Come back with a warrant...even then it's likely going to be questionable.
Remember the nurse in Utah? Alex Wubbels. That case was all about blood. Officer Jeff Payne roughed up the nurse, handcuffed her and arrested her for obstruction because she would not comply with his 'lawful order' for blood evidence against her unconscious patient who was also Payne's DUI suspect. You can hear Payne claiming exigent circumstances and implied consent. So how did that end up? Payne was fired after 20+ years on the force, his supervising Lt. was demoted and took Payne's place....and the nurse ran away with the spoon and half a million dollars. There's a REASON law enforcement got severely spanked on that deal. They're doing it wrong.
That's not all. Payne (previously and EMT) can be seen on hospital surveillance footage entering the hospital with a 'phlebo-kit' in hand. I guess you might say he was going to be prepared to get what he needed even if he had to do it himself. This whole case is disturbing but then when it occurs to you to ask, "What would make Payne think he could just walk in there, lugging germs from the filthy trunk of his unit...into the room of a patient who is burned over 80% of his body? No skin=no protection from germs. It's absurd! Law enforcement should keep their skills confined to the corpse on the table of the medical examiner's office. It is so obviously an egregious conflict of interest to have officers going outside their scope of practice. Are they prepared to accept the consequences should they cause phlebitis that turns to gangrene and amputation? I doubt they even know there is a risk...and because they are so clearly outside their scope and that it is such a conflict of interest...qualified immunity will not save them...it doesn't save doctors and nurses either.
The intent and purpose of implied consent is to assume a person unable to care for self would consent, if able to measures that either improves their condition or saves their life. Police blood draws for alcohol do neither of these things. Performing their own blood draws allows them to circumvent HIPAA and all the other medical laws that prevent them from doing just what they are doing. It is illegal. They are breaking the law. It needs to stop. I am all for getting drunk drivers off the road, but it most assuredly does not require their blood to accomplish that. You simply cannot break the law over there to uphold it over here and then call it justice. It is incumbent upon law enforcement to figure out how to uphold their oath and the law without breaking either one. That is THEIR dilemma to solve.
As for the rest of us, we don't want to see 6 cops pile on top of an uncooperative DUI suspect having his blood drawn. Bad things can happen. Edward Bronstein uttered the words, "I can't breath" two months BEFORE George Floyd made them famous. I predicted they would eventually kill someone...and they did. Law enforcement needs to stay in their own lane here.
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