Forced Blood Draw? (DUI situation)

[West_Coast_Ken]

i'm in the last semester of my rn program in california and an issue came up at one of our clinical er sites regarding forced blood draws for dui (driving under the influence) and i wanted to get input from other rns regarding their state, hospital and what your laws are regarding such issues.

so, what is the protocol for your hospital regarding forced blood draws (where the person does not consent)? who initiates, who approves, who signs, who does it, under what specific conditions, is it ever allowed, can the rn refuse, etc, etc?

thanks everyone!

ken

[TRAMA1RN]

First of all no nurse can take an order from anyone other than MD, or PA or NP. If the police want ETOH level they have to get it through the lab after following all legal procedures. If for some reason the MD orders the ETOH police may subpeona for results. The reason most police do not do a legal level is that sometimes the possible intoxicated driver was not witnessed driving, and the police have no legal reason to draw. In the case of minors if ETOH level is not drawn within one hour some courts have thrown case out based upon previous court cases. Hope this helps.

[teeituptom, BSN, RN]

RURAL TEXAS

ER RN x 14yrs...(Level I trauma ctr to now RURAL) My understanding,

Patient must concent to Blood Legal Alcohol draw--- UNLESS (1) Death @ scene, (2) Court Ordered). Pt. brought in by EMS accompanied by Trooper... Pt. not under arrest, Pt. refused to allow blood draw. Trooper became upset..I suggested Tropper to supeona ER lab, ord'd by MD. Long story short... I was told that the TROOPER wanted my arrest for refusal to draw. What about me being personally sued for ASSAULT/Battery??? by patient. Hospital P&P stated (at that time) If pt. refuse, no Blood will be drawn. Does the hospital support you in court for Assault/Battery charges???The trooper wanted to arrest me but NOT the patient??? WHAT's the LEGAL aspect and where does the RN stand, and who supports the RN, WHAT's THE BNE TAKE ON THIS???? PLEASE LET ME KNOW!!!

Troopers can be a little gung hoish

blow it off

[AggieD04]

I'm in Texas also, same story, Angry Trooper wanted blood drawn, said he would arrest us if we didn't do it. We called the nurse manager at home, she said that that was the case and we did have to draw the blood against the patient's refusal. The patient injured himself, and no one else, and was not at that time charged with anything, but we (the RNs) could still be arrested for not drawing the blood.

[teeituptom, BSN, RN]

I'm in Texas also, same story, Angry Trooper wanted blood drawn, said he would arrest us if we didn't do it. We called the nurse manager at home, she said that that was the case and we did have to draw the blood against the patient's refusal. The patient injured himself, and no one else, and was not at that time charged with anything, but we (the RNs) could still be arrested for not drawing the blood.

The trooper cant arrest you for that, not in any means

And no trooper would ever be allowed to tell me what to do.

I would call his watch commander, and tell him he was threatening us, and that I was going to call Internal Affairs next. I like the police.

But I dont take guff off of anyone, whether it be Pope, Police, or President

[ILTroop]

Hello, all. I am a Trooper with the Illinois State Police, with 10 years of experience. I also am a Crash Reconstruction Specialist, meaning I am called to any fatal or potentially fatal crash at all hours. I came across this thread while looking for blood draw kits to purchase for some of the Troops to carry. I see both some very interesting and disconcerting comments.

First, let me explain the forced blood draw law, as it applies in Illinois. A blood draw may only be forced on an individual legally arrested for DUI, when that subject has been involved in a crash involving injuries to a person, other than himself, involving the necessity of immediate medical treatment. So, a crash involving minor complaints of neck pain to patients would not qualify. Similarly, where the arrestee, himself, is the only party injured, this law would not apply. Regardless of whether the hospital draws blood and screens for ETOH pursuant to treatment, the law requires a police blood draw, to test whole blood (as opposed to serum) for alcohol. This law, known as the implied consent law (Illinois Compiled Statutes 625 ILCS 11-501.1), is not governed by hospital policies, which is why, regrettably and very stupidly on the police offier's part, doctors and phlebotemists have been placed under arrest for obstructing an investigation (these charges are dropped by the State's Attorney, and rightly so). I fail to see the logic in arresting the hospital staff in this case, although I have been frustrated by lack of cooperation in the past. Likewise, HIPAA does not affect this law, as HIPAA allows for police officers, in the immediate course of an investgation, access to hospital blood results.

I have, in the past, been successful in meeting with hospital administrators to change their policies to accommodate forced blood draws when an arrestee fails to sign hospital paperwork. This should take the worry off of the shoulders of the hospital staff afraid of civil lawsuits resulting from failing to follow hospital policies. I encourage all hospital adminstrators to take this approach.

There are a couple of other issues that, unfortunately, especially frustrate me. The first is the refusal of hospital staff to conduct a forced blood draw based on their own belief system that it is wrong. Please remember that the offender is in that situation for a reason. He or she has greatly harmed or killed another individual. How would you feel if that was your family, friend, or coworker? The police blood draw, in many cases, is the only blood draw that is taken, as the offender may not require medical treatment.

The second issue, the one that most frustrates me, is the refusal to draw blood because the hospital staff do not want to "be involved". Being "involved" means going to numerous criminal court appearances, civil depositions, and civil court appearances over the course of years, to testify on their part in the case. Again, the police blood draw helps due to the fact that only the person who actually drew blood, as the officer watched, is called to testify. This relieves all other hospital staff involved in the chain of custody from appearing.

In any case where a non-consenual blood draw is required, the law implicitly states that hospital staff, operating under the authority of a police officer acting in accordance with the law, is exempt from liability. Please remember: cool heads, knowledge, time, and cooperation between law enforcement and hospital staff are all of the utmost importance in dealing with these situations. Please feel free to comment with any questions and I will try to remember to check and answer to the best of my abilities. Thank you.

[Noryn]

Thanks for your post, it does clarify some things but I dont think you understand the core values and duties of a nurse. Our "job" is taking care of our patients, not enforcing laws, punishment, etc. We are our patient's advocates and per general consensus the most ethical profession there is. We have to respect our patient's decision when it pertains to their own body just as we have to take care of people who kill, rape or hurt others.

While we may be immune to legal liability there is still concern over professional liability. It is frustrating to me because I am getting pulled in due to a flaw in the legal system. Why does nursing have to be involved in this? Paramedics or anyone can easily learn to draw blood. Address the laws to where a refusal for allowing blood testing has a substantial penalty. I think in my state, refusal of a breath alyzer is an automatic suspension of licence for 6 months.

[teeituptom, BSN, RN]

Hello, all. I am a Trooper with the Illinois State Police, with 10 years of experience. I also am a Crash Reconstruction Specialist, meaning I am called to any fatal or potentially fatal crash at all hours. I came across this thread while looking for blood draw kits to purchase for some of the Troops to carry. I see both some very interesting and disconcerting comments.

First, let me explain the forced blood draw law, as it applies in Illinois. A blood draw may only be forced on an individual legally arrested for DUI, when that subject has been involved in a crash involving injuries to a person, other than himself, involving the necessity of immediate medical treatment. So, a crash involving minor complaints of neck pain to patients would not qualify. Similarly, where the arrestee, himself, is the only party injured, this law would not apply. Regardless of whether the hospital draws blood and screens for ETOH pursuant to treatment, the law requires a police blood draw, to test whole blood (as opposed to serum) for alcohol. This law, known as the implied consent law (Illinois Compiled Statutes 625 ILCS 11-501.1), is not governed by hospital policies, which is why, regrettably and very stupidly on the police offier's part, doctors and phlebotemists have been placed under arrest for obstructing an investigation (these charges are dropped by the State's Attorney, and rightly so). I fail to see the logic in arresting the hospital staff in this case, although I have been frustrated by lack of cooperation in the past. Likewise, HIPAA does not affect this law, as HIPAA allows for police officers, in the immediate course of an investgation, access to hospital blood results.

I have, in the past, been successful in meeting with hospital administrators to change their policies to accommodate forced blood draws when an arrestee fails to sign hospital paperwork. This should take the worry off of the shoulders of the hospital staff afraid of civil lawsuits resulting from failing to follow hospital policies. I encourage all hospital adminstrators to take this approach.

There are a couple of other issues that, unfortunately, especially frustrate me. The first is the refusal of hospital staff to conduct a forced blood draw based on their own belief system that it is wrong. Please remember that the offender is in that situation for a reason. He or she has greatly harmed or killed another individual. How would you feel if that was your family, friend, or coworker? The police blood draw, in many cases, is the only blood draw that is taken, as the offender may not require medical treatment.

The second issue, the one that most frustrates me, is the refusal to draw blood because the hospital staff do not want to "be involved". Being "involved" means going to numerous criminal court appearances, civil depositions, and civil court appearances over the course of years, to testify on their part in the case. Again, the police blood draw helps due to the fact that only the person who actually drew blood, as the officer watched, is called to testify. This relieves all other hospital staff involved in the chain of custody from appearing.

In any case where a non-consenual blood draw is required, the law implicitly states that hospital staff, operating under the authority of a police officer acting in accordance with the law, is exempt from liability. Please remember: cool heads, knowledge, time, and cooperation between law enforcement and hospital staff are all of the utmost importance in dealing with these situations. Please feel free to comment with any questions and I will try to remember to check and answer to the best of my abilities. Thank you.

Thank you for your clarification

As an RN with well over a 1/4 of a century working. And even starting as a Corpsman back in 68, Ive been around awhile.

I have no problem in a nonconsensual blood draw. Even if we have to hold him down against his will. as long as supervised by the police.

My problem is the DA, and the Assistant DAs, and the Defense attorneys all take their piece of me. Causing loss of work. Even worse interfereing with my golf game.

Depositions, meetings, Court time. Subpoenas. You go to court sit for an hour or two then they come and tell you its been rescheduled. Sometimes even 3 to 4 yrs after the event occured. Tom do you recognize this person. No, who could expect me to.,

I have never worried about civil lawsuits. Its all the probs, with the courts, the DAs and the ADAs and the defense attorneys. Smooth all that out and everything is

hunky dory.

But Im tired of giving up golf time for it.

and thats the gospel.

ps, from what Ive seen of DAs and ADAs, I find it amazing they ever win a thing. Color me not impressed, and Ive been there done that, way to often

[dria]

the implied consent law in the state of il further stipulates that the legal drawn must be completed by a doctor or registered nurse. as professionals, we nurses have both the right and duty to comply with the ethical standards of our profession, as outlined by the ana:

http://nursingworld.org/ethics/code/protected_nwcoe813.htm

you will notice that this code states quite explicitly, that our duty is toward the best interests of the patient, not the victim. i do not believe that any professional has the right to request of us to lay this by the wayside in order to assist with building a stronger case for the state's attorney. while the il law does allow statutory summary suspension for persons refusing bac, it does not result in an automatic conviction or guilty plea. therefore, it is possible for a defense attorney to avoid a conviction. another reason that the bac results are so important in the state of il is that the bac (in addition to other factors) determines the penalties for each offense, and rehabilitation requirements for reinstatement of drivers license.

http://www.cyberdriveillinois.com/publications/rules_of_the_road/rr_chap04.html

even when consent is obtained for the draw, this information is not included, which makes me wonder if this is truly "informed consent."

finally, it should not be the responsibility of the health care profession to collect evidence from one who is unwilling to provide it. this is a violation of our professional ethics. if the law enforcement belives so strongly in committing, what i believe to be, assault in order to obtain evidence, their efforts would be focused on 1. changing the law to allow officers to collect the specimen and 2. training the officers appropriately to carry out #1. phlebotomy does not require a nursing or physicians license.

should anyone question my motives in replying, i will add that i was injured by an intoxicated driver, am not, have never been, nor likely will ever be an er rn.

[widi96]

I have no problem doing legal blood draws and would not even mind the court and time it takes if it means taking these people off the street. What I have always been told, both through school and the ER I worked was that we had two options for a legal blood draw . . .

a. the patient consented

b. the police had a warrant

Otherwise we were not to do the draw or we would be charged with assault and battery.

This is in Missouri though so I'm not sure how the laws differ. I would love to see more impaired drivers behind bars.

[ILTroop]

Noryn, Tom, and Dria - All very valid points.

Noryn, you are right, the core values of our two professions can be quite different. From a law enforcement standpoint, we must use all the tools at our disposal to prove our case. And, while I would love to further take all burden off of the shoulders of ER staff by drawing the blood ourselves, it is just not permissible under current Illinois law. Just as you have a duty to act, so do we. Both you and Dria touched on something that I, nor many other Law Enforcement Officers (LEO's), quite understand. The feeling amongst some staff that a non-consensual blood draw is "hurting" their patient. Believe me, I understand the "First, do no harm" philosophy. Yes, a needle is pushed through the skin into a vein, and blood is removed. But the pain is minimal, and the amount of blood given is very small, compared with the nearly 6 liters that the body contains. But what about emotional and mental suffering? The feeling an individual may have that they have been "violated" by a non-consensual blood draw? I believe this, too, has minimal lasting effects, although I have never seen any studies on it. What I have seen in my career, is that the mental anguish comes from the realization of what they have done; of what they are facing; and the weight of the responsibility. People do not refuse a breath, blood, or urine test because they think the tests are falsified. They refuse the tests in an attempt to evade the legal consequences. These are adults, who have made a choice to get behind the wheel after drinking.

Unfortunately, DUI law is extremely complex. Dria, you are citing the Ilinois S. O. S. website on license suspensions. While a suspended license is a consequence of DUI, it is a civil hearing different from the criminal arrest. Either case can be won or lost, with no consequence to the other. Before even asking for blood, breath, or urine, an LEO must read, word for word, the section on Implied Consent to the individual under arrest. It is aptly titled "The Warning to Motorist". You may have heard it in the ER... It starts out "Subsequent to an arrest for DUI..." The penalties for both submitting and refusal are clearly stated for both first time and repeat offenders. Thanks to case law and defense attorneys, it HAS become mostly about the breath, blood, or urine. Juries want to see a drunk driver who is stumbling, falling down, and slobbering all over themselves. This just is not the norm. So when they see an individual on camera not doing these things, and a defense attorney tap dancing, jury nullification becomes a real problem.

Tom, believe me, I feel your pain where the attorneys are concerned. Try going to court on these cases 4 times a month. I just finished one after 3 years and 26 appearances. It makes one very cynical after a while.

I think we can all agree that there needs to be changes to the law. Unfortunately, it seems that our representatives at the state and federal levels are mostly reactive. Something tragic usually has to happen before laws are changed.

Ok, all thanks for the great discussion. As you may notice, I like to debate this topic. What's worse is that my future wife is an ER PA, so we drive each other crazy with this topic! I'll check in later. Time for bed...

[canoehead, BSN, RN]

i have actually seen two nurses handcuffed until a supervisor stepped up and drew the blood.

what the hell? you mean because i'm standing in front of an officer when he decides something needs to be done, then i'm arrested? why don't they just subpeona the hospital records- or train an officer in phlebotomy?

(edit)

thanks iltrooper for coming aboard and clarifying law enforcement's position. the law is bizarre in that if everyone in the er says they will not draw the blood (there is an ethical argument to be made when consent is an issue) the officer ends up arresting people and the er grinds to a halt. i'll draw with consent, or subpeona, but not on an officer's say so that it is the law that the patient must submit. i've been burned by officers that stretch the truth before, and can't take their word on anything anymore. if the officer shows me the actual law requiring the draw i would be more cooperative- but then we're back to ethical issues, maitaining the patient nurse relationship, etc. what are the chances this patient will reveal the crack he swallowed when he saw the police lights if i have just become a tool for the prosecution? my drawing blood without his consent may keep him from revealing that and result in his death. we need to keep healthcare and policework separate- subpeonas seem like the wisest course.

[dria]

trooper...

thank you for the clarification, and i am glad to see that you did in fact remember to return for further discussion. i used the sos site as a reference for others, because there is no way to link to whats in my brain. i understand that it is a very basic reference. i freely admit that i am a much better nurse than interpreter of the law, and you will notice that i did in fact note, that i have no er experience. coupled with the fact, that i have never been on the recieving end of "the warning to the motorist," i plead ignorance, and freely admit that i was, apparently, incorrect.

it is plain to me that you do in fact have a poor understanding of where the issue lies. please, please, please take time to read through the ana code of ethics. the issue has to do with the primacy of pt's interests, and the pts right to self determination. "do no harm" alludes to the hippocratic oath, which governs the practice of physicians. the issue has less to do with harming the patient than respecting his rights as a person, and putting the needs of that patient above all others. "probable cause" does not give us the option to violate this right.

i stand by my original statement that it is the law that needs to be changed, not the opinion of the healthcare professionals. i think you would find it distressing for someone to ask you violate the principles of your profession in order to "prove their case."