During a suspected DUI, law enforcement typically uses a breath test to determine the blood alcohol content (BAC) of the driver. However, a chemical test, such as a blood test, can also be used to determine the BAC. Recently, blood tests have become more common.
There are three scenarios where blood tests are used in Georgia:
- The first situation is when a person is suspected of being under the influence of drugs (whether legally prescribed or illegally obtained). Breath-testing is effective when a person is suspected of being under the influence of drugs. Urine testing, although useful to determine exposure to drugs, cannot provide a level of impairment. Only a blood test can provide information insofar as potential impairment is concerned.
- The second situation is when the police suspect that a person is under the combined influence of alcohol and drugs. It is illegal to be under the combined influence of any intoxicants in Georgia. Again, a breath test cannot detect the use of drugs. Only a blood test can find both an alcohol level and a drug level. Also, only a witness who is trained in toxicology can testify to a jury as to how a person may be under the combined influence of more than one intoxicant.
- The final situation is when a person is asked to voluntarily submit to a breath test and refuses. When a person refuses a breath test, many police officers ask a magistrate for a warrant to seek a suspect's blood. The officer must testify to the magistrate that there is probable cause to believe a crime has occurred and that the blood is needed to prove the crime. That being said, some officers prefer the message a "refusal" conveys to a jury. Prosecutors often argue that a person would not have refused if they thought they would have passed the test.
Typically, a trained nurse or phlebotomist will conduct the blood draw at a hospital or the police station. However, a different practice has started to crop up in select police departments across the country. The role of phlebotomist and police officer overlap, as some policemen are being trained and certified to draw the blood of suspects themselves. At best, this is a fringe phenomenon and could hardly be classified as a mainstream practice within police departments. Nevertheless, as the practice gains traction in other states, it is worth at least keeping an eye on. At this point, Georgia police officers do not draw the blood of their suspected DUI drivers.
A police department that recently trained and certified six officers to perform blood draws is located in Lakewood, Washington. The nascent practice has raised some eyebrows. Lakewood police chief Mike Zaro defended the idea, telling a local news outlet, "...the equipment and procedure will be the same used in hospitals... The only difference is the person performing the procedure will be a Lakewood officer instead of a hospital employee.” It would also serve to speed up the booking process. They are the first police department in Washington to train their officers for blood draws, but not the first in the country.
Arizona began training a handful of officers in phlebotomy in the late 1990's. Courts in the state heard a handful of cases throughout the early 2000's, questioning the legality of the practice and affirming that so long as they were properly trained, law enforcement phlebotomists in Arizona were qualified to do the task. The Houston Police Department also stirred controversy when they sent seven officers to the Texas Dept. of Criminal Justice's Jester IV Unit to do their phlebotomy training on prisoners.
Some defense attorneys are critical of the program, suggesting that it gives investigators too much power. Furthermore, tacking on phlebotomy to an officer's docket of skills raises a number of questions as officers are law enforcement professionals, not medical professionals. One such question is, if an officer breaches the standard of care or makes an error during a blood draw, should they be subject to similar medical liability?
Also such practices clearly seem to violate the Health Insurance Portability and Accountability Act of 1996 (HIPAA). How in the world can a person's privacy be protected by a police officer trying to prosecute a case against them.
Though this program has not been adopted by any police departments in Georgia, its resurgence is worth a degree of examination and scrutiny. If you have been charged with a DUI in Georgia, a skilled and competent attorney can help you to build you a durable defense and fight your charges. Contact Georgia DUI Attorney Richard Lawson today for a free consultation of your case.