The Associated Press just published this story about a federal program in Idaho and Texas in which officers are trained to draw blood from people suspected of impaired driving. The notion is that blood draws counter the evidence lost as a result of breath test refusals, thereby resulting in fewer trials, more convictions and greater deterrence. And blood draws by officers save time and, perhaps, money, though there are costs for training officers in the art of the needle-stick. Arizona apparently set the trend in 1995 by cross-training some of its officers as phlebotomists, a practice that, according to this report from the National Highway Transportation Safety Administration (NHTSA), caused defense attorneys to change their advice from “just say no” to “blow, baby, blow.” (My words, not theirs.) The report noted “[a] possible concern with having an officer draw the blood is that suspects could feel coerced if an authority figure such as an officer is obtaining the sample.” But given that such suspects presumably are forced to submit to a blood draw, is coercion really an issue?
The NHTSA report included 2005 refusal rates for 37 states, Puerto Rico and the District of Columbia. North Carolina’s rate of 20 percent was slightly below the average rate of 22 percent. Which state had the highest rate? Here’s a hint: Live Free or Die. New Hampshire drivers refused breath tests at a breathtaking rate of 81 percent.
The AP reports that if the Idaho and Texas programs are successful, the NHTSA will encourage police nationwide to undergo similar training, which caused me to wonder whether this practice could be adopted in North Carolina under the state’s current implied consent laws. The upshot: Yes.
Law enforcement officers already may request, in their discretion, that a driver submit to a blood test “in addition to or in lieu of” a breath test. G.S. 20-139.1(b5). And, under current law, when a blood test is requested by an officer, “a physician, registered nurse, emergency medical technician, or other qualified person” must withdraw the blood sample unless it reasonably appears that the procedure cannot be performed without endangering the safety of the person collecting the sample or the safety of the person from whom the sample is being collected. G.S. 20-139.1(c). Law enforcement officers can obtain suspects’ blood without a warrant if they believe that the delay necessary to obtain a court order, under the circumstances, would result in the dissipation of the percentage of alcohol in the person’s blood or urine. See G.S. 20-139.1(d1). Moreover, G.S. 20-16.2(c) allows testing for drugs and alcohol in an implied consent case so long as the testing is lawfully carried out, regardless of whether it comports with the implied consent procedures.
A statutory amendment might be useful to clarify that police officers with proper training are “qualified person[s]” as that term is used in G.S. 20-139.1(c), but, otherwise, the practice appears to comport with the current system for obtaining blood samples from suspected impaired drivers.
So a needle-wielding cop — or a gun-toting phlebotomist — may be coming soon to a town near you.