The Requirement that Medical Providers Withdraw Blood in Implied Consent Cases

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WRAL news reported last week that a Selma police officer had been placed on administrative leave after he allegedly handcuffed an emergency room nurse who refused to withdraw blood from a defendant suspected of impaired driving. The nurse reportedly was released from handcuffs after Smithfield police arrived, and charges against the suspected impaired driver were later dropped after the magistrate found they were unsupported by probable cause. It is unclear whether the officer had a search warrant authorizing the withdrawal of the defendant’s blood. This unseemly emergency room standoff provides a useful context for considering the statutory duties imposed upon medical providers when confronted with a law enforcement officer’s request to withdraw blood.

Before enactment of the Motor Vehicle Driver Protection Act of 2006, S.L. 2006-253, medical providers and other qualified persons were authorized, but not obligated to, withdraw blood from a defendant charged with an implied-consent offense upon the request of the charging law enforcement officer. See G.S. 20-139.1(c) (2005). Those procedures were amended in 2006 to require medical providers and other qualified persons to withdraw blood in implied-consent cases pursuant to an officer’s request. First, S.L. 2006-253 amended G.S. 20-139.1(c) to provide that “when a blood . . . test is specified as the type of chemical analysis by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood sample . . . and no further authorization or approval is required.” This provision applies when an officer seeks the withdrawal of blood from a consenting defendant or from a defendant who is unconscious or otherwise in a condition that renders him or her incapable of refusal. It arguably also applies to circumstances in which an officer requests that blood be withdrawn pursuant to a search warrant since the blood ordered seized in a warrant is “specified” as the type of bodily fluid sought in the officer’s application for the warrant.

S.L. 2006-253 also enacted G.S. 20-139.1(d1) and (d2), which (1) authorize the warrantless withdrawal of blood following a defendant’s refusal to be tested, and (2) prescribe procedures for compelled warrantless blood draws, respectively. G.S. 20-139.1(d2) provides that “when a blood . . . sample is requested under subsection (d1) of this section by a law enforcement officer, a physician, registered nurse, emergency medical technician, or other qualified person shall withdraw the blood . . . and no further authorization or approval is required.”

Both G.S. 20-139.1(c) and G.S. 20-139.1(d2) provide that “[i]f the person withdrawing the blood . . . requests written confirmation of the [] officer’s request for the withdrawal of blood . . . the officer shall furnish it before blood is withdrawn . . .” An exception to both mandatory-withdrawal provisions allows a medical provider to refuse to draw blood “if 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.” An officer may request written justification for a medical provider’s refusal to withdraw blood. If the officer does so, the medical provider must provide the written justification at the time of the refusal.

It is thus clear that G.S. 20-139.1(c) and (d1) obligate medical providers to withdraw blood upon an officer’s request. (As noted above, there may be some debate about whether this obligation applies to requests to withdraw blood pursuant to a search warrant. Yet the notion that medical providers are required to withdraw blood upon a law enforcement officer’s request but are not so obligated in response to a search warrant issued by a judicial official defies rational explanation.) What is less clear is whether a medical provider’s failure to comply amounts to a crime. The most likely potential criminal charge is resisting, delaying or obstructing an officer in violation of G.S. 14-223.

Significantly, no statutory provision specifies that a medical provider’s noncompliance with the directive in G.S. 20-139.1 is a crime, an omission that supports the proposition that the legislature did not intend that a third-party medical provider who fails to withdraw blood upon an officer’s request be subject to criminal sanctions. Furthermore, a medical provider’s refusal to draw blood is inaction that differs from the affirmative acts normally considered to amount to resisting, delaying or obstructing an officer in violation of G.S. 14-223. Compare Roberts v. Swain, 126 N.C. App. 712, 724 (1997) (person’s refusal to provide social security number insufficient to establish probable cause for the charge of resisting arrest) with State v. Cornell, 729 S.E.2d 703, 706 (N.C. App. 2012) (defendant’s stepping between officers and suspected gang members while officers were attempting to prevent conflict at a public festival and in telling officers not to talk to gang members and refusing to step away constituted sufficient evidence of obstructing and delaying officers in the performance of their duties). It is unclear whether this sort of refusal to assist an officer, even in light of the statutory duty, amounts to resisting, obstructing, or delaying an officer.

On the other hand, one might argue that because the statutory directive in G.S. 20-139.1 exists to facilitate a law enforcement officer’s investigation of impairment-related crime, a medical provider’s failure to comply with the directive amounts to obstructing an officer under G.S. 14-223. Cf. Janet Mason, Reporting Child Abuse and Neglect in North Carolina 53 (2d. ed. 2003), available here, http://sogpubs.unc.edu/electronicversions/pdfs/rca/ch10.pdf (analyzing arguments for and against the prosecution of failure to report child abuse or neglect as required in G.S. 7B-301 as general misdemeanor offense).

Suppose that the medical provider refuses to withdraw the blood when confronted with a search warrant. Does this constitute criminal contempt? That seems unlikely. Search warrants for blood in DWI cases typically are issued on form AOC-CR-155. Warrants in this form direct law enforcement officers to “take the person named in the application to a physician, registered nurse, emergency medical technician or other qualified person to obtain sample(s) of blood and/or urine described in the application from the person named in the application” and “to seize the sample(s).” They do not direct individuals who are not parties to the action to perform any duty. Thus, a medical provider who refuses to draw blood has not willfully disobeyed or resisted a court order, acts defined as contemptuous under G.S. 5A-11(a)(3). One might argue that a medical provider who violates the blood-withdrawal directive in G.S. 20-139.1 when confronted with a search warrant has interfered with executing the court’s order in violation of G.S. 5A-11(a)(3). However, it is doubtful that the refusal to perform some affirmative act, as contrasted with performing an act to prevent the execution of an order, constitutes “interference” within the meaning of G.S. 5A-11(a)(3).

It probably goes without saying (but I’ll say it anyway) that, even if lawful, the issuance of criminal process against medical providers may damage the working relationship between law enforcement officers and medical professionals. For many years and in many locations around the state, officers have obtained samples of defendants’ blood in impaired driving cases without arresting or charging medical personnel. Agreement between law enforcement and hospital personnel regarding the protocol for blood-draw requests might head-off the sort of confrontation that arose in Johnston County. Indeed, collaboration of this sort resulted in the State Highway Patrol’s decision last July not to request emergency medical technicians (EMTs) to withdraw blood for chemical analysis, notwithstanding the statutory directive in G.S. 20-139.1(d2). After the Office of Emergency Medical Services raised concerns that the statutory directive was inconsistent with the authorized skill set for EMTs, the Highway Patrol issued a memorandum instructing its members not to request EMTs to withdraw blood.

Readers:  How does this work in your city and county?  Do medical providers routinely and uneventfully withdraw blood upon officers’ requests and pursuant to search warrants? Or do conflicts frequently arise? If and when they do, how are they resolved?

4 comments on “The Requirement that Medical Providers Withdraw Blood in Implied Consent Cases

  1. The NC SBI misdemeanor serology unit was never audited by AG Roy Cooper. One serology tester, Stephanie Raysich, leaves DWI serology samples at room temperature for months. When a serology sample is left at room temperature, it destroys the sample and even increases the amount of alcohol in the sample Here’s a link to an SBI fraudulent serology report:

    http://carolinacrimereport.com/nc-ag-cooper-covers-up-contined-sbi-serology-fraud/

    AG Roy Cooper was sued in federal court, but he filed a motion to dismiss, and U.S. District Court Judge Malcolm Howard dismissed and covered up the crime, as did Wake Court Judge Donald Stephens.

    • I think allegations like this would generally throw up red flags for most readers of this blog. As someone that has dealt with blood tests from the SBI, Donna’s documentation at the link she provides seems lacking and very misleading considering the severity of the accusations she is making. This concerns me for two reasons.

      First, Donna’s unsubstantiated accusation takes away from the legitimacy of people who can actually claim evidence in their case was mishandled. While I hope cases like this are very few and far between, no person working in the criminal justice system can deny that errors do occur.

      Second, it hurts the reputation of people that do fair and accurate work. The chain of custody report provided on Donna’s website simply does not support the assertion Donna is making when read by someone who understands how the SBI lab operates.

      I come to this blog for an in-depth and precise review of the law, and I have always been impressed with the comments left by the readers. Unless there is further proof to support such a claim, I hope there are not such inflammatory comments posted in the future.

      • There is a lot more evidence of NC SBI and Wake Court Fraud that the News & Observer hasn’t covered:

        Log on to the U.S. Courts Pacer system and type in Pilch v. Cooper. Pull up my case and you’ll see violations of NC General Statutes and the state and federal constitutions meticulously documented, and which impacts potentially everyone who ever was, is or will be a defendant in NC.

        The comment below shows that this “concerned lawyer” is not concerned about enforcing the law, but instead maintaining the status quo of continued defective serology procedure in the SBI:

        “The chain of custody report provided on Donna’s website simply does not support the assertion Donna is making when read by someone who understands how the SBI lab operates.

        (The serology report shows that a serology sample was left at room temperature for months and then tested by Stephanie Raysich, a person who is not even a full-time SBI employee. What exactly are the qualifications for freelancers like Raysich and how many other freelancers are there who are also leaving serology samples at room temperature for months? Why wont’ AG Roy Cooper come clean and take responsibility for the continued fraud and provide relief to SBI victims?)

        Other issues are that
        1. There is no court form to enforce defendant’s right to waive or deny probable cause hearing in district court as mandated by NCGS 15A-606.

        2. No court form exists to allow a defendant to plead NOT Guilty in the state district courts.

        3. The ACIS court computer system records all court dates as jury trials and defendants and their lawyers aren’t notified of either by Lorrin Freeman.
        (Since all court dates are recorded as jury trials Lorrin Freeman should have simply asked AOC Director John Smith to fix this. Instead she continues to allow the fraud to occur, supported by Willoughbby and Stephens who have been notified of the obstruction of justce for over three years).

        4. Defendants are often forced into jury trials without probable cause hearing.

        U.S. District Court Judge Malcolm Howard is required by the Federal Rules of Cvil Procedure to complete discovery and schedule a hearing. To date, he has not done either.

        I would like to know the identity – the name – of “concerned lawyer.” Be brave, tell us who you are.

  2. This story on WRAL generated lots of comments from the usual law enforcement haters and from some nurses that believe a hospital is some sanctuary exempt from the North Carolina General Statutes. I know that Cape Fear Valley Hospital in Fayetteville for the most part does an outstanding job working with law enforcement in obtaining blood samples. Every once in a while you will run into someone that claims helping law enforcement is automatically a HIPAA violation, but usually a trip to the charge nurse takes care of that.

    I appreciate this very detailed analysis on whether RDO applies in this situation. It is my personal opinion that RDO would apply if a RN refused to take a blood sample absent some bona fide safety concern as required by statute. The legislative changes in 2006 would be meaningless if a medical professional could simply just ignore the command of “Shall” and face no consequences. The legislative intent here is to give law enforcement the power to command the taking of the blood and I would think those interfering with this command are guilty of obstructing an officer. Nonetheless, it is important to note that most medical professionals and law enforcement have an excellent working relationship. I would never recommend handcuffing, charging by citation, or arresting a medical provider for this act alone.

    I think two more points of interest coming out of this situation in Johnson County is the question of whether the Selma officer had jurisdiction to arrest the nurse and also the legality of a non-consensual blood draw in absence of a search warrant as I believe was the case in the Selma officer’s situation.

    NC GS 20-38.2 states in part that, “A law enforcement officer who is investigating an implied consent offense or a vehicle crash that occurred in the officer’s territorial jurisdiction is authorized to investigate and seek evidence of the driver’s impairment anywhere in state or out of state, and to make arrests at any place within the State.” Obviously the Selma officer had the authority to arrest and seek evidence of the suspected impaired driver throughout the state provided that it started in Selma, but does this statute give him the authority to arrest the RN for RDO in this situation? I think so, but I am not certain.

    In STATE OF NORTH CAROLINA v. MARK ANTHONY FLETCHER, the NC Court of Appeals ruled that a compelled warrantless blood draw is constitutional if an officer can articulate that the delay necessary to obtain a search warrant would result in the dissipation of alcohol in the blood. This rationale is also codified in the General Statutes. This may be changed though in an upcoming US Supreme Court decision. This same type of ruling is being challenged in Missouri and the US Supreme Court will soon provide a nationwide answer to this question in Missouri v. McNeely.

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