The Requirement that Medical Providers Withdraw Blood in Implied Consent Cases

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 It arguably also applies to circumstances in which an officer requests that blood be withdrawn pursuant to a search warrant since the blood ordered seized in a warrant is “specified” as the type of bodily fluid sought in the officer’s application for the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?