DUI Blood Test with Medical Treatment Admissible unless Care Expressly Refused

Impact of Appeals Court Ruling on Arizona Drivers

Your Guide to understanding the DUI blood test with medical treatment warrant exception.

A DUI blood test taken by Police for investigating impairment is considered a search and seizure, protected by our 4th Amendment rights.

This means that to obtain DUI blood or chemical evidence police would need either consent; or a warrant to order a DUI blood or chemical test.

There are exceptions to the requirement of a warrant. One of these exceptions under Arizona Law is DUI blood test or testing incidental to medical treatment.

Police can request a blood or chemical test be taken for criminal investigation reasons incidental to Medical Treatment.

This exception is often used following an accident, when the police suspect the driver may have been impaired due to alcohol or drugs.

If the police have probable cause, they can bypass a warrant, and request a DUI blood or chemical test from the medical provider treating the driver.

Under A.R.S. section 28-1388(E), if an Arizona police officer has probable cause to believe someone has violated the statute that prohibits driving under the influence (A.R.S. S 28-1381), and blood or another bodily substance is taken from that person, and enough of the sample that is sufficient for analysis will be provided to a police officer if requested for law enforcement objectives.

However, a DUI blood test cannot be requested by police if the suspect has expressly rejected medical care.

Precedent case rulings on this issue have held that if the treatment is not obtained voluntarily, than neither was the DUI blood test.

The scope of this exception was the subject of a recent Arizona appellate decision which we will discuss in this article.

                            DUI Testing with Medical Treatment in absence of a Warrant

[Arizona Court of Appeals Division 1 – No. 1 CA-CR 12-0780 10-20-15]

In this case, the defendant appealed from convictions for reckless manslaughter, endangerment, and possession of narcotic drugs. The defendant argued that the court shouldn’t have denied his motion to suppress his blood test results, which were secured for law enforcement objectives under A.R.S. section 28-1388(E).

The case arose when the defendant hurt four people and killed a pedestrian in a head-on collision while speeding in a residential area early one evening. Hospital personnel took blood from him, and the blood test results showed he was high on meth and heroin at the time of the crash. Witnesses later gave testimony about his erratic driving and related conduct.

The defendant was charged with second-degree murder, possession, or use of narcotics, and four counts of endangerment. All of these are felony counts.  A motion to suppress the blood test evidence was filed by his defense, on the grounds that it was obtained without a warrant, and that he had expressly refused medical care at the time.

At the hearing on the motion to suppress, the defendant did not testify, but the court heard testimony from six witnesses. The witnesses, who were police officers and paramedics, testified that a nurse was tending to the defendant when they arrived. He was flailing and screaming and wouldn’t answer questions. One officer had been an EMT before becoming a police officer and testified that the defendant’s speech was slurred and that she couldn’t understand him in his delirium. Another officer saw syringes and an uncapped needle inside the car.

The defendant aggressively pushed away the paramedics and tried to hit them with a closed fist. However, the paramedics testified that due to the severity of his injuries, they needed a doctor’s clearance to not take him to the hospital, and they couldn’t get that. They effectively transported him against his will. He continued to be aggressive in the ambulance. Another officer said his behavior was consistent with someone drunk or high.

At the hearing for the motion to suppress, the lower court found that while it was possible to view the defendant’s conduct as a rejection of medical care, it wasn’t enough to count as a clear, unambiguous rejection of medical treatment. Accordingly, the lower court denied the motion to suppress the blood test.

The jury found the defendant guilty, and he was sentenced to 15 years for the manslaughter, as well as three years of imprisonment on each of the other convictions. He appealed.

The appellate court explained that a blood draw is considered a search under the Fourth Amendment. There are three constitutionally permissible ways in which police can get a blood sample: (1) by showing probable cause and getting a warrant, (2) express or implied consent, and (3) the exception provided by A.R.S. section 28-1388(E) that allows a police officer with probable cause to take part of a blood sample taken for another reason. However, the third way cannot be used if someone unambiguously, clearly, and expressly exercises their constitutional right to refuse medical treatment.

The issues before the appellate court were (1) whether the State had probable cause to believe there was a violation of A.R.S. S 28-1381, and (2) whether there was an express refusal of medical treatment. The appellate court found that the testimony of the officers showed there was probable cause. It found that there was no evidence to show the police asked that the defendant be taken to the hospital. There were also no oral statements made by the defendant specifically asking not to get medical assistance. The conviction was affirmed.

Updated March 13, 2017 

On February 1, 2017 the Arizona Supreme Court remanded the Maricopa County Superior court decision, and vacated the Appeals Court decision.

The Arizona Supreme Court held that the prosecution is required to prove that the defendant provided an express or implied consent to medical treatment.   If the defendant was unable to verbalize or otherwise express their consent, the state must prove that paramedics did not act against the suspect’s right to direct their own medical treatment.

The Court held that the evidence of record did not clearly or conclusively show that the suspect was capable or in a state of mind to direct his own medical treatment.   Further the the record did not show that the EMTs acted within the or against the rights of the suspect to make a decision about his medical care.

As a result the Court remanded for continuance of proceedings to the trial court to make the determination of whether or not police obtained the blood sample legally, based on specified standards.  These standards included 1) probable cause of DUI; 2) exigent circumstances; 3) blood draw was for a medical purpose; and 4) the paramedics did not violate the right of the suspect to make the decision regarding whether or not to consent to the medical treatment.

Impact of Ruling on Arizona Drivers

While this case had a unique set of circumstances it can potentially impact similar cases where the medical treatment warrant exception for DUI testing applies.

Under this precedent if the driver intends to refuse treatment, their communication must rise to the level of an express, clear, and unambiguous rejection.

To assure that a driver’s rejection is validated by police, paramedics and the courts, the driver must be of sound mind, and have the competence to make that decision under the circumstances.

Though it is a person’s right to reject treatment, they are required to communicate their wishes, in order for their right to refuse care to be invoked.

Further, they must be able to clearly respond to direct questions by paramedics on scene, and do so without any ambiguity.

If they are unable to clearly communicate their refusal of treatment, in absence of express consent, emergency medical technicians can act with implied consent on their behalf to have the treatment if it is reasonable and indicated according to field directives.

In that case, the suspect will be perceived as not having rejected treatment, and the DUI blood test may be admitted in trial as evidence against the defendant

As to what rises to the level of a clear and expressed rejection, this may prove to be another question for the courts to decide.

It is unknown if the case will be appealed to the Arizona Supreme Court.

10 Things You Should Know about the Medical Treatment DUI Blood Test Warrant Exception

                                              [A.R.S. S 28-1388 E]

Police can request DUI blood test with medical treatment:

1.   If police have  probable cause to believe that a person may be driving impaired under the influence of alcohol or drugs, they can request a sample of lab or other chemical testing for law enforcement purposes incidental to the medical treatment which was not rejected;

2.   If the suspect voluntarily consents to seeking medical treatment;

3.   If the emergency medical technicians decide it is necessary to transport the patient for medical care, without influence from the police officer.

It is unconstitutional for police to request to draw blood from medical treatment:

4.   If the suspect is subjected to medical treatment that is clearly and expressly rejected;

5.   If the suspect is compelled to seek medical treatment under threat of arrest;

6.   If medical treatment is not completely voluntary, then neither is the DUI blood test.

A suspect’s rejection of medical treatment may be invalidated:

7.  If the suspect does not expressly or implicitly reject the treatment;

8.  If the suspect’s rejection is ambiguous or unclear;

9.  If the suspect’s injuries or medical condition is such that they are unable to respond to oriented questions.

10. If the driver is unable to clearly and expressly reject the treatment, the EMT may proceed under the implied consent.

Doctrine of Implied Consent for Medical Treatment

Under the common law doctrine of Implied Consent, the emergency medical technician (EMT) considers the seriousness of the injuries, and other factors to determine if immediate medical care is needed.

Then, in absence of an injured person’s clear and express consent, the EMT may act on behalf of the patient. They may act under this doctrine if they conclude that the patient is incoherent, or unable to make a competent decision about their care in light of their injuries or circumstances.

Express Consent

Express consent may be verbal, in writing, or other forms of communication such as sign language or other unambiguous body language, documents, parental authority, or other circumstances that make it clear that they do not want to seek medical treatment.

DUI Defense for Chandler AZ

Whether or the police are permitted to test your blood after suspecting you of driving under the influence can involve a complicated analysis. It is crucial to retain an experienced criminal defense attorney who understands the Fourth Amendment and proper police procedure.

If your constitutional rights were violated by law enforcement during the process of obtaining the evidence, or other phase of your criminal investigation, it can lead to suppression of the evidence, and dismissal or acquittal of charges. Other defenses may also apply.

James E. Novak, a DUI and Criminal Defense Arizona attorney in Tempe AZ, is a former prosecutor, experienced trial lawyer, and dedicated drug crimes defense attorney. If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges. James Novak of the Law Office of James Novak provides a free initial consultation and defends active charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, AZ. Call today (480) 413-1499.


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