The topic of forced blood draws has recently been in the headlines after video was released of a Utah hospital nurse who was placed in handcuffs and threatened with arrest after refusing a police officer’s request to take a blood sample from an unconscious patient.
A few weeks ago, Salt Lake City Detective Jeff Payne handcuffed and dragged Nurse Alex Wubbels out of a hospital for refusing to obtain a blood sample from an unconscious patient. Nurse Wubbels refused to get the blood sample, because she knew that the law required the officer to obtain either consent from the patient for the blood draw or obtain a warrant from a judge. When Ms. Wubbels insisted on obeying the law, Payne used force on her in an attempt to get her to comply – all of which was caught on video and has been repeatedly seen in the news.
Salt Lake City’s mayor has since apologized to the nurse. Detective Payne was placed on administrative leave as a result of the incident and fired from his part-time position as a paramedic. A second Utah police officer, Lt. James Tracy, has also been placed on administrative leave.
Although the case didn’t occur in New Jersey, a lot of the same rules and policies would apply if it had taken place at a New Jersey hospital instead. In fact, police officers, nurses, prosecutors, judges, and attorneys are regularly prepared to deal with the situation of a request for a blood sample for an unconscious patient in this state. If the rules are not followed exactly, it is possible that any evidence obtained from an illegal blood sample could be excluded from court. For that reason, it is extremely important to contact an attorney as soon as you or anyone you know is arrested, charged, or convicted of drunk driving or driving under the influence. An experienced attorney may be able to challenge the evidence against you or get the charges thrown out completely.
Why are Blood Samples Used in DUI/DWI Cases?
When somebody is charged with drunk driving, one of the ways the state can prove its case is by introducing evidence that the driver’s blood alcohol content (BAC) was above the legal limit of .08% or higher. Most people are familiar with the breathalyzer test used to measure BAC, but a breathalyzer cannot be used in all situations. For instance, a driver who is involved in a car accident may be unconscious or too injured to provide a breath sample. In those cases, the investigating officer may want to get the driver’s blood sample tested for alcohol concentration.
When Can Police Officers Get a Blood Sample?
After a motor vehicle accident, wherein a driver is injured, the driver will probably be taken to a hospital for treatment. At the hospital, a police officer will only be able to get the driver’s blood sample under two circumstances: 1) with the driver’s consent, or 2) with a warrant. If a driver is capable of providing consent, then he or she may allow a police officer to take a blood sample. Obviously, a driver can only give consent if he or she is conscious. A driver also cannot give consent if he or she is being sedated or otherwise treated in a way that renders him or her incompetent.
In order to get a warrant, the police officer must apply to a judge for a warrant for the blood sample. If the request is being made after regular business hours, an emergency on-duty prosecutor and emergency on-duty judge will need to be contacted. Regardless of the timing, the prosecutor and the officer will need to demonstrate to a judge that they have probable cause to obtain the blood sample: meaning that the officer has well-grounded suspicion based in citable evidence that the driver had been operating the vehicle while intoxicated – such as smelling alcohol on the driver’s breath. The judge will need to agree, and a warrant will need to be issued and signed. Only after a warrant is issued will the officer be able to order the hospital to get the patient’s blood sample.
How an Attorney Can Help
Although there are numerous ways to challenge a blood sample, one of the ways to challenge blood BAC evidence is to demonstrate that the blood draw was impermissible. This can be because a driver failed to give proper consent, because the police officer failed to obtain a warrant, or because the police officer did not have sufficient probable cause to justify the warrant. If you or someone you know is charged with driving while intoxicated, an experienced lawyer be able to review the evidence against you and put up the best defense on your behalf. An attorney may even be able to have the case dismissed completely.
New Jersey DUI Attorney Edward M. Janzekovich Will Be There if You’ve Been Charged with Drunk Driving
DWI / DUI cases can often involve complicated issues of evidence, and successfully challenging that evidence requires knowledge and experience about the law. If you or someone you know is facing a DWI charge, a knowledgeable drunk driving attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.