Should EMS Draw Evidentiary Blood?

The lawyer’s favorite answer to such a provocative question: It depends. A great deal hinges upon the type of system, individual state laws and a service’s available resources. Let’s take a look at the issues involved with EMS drawing blood at the request of law enforcement for evidence of DWI or other crimes. (This article is the compilation of a lively EMS discussion on the JEMS.com, and I thank all of you who provided input.)

 

Whether EMS should draw blood for evidentiary purposes is not a simple issue. Obtaining and preserving crime scene evidence touches on multiple constitutional law issues not historically familiar to EMS. In short, we generally are not trained to perform evidence collection and preservation tasks. We also aren’t taught to testify in court, although we probably should be. Can we be trained to perform these tasks? I think so. Whether or not we should is an entirely different question.

 

EMS may perform blood draws pursuant to a contractual arrangement with law enforcement, or under a state law that mandates EMS perform this service without additional funding. The question of who pays for the EMT to make a court appearance concerns many EMS agencies, as does the dilemma of taking EMS units out of service to perform evidence collection functions.

 

Each state has its own laws with respect to DWI enforcement. Many states have something along the lines of an implied consent law, which mandates that if law enforcement finds probable cause that a person drove under the influence, the suspect must provide either a breath or blood sample. These laws often provide a stiffer penalty for a suspect who refuses to provide the sample. However, if the suspect agrees to provide a blood sample, or if they are injured and hospitalized and cannot be taken to a facility or mobile unit for a breath test, then blood may be the best way to go.

 

A delay in obtaining a blood sample could lead to a DWI case’s dismissal due to the alcohol metabolizing. Further, obtaining and processing a blood sample is much more complicated than taking a breath sample, and many DWI defense attorneys in my home state recommend that their clients ask for a blood test since the possibility of law enforcement somehow “bungling” the sample and getting the case thrown out is considerably higher than with the use of breath samples.

 

How are blood samples obtained? In some states, hospital-drawn blood and test results may be used in DWI prosecution. The evidentiary privilege, called the “physician-patient privilege” in many states, contains an exception for evidence of a crime. This means that a person’s medical test results may be used as evidence of a crime in a criminal prosecution. In other states, such as New Mexico, the privilege doesn’t carry that same exception, and hospital-drawn blood may not be used.

 

So, how is blood obtained in these situations? One way is for law enforcement to have an “on call” system for nurses or phlebotomists to come to the crime scene and draw the suspect’s blood, and then to place the sample into the evidentiary chain of custody. The same nurse or phlebotomist is then required to personally testify in court regarding how the suspect’s blood was drawn. The court hearing may be many months away, and scheduling is often difficult. This system is cumbersome at best, and prosecutors are often frustrated by their inability at trial time to locate the person who drew the blood.

 

Other states that take DWI prosecution more seriously look to EMS to draw blood from suspects because EMS is often at the scene anyway or available to law enforcement within a short timeframe. In Idaho, for example, law enforcement contracts with EMS to draw blood upon request. EMS charges a fee for the service, which is often reserved for supervisors in “fly cars” rather than ambulance crews. Idaho enjoys a high success rate in DWI prosecution. EMTs from that state report that, initially, they frequently testified in court; however, after repeated success as witnesses, they are now rarely required to testify because the system is considered quite efficient. They also report few problems regarding the system, and don’t see it as a conflict of interest.

 

North Carolina EMS providers report that, unbeknownst to them, state legislators considered and passed a statute requiring them to perform blood draws. Florida EMTs also draw blood for evidence; their statute on blood tests for impairment or intoxication in cases of death or great bodily injury allows “a physician, certified paramedic, registered nurse, licensed practical nurse or other personnel authorized by a hospital to draw blood”¦” for evidence under these circumstances (Florida statute 316.1933). EMS service protocols permit blood specimens to be drawn using only a kit provided by the law enforcement officer, and at their request. In Colorado, it’s not uncommon for even EMT-Bs to provide blood draws, and, again, EMS protocols provide for how it’s to be performed. At times, law enforcement will bring a suspect to the EMS station to request an evidentiary blood draw.

 

Other states, such as Ohio and Illinois, have recently introduced legislation that would require EMS to perform evidentiary blood draws. Opponents of these bills question who will pay for the EMTs’ overtime for court appearances, and point to potential EMS scheduling disruptions when employees are called to testify. Others wonder how volunteers factor into the equation. A volunteer who holds a full-time job in addition to providing EMS care may have a difficult time taking on a responsibility that interferes with their profession. The main concern is that EMS could become a “dumping ground” for yet another unfunded mandate.

 

In short, the decision to have EMS perform evidentiary blood draws is made state by state. Some states have successfully implemented such a system with minimal interruption to day-to-day EMS operations. Hopefully, EMS will be at the table when this issue arises, rather than being mandated to perform a task for which providers are not trained or funded. Whether it’s a function your service will perform is largely dependent on a number of local factors. Keep abreast of what’s happening in your own state, and how your service may become involved.

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