September 13, 2009

Cops Allowed to FORCIBLY Draw Blood on Suspicion

BOISE, Idaho – When police officer Darryll Dowell is on patrol in the southwestern Idaho city of Nampa, he'll pull up at a stoplight and usually start casing the vehicle. Nowadays, his eyes will also focus on the driver's arms, as he tries to search for a plump, bouncy vein.

"I was looking at people's arms and hands, thinking, 'I could draw from that,'" Dowell said.

It's all part of training he and a select cadre of officers in Idaho and Texas have received in recent months to draw blood from those suspected of drunken or drugged driving. The federal program's aim is to determine if blood draws by cops can be an effective tool against drunk drivers and aid in their prosecution.

If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage police nationwide to undergo similar training.

For years, defense attorneys in Idaho advised clients to always refuse breath tests, Ada County Deputy Prosecutor Christine Starr said. When the state toughened the penalties for refusing the tests a few years ago, the problem lessened, but it's still the main reason that drunk driving cases go to trial in the Boise region, Starr said.

Idaho had a 20 percent breath test refusal rate in 2005, compared with 22 percent nationally, according to an NHTSA study.

Starr hopes the new system will cut down on the number of drunken driving trials. Officers can't hold down a suspect and force them to breath into a tube, she noted, but they can forcefully take blood — a practice that's been upheld by Idaho's Supreme Court and the U.S. Supreme Court.

The nation's highest court ruled in 1966 that police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner.

The practice of cops drawing blood, implemented first in 1995 in Arizona, has also raised concerns about safety and the credibility of the evidence.

"I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle," said Steve Oberman, chair of the National Association of Criminal Defense Lawyers' DUI Committee.

The cops receive an abbreviated phlebotomy training that will be complete after they have logged 75 successful blood draws.

Once they're back on patrol, they will draw blood of any suspected drunk driver who refuses a breath test. They'll use force if they need to, such as getting help from another officer to pin down a suspect and potentially strap them down, Watson said.

Though most legal experts agree blood tests measure blood alcohol more accurately than breath tests, Oberman said the tests can be fraught with problems, too.

Vials can be mixed up, preservative levels in the tubes used to collect the blood can be off, or the blood can be stored improperly, causing it to ferment and boosting the alcohol content.

Oberman said law enforcement agencies should also be concerned "about possible malpractice cases over somebody who was not properly trained."

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