A 41 year-old man who was a driver involved in a motor vehicle collision was taken to the ED by ambulance. Two motorists in another vehicle were killed. The patient had no physical complaints, but was brought to the hospital for medical clearance. On arrival, he was alert and oriented, responded appropriately to all commands, and demonstrated normal motor function and had a normal gait. Police officers suspected that he was driving while intoxicated, but he refused a breath alcohol test at the scene.
The police officers informed the ED staff that he was arrested and might be charged with vehicular homicide. The officers then requested that the emergency physician draw a blood specimen to determine the blood alcohol concentration. The patient stated that he would not allow the ED staff to draw blood for a determination of an alcohol concentration.
In 2010, there were 10,228 people who died in alcohol-related motor vehicle crashes, which was 31% of all traffic related deaths in the United States.9 This number has declined in recent years and has decreased 4.9% from 2009. In the United States, an alcohol-related motor vehicle crash kills someone every 51 minutes.9 In 2010, crashes resulting from alcohol-induced impairment were responsible for 17% of fatalities in children younger than 14 years who were killed in motor vehicle crashes.9 Alcohol-impaired motor vehicle crashes cost more than $37 billion every year.8 Drugs other than alcohol (eg, marijuana and cocaine) are involved in about 18% of motor vehicle driver fatalities.15 The judicial system has historically been one of the most effective tools to combat drunk driving, and its effectiveness depends on the ability to identify and punish individuals who violate the law. It is essential, however, that the collection of evidence does not violate the rights afforded by the US Constitution. Does forced phlebotomy for patients suspected of driving while intoxicated violate these protected rights? This has long been debated in the courts, and issues specifically brought into question include the Fourth Amendment,30 the right against unreasonable search and seizure; the Fifth Amendment,31 the right against self-incrimination, and the Due Process clause of the Fourteenth Amendment.32 Past decisions on these issues help guide current laws and practices.
Every state, and the District of Columbia, has driver “implied consent” laws. When a person obtains a driver’s license, he or she consents at the time of acquisition to a chemical alcohol test if suspected of driving while intoxicated. Under implied consent laws, when a person suspected of driving while intoxicated refuses to take an alcohol test, a penalty is imposed. Specific penalties for refusals vary from state to state. At a minimum, the refusal results in suspension or revocation of a driver’s license. Some states assign additional fines and penalties for this action. A few states allow the refusal itself to be submitted at trial in support of the prosecution, making it possible to be convicted of an intoxication charge without chemical evidence.3 Certain states (eg, Texas, Illinois) allow blood tests to be performed on patients as ordered by an officer of the law, when there is probable cause of driving while intoxicated resulting in severe injury.20,28 Other states, such as New York and California, allow forced blood samples with a warrant issued by a judge.5,18 State laws regarding the approach to this situation vary and it is important that the ED staff be familiar with the specific requirements of the law of that state.
How much force may be used to collect chemical evidence? Does a physician violate human dignity and privacy in obtaining evidence for the State? These issues were addressed by the United States Supreme Court. In Rochin v California,23 the Court overturned a conviction of drug possession based on violation of the Fourteenth Amendment. In this case, police were informed that Rochin was selling drugs. While entering the home of the defendant, the police witnessed the defendant swallow two pills that were lying on the night stand. When the officers failed to recover the pills on the scene, the officers took Rochin to the ED, where they directed the physician to administer an emetic through a nasogastric tube. The capsules were recovered from the vomit, and Rochin was convicted by the trial court for possessing morphine.1,23 The Supreme Court reversed this decision, based on the Fourteenth Amendment, “nor shall any State deprive any person of life, liberty or property, without due process of law....”36 The term due process is vague, and is defined on a case-by-case basis, but it essentially means that states must use fair legal procedures when depriving an individual of life, liberty, or property. In Rochin, the court concluded that forced emesis by a physician was believed to violate Due Process, stating:
This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of stomach contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit constitutional differentiation.23
The Supreme Court revisited the issues presented in Rochin 4 years later in Breithaupt v Abram.4 Breithaupt was the driver of a truck who killed three occupants of another vehicle. In the ED, a police officer requested that a blood alcohol concentration be drawn. The blood, drawn while the patient was unconscious, was above the legal limit for alcohol and the patient was convicted of involuntary manslaughter. Breithaupt argued that the blood draw, as in forced emesis in Rochin, violated due process as he did not consent to its collection. Justice Clark disagreed, stating “the distinction rests on the fact that there is nothing ‘brutal’ or ‘offensive’ when done, as in this case, under the protective eye of a physician” and that the “blood test procedure has become routine in our everyday life.”3,4 Phlebotomy while the patient is unconscious and unable to give consent was determined not to violate the due process clause of the Fourteenth Amendment.
The Supreme Court continued to expand the scope of permissible phlebotomy in Schmerber v California.25 Schmerber was involved in a motor vehicle crash in which the police officer suspected he was intoxicated. Unlike in Breithaupt, Schmerber was conscious, and a physician drew a blood sample at the officer’s request despite the patient’s verbal refusal. The attorney for Schmerber asserted that forced phlebotomy violated several constitutional rights. Specifically, it violated the Fourth, Fifth, and Fourteenth Amendments of the US Constitution. He alleged that forced phlebotomy denied him due process of the law, it violated his privilege against self-incrimination, and it violated his right against unreasonable search and seizure.3,25
The Supreme Court rejected all of these arguments. The phlebotomy did not violate the due process clause because “the extraction was made by a physician in a simple, medically acceptable manner in a hospital environment . . We cannot see that it should make any difference whether one states unequivocally that he objects or resorts to physical violence in protest or is in such condition that he is unable to protest.”25 Furthermore, the forced blood draw did not violate the Fifth Amendment’s Privilege Against Self-Incrimination because the Fifth Amendment only protects evidence of a “testimonial or communicative nature,” such as writings or speech. Finally, there was no violation of the Fourth and Fourteenth Amendments’ protections against unreasonable search and seizure as the delay necessary to obtain a warrant threatened the destruction of evidence. Considering the “totality of the circumstances” in Schmerber, the blood alcohol test fell under the Court’s exigent circumstances exception to the general requirement of a warrant.
The percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.
To ensure compliance with standards set forth in Schmerber, the states have tailored laws and regulations governing the seizure of blood for the purpose of blood alcohol testing. Laws generally require the procedure be (1) performed in a reasonable, medically approved manner, (2) incident to a lawful arrest, and (3) based on the belief that the arrestee is intoxicated. It should be remembered that the issues raised by any one case are complex, and the application in real situations is difficult. Laws and regulations governing blood draws for alcohol testing vary from state to state and are the subject of frequent restructuring and amendment. Medical staff should review with hospital counsel the local laws and regulations that pertain to these issues. However, physician and patient safety must always be the priority. The benefits of determining a patient’s blood alcohol concentration must be weighed against the risks of the procedure. For example, drawing blood in an agitated patient may place the staff at risk for a needle stick and the patient at risk of vascular injury.
It should also be noted that the US Supreme Court in Missouri v. McNeely restricted the holding of Schmerber for warrantless blood alcohol testing.17 In McNeely, the State of Missouri argued that the metabolism of alcohol over time, by itself, was justification to obtain warrantless blood alcohol testing in the hospital. The US Supreme Court rejected this argument. While the dissipation of alcohol from the blood stream over time is one of the factors to consider when evaluating the “totality of the circumstances,” it does not meet the exigency exception to the warrant requirement by itself. The majority opinion held that “when officers in drunk driving investigations can reasonably obtain a warrant before having a blood sample drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” This does not suggest that a physician should insist on a warrant when an officer requests a blood alcohol test, as this is a protection that is afforded retrospectively by the courts. Familiarity with local regulations is necessary to properly manage requests for blood alcohol testing.