Yesterday, the United States Supreme Court heard arguments in Missouri v. McNeely, No. 11-1425. The issue in the case is whether police need a warrant to get a blood sample from an individual suspected of drunk driving. The case
began in the early morning of October 3, 2010, when a state highway patrolman, Corporal Mark Winder, pulled over a truck that he had clocked speeding eleven miles over the limit. The truck was driven by Tyler G. McNeely of Cape Girardeau. As he got out of the truck, he was unstable. The officer put McNeely through several field sobriety tests, which he failed. McNeely was put into the officer’s patrol car, and the officer asked him if he would take a breath test; McNeely refused. The officer then drove to a hospital, where McNeely refused to consent to a blood test. Corporal Winder told a hospital lab technician to take a blood sample anyway.
An analysis of the sample showed that McNeely’s blood alcohol level was 0.154 percent, almost double the legal limit of 0.08 percent. Before he went on trial, McNeely and his lawyer sought to block the use as evidence of the test result, contending that the involuntary taking of the sample was a warrantless search that violated his Fourth Amendment rights. The patrolman testified that, at the time of the incident, he did not believe that he needed a warrant, although he said he had obtained a warrant in similar situations in the past.
He testified that he had since read a magazine article which said that, under Missouri state law, drunk driving meant that a driver had given implied consent to be tested.
The trial judge ordered the blood evidence barred from the case . . . . The trial judge found no “exigency” that justified the blood search. While that result was overturned by a middle-level state appeals court, the Missouri Supreme Court ruled for McNeely, and barred the test result.
In New Jersey, N.J.S.A. 2A:62A-10 provides for civil and criminal immunity for obtaining specimens. It states:
The above facts were posted on SCOTUSBlog, which has an excellent preview and recap of the argument here and here. According to Lyle Denniston, the Court did not appear too pleased with the notion that police anywhere in the country could force a lab technician to stick a needle in your arm without a neutral judicial officer granting permission to do so. Makes sense.
The case is interesting, but I am intrigued also that McNeely refused a blood test and the officer told a hospital lab technician to take a blood sample anyway.
In New Jersey, N.J.S.A. 2A:62A-10 provides for civil and criminal immunity for obtaining specimens. It states:
1. a. When acting in response to a request of a law enforcement officer, any physician, nurse or medical technician who withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and delivers it to a law enforcement officer, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised is that ordinarily required and exercised by others in the profession.
b. Any physician, nurse or medical technician who, for an accepted medical purpose, withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcement officer either voluntarily or upon court order, shall be immune from civil or criminal liability for so acting, provided the skill and care exercised in obtaining the specimen is that ordinarily required and exercised by others in the profession.
c. The immunity from civil or criminal liability provided in subsections a. and b. of this section shall extend to the hospital or other medical facility on whose premises or under whose auspices the specimens are obtained, provided the skill, care and facilities provided are those ordinarily so provided by similar medical facilities.
d. For the purposes of this section, the term "law enforcement officer" includes a State, county or municipal police officer, a county prosecutor or his assistant, the Attorney General or his deputy or a State or county medical examiner.
Only one New Jersey case has interpreted this statute. In Jiosi v. Township of Nutley, 332 N.J. Super. 169 (App. Div. 2000). the Appellate Division held that N.J.S.A. 2A:62A-10 does not provide immunity under all circumstances when being sued for battery and negligence. In that case:
On April 23, 1993, [Jiosi's] erratic driving caused him to be arrested and charged with operating a vehicle while under the influence. Because there was no smell of alcohol on his breath he was suspected of being under the influence of drugs. He was taken to the police station and read his Miranda rights. At the direction of Sergeant Strumulo, Jioso was taken to Mountainside Hospital for a blood test by Officers Beard and Iannicelli. The blood was to be tested for drugs at the State Police lab. They arrived at the hospital shortly after midnight and the police officers explained the circumstances. As one nurse stated in her deposition, "[t]hey said this patient was under arrest and they needed to get blood sample." They did not request a urine test and it was not police policy to obtain a urine sample under these circumstances. Plaintiff's blood was drawn within a half-hour of his arrival at the hospital. After the blood was drawn a doctor told Officer Beard that it was the hospital's policy to take a urine sample in addition to a blood sample when screening for drugs. The reason for the policy was that the hospital laboratory only tested blood for a limited number of substances and a urine test was more extensive. Plaintiff agreed to provide a urine sample but was unable to do so. He was handcuffed in the bathroom and given five to ten glasses of water to drink over approximately a half-hour.
While waiting for plaintiff to provide a urine sample, the police were told by a nurse that a catheter would be used if plaintiff did not voluntarily produce a sample. The catheterization was ordered by Dr. Juhasz. Officer Beard called the police station and told Sergeant Quigg that the hospital wanted to take a urine sample. Beard did not mention catheterization. Quigg told Beard it was okay to go ahead and have a urine sample taken. It was "not even a ten-second call." Beard then relayed Quigg's approval to hospital personnel.
Plaintiff was told by one of the police officers that if he did not urinate he would be catheterized. At that point plaintiff asked to call his lawyer but the request was not granted. A nurse wiggled a catheter tube at plaintiff and told him if he did not "pee within the next two minutes" that was what he was going to get. What he got was described by plaintiff in his deposition testimony:
The police come through the bathroom door, uncuffed me from the bar, restrained me, I think they even cuffed me behind my back, with an orderly and doctor there present and the nurse and they dragged me and half carried me and restrained me onto the table and then proceeded with the catheterization when I was fighting and kicking the whole way.
According to hospital records, plaintiff was catheterized at 1:26 a.m., one hour and sixteen minutes after being brought to the hospital and about forty-six minutes after plaintiff first was given water to help him urinate.
[(332 N.J. Super. at 135-36).]
The Court held that section 1.a. of N.J.S.A. 2A:62A-10 did not apply because:
the police did not want, nor request, a urine sample from plaintiff. The idea was initiated by hospital personnel not in an effort to comply with a police request, but by virtue of a hospital policy requiring both blood and urine samples. This policy was established due to the limitations of the hospital laboratory in evaluating blood samples for drugs, a limitation not shared by the State Police laboratory where plaintiff's blood was tested. It was not until after plaintiff's blood was drawn that the police officers were told that a urine sample was needed. . . .[A] jury . . . could properly conclude that the urine sample was taken because of hospital policy not in response to a request from the police. That the police eventually went along with the forced catheterization does not alter the primary reason for the procedure. . . . "[Dr.] Juhasz ordered the plaintiff to be catheterized and Nurse Seiber performed the procedure . . . . This was done after the nurse and doctor informed the officers that this was standard hospital procedure. So technically the police officers were not instrumental in that process."
The Court also held that section 1.b. of N.J.S.A. 2A:62A-10 did not apply because:
The urine sample was not extracted for a medical purpose. There was no intent to treat the defendant or to diagnose him in anticipation of treatment. The sole purpose was to determine whether there was evidence that plaintiff had operated a motor vehicle while under the influence of drugs.
. . . the question of whether the procedure was done in a "medically accepted manner" entails more than the mechanics of the procedure. It must also encompass the question of whether the procedure was necessary for its intended purpose. . . . a jury could find that the period of time plaintiff was given to voluntarily urinate was insufficient to justify involuntary catheterization. The time lapse between plaintiff's last glass of water and the involuntary catheterization may have been as little as sixteen minutes.
The purpose of N.J.S.A. 2A:62A-10 was so hospital personnel would help law enforcement without the fear of liability. But the Jiosi decision reinforces an important point -- that the hospital’s and medical staff’s relationship to patients, irrespective of the circumstances, is that of health care provider to patient. Therefore, any activities that did not have as their purpose the provision of medical services required for the proper care of the patient would be contrary to the hospital’s and the physicians’ obligations in that relationship.
If a health care provider has a policy and practice to assist law enforcement with the drawing of blood and other fluids from arrestees, it will be useful to keep some points in mind:
- Policies should be crafted to permit cooperation only to draw or otherwise obtain, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance, and only at the specific request of law enforcement. If the police do not request a the drawing of "breath, blood, urine or other bodily substance," it should not be done without the explicit consent of the patient. If the police request more than a drawing of "breath, blood, urine or other bodily substance, it should not be done without the explicit consent of the patient. For example, any requests to take photos of a patient's wounds, doing rape kits, etc. -- not for the medical record but for the law enforcement who are requesting the assistance.
- New Jersey's immunity statute protects "[a]ny physician, nurse or medical technician who, for an accepted medical purpose, withdraws or otherwise obtains, in a medically accepted manner, a specimen of breath, blood, urine or other bodily substance and subsequently delivers it to a law enforcement officer either voluntarily or upon court order." This language appears to be limited to delivering the specimen, not lab results.
- Health care providers must be careful that they do not turn into agents of law enforcement. There is an immense body of 4th amendment jurisprudence that comes into play and, in turn, could subject the hospital to consequent liability if it's acting beyond 4th Amendment limitations.
- Health care providers may consider drafting policies that require turning over law enforcement requests to their privacy officers and prohibit others from handling.