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  • Forced blood draws on DUI offenders who have prior conviction or child in car

    FYI...Public Chapter 307 was recently signed that will allow law enforcement officers in TN to require blood of a driver under arrest for DUI when (a) he/she has a prior DUI conviction or (b) a child under 16 years of age is in the vehicle at the time of the arrest. This new law will go into effect January 1, 2012. Attached is the link:

    http://dui.tndagc.org/resources/Legi...ed%20blood.pdf
    I'm 10-8 like a shark in a sea of crime..

  • #2
    Hey Sarge -
    I wish I still had the memo to quote from, but recently our legal eagles sent out info pertaining to blood draws. It seems that some over zealous trooper or officer in the state threatened to / or did arrest a paramedic for NOT doing a blood draw on scene. Reminds me of a Jack Bauer moment!!!
    Anyway, just wanted to see if any departments in TN have protocols in place for blood draws, or just doing the "take them to the ER thing" as usual.
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    • #3
      Originally posted by swat_op506 View Post
      Hey Sarge -
      I wish I still had the memo to quote from, but recently our legal eagles sent out info pertaining to blood draws. It seems that some over zealous trooper or officer in the state threatened to / or did arrest a paramedic for NOT doing a blood draw on scene. Reminds me of a Jack Bauer moment!!!
      Anyway, just wanted to see if any departments in TN have protocols in place for blood draws, or just doing the "take them to the ER thing" as usual.
      I have departmental forms I can send you as a guide for: consensual blood draw, mandatory blood draw, and any healthcare provider that refuses to draw it.

      When the mandatory blood draw kicked in last year involving any injury crash, officers were running into problems with nurses and other healthcare folks who refused to do the draw because the patient wouldn't consent. Technically we can arrest them for refusing to draw the blood, but obviously none of us want to go there. It's important that the district attorneys and LE brass meet with hospital administrators to reassure them that they are held harmless from any liability when an officer tells them to draw the blood. The hospital is worried about lawsuits when they do procedures against the patient's consent, but they are relieved of that liability when it's an injury crash involving DUI. This will soon increase a ton because of the new law that's going into effect in January. If it's going to be mandatory blood for those with prior convictions, you know there's going to be a lot more blood tests! Drop me a PM with your email and I will send you a copy of our forms. I basically got the template from THP. A lot of people were asking for them when the issue came up.

      Technically an EMT-IV or Paramedic can do the draw too. If you read the Implied Consent law, any person who is trained to do IV therapy can do it. If the person who normally does it in your area is a paramedic, your Chief may need to get with the EMS Director for the county service and tell them what's going on. I would also get intouch with the district attorney about it. If they're not very willing, contact Tom Kimball or Jim Camp with the Traffic Resource Prosecutor's office to help. They are awesome guys.
      Last edited by SgtScott31; 06-03-2011, 04:04 PM.
      I'm 10-8 like a shark in a sea of crime..

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      • #4
        This not really a big change...it is more or less an "encouragement" for us to draw more blood. TN Supreme Court and SCOTUS have both held that we can draw blood, even forcibly, with probable cause of intoxication...even without a search warrant. We are able to do this by using the exigency clause...fleeting evidence of a crime.

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        • #5
          Originally posted by TJx2 View Post
          This not really a big change...it is more or less an "encouragement" for us to draw more blood. TN Supreme Court and SCOTUS have both held that we can draw blood, even forcibly, with probable cause of intoxication...even without a search warrant. We are able to do this by using the exigency clause...fleeting evidence of a crime.
          Very true. It's just not a common practice for LEOs to get warrants or attempt forced draws. I think this will help in that arena and also encourage people to move away from refusing a chemical test.
          I'm 10-8 like a shark in a sea of crime..

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          • #6
            Originally posted by TJx2 View Post
            This not really a big change...it is more or less an "encouragement" for us to draw more blood. TN Supreme Court and SCOTUS have both held that we can draw blood, even forcibly, with probable cause of intoxication...even without a search warrant. We are able to do this by using the exigency clause...fleeting evidence of a crime.
            I wondered why we didn't to this and even asked some Metro DUI guys about it. I found this opinion from the Attorney General last year when they passed the forced blood draw for any injury to a third party by a suspected DUI offender. It appears the AG, with support from a recent case from the Appellate Court, doesn't want us to attempt to obtain warrants for blood on those who are refusing breath/blood test unless certain circumstances exist. Good reading:

            http://www.tn.gov/attorneygeneral/op...op/op10-01.pdf

            With the new laws that are going into effect in January, I'm curious to see if their position changes on the matter. Obviously if the legislation passed a law to force blood on anyone with a prior DUI conviction, the forced blood draws are going to go through the roof.
            I'm 10-8 like a shark in a sea of crime..

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            • #7
              Originally posted by SgtScott31 View Post
              I wondered why we didn't to this and even asked some Metro DUI guys about it. I found this opinion from the Attorney General last year when they passed the forced blood draw for any injury to a third party by a suspected DUI offender. It appears the AG, with support from a recent case from the Appellate Court, doesn't want us to attempt to obtain warrants for blood on those who are refusing breath/blood test unless certain circumstances exist. Good reading:

              http://www.tn.gov/attorneygeneral/op...op/op10-01.pdf

              With the new laws that are going into effect in January, I'm curious to see if their position changes on the matter. Obviously if the legislation passed a law to force blood on anyone with a prior DUI conviction, the forced blood draws are going to go through the roof.
              I have read that opinion and although I have thought about the "shall not be given..." part of the implied consent form, there is also a part that in effect states it does not preclude other lawful means of obtaining a sample of blood...which the supreme court says can be drawn due to fleeting evidence and preferably by search warrant. So there is a contradiction...

              Basically, what I have done is given the implied consent warning and allow them to agree to give a sample of blood. If they say no, then I either or take them and force blood if involved in a wreck with injury to another, or tell them I am going to get a search warrant. If they say no to the voluntary sample of blood, they still get the implied consent charge whether we have to hold them down or they "change their mind" once I get a warrant. The court can decide at what point a refusal is final...

              I will do some more research...but SCOTUS has said both blood search warrants and fleeting evidence blood draws are good to go...maybe I should change the way I do refusals now...

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              • #8
                Although the US Supreme Court has allowed it, you and I both know that the state can be more restrictive. I know we can do mandatory blood for any injury to a third party by a DUI suspect and starting Jan 2011 it will include anyone with a prior DUI or when those under 17 are in the vehicle with the DUI offender. It seems TN is giving us more leeway with mandatory blood with these new laws, but maybe that's why many LEOs in the state don't try to pursue the issue further if someone refuses breath/blood and one of those exceptions don't exist.
                I'm 10-8 like a shark in a sea of crime..

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                • #9
                  Originally posted by SgtScott31 View Post
                  Although the US Supreme Court has allowed it, you and I both know that the state can be more restrictive. I know we can do mandatory blood for any injury to a third party by a DUI suspect and starting Jan 2011 it will include anyone with a prior DUI or when those under 17 are in the vehicle with the DUI offender. It seems TN is giving us more leeway with mandatory blood with these new laws, but maybe that's why many LEOs in the state don't try to pursue the issue further if someone refuses breath/blood and one of those exceptions don't exist.

                  I wonder what kind of civil liability exists if we secure a search warrant for blood bearing in mind the AG's opinion...I would like to think the search warrant relieves and liability...

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                  • #10
                    I wouldn't think it would be a liability issue, but moreso something that would work in favor of a defense attorney at a suppression hearing.
                    I'm 10-8 like a shark in a sea of crime..

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