unlawful search and seizure - James Novak

What You Need to Know about the Medical Blood Draw Exception

The Law Office of James Novak Team — Thu, 30 Mar 2017 21:33:03 GMT

Under the Fourth Amendment of the U.S. Constitution, a person has the right to be protected from unlawful searches and seizures.

This protection extends to a DUI blood test. Consequently, police need a suspect’s consent or a search warrant to obtain a blood sample for a DUI investigation.

Without the person’s consent or a search warrant, it is unlawful for the police to collect a DUI blood sample.

However, there are a few exceptions, including one known as the medical blood draw exception.

Under this exception, police can request a DUI blood sample, when taken incidental to a medical blood draw.

In order to for tests results to be admitted into court, the incident must have involved exigent circumstances, and police must have had probable cause to believe the defendant was driving impaired due to drugs or alcohol.

The Arizona Supreme Court recently considered the question of whether or not the DUI test was constitutional because the suspect asserted that the medical treatment was administered against his will.

The Arizona Supreme Court agreed it was not constitutional under the circumstances of the case, and that the good faith exception did not apply.

The Court outlined 4 things that must be established by the state to show that the suspect’s rights were not violated by invoking the medical blood draw exception.

Case Overview

The incident began after police and paramedics were called to the scene of a serious automobile crash in which a pedestrian was killed, and four other individuals hurt.

Emergency personnel found the driver screaming, delirious, and incoherent. Paramedics reported that the suspect suffered a head wound, and was not cooperating with the emergency crew.

The defendant insisted that he wanted the paramedics to leave him alone. The paramedics disregarded the defendant’s requests to be left alone. They decided that the suspect was confused and unable to rationally make decisions, as a result of his injuries.

Paramedics restrained the suspect and transported him to the hospital by ambulance. At the hospital, the defendant was sedated, and a blood sample was drawn so that treatment could be administered.

A police officer went to the hospital and requested a sample for the DUI investigation, in absence of a search warrant.

The test results indicated that the driver was under the influence of methamphetamine, and an active metabolite of heroin.

The defendant was later indicted for second-degree murder, narcotic possession or use, and four counts of endangerment.

A motion to suppress the blood test was filed by defense, on the basis that the DUI blood test was unconstitutional.

The suspect’s defense argued that invoking the medical treatment exception was unlawful, because the defendant did not consent to the treatment, and the officers did not have a search warrant.

The trial court denied suppression of the blood test evidence on the ground that the defendant didn’t expressly reject treatment.

The defendant was found guilty of reckless manslaughter, as well as other charges by the trial court.

An Arizona appellate court affirmed the defendant’s conviction, and the defendant appealed to the Arizona Supreme Court.

The Arizona Supreme Court agreed to review whether the medical blood draw exception, as codified in Section 28-1388(E), was applicable.

Under A.R.S.28 – 1388 police can request and obtain a blood sample for their DUI investigation with probable cause, if the suspect’s blood is drawn for any reason.

If medical or authorized persons do not comply with law enforcement’s request, they may be found guilty of criminal charges in violation of a Class 1 misdemeanor.

Consequently, medical personnel at the hospital collected a blood sample for police after they requested it for their DUI investigation.

The Arizona Supreme Court cited a U.S. Supreme Court ruling which held that that the medical treatment exception applied when three elements existed. These included probable cause, exigent conditions, and a blood draw for medical reasons (Missouri v. McNeely 2013).

The state has the burden of proving exigent circumstances in cases where they have probable cause, but there is no time to obtain a warrant. Further, the state needs to show that it was impractical to wait for a formal warrant under the urgent circumstances.

In reviewing whether or not exigent conditions existed, the court reviewed prior case law which held that exigency must be determined by considering totality of the circumstances.

Since all circumstances must be considered, and not just one, ordinary dissipation of blood alcohol content from the body is not in itself adequate to prove exigent conditions existed.

The Court noted however, that since the defendant had not raised an argument against exigency at trial, he waived his right to do so on appeal.

With regard to medical treatment, the Court noted that a person’s right to fairly make decisions about their own medical treatment is protected under both the Arizona and United States constitution.

The Justices cited an earlier case in which the court concluded the medical blood draw exception would only be applicable when a patient voluntarily accepted treatment. Further, the exception would not apply when someone was being medically treated against their will (Arizona v. Estrada 2004).

In another case precedent, it ruled that the burden of proof was on the state to show that the consent by the suspect was given voluntarily (Arizona v. Spencer 2014).

In this case, the court noted that despite the earlier cases, it was still not clear as to what is needed by law enforcement to show that a suspect either consented or refused medical care.

The Court sought to provide clarity, by reviewing the Arizona and U.S. Constitutions, and judicial precedents. Their goal was to outline individual rights that applied to search and seizures, and due process for persons to make their own medical care decisions.

It noted that the U.S. Constitution governs a person’s right to refuse medical care, while the State Constitution governs a person’s right to due process in making medical care decisions.

After their evaluation, the Court determined that a fourth factor must be considered when deciding on constitutionality of invoking the medical treatment exception.

The 4th standard that they required was for the state is to show that the blood collection was drawn in accordance with the suspect’s right to due process to make their own medical treatment decisions.

In sum, the Arizona Supreme Court outlined four things that the state must show n order for the medical blood draw exception evidence to be admitted: (1) exigency; (2) probable cause; (3) that the blood was drawn for medical purposes; and (4) The the blood sample was drawn in compliance with the defendant’s rights to direct his medical care.

The Court decided that unless a patient could not provide consent, the state would need to prove free and voluntary implied or express consent to treatment by the defendant.

When a defendant is unconscious or delirious, the police or medical professionals may not be able to obtain consent. However, there is also an unconscious exception that applies under A.R.S. § 28-1321(C), if both probable cause and exigent circumstances exist. The totality of the circumstances must be considered.

The Court remanded and vacated the decision by the Arizona Court of Appeals. It sent the case back to the trial court to apply the four-part test for the medical blood draw exception, to decide whether the sample in question was properly obtained by the police.

Impact of Ruling on Arizona Drivers

Arizona laws and earlier case opinions did not clearly identify what is needed by police to assure that a suspect’s rights are not violated by the medical blood draw exception to a warrant.

Therefore, the Arizona Supreme Court sought to provide much needed clarity to protect an individual’s rights to due process when the medical blood draw exception is invoked.

Prior cases established that if police requested a DUI blood test under the medical treatment exception, the State needed to show there was probable cause, exigent circumstances, and that a blood test was being done for medical reasons.

In this case the Arizona Supreme Court required that the State needs to prove a fourth element. That is, that they must show that the driver’s rights to due process in directing their own medical treatment, were not violated.

While this is not a new constitutional or legislative announcement, it does provide an Arizona case precedent that serves to reinforce protections already in place and afforded by State and U.S. Constitution.

DUI Defense Attorney Mesa AZ

For most drivers a DUI arrest is overwhelming, even in absence of a tragic accident.

Many drivers charged with DUI lose hope, especially if they failed impaired driver testing given by police.

Any type of DUI conviction is adversely life altering. Arizona carries harsh penalties for those guilty of DUI including jail terms, license suspension, probation, alcohol and substance abuse counseling, fines, and fees.

But hope should not be lost. An arrest does not mean you are guilty, and a DUI charge is not a conviction.

It is important to remember that no matter how serious the charges, you are still entitled to a competent defense.

In order to avoid a swift and harsh conviction, you should always consult and retain an experienced criminal defense attorney to represent you.

If you are facing a DUI charge in Tempe, Chandler, Gilbert, or Scottsdale, consult DUI attorney James E. Novak.

As a former Maricopa County Prosecutor, James Novak utilizes his experience and insights obtained as a prosecutor in evaluating criminal cases.

The case discussed above involved defenses of violation of rights due to unlawful search and seizure.

This is just one of many defenses that can apply to charges of driving impaired or under the influence of drug or alcohol.

James Novak will review your case to determine if your rights were violated, consider all viable defenses, and develop an approach for a strong defense.

Often retaining an experienced attorney can lead to a far more favorable outcome than if you did not have a private practice defense attorney.

Examples of favorable outcomes include dismissal of charges, reduction of charges from a felony down to a misdemeanor, reduction of charges from a criminal to a civil citation, reduction of sentencing, avoidance of jail or prison terms, lowering of bail, fines, or fees.

James Novak of the Law Office of James Novak provides a free initial consultation for people facing active criminal charges in his area.

If you have been charged with a crime, contact or call the Law Office of James Novak at (480) 413-1499. You will speak directly with Attorney, James Novak, regarding your matter. If you have not yet retained an attorney, and your matter is in his service and practice area, he will provide you with options for defending your charges.

Additional Resources:

Other Articles of Interest from our Award Winning Blog:

DUI Blood Test with Medical Treatment Admissible unless Care Expressly Refused

The Law Office of James Novak Team — Thu, 12 Nov 2015 06:03:07 GMT

Your Guide to understanding the DUI blood test with medical treatment warrant exception.

A DUI blood test taken by Police for investigating impairment is considered a search and seizure, protected by our 4^th Amendment rights.

This means that to obtain DUI blood or chemical evidence police would need either consent; or a warrant to order a DUI blood or chemical test.

There are exceptions to the requirement of a warrant. One of these exceptions under Arizona Law is DUI blood test or testing incidental to medical treatment.

Police can request a blood or chemical test be taken for criminal investigation reasons incidental to Medical Treatment.

This exception is often used following an accident, when the police suspect the driver may have been impaired due to alcohol or drugs.

If the police have probable cause, they can bypass a warrant, and request a DUI blood or chemical test from the medical provider treating the driver.

Under A.R.S. section 28-1388(E), if an Arizona police officer has probable cause to believe someone has violated the statute that prohibits driving under the influence (A.R.S. S 28-1381), and blood or another bodily substance is taken from that person, and enough of the sample that is sufficient for analysis will be provided to a police officer if requested for law enforcement objectives.

However, a DUI blood test cannot be requested by police if the suspect has expressly rejected medical care.

Precedent case rulings on this issue have held that if the treatment is not obtained voluntarily, than neither was the DUI blood test.

The scope of this exception was the subject of a recent Arizona appellate decision which we will discuss in this article.

DUI Testing with Medical Treatment in absence of a Warrant

[Arizona Court of Appeals Division 1 – No. 1 CA-CR 12-0780 10-20-15]

In this case, the defendant appealed from convictions for reckless manslaughter, endangerment, and possession of narcotic drugs. The defendant argued that the court shouldn’t have denied his motion to suppress his blood test results, which were secured for law enforcement objectives under A.R.S. section 28-1388(E).

The case arose when the defendant hurt four people and killed a pedestrian in a head-on collision while speeding in a residential area early one evening. Hospital personnel took blood from him, and the blood test results showed he was high on meth and heroin at the time of the crash. Witnesses later gave testimony about his erratic driving and related conduct.

The defendant was charged with second-degree murder, possession, or use of narcotics, and four counts of endangerment. All of these are felony counts. A motion to suppress the blood test evidence was filed by his defense, on the grounds that it was obtained without a warrant, and that he had expressly refused medical care at the time.

At the hearing on the motion to suppress, the defendant did not testify, but the court heard testimony from six witnesses. The witnesses, who were police officers and paramedics, testified that a nurse was tending to the defendant when they arrived. He was flailing and screaming and wouldn’t answer questions. One officer had been an EMT before becoming a police officer and testified that the defendant’s speech was slurred and that she couldn’t understand him in his delirium. Another officer saw syringes and an uncapped needle inside the car.

The defendant aggressively pushed away the paramedics and tried to hit them with a closed fist. However, the paramedics testified that due to the severity of his injuries, they needed a doctor’s clearance to not take him to the hospital, and they couldn’t get that. They effectively transported him against his will. He continued to be aggressive in the ambulance. Another officer said his behavior was consistent with someone drunk or high.

At the hearing for the motion to suppress, the lower court found that while it was possible to view the defendant’s conduct as a rejection of medical care, it wasn’t enough to count as a clear, unambiguous rejection of medical treatment. Accordingly, the lower court denied the motion to suppress the blood test.

The jury found the defendant guilty, and he was sentenced to 15 years for the manslaughter, as well as three years of imprisonment on each of the other convictions. He appealed.

The appellate court explained that a blood draw is considered a search under the Fourth Amendment. There are three constitutionally permissible ways in which police can get a blood sample: (1) by showing probable cause and getting a warrant, (2) express or implied consent, and (3) the exception provided by A.R.S. section 28-1388(E) that allows a police officer with probable cause to take part of a blood sample taken for another reason. However, the third way cannot be used if someone unambiguously, clearly, and expressly exercises their constitutional right to refuse medical treatment.

The issues before the appellate court were (1) whether the State had probable cause to believe there was a violation of A.R.S. S 28-1381, and (2) whether there was an express refusal of medical treatment. The appellate court found that the testimony of the officers showed there was probable cause. It found that there was no evidence to show the police asked that the defendant be taken to the hospital. There were also no oral statements made by the defendant specifically asking not to get medical assistance. The conviction was affirmed.

Updated March 13, 2017

On February 1, 2017 the Arizona Supreme Court remanded the Maricopa County Superior court decision, and vacated the Appeals Court decision.

The Arizona Supreme Court held that the prosecution is required to prove that the defendant provided an express or implied consent to medical treatment. If the defendant was unable to verbalize or otherwise express their consent, the state must prove that paramedics did not act against the suspect’s right to direct their own medical treatment.

The Court held that the evidence of record did not clearly or conclusively show that the suspect was capable or in a state of mind to direct his own medical treatment. Further the the record did not show that the EMTs acted within the or against the rights of the suspect to make a decision about his medical care.

As a result the Court remanded for continuance of proceedings to the trial court to make the determination of whether or not police obtained the blood sample legally, based on specified standards. These standards included 1) probable cause of DUI; 2) exigent circumstances; 3) blood draw was for a medical purpose; and 4) the paramedics did not violate the right of the suspect to make the decision regarding whether or not to consent to the medical treatment.

Impact of Ruling on Arizona Drivers

While this case had a unique set of circumstances it can potentially impact similar cases where the medical treatment warrant exception for DUI testing applies.

Under this precedent if the driver intends to refuse treatment, their communication must rise to the level of an express, clear, and unambiguous rejection.

To assure that a driver’s rejection is validated by police, paramedics and the courts, the driver must be of sound mind, and have the competence to make that decision under the circumstances.

Though it is a person’s right to reject treatment, they are required to communicate their wishes, in order for their right to refuse care to be invoked.

Further, they must be able to clearly respond to direct questions by paramedics on scene, and do so without any ambiguity.

If they are unable to clearly communicate their refusal of treatment, in absence of express consent, emergency medical technicians can act with implied consent on their behalf to have the treatment if it is reasonable and indicated according to field directives.

In that case, the suspect will be perceived as not having rejected treatment, and the DUI blood test may be admitted in trial as evidence against the defendant

As to what rises to the level of a clear and expressed rejection, this may prove to be another question for the courts to decide.

It is unknown if the case will be appealed to the Arizona Supreme Court.

10 Things You Should Know about the Medical Treatment DUI Blood Test Warrant Exception

[A.R.S. S 28-1388 E]

Police can request DUI blood test with medical treatment:

1. If police have probable cause to believe that a person may be driving impaired under the influence of alcohol or drugs, they can request a sample of lab or other chemical testing for law enforcement purposes incidental to the medical treatment which was not rejected;

2. If the suspect voluntarily consents to seeking medical treatment;

3. If the emergency medical technicians decide it is necessary to transport the patient for medical care, without influence from the police officer.

It is unconstitutional for police to request to draw blood from medical treatment:

4. If the suspect is subjected to medical treatment that is clearly and expressly rejected;

5. If the suspect is compelled to seek medical treatment under threat of arrest;

6. If medical treatment is not completely voluntary, then neither is the DUI blood test.

A suspect’s rejection of medical treatment may be invalidated:

7. If the suspect does not expressly or implicitly reject the treatment;

8. If the suspect’s rejection is ambiguous or unclear;

9. If the suspect’s injuries or medical condition is such that they are unable to respond to oriented questions.

10. If the driver is unable to clearly and expressly reject the treatment, the EMT may proceed under the implied consent.

Doctrine of Implied Consent for Medical Treatment

Under the common law doctrine of Implied Consent, the emergency medical technician (EMT) considers the seriousness of the injuries, and other factors to determine if immediate medical care is needed.

Then, in absence of an injured person’s clear and express consent, the EMT may act on behalf of the patient. They may act under this doctrine if they conclude that the patient is incoherent, or unable to make a competent decision about their care in light of their injuries or circumstances.

Express Consent

Express consent may be verbal, in writing, or other forms of communication such as sign language or other unambiguous body language, documents, parental authority, or other circumstances that make it clear that they do not want to seek medical treatment.

DUI Defense for Chandler AZ

Whether or the police are permitted to test your blood after suspecting you of driving under the influence can involve a complicated analysis. It is crucial to retain an experienced criminal defense attorney who understands the Fourth Amendment and proper police procedure.

If your constitutional rights were violated by law enforcement during the process of obtaining the evidence, or other phase of your criminal investigation, it can lead to suppression of the evidence, and dismissal or acquittal of charges. Other defenses may also apply.

James E. Novak, a DUI and Criminal Defense Arizona attorney in Tempe AZ, is a former prosecutor, experienced trial lawyer, and dedicated drug crimes defense attorney. If retained, he will provide you with a strong defense for your charges. We offer a free consultation for active criminal charges. James Novak of the Law Office of James Novak provides a free initial consultation and defends active charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, AZ. Call today (480) 413-1499.

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The US Supreme Court to Hear Landmark DNA Evidence Case

The Law Office of James Novak Team — Sat, 10 Nov 2012 23:12:34 GMT

The Verdict could have national impact on when law enforcement can collect DNA evidence from suspects.

On November 9, 2012, the United States Supreme Court agreed to hear a criminal DNA testing case, Maryland v. King (12-207), which could result in nation-wide impacts. The defendant’s DNA samples were collected immediately following his arrest. He was subsequently convicted of rape. King’s Attorney attempted to suppress the DNA evidence, on the grounds that it was taken unconstitutionally. The Maryland Court of Appeals agreed, and overturned King’s conviction. They ruled that suspects under arrest but not convicted, have more rights than convicted felons; and that DNA testing was more invasive than standard finger print evidence. The State of Maryland disagreed, and appealed to the US Supreme Court to hear the case. The case is expected to be heard by the high court in June 2013.

DNA testing has been the subject of much controversy. Objection to the DNA testing of non-convicted suspects is that it is in violation of a person’s 4th Amendment Constitutional Right against unlawful search and seizures.

All states currently use DNA testing as an admissible investigative tool. Currently it is lawful in most states, including Arizona, to collect report and distribute DNA results for convicted felons. However, not all states allow collection, analysis, reporting, distributing, and use of DNA testing as evidence against first time criminal offenders, with no felony convictions.

DNA Testing Laws in Arizona

Arizona allows collection, reporting and distribution of DNA evidence from prison inmates and convicted felons. Criminal DNA samples are maintained by in a forensic data base by authorized Law enforcement agencies, and indexed by the FBI. However, in recent years, Arizona also passed legislation allowing DNA to be collected from suspects who were arrested, but not convicted of a felony in specific situations. Under Arizona Law A.R.S. 13-610 DNA may be collected from a suspect if they were arrested for serious, violent, and dangerous felony offenses on involving a victim.

The law allows for DNA testing in situations where the suspect was arrested for a criminal offense specified by law, even if they were not convicted of the crime. Examples of these offenses include but are not limited to sexual offenses and assault; burglary in the first or second degree; homicide; and other dangerous offenses involving victims.

Criminal Defense for Charges involving DNA cases

Anyone arrested for a serious or dangerous crime, should always consult a criminal defense attorney before pleading guilty. Felony convictions for these types of crimes, will result in years to life in prison, or even expose a defendant to the death penalty. A defendant should always invoke their right to retain qualified legal representation to defend their rights and charges. If DNA evidence was collected unlawfully it may lead to suppression of the evidence in favor of the defendant. If DNA evidence does not lead to a match of the suspect arrested, the charges may be dismissed or lead to a “not-guilty” verdict in a jury trial. The lawfulness or validity of DNA evidence should always be argued by a qualified criminal defense attorney.

Additional Resources:

• Arizona State Legislature

• Arizona State Bar – Jury Instructions for Evidence

• United States Supreme Court – Maryland v. King

• US Supreme Court Orders – Petition Granted Maryland V. King, Alonzo J. (12-207)

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Law Office of James Novak 4500 S. Lakeshore Drive Tempe AZ 85282 (480) 413-1499 www.Arizonacriminaldefenselawyer.com www.novakazlaw.com Arizona DUI & Criminal Defense Firm Serving Maricopa County Phoenix-metro, and surrounding East Valley Cities