RN: May I do forced blood draws? Must I?

[Beggar]

What is the name of your state (only U.S. law)? California

I live in a rural county and work in an ER where the CHP and SO bring suspects for blood draws. I'm trying to get crystal-clear information on whether I may draw blood at the request of an officer even if the patient is resisting.

Our company policy says that I should refuse to draw if I observe "violence" or if the patient is struggling.

I'm also wondering whether I can be forced by the officers to do the draw.

I'm concerned that it constitutes assault and that my nursing license might be at risk. After all, I do not work for the law enforcement agencies nor for the state. I am a private employee in a private business.

 

[BOR]

The only way to be immune to any liability is to have an immunity statute.

Carl who posts here is a CA police officer, maybe he will know.

I live in Ohio and did not know myself for my state, so I keyed in; Immunity from liability + blood draws; and some links came up, here is Ohio's for example, although of course it does not apply to CA.

4511.19

Except as otherwise provided in this division, any physician, registered nurse, emergency medical technician-intermediate, emergency medical technician-paramedic, or qualified technician, chemist, or phlebotomist who withdraws blood from a person pursuant to this section or section 4511.191 or 4511.192 of the Revised Code, and any hospital, first-aid station, or clinic at which blood is withdrawn from a person pursuant to this section or section 4511.191 or 4511.192 of the Revised Code, is immune from criminal liability and civil liability based upon a claim of assault and battery or any other claim that is not a claim of malpractice, for any act performed in withdrawing blood from the person.



NO, the officer can not force any person to withdraw blood, that is certain.

Your employer's policy trump all other requests from police.

 

[swalsh411]

Any evidence obtained via a forced blood draw against the will of the suspect would be inadmissible anyway.

 

[CdwJava]

Any evidence obtained via a forced blood draw against the will of the suspect would be inadmissible anyway.

Not true at all. Since it is the seizure of evidence that is by its very nature metabolizing (disappearing) with each passing minute, an exigency exists. I believe there are only 8 states that require a warrant or other court order to seek compelled blood.

CA allows for the use of reasonable force to obtain blood, and the USSC allows the force to be utilized so long as it does not shock the conscience of the court. If the nurse or phlebotemist cannot make the draw safely under the circumstances, they can certainly choose not to take the blood draw. While their employer may assess consequences for that refusal the medical personnel are not likely to be charged with any crime for declining to draw blood from an actively fighting patient.

While I know of no statute that explicitly provides immunity to nurses, it seems clear that it will not constitute assault or battery to conduct a compelled (forced) blood draw at the request of the officers and there is ample case law in CA to affirm this.

Bottom line is that you must follow the dictates of your conscience if you refuse to take a forced blood draw and understand that there may well be repercussions from an employer for failure to do so.

 

[BOR]

While I know of no statute that explicitly provides immunity to nurses, it seems clear that it will not constitute assault or battery to conduct a compelled (forced) blood draw at the request of the officers and there is ample case law in CA to affirm this.

Thanks.

Statutory or case law immunity, amounts to the same legal thing, for the posters piece of mind.

 

[garrula lingua]

Any evidence obtained via a forced blood draw against the will of the suspect would be inadmissible anyway.

WhereTH are you getting your citations from ???

 

[garrula lingua]

Any evidence obtained via a forced blood draw against the will of the suspect would be inadmissible anyway.

WhereTH are you getting your citations from ???

You're just pulling them out of your rectum, aren't you ???

 

[swalsh411]

I stand corrected. I guess it would be in CA. In some states it has been deemed inadmissible because it was forced. Here is just one article I was able to find quickly.

Utah Supreme Court rules blood draw of Utah woman inadmissible in court | Deseret News

 

[Zigner]

I stand corrected. I guess it would be in CA. In some states it has been deemed inadmissible because it was forced. Here is just one article I was able to find quickly.

Utah Supreme Court rules blood draw of Utah woman inadmissible in court | Deseret News

Carl already pointed out that a very few of the states follow this reasoning.

 

[garrula lingua]

I stand corrected. I guess it would be in CA. In some states it has been deemed inadmissible because it was forced. Here is just one article I was able to find quickly.

Utah Supreme Court rules blood draw of Utah woman inadmissible in court | Deseret News

CA ?? But that's the source of the landmark USSC case on this subject:
Schmerber v. California in 1966. the Supremes held that a warrantless blood draw re intoxication is permissible, provided it is done in a medically approved manner, after a lawful arrest, and based upon the reasonable belief that the person is intoxicated. If these guidelines are followed, then a forced blood draw does not violate the Fourth Amendment right against unreasonable search and seizure.
A quick read of the report of the Utah case shows the police in court clearly stated they observed no sign of intoxication. That, alone, would distinguish the Utah case from Schmerber (the Utah case was a vehicular manslaughter) & it would probably not be upheld under Schmerber.
We are, each, responsible for inputting accurate info.
Why tell the RN that the results aren't admissible ?

OP, you don't have a 'criminal' legal issue, you have an 'employment' legal issue. If you don't test, the facility may lose the county/city contract (or you may lose your job). Check with your supervisor (in writing) as to how you should proceed and what level of 'resistance' (if any) does your supervisor state as unacceptable to proceed (yours and other's safety). Law enforcement is usually very adept at providing the arm for testing.
In CA, resistance usually winds up with an additional charge of 'resisting, delaying, obstructing' an officer.

 

[CdwJava]

It is rare that we have someone fighting so fiercely that an appropriate appendage cannot be secured for a draw. If someone is fighting so ferociously that they cannot be secured then I would not approve of the draw anyway as that could harm me, my officers, medical staff, or the prisoner - and the draw might well be outside of the acceptable court guidelines.

I would rather go with no test than risk a dangerous stick on one of my people or serious harm to the prisoner.

 

[garrula lingua]

Would your D.D.A. add a charge of resisting, Carl ?
That's a one-year misdemeanor tacked on, and can cause major problems for the defendant at trial.

It's a bad idea to resist, delay, or obstruct an Officer or Deputy:
148. (a) (1) Every person who willfully resists, delays, or
obstructs any public officer, peace officer, or an emergency medical
technician, as defined in Division 2.5 (commencing with Section 1797)
of the Health and Safety Code, in the discharge or attempt to
discharge any duty of his or her office or employment, when no other
punishment is prescribed, shall be punished by a fine not exceeding
one thousand dollars ($1,000), or by imprisonment in a county jail
not to exceed one year, or by both that fine and imprisonment.
(2) Except as provided by subdivision (d) of Section 653t, every
person who knowingly and maliciously interrupts, disrupts, impedes,
or otherwise interferes with the transmission of a communication over
a public safety radio frequency shall be punished by a fine not
exceeding one thousand dollars ($1,000), imprisonment in a county
jail not exceeding one year, or by both that fine and imprisonment.
(b) Every person who, during the commission of any offense
described in subdivision (a), removes or takes any weapon, other than
a firearm, from the person of, or immediate presence of, a public
officer or peace officer shall be punished by imprisonment in a
county jail not to exceed one year or in the state prison.

 

[CdwJava]

Would your D.D.A. add a charge of resisting, Carl ?

Yeppirs! And if actively swinging, battery on a peace officer or medical personnel ta boot!