History of Law Enforcement Phlebotomy Litigation
By James Charnesky & Matt Green
Although police officers have been drawing blood in Arizona for almost ten years, the practice has only been significantly challenged over the past 3 years. The first case to really raise the issue was McFarlane v. Stanton. In that case, a retired doctor was stopped in Pinal County for DUI. The Department of Public Safety Officer demanded that the doctor submit to a blood draw in the remote substation. When the doctor asked the deputy to show him his credentials for drawing blood, the officer refused, and blood was drawn. The DUI charges were dismissed, but the Motor Vehicle Department refused to vacate the man’s driver’s license suspension. The administrative law case was thus appealed to Division 2, which essentially limited its unpublished opinion to whether the man had a right to see the officer’s credentials. The court ruled that the officer had no such legal obligation.
Mootispaw, Anderson, and Berndt
In March of 2003, attorneys from the Maricopa County Public Defender’s Office conducted a two day evidentiary hearing in State v. Dale Mootispaw. Mr. Mootispaw’s attorneys called Diana Mass, Director of the Arizona State University Clinical Laboratory Sciences Department, as an expert witness. Although Maricopa County Superior Court Judge Ruth Hilliard agreed with many of Ms. Mass’ concerns and criticisms about the Phoenix Police Department’s officer phlebotomy program, she denied the suppression motion. Because the case was resolved by plea agreement the morning of trial, Judge Hilliard’s ruling was not able to be appealed.
Three months later, in June of 2003, attorneys from the Pima County Public Defender’s Office, led by James Charnesky, conducted a three day consolidated evidentiary hearing in the cases of State v. Wendy Anderson and State v. Duane Berndt. This time, Cathee Tankersley testified as an expert witness for the State. Again, Diana Mass testified for the defense. Pima County Superior Court Judge Kenneth Lee denied the suppression motions.
The 2004 Justice Court Victories and the Maricopa County “Short Hearings”
Last June, another multi-day evidentiary hearing was held in Pima County Justice Court in the cases of State v. Jimenez, TR03-046204 and State v. Jungers, TR03-007911. Although the record created at this hearing was substantially similar to the records created in Mootispaw and Anderson/Berndt, it was different in several important respects. This was, in part, due to the development of our legal arguments. After the Mootispaw and Anderson/Berndt hearings, we reflected upon the lessons learned from our early efforts. In Maricopa County, we went to work on the motion. The result was a more detailed look at the Fourth Amendment case law leading up to the Schmerber decision, and a new expanded argument that cops should never draw blood.
In Pima County, based upon the results of the Anderson/Berndt hearings, we also sought to re-focus the legal arguments and in the process, create a deeper record. The Anderson/Berndt hearings established that the Pima County Sheriff’s Department had virtually no regulations or protocols regarding officers drawing blood. Amazingly, the lack of protocols actually benefited the State in Anderson/Berndt. With almost no internal rules to follow, the State argued that the blood draws were procedurally acceptable, and whatever “medical” standards the officers had failed to comply with were not applicable to forensic blood draws. In the Anderson/Berndt hearings, Judge Lee fully accepted this argument, finding the standards offered by Ms. Mass were not applicable in the law enforcement setting.
In Pima County, we sought to combat this argument by expanding the record to make it clear that officers must comply with the same standards applicable to all phlebotomists. Weapon number one was a Pima County Sheriff’s Department protocol which specifically stated that the officers must comply with the applicable standard of care. A pre-trial interview with Sgt. Theel, the phlebotomy coordinator for the Pima County Sheriff’s Department, established that while he had no real understanding of the applicable standard of care, he believed the regulation meant the officers were to draw blood in compliance with medical standards.
Armed with this new focus and the expanded motion, Mr. Charnesky associated with the Pima County Public Defender’s Office and filed motions in two Justice Court cases in which the officers clearly disregarded applicable medical standards. Here, reasonableness would be based not only on the Schmerber criteria, but also on the deputies complying with their own regulations mandating that they comply with the medical standard of care. The modified approach would strip the State of their most successful argument in Anderson/Berndt. The new focus also fit perfectly with the newly expanded legal arguments. Any discrepancies between the applicable standard of care, and the officer’s actions not only were proof of unreasonableness, but also proof that the officers were law officers with law enforcement interest first, not medical personnel interested first and foremost with the safety of the blood draw subject. The conflict of interest would be self evident.
The Jimenez/Jungers hearings were held June 17-18, 2004. The record established that the officers breached the applicable standard of care in numerous ways. Not only did Ms. Mass clearly testify to this, but the State’s own expert witnesses also testified that the officers failed to follow proper protocol. Based upon this record, the court suppressed the blood results. The court did not go so far as to rule that officers could never draw blood, but did find that the specific facts of the cases before it constituted an unreasonable search in violation of the Fourth Amendment. The State appealed the trial court's decision. In written opinions available for download on this web site the Pima County Superior Court upheld the the suppression of the blood evidence. It is unknown at this time whether the State is planning on seeking special action review by the Court of Appeals.
In Maricopa County, the litigation was evolving, too. An informal agreement was reached between the Maricopa County Attorney’s Office and Maricopa County Public Defender’s Office whereby the portions of the transcripts from the Mootispaw and Anderson/Berndt hearings with expert testimony were submitted in lieu of live expert testimony. In this way, cases involving the issue could be set for an evidentiary hearing of about 60-90 minutes, in contrast to hearings of 2-4 days. It also saved thousands of dollars in expert witness fees. The frequency of evidentiary hearings increased accordingly.
In May of 2004, a series of these “short hearings” were conducted in East Phoenix Justice Court No. 1 in three cases involving officer blood draws. Judge C.A. Mendoza ruled for the defendants in each case. The State dismissed each case, but never prosecuted the appeals.
Appellate Posture of the Issue in Divisions One and Two
State v. May
The only case published on this issue is State v. May. The case was litigated using substantial portions of the record established in the Anderson-Berndt hearings.
Summary of Facts in State v. May
May challenged the trial court’s denial of his motion to suppress the blood evidence based upon his assertion that the law officer conducted blood draw was unreasonable. In support of his argument he cited to Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L.Ed.2d 908 (1966). State v. May, 2005 WL 1314882, ¶¶ 4-5 (App. 2005).
The trial court made a factual determination that the procedure used by the deputy “resulted in only a slightly higher risk of complications...” Id. at ¶ 8. Based upon this record, the Court of Appeals “could not say the trial court abused its discretion.” Id. at ¶ 9. In support of its ruling, the court of appeals cited a number of cases from other jurisdictions. See People v. Esayian, 112 Cal.App.4th 1031, 5 Cal.Rptr.3d 542 (2003), State v. Sickler, 488 N.W. 2d 70 (1992), and State v. Daggett, 250 Wis.2d 112, 640 N.W.2d 546, 2002 WI App. 32 (App. 2002, review denied).
Review of Main Cases Cited in State v. May
People v. Esayian, 112 Cal.App.4th 1031, 5 Cal.Rptr.3d 542 (2003):
In Esayian, a phlebotomist, under the supervision of a nurse, drew blood from the appellant at a detention center. Prior to the blood draw, the nurse checked the appellant’s vital signs. The court reviewed the record in a light most favorable to upholding the trial court’s decision and held the trial court did not abuse its discretion when it denied appellant’s motion to suppress.
State v. Sickler, 488 N.W. 2d 70 (1992):
In Sickler, a law officer, whom was also a registered nurse, drew blood from the appellant at the jail. The appellant was placed in a separate room where he was secured in a chair. Sickler at 73. The court, in finding that the draw did not violate Sickler’s Fourth Amendment rights specifically stated:
Based upon the forgoing, the procedure employed in no threatened the safety or health of Sickler, and thus was not overly intrusive. We are convinced that the blood sample was withdrawn in a reasonable, medically approved manner by a qualified nurse."
Id.
State v. Daggett, 250 Wis.2d 112, 640 N.W.2d 546, 2002 WI App. 32 (App. 2002, review denied)
The court also cited to State v. Daggett, 250 Wis.2d 112, 640 N.W.2d 546, 2002 WI App. 32 (App. 2002, review denied). In Daggett, a physician drew blood from the defendant in a booking room at the county jail. Id. at ¶ 4. The Daggett court noted that a blood draw would be unreasonable “if it invites an unjustified element of personal risk infection and pain.” Id. at ¶ 16. In the Daggett case, the court found that there was no such evidence. Id
The Holding of State v. May
In May, the court of appeals noted the trial court’s determination that the non-medical environment draw “resulted in only a slightly higher risk of complications in a field setting then those of criminal setting.” While the court of appeals did not explicitly indicate, one must assume that based upon the record, the court was unable to make a determination as to whether the “slightly higher risk” was unjustified. The court, viewing the issue in a light most favorable to upholding the decision, stated they could not “say the trial court abused its discretion in so ruling.” Id. at ¶ 9.
Application of May, Sickler, Esayian, and Daggett in your case
In litigating your case, It is important to establish that blood was not drawn in a controlled safe environment, or in a medically approved manner, and that deviations were unjustified. All of these will not only distinguish your case, but permit you to argue to the court that all the relevant case law which May used, point to these very factors as being determinative as to whether there was a Fourth Amendment violation.