Most people are shocked to learn that police officers in Tucson Arizona are personally drawing blood from individuals suspected of DUI. Many people first find out about this practice after being arrested for DUI and then being confronted with an officer's request that they submit to a blood draw which the officer himself is going to perform.

The facts are that in Tucson, and across the State of Arizona, law officers have been personally drawing blood from individuals arrested for DUI for over a decade. While most people are aware that many police agencies now test blood in DUI cases, few people have given much thought as to how the police are obtaining the blood. Most assume that the police transport a DUI suspect to a clinical facility where a qualified nurse or phlebotomist draws the blood.  To the contrary, here in Pima County, if a law officer is seeking blood in a DUI investigation, he typically will personally draw blood from the DUI suspect, often times while they are seated in the rear seat of a patrol vehicle.

"This can't be legal can it?" - Unfortunately It Is....

The first thought that passes through most people's mind when told by an officer that he will be personally drawing blood while they are seated is in the rear of a patrol car usually is, "how can they do this? This can't really be legal can it?"

Certainly that was my thought when I first started reading police reports detailing my clients having their blood drawn in the field by law officers. I immediately began to research the issue and sure enough, it did not take me long to find what I believed was clear case law that police were not suppose to be drawing blood themselves in DUI investigations.  My research lead to a United States Supreme Court case, Schmerber v. California,  384 U.S. 757, 767, 86 S. Ct. 1826, 1834 (1966).

In Schmerber, the Supreme Court addressed the the broader issue of whether blood draws, even when done by medical personnel in a medical environment, were legal. The Supreme Court held that blood draws in such circumstances were legal. The Court reasoned that blood tests are commonplace and for most people the procedure involves "virtually no risk, trauma, or pain." The court also reasoned the test performed on the suspect "was performed in a reasonable manner."

Even though the Court found blood draws in DUI cases to be legal, the Court was careful to address circumstances which it would find problematic. The Court wrote:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most  rudimentary sort, were made by other than medical personnel or in other than a medical environment--for example, if it were administered by police in the privacy of the stationhouse.

The above quote is very notable as the Court went out of its way to include its thoughts on what it deemed to be problematic. The statement was not necessary for the court's holding. Legally speaking, the comment is referred to as "dicta" in that it is not deemed to be part of the court's ruling.  Nonetheless, for the court to take care to put down on paper its thoughts on circumstances which it likely would find offensive, it was clearly attempting to provide guidance to law enforcement on just how far they could go before their actions would be in violation of the Fourth Amendment. Reading this, it seemed clear to me that the Supreme Court was clearly providing that police officers should not, themselves, be drawing blood, and that the drawing of blood should be left to medical personnel in medical or clinical facilities.

As clear as this seemed to me, my interpretation of Schmerber has not been shared by the Arizona Court of Appeals.  The Arizona Court of Appeals has issued two published opinions directly addressing the lawfulness of the police personally drawing blood from DUI suspects.

In both cases the court held that police officers may draw blood from DUI suspects, and that they need not draw blood in a medical or clinical location.  These published cases are "case law," and unless over ruled by a court of higher authority, they constitute the law in regards to blood draws in the State of Arizona.

It is important to note that the Arizona cases discussed below are the opinions of a state court interpreting federal constitutional law.  The Supreme Court of the United States has not reviewed the actions of law enforcement here in Arizona regarding this issue and neither have they reviewed the holdings of the Arizona courts.

State v. May, 210 Ariz. 452, 112 P.3d 39 (App. 2005)

The Arizona Court of Appeal first looked at the issue in the case of State v. May, 210 Ariz. 452, 112 P.3d 39 (App. 2005).  In May, the court was presented with the question of whether a blood draw conducted with the subject standing was reasonable. In considering the specific facts, the court of appeals declined to reverse the trial court's ruling that the seizure was not unreasonable, and in so doing, reiterated the trial court's determination that the procedure employed by the law officers resulted in only a “slightly higher” risk of complications in a field setting than in a clinical setting.  The ruling makes one wonder how much risk one has to placed under before the court determines it is unreasonable?

In so holding, the court specifically noted that the additional risk inherent in the standing blood draw was “not so unreasonable" as to offend the constitution. The wording is instructive in that it clearly acknowledges the unreasonable nature of the standing blood draw while at the same time, finds that there was insufficient increased risk of harm to the defendant to offend the Fourth Amendment.

Instead of electing to apply the clearly defined medical standard of care, the court instead opted to apply a standard that they failed to even define. From the court's ruling we know a standing blood draw done in violation of the medical standard of care does not, in its opinion, offend the Constitution, but we have no idea what the Arizona Court of Appeals would find offensive. The court provided no indication of how much increased risk was necessary to offend the Constitution.  What is clear from the May holding is that a police officer can draw blood and they can draw the blood in the field in a manner inconsistent with medical standards without offending the constitution.

State v. Noceo, 223 Ariz. 222, 221 P.3d 1036, 571 (App. 2009)

A number of years later, the court took the issue up again. In State v Noceo, the Arizona Court of Appeals was presented with a fact pattern in which an officer drew blood from a DUI suspect while the suspect was seated in the back seat of a poorly lighted patrol vehicle. In looking as to whether the increased risk of harm was unreasonable, the court appears to have taken into account whether the blood draw was completed without problem. Just as in May, whatever increased threat of harm the defendant faced, was, in the court’s view, insufficient to offend the Fourth Amendment.

Based upon the May and Noceo cases, the Arizona Court of Appeals appears to have carved out the following test. First, those drawing the blood must have deviated to some degree from the medical standard of care. Second, the deviation must be of such a degree that it subjected the defendant at an unreasonable risk of harm.

In looking as to whether the increased risk of harm is unreasonable, the court provides no specific test, but it is apparent that the most important consideration is whether the blood draw was completed without problem. In the simplest terms, it appears that there is a "no harm, no foul" rule. So, if blood is drawn without significant issue or injury, the draw is likely to be found legal.