DUI LAW NEWSLETTER

Will California soon allow the police to draw blood on the roadside during a DUI stop?

A new Federal program will seek to allow cops to draw a person's blood at the scene of a DUI arrest if NHTSA has its way. The federal program's aim is to determine if blood draws by police officers can be an effective tool against DUI and aid in their prosecution. If the results seem promising after a year or two, the National Highway Traffic Safety Administration will encourage all local state police nationwide to undergo similar blood draw training. For years, DUI defense attorneys in Idaho advised clients to always refuse breath tests, Ada County Deputy Prosecutor Christine Starr said. When the state toughened the penalties for refusing the tests a few years ago, the problem lessened, but it's still the main reason that drunk driving cases go to trial in the Boise region, Starr said.

Idaho had a 20 percent breath test refusal rate in 2005, compared with 22 percent nationally, according to an NHTSA study. Starr hopes the new system will cut down on the number of drunken driving trials. Officers can't hold down a suspect and force them to breath into a tube, she noted, but they can forcefully take blood - a practice that's been upheld by Idaho's Supreme Court and the U.S. Supreme Court.

The nation's highest court ruled in 1966 that police could have blood tests forcibly done on a drunk driving suspect without a warrant, as long as the draw was based on a reasonable suspicion that a suspect was intoxicated, that it was done after an arrest and carried out in a medically approved manner. The practice of cops drawing blood, implemented first in 1995 in Arizona, has also raised concerns about safety and the credibility of the evidence.

"I would imagine that a lot of people would be wary of having their blood drawn by an officer on the hood of their police vehicle," said Steve Oberman, chair of the National Association of Criminal Defense Lawyers' DUI Committee.

The officer phlebotomists are generally trained under the same program as their state's hospital or clinical phlebotomists, but they do it under a highly compressed schedule, and some of the curriculum is cut.

That's because officers don't need to know how to draw blood from a foot or other difficult sites, or from an infant or medically fragile patient, said Nicole Watson, the College of Western Idaho phlebotomy instructor teaching the Idaho officers. Instead, they are trained on the elbow crease, the forearm and the back of the hand. If none are accessible, they'll take the suspect to the hospital for testing.