Why Do DUI Blood Draws Need to be “Medically Approved”?

Courtesy of Godoy Medical Forensics


The topic of blood sampling for purposes of blood alcohol determination is relevant to the legal community on a number of levels. Case law has provided the basis for not only legal precedents in “Driving Under the Influence” (DUI) litigation, but it has dictated the “road map” or “how to” advice in going about the legal tactics involved in these cases, albeit with caveats pertinent to prosecutors and defense attorneys alike. None of that is the focus of this article. Rather, my goal is to point out critical elements of what constitutes acceptable medical practice in cases where blood is drawn from someone under arrest for DUI.  Without knowing what is or is not acceptable from a medical standpoint, it’s quite difficult for any lawyer to develop prosecution or defense tactics that support their particular cause. Inasmuch as evidence suppression hearings can often hinge on just what is or is not“medically acceptable,” it would behoove any attorney involved in the conduct of these kinds of cases to take note of what follows.

Case Scenario

The following story is fictional and should not be interpreted as reflective of any actual case:

My girlfriend and I had been having a smoke after our “extended” lunch break. Hopefully the boss wouldn’t notice that we were coming off lunch break late once again. Just as I was about to finish telling my joke, my stupid pager went off and the news wasn’t good. I was supposed to have been at the police station 15 minutes ago to draw blood on another one of those DUI cases and I knew that officer would be pissed for making him late again. Well, so much for my long lunch hour.

I went flying down the road towards the downtown police station and wasted no time getting to the booking area where I knew the guy would be getting processed. When I walked into the holding cell, I was greeted by the familiar and unmistakable aroma of jail funk. When you do the kind of work that I do, you get real familiar with the dingy insides of a jail cell. It was poorly lit and the little counter top where they brought the food through the bars still had spaghetti sauce on it from the lunch tray—at least I hope it was some kind of food and not human body fluid of some bloody origin, because I do this work knowing it has its risks and it’s pretty hard to get HIV from spaghetti sauce. Plus, that was the only area where I could set up my phlebotomy tray.

I thought everything was going to go smoothly, but when I opened up my tray, I realized that in my rush to get there, I’d managed to forget my special non-alcohol skin swabs. Luckily, I found some old alcohol swabs in a corner of the tray. So, I figured the cop wouldn’t check and I’d just do my thing and act like everything was normal, because I knew that if my boss found out about how things were going today, I’d be looking for a new job in no time flat.

That’s when I first heard the yelling and screaming down the hall and here come the cops with their guy. The guy’s struggling against his handcuffs and yelling at the cops who are obviously pissed off. I was able to get out of the way just in time when they slammed him down on the floor of the jail cell where he narrowly missed smacking his head on the toilet bowl in the corner of the cell. Oh, boy—this was gonna be an “interesting” one!

They get this guy situated on the floor and somewhat quiet and the cop looks at me and says, “Okay, you can do the blood draw now,” and I look at him with this look on my face like, “you have got to be kidding me!” But no, he isn’t kidding. So, here I am in this dimly lit jail cell, the guy’s on the floor with the cuffs behind his back and he’s sitting about two feet from the toilet, and I’m thinking, “man, if I don’t get this stick, the cop’s going to complain to my boss and that’ll be the end of my long lunch hours.” With this in mind, I swabbed the guy’s arm as best I could and stuck the needle in—boy, was that a mistake. I had been so focused on getting the needle in, I forgot to warn him and he let out a scream that made the cats in the alley jump and run. Then the guy starts struggling and the next thing I know, my blood tubing is hanging from the needle that’s still stuck in the guy’s arm while the cops are trying to subdue him. By picking the right moment, I was able to pull the needle out before it could do anymore damage, and quickly tape a cotton ball over the puncture site. Luckily, I was finally able to get the blood samples out of the other arm, but boy, was I nervous being in that cell with this guy. Man, I just dumped the blood vials in to my tray, packed up my gear, and got the heck out of there as fast as I could.

Issues Relating to Prep

The above case scenario will bring a smile of recognition to anyone involved in the sometimes gritty business of DUI prosecution. I hope that it was at least somewhat entertaining and not too far from the mark—but its purpose is not merely to entertain as much as it is to provide a basis for what follows: a systematic analysis of factors involved in medically acceptable procedures in phlebotomy through pointing out how it can (and does) go wrong.

In our fictional story, the phlebotomist—I’ll call her Suzy Q—sets herself up for failure by failing to properly prepare her equipment. She manages to appear at the work site with only alcohol swabs—a source of known contamination in blood alcohol assay samples and a heyday for any defense attorney. The truth is that there are no standards for antibacterial skin surface decontamination and venipuncture. It is often the case that the administrative authorities responsible for medical oversight simply depend on mid-level managers to decide what does and does not constitute the proper solutions and application methods for any given instance requiring phlebotomy. The circumstances surrounding a DUI arrest are no exception. Within certain limits, the driving force involved in deciding just what materials to employ is an economic one.

Hospitals and clinics typically employ such agents as povidone iodine, benzalkonium chloride, Chlorhexidine, Hexachlorophene, and Triclosan. Guess what factor decides which of these wonderful antiseptics gets to sit on the shelves of any particular facility? Yes, you guessed it: money. Depending on the vagaries of shelf life, bulk purchasing, and corporate logistic support contracts, one could find any single agent or combination of these agents within a given facility involved in the process of phlebotomy for legal blood alcohol determination. Given the fact that many of these facilities provide services to the general medical community, as well as the law enforcement community, it is no wonder that inadvertent mixing of swabs with different antiseptic agents could occur and must be constantly guarded against in view if the attendant legal implications.

Legal Implications

Our wonderful story goes on to describe some things about the physical environment where the blood draw is to take place. First, we find that Suzy has found herself in a dimly lit location. Let’s think about that for a minute. In a healthcare facility where diagnostic skin punctures are are being performed—and yes, phlebotomy is a diagnostic skin puncture—how often do those procedures take place in dimly lit areas? Almost never? So would that constitute “routine and customary” medical practice conditions for diagnostic skin punctures in a healthcare facility? You bet it would. But wait a minute here—jail cells and police station holding areas are not medical facilities. How can healthcare facility standards be applied to what are not even similar facilities? Answer: they don’t have to be. The legal precedents articulate that the blood draw has to be according to “medically acceptable practice.” In effect, it does not matter that the blood draw is not happening in a medical facility. What matters is that it is done in a well-lit, sanitary location. Which brings up a quagmire of other issues that are apparent in this hypothetical story.