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Seton Hospital refuses to conduct blood draws pursuant to search warrants. Maybe their senior vice president should look at CCP 2.14 and 2.15.
[This message was edited by Shannon Edmonds on 10-22-08 at .]
Perhaps the Senior VP needs to given a copy of Beeman v. State that makes it clear that the warrant trumps Chapter 724. Or possibly a contempt charge???
Interesting that the hospital is willing to flout a court order.
I do not know if contempt would work, given that the hospital is not the subject of the court order (warrant).
That's true, but the blood search warrant forms that I've seen also include an order to the doctor, hospital, etc., ordering them to assist the officer in carrying out the warrant. That is what is was referring to in my previous post. That would be directed to the hospital.
We use the order to the hospital personnel in our forms too. Have you tried involving the hospital's legal department? Maybe that would help them understand the risks that come with disobeying a judge's orders. If that doesn't work and going to the hospital's top administrator doesn't work, you may want to try public shaming (in the local paper) and the public discussion of the potential for contempt proceedings to see if that will change their mind.
I'm so glad that our hospital people have been so willing to help!
We use "orders of assistance" but they are directed to "any non-ems, qualified medical personnel" and not to a specific hospital or person. I cannot say I have done the research, but I do not think that is enough to subject to contempt, whichever hospital or individual the officer requested to draw the blood. I also question how to prosecute a CCP 2.14 violation. I have always thought of the "order of assistance" as a CYA for the hospital. Before we started our warrant program, we met with the local hospital and their legal staff and have never had a problem.
How about PC 38.15 Interfering?...It would seem they are impeding the officer in the duty imposed by law (search warrant) to obtain the bad guy's blood....The culpable mental state is criminal negligence, so pretty low....Since a search warant commands the officer to do something, it sounds like a winner...Anybody disagree?
Best to meet with the hospital and come to a mutually agreeable solution that makes everyone look good. Meanwhile, we really should be thinking about how to amend the law to make it very clear that a phlebotomist employed by or under contract with the jail can draw blood for law enforcement. Most mid-to-large jails have medical personnel on staff or under contract. For smaller jurisdictions, using the hospital is critical.
CCP 2.14 looks like something used to rustle up a posse...
Art. 2.14. MAY SUMMON AID. Whenever a peace officer meets with resistance in discharging any duty imposed upon him by law, he shall summon a sufficient number of citizens of his county to overcome the resistance; and all persons summoned are bound to obey.
We are still using EMS for our blood search warrant draws...are we on thin ice on this...did I miss some law that has come down???
38.15. INTERFERENCE WITH PUBLIC DUTIES. (a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law; [...]
I wonder if refusing to do something for the officer is really the same thing as interfering with him doing it.
Suppose the officer has a warrant to recover evidence of a shooting... and the evidence is a bullet lodged near someone's spinal column...
If a doctor doesn't want to go in after the bullet since it could cause paralysis. Is the doctor really interfering by refusing to perform surgery?
I think your on thin ice. While I disagree with this opinion, it does present an issue. State v. Laird 38 S.W.3d 707. The State argued the blood draw by a paramedic was made under exigent circimstances, not under Chapter 724. The Court was OK with exigent circumstances, but kicked the blood draw because it was taken by EMS:
"By the plain language of the statute, only authorized professionals may "take a blood specimen at the request or order of a peace officer under this chapter." Id. Sec. 724.017(a). The State cannot attempt to circumvent the controlling statute by claiming constitutional compliance." 38 S.W.3d 707 at 714.
I am not aware of an opinion where the blood draw was under a Search Warrant as opposed to exigent circumstances and could argue that Laird should be limited to its facts given that it really appears to have been an attempt to circumvent the statute, but I'm not willing to risk it, while our hospital is so accommodating.
It was my agency that triggered this response from Seton, on our 1st blood draw no less.
I used bits and pieces of the blood warrants we received from John and Robert D. to create ours, the order of assistance is included and our procedures state to leave copies of that and the search warrant with the hospital.
We have started going to another area hospital until Seton decides they want to join our team, it seems like this was just a knee jerk response and hopefully will be cleared up in the future.
I can honestly say that after all the work I put in to this endeavor and numerous folks we had to meet with, I did not expect the hospital to be the one to jam a stick in the spokes.
It is a strange intersection of the investigative with the medical. Unfortunately, the history of DWI in Texas has been a twisted path. The Legislature needs to come to grips with the issues we face. If we are to prosecute drunk drivers, we should be given the tools to collect evidence that proves intoxication. Personal observation has proven to be a rather unpredictable type of evidence.
Defense attorneys seem to like that unpredictability because it is the one crime where things seem to even up in the courtroom for the defendant. It is the one crime where trial advocacy from the defense side can win the day. That all goes away with scientific evidence of intoxication in the form of blood.
I wonder what would happen if prosecutors refused to prosecute DWI cases without scientific evidence. You know, some currently praise a few DA's who proclaim that they would never prosecute a case if there is a likelihood the defendant is innocent. But that sort of praise disappears when focused on a DWI case. Go figure.
So, why are we so socially conflicted?
Remember the phrase "one for the road?" It was common 30 years ago so social attitudes have definitely changed since then.
DWI is against the law, but many people simply do not consider it a natural crime like assault, theft, fraud, or rape... at least they don't until someone they love is hurt or killed by a drunk driver. The penalties are severe but there is no culpable mental state for DWI and only the State has the magic machines that knows for certain who has had too much.
I think the attitudes would quickly reach your ideal JB if all new cars were sold with ignition interlock devices. It took all of 5 years for the GPS navigation systems to make the jump from exclusive luxury models down to mid-level family cars because the manufacturing cost of electronics plummets with mass production. Do you really need an electronic map? How often do you really get lost anyway? You could buy a detailed paper map of every state in the USA for half the price of these GPS systems but they are selling like hot cakes. Surely the same marketing genius could convince people that an interlock is a positive feature rather than an annoyance.
Contemplating what offense to arrest hospital personnel for is NOT the answer. Communication is the answer. Not to "Monday morning quarterback" the situation, but the hospital should have been involved in the original planning/discussion regarding blood warrants. I tell all of my officers to get these issues resolved BEFORE you show up at the hospital at 3am with a warrant and a person in custody....
That is excellent advice.
So does anybody know who would qualify as a "qualified technician" under the mandatory blood draw statute? We know it's NOT EMS or paramedics. So who IS one?
the hospital phlebotomist? why not a phlebotomist that works in the jail?
I'm on the side that a mandatory blood draw for SBI/fatality cases is way different than a blood draw pursuant to a search warrant. But while we look for substitutes for the hospital, the guidelines are clearly there in 724.
Art. 18.08. POWER OF OFFICER EXECUTING WARRANT. In the
execution of a search warrant, the officer may call to his aid any
number of citizens in this county, who shall be bound to aid in the
execution of the same.
This creates the duty to assist. The hindering/resisiting charges can be based on this duty. We made up a judicial order, but the code really gives the power to the executing officer not the magistrate.
Now I do agree with JB that the better method is diplomacy first and shock and awe arrest if it doesn't work. What do you think?
They were involved.
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