Does a qualified medical technician under 724.017 of the Transportation Code interfere with the duties of a public servant if they refuse to take a sample of a person's blood after being properly requested to do so under 724.012 (b) by a peace officer who has made a valid request with a TLE-51???

Basically, can a peace officer arrest a nurse for interfering if the nurse refuses a peace officers valid request for blood in an intoxication manslaughter case??

I think the answer is "yes," but would like some input if anybody else has handled a similar situation.

Our investigator pointed out Article 2.14 and 2.15 of the CCP. A person who refuses aid or assist a peace officer in the discharging of legal duties can be prosecuted.

I have not seen this done.

Thanks for checking into it. That seems to be the general consensus around here too. However, I gather from the number of views in relation to the number of posts/responses that this has not been done before??? If anybody can think of any reasons why this could not be done, I would like to hear from you??? What about if the officer is just getting blood based on consent after a DIC-24 warning in a DWI case???

Well, if you're going with 38.15, I have a few questions.

A. Was the person who refused to assist the officer the only available qualified technician?

B. How long was the delay? Was a blood sample recovered eventually?

C. Why did the technician refuse? Was the subject violent or thrashing about? Would an ordinary person want to not get involved given the circumstances?

If the delay caused was only momentary, you're going to have to consider whether or not that rises to 'interrupts, disrupts, impedes, or otherwise interferes.'

Technically, the circumstances would seem to suggest that any delay would qualify, but what is/was the impact of that particular set of circumstances? If the person refusing to assist is the only current and viable option for the officer to get the blood sample, I think the impact is quite dramatic. If there are four other technicians sitting there and the one person says, "Get someone else to do it, I object to the idea on principle," and that objection doesn't really impede the process but for a few moments, I think you're going to have a hard time getting any kind of conviction.

If there were other, readily available options for the procedure, you're going to have one heck of a difficult time convincing the jury that a nurse or other medical technician can't personally object to the procedure and ask to be left out of it. You'll have to stress that if all the people acted as the one did, there would be no enforcement of an important law, then ask the jury to take in to account the severity of the decision and the consequences on punishment.

It is only a class B misdemeanor, but were I defense attorney, I'd be hooting and hollering that my client would carry the same stigma of a conviction on par with possession of marajuana and driving while intoxicated.

I think if you don't have a significant impact to the investigation of the manslaughter, you're staring down the face of a loaded acquittal. But that shouldn't affect whether or not you charge someone. I think you should charge a person based not on the violation alone, but on the totality of the circumstances.

If I'm on the jury, I want to know two things:
1. Why did she object to assisting the officer?
2. What impact did it have on the circumstances?

I had a trooper in class for recertification of his breath test operator certification last year. He told me a story about how he had arrested a man for DWI following a multiple fatality accident (four dead) as the result of man driving the wrong way on the freeway. He asked the man for a blood specimen and of course the man refused. He then asked the nurse to take the specimen, citing mandatory specimen statute to her, but she refused telling him that the hospital had a policy that they would not take any blood specimen unless the donor consented in writing-period. She said it was a recommended policy set up by the hospital's risk management people. The trooper called the assistant DA on call (big population county) who promptly came down to the hospital (2:30 a.m.) and told the nurse that either she drew the blood or she was going to jail for refusing to comply with the lawful order of a peace officer. When she started sputtering and called over the supervisor, he told the supervisor that someone was going to jail unless the blood was drawn. The blood was drawn!

On a different but related issue, I have troopers telling me that hospitals are now refusing to draw blood for them when it is not being taken for medical purposes because certain insurance plans won't pay for the draw under those circumstances.

Janette Ansolabehere

What a load of ... Speaking purely from frustration of course-- what is wrong with this world where risk management committees end up helping the bad guy who created the (other unrelated) risk in the first place?

I understand why a nurse would be hesitant to stick some crazy drunk who might be waving arms around. But don't they have restraints for people whacked out on PCP etc? Big male orderlies in hospital ERs?

I'm excited to hear what Richard has to say at the mandatory blood draw CLE this Friday in Austin. I hope we can start using that procedure more often!

To heck with the risk committees!

I just don't know that the law on "obstructing" covers ordering a person to perform a "medical procedure". We had quite a bit of frustration on this issue in our County and I had a number of Officer's ask if they could arrest the nurses. As an alternative I arranged a meeting and invited the heads of all of our local hospitals to come to our office for a presentation. I explained the problem we were having and I provided them with copies of all the relevant statutes. They all agreed to cooperate in the future and the number of problems has almost disappeared. I have continued to do training at many of our local hospitals and I have been invited to teach new nursing recruits each year. I do the same talk for them and I have already seen some positive dividends come out of that training. We need to remember that the nurses are usually not the problem. It is the misguided administrators and lawyers that are the problem. I am happy to share the materials I use with anyone who wants to follow my example with their own hospitals.

Richard's method is the best approach to this problem, at least in my opinion. When teaching at the DPS Academy, I tell the Troopers that the best approach if they have this problem is to ask their Sergeant to speak to the DA about doing exactly what Richard suggests in his post. If they can't get the DA to do it, I suggest the Sergeant try speaking to the local hospital(s) risk management people. As I tell the Troopers, 2:00 a.m. after a fatality DWI accident is not the time to be arguing the issue with hospital personnel.

Also looking forward to the Mandatory Blood Draw seminar here on Friday!

Janette

Richard could you send me the material you cover with your hospitals. Martha Warner 105 W. Corpus Christi, Room 205 Beeville, tx. 78102

I'd like to nominate the prosecutor who got out of bed and drove to the hospital at 2:30 a.m. to read the Riot Act to the pinheads who work there for the Lone Star Prosecutor of the Year Award.

Who was that masked man?