Request By:
Honorable Max W. Parker
County Attorney
Calloway County
Calloway County Courthouse
Murray, Kentucky 42701
Opinion
Opinion By: David L. Armstrong, Attorney General; Joseph R. Johnson, Assistant Attorney General
In your letter to this office dated October 18, 1984, you set forth the following problem regarding the taking of blood samples by a hospital staff of a patient suspected to be under the influence of alcohol and/or drugs. We assume the problem is more acute and is surfacing more frequently now with the advent of the new drunk driving law.
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We have a problem in our county with reference to our county and municipally owned hospital staff's refusal to draw a blood sample from a person under their care at the request of a police office absent a signed consent by the patient.
This usually results from a traffic accident where the police suspect that the driver of one of the vehicles who has been injured and is perhaps unconscious is taken to the hospital emergency room for treatment and either will not sign a consent form or is unable due to unconsciousness or physical disability. The hospital attorney's position is that the drawing of blood at the direction of a police officer, even in the face of the statute governing the matter, exposes the hospital and its staff to civil liability and that a search warrant must be procured to protect the hospital and its staff. My understanding is that the United States Supreme Court has ruled that the taking of blood from a person for a chemical analysis regarding alcohol and/or drug content is not a search and, therefore, no search warrant is required. Further, I do not see how a search warrant would authorize hospital personnel to do anything as it commands a peace officer to search and seize evidence, not hospital staffs.
Furthermore, it would be extremely inconvenient to the police, the prosecutor, and the judges to procure search warrants in each case at all hours of the day and night in these situations.
One solution might be for the police and deputy sheriffs themselves to physically draw the blood from the patient, however, without proper training I would be hesitant to advise this.
Another solution might be for the District or Circuit Judge to issue a blanket "criminal discovery" order to the hospital and its staff ordering them to draw said blood at the request of the police officer in any given case. I believe our District Judge would do this, however, he like myself would like some further guidance on the matter prior to doing so.
I am enclosing for your information a copy of a letter from Hon. Stephen Sanders who is a member of the Board of Directors and attorney for the Murray-Calloway County Hospital.
I would very much appreciate your written opinion concerning solutions of the problems as outlined above as soon as possible.
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You have attached a copy of the hospital attorney's letter which states as follows:
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Recently you brought to my attention the fact that emergency room personnel, nurses, etc. had refused to withdraw blood from a person under arrest by a police officer when that person under arrest would not consent to the blood withdrawal. You and/or the law enforcement persons apparently questioned the right of the Murray Calloway County Hospital, it, and its employees and the nursing staff, to refuse such procedure. Therefore, I made a study of the situation and undertook some research on the legal aspects involved.
After so doing, it is my conclusion that the emergency room personnel, the nurses, physicians, etc. are 100% in the right for refusing to withdraw blood from a patient who does not consent/knowingly consent to such withdrawal. This opinion anticipates that the blood withdrawal is for utilization in a chemical test to determine the presence of alcohol and/or drugs with such analysis to be used for the prosecution of the person or other persons who have refused the test.
Tests performed because of or at the direction of a police order without a search warrant present two legal questions: (1) Are the medical persons involved subject to liability civil and/or criminal, for battery? and (2) Is the test result admissable [sic] in the criminal prosecution?
The Murray Calloway County Hospital, it, its personnel and nursing staff, of course, are much more concerned with the civil and/or criminal liability that the hospital may face for involuntarily taking a sample. You as a prosecutor are more concerned with the admissability [sic] in the criminal prosecution of the test result obtained.
I can readily say and determine that should the patient not consent to the testing, whether it be stomach pumping, the taking of blood samples, or for a search of the person beyond the normal police search methods, that such lack of consent on the part of the patient may well deem the intrusion on the patient's body an unreasonable intrusion. Also, of course, if the patient is struggling or resisting, there may be physical harm as a result.
It is my opinion that under these circumstances the hospital faces a high degree of risk as do the medical personnel, nursing staff, attending physician, etc.
The solution to this problem is a relatively simple one. The solution would almost insure the admissibility of the test results in the criminal prosecution and almost certainly relieve the hospital of its liability exposure assuming that the test was performed by the hospital without negligence. The solution is simply that the police officer contact the prosecutor, make affidavit and present to a Judge the affidavit requesting a search warrant. The search warrant could then be issued by the judge so as to protect all concerned, and certainly the Judge would not or should not issue the search warrant unless there is probable cause to believe that the test is warranted under the circumstances.
I realize that this would place some work on the prosecutor, some work on the police officers involved and some work on the Judge. However, I find it unreasonable for the prosecutors to expect the Murray Calloway County Hospital, it, its agents and employees, nursing staff and attending physician to expose themselves to civil and/or criminal liability simply to save the time and effort involved should a search warrant be required.
I was unable to find any Kentucky Statute addressing the situation which you described, and possibly legislative action would solve the difficulties for everyone involved.
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In our opinion we disagree with the position of the hospital's counsel. You are correct that the United States Supreme Court has ruled that the taking of blood from a person for a chemical analysis is not a search and, therefore, no search warrant is required. That opinion is Schmerber v. California, 384 U.S. 757 (1965) which was most recently followed by the Kentucky Supreme Court in Gall v. Commonwealth, Ky., 607 S.W.2d 97 (1980) which was a death penalty case. See also Newman v. Hacker, Ky., 530 S.W.2d 376 (1975)9 Hospital staff including nurses and physicians should not refuse to obey an order of a peace officer to take a blood sample since they are fully protected under KRS 503.040, Execution of Public Duty:
"(1) Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree.
(2) The justification afforded by subsection (1) applies when:
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(b) The defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority." [emphasis added].
We find no Kentucky case law or OAG Opinion factually on point and no case authority or OAG Opinion construing KRS 503.040. Having said this, however, we did note in OAG 73-470 that upon the order of a peace officer "we see no reason why any licensed embalmer cannot, under the circumstances . . . remove the blood from the body without being subject to civil damages." We see no reason why the same rule would not apply to a physician or hospital personnel removing blood from a live body.
In answer to the questions raised by the hospital's counsel, the medical personnel are not subject to civil or criminal liability if they were acting pursuant to the orders of a peace officer and the test results are admissible in a criminal prosecution. Since the hospital personnel already enjoy the law's protection, we also do not agree that legislative action is required.
Mention also should be made of your suggestion that the police or deputy sheriffs physically extract the blood. This is prohibited under KRS 189.520(7) and (8) which states as follows:
"(7) Only a physician, registered nurse or qualified medical technician, duly licensed in Kentucky, acting at the request of the arresting officer can withdraw any blood of any person submitting to a chemical test under this section of KRS 186.565.
(8) The person tested shall be permitted to have a duly licensed physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer. "
One may infer from this statute that physicians, nurses and other medical personnel are assumed to be statutorily obligated to extract the blood sample at a peace officer's request.
To sum up, a peace officer does not need a search warrant, and all hospital employees and personnel including physicians should obey an order of a peace officer to take a blood sample from a patient in the hospital whether or not the patient gives his or her consent to do so.