Friday, June 21, 2024

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Blood Draws in the Wild, Wild, West.

Texas is following Arizona on what appears to be a slippery-slope which will be affecting more states as time goes on. A new law went into effect on September 1st, 2013 which was passed by the 83rd Texas Legislature. The new law allows Emergency Medical Technicians (EMT) paramedics to take a blood specimen to test for alcohol concentration at the request of a police officer. The law allows paramedics to test for alcohol concentration or other intoxicating substances.A paramedic may take a blood specimen if they believe they are complying with an officer’s request or order.

At least in Texas, the people drawing blood have some medical training–and that’s similar to how it all began in Arizona. Many people don’t realize that in Arizona, cops have been drawing blood since 1996. It started when a police officer, who was also a paramedic, drew blood from a DUI/Fatality suspect in a hospital setting. No one could really complain about the training of the officer, or about the setting. Moreover, throw a fatality into the equation and not many people would even cast a second glance at the officer’s conduct.

Flash-forward a little more than 15 years, and Arizona now has “phlebotocops” (poorly trained police officers who stick people with needles by the side of the road). In Arizona, one needs a license just to cut hair, but there are no licenses needed to puncture a vein and draw blood. Since there are no license requirements, technically, anyone may draw blood–including the police. Yet, it seems that the phlebotomist must still be “qualified” under Arizona law to draw blood in a DUI investigation context. Arizona Revised Statute 28-1388 reads:

“If blood is drawn under section 28-1321, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content in the blood. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.”

The police now take a 3-day-long course where they learn how to stick people and draw blood called “Phlebotomy for Law Enforcement.” Day One of the course consists of classroom education where they learn about safety (i.e. how not to stick yourself, how to dispose of sharps, how to clean up). Day Two consists of learning where to stick people and they get to practice on each other and practice on fruit–typically oranges. On Day Three, they head out to a Veteran’s Hospital, or some other government-run facility where they have to have 50 (it used to be 100) successful blood draws.

What is the definition of “a successful blood draw”? It is defined as a blood draw where the phlebotocop gets a full tube of blood and did not ask for help. It doesn’t matter how many times the cop attempted the blood draw. Nor does it matter whether the patient suffered nerve damage, infection or even death. As long as the cop filled a tube of blood and did not ask for help, it is counted as one of the 50 successful draws.

Once the cop has passed the course (and no one has ever failed it), they are “another qualified person” according to Arizona law. But even if they were not qualified, the statute still has no teeth as it makes qualifications irrelevant: “The qualifications of the individual withdrawing the blood and the method used to withdraw the blood are not foundational prerequisites for the admissibility of a blood alcohol content determination made pursuant to this subsection.” Why even have the statute if it does not prohibit admissibility of a blood test result performed by someone other than those named in the statute?

Since the inception of the Arizona Phlebotocop Program, police have been drawing blood from people standing, unsupported by the side of the road, in the backseats of patrol cars and on the hoods and trunk lids of patrol cars. The police have been hurting people in the process.

In 2005, the Arizona Court of Appeals found no constitutional problems with police drawing blood by the side of the road. In State v. May, 210 Ariz. 452, 112 P.3d 29 (Ariz. App. Div. 2, 2005), found that despite the testimony, which showed that drawing blood by the side of the road, standing at the trunk lid of a patrol car, unsupported, risked injury, infection and nerve damage to the subject, the blood draw was a reasonable search.

Other states are looking to Arizona to model their phlebotocop programs. Idaho, Texas and Utah have sent some police officers to Arizona for training. It’s a slippery slope and it truly is the Wild, Wild, West.

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James Nesci

James Nesci

James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

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