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The Police Cannot Steal Your Blood from a Locked Garbage Can at the Hospital and Use it to Prosecute You—Or Can They?

Image source: National Eye Institute

Can a patient seeking care at a hospital give a blood sample for the purposes of acquiring medical treatment while retaining their Fourth Amendment protections against unreasonable search and seizure of that sample of blood by the police? According to a recent Alabama Court of Criminal Appeals decision[1], the official answer is still unclear.

On February 16, 2013, an Alabama driver struck and severely injured a pedestrian. The police arrived on the scene, and after some discussion about whether the driver needed medical treatment, the driver asked to be taken to the hospital. As the driver was being loaded into an ambulance, the officer asked him to consent to a blood test to check his blood-alcohol content (“BAC”). The driver refused, which he had the right to do.

At some point, however, the driver did consent to the paramedic’s request for blood samples to be used “for medical purposes.” Upon arrival at the hospital, the driver refused further treatment and left. His blood, having been left behind with the paramedics, was then discarded into a locked hazardous-waste container. Hours later, the officer who requested a blood test came to the hospital and—without obtaining a warrant—“broke open the container,” retrieved the driver’s blood, and submitted the blood to the Department of Forensic Sciences. The lab tested the blood to determine the driver’s BAC. That test revealed that the driver’s BAC was 0.29 percent—more than three times the illegal limit of 0.08%.

After the test, the driver was arrested, charged, and convicted with first-degree assault, and was sentenced, as a habitual felony offender, to 99 years’ imprisonment. The driver appealed his conviction, but the Alabama Court of Criminal Appeals affirmed the result.  Next, the driver filed an action claiming ineffective assistance of counsel arguing that his lawyer had failed to provide adequate assistance by failing to assert the Fourth Amendment prohibition of unreasonable search and seizure.

In considering whether his counsel was insufficient, it is important to note that the legal principle is that once a defendant shows a search without a warrant, the burden is on the State to prove an exception to the protection of the Fourth Amendment of the United States Constitution. Both the Federal Constitution and the Alabama State Constitution provide protections from unreasonable warrantless seizures and searches. The unreasonable warrantless taking of a person’s blood and testing it for possible criminal activity, including blood alcohol content, is a basis for suppressing the BAC test results. Keep in mind the police actually broke into a locked garbage can in order to literally “steal” the blood vials to use as evidence in McCoy’s felony trial. Ultimately, the Alabama Court of Criminal Appeals ruled against the driver in his ineffective-assistance-of-counsel claim finding the question of whether the Fourth Amendment covers a blood sample already taken from a defendant to be unsettled in the State of Alabama. In short, the court rejected the driver’s ineffective-assistance-of-counsel claim holding that while the driver’s attorney did not raise the Fourth Amendment claim relating to the “garbaged” blood vials, the lawyer did have a suppression hearing on the admissibility of the BAC results on other grounds.

While Federal caselaw provides that the Fourth Amendment covers “intrusions into the human body” to obtain a blood sample, it has not addressed whether it covers blood which has been left behind. While courts in Ohio[2] and Texas[3] have found that blood given for medical treatment is covered by the Fourth Amendment, courts in New York[4] and New Hampshire[5] have held the opposite. The states are split on the issue and because the Court of Criminal Appeals did not directly address the question, it remains unresolved in Alabama.

Even though this appeal dealt primarily with whether the driver’s attorney made a mistake, the court did discuss the fundamental issue of whether the police can steal a person’s blood vials from the garbage can at the hospital and turn the blood over for testing by the state lab. The court indicated that the Driver had abandoned the blood vials.


— What this means for Alabama drivers —

First, Be wary of giving your blood to anyone—even healthcare professionals. Your physical health, of course, is of utmost importance and if needed you should seek medical attention. Just be aware that your blood taken for medical purposes is not yours if you abandon it. The police, or anyone else can take it, even from a locked garbage can!

Second, when facing a DUI, or any alcohol or drug-related crime, make sure to hire a team of expert attorneys with years of experience in DUI and related criminal defense work who will be able to catch and argue even novel, unsettled questions of Fourth Amendment law.

This blog entry was written with the assistance of the Honorable Andrew J. Biggs, Esq. with our law firm of Crumbley, Blackwell and Price, P. C. located in Huntsville, Alabama.

Phillip B. Price, Sr.

Crumbley, Blackwell and Price, P. C.

[1] McCoy v Alabama, CR-20-0821, (February 10, 2023)

[2] State v. Funk, 896 N.E.2d 203 (Ohio Ct. App. 2008).

[3] State v. Martinez, 570 S.W.3d 278 (Tex. Crim. App. 2019).

[4] People v. Dolan, 95 Misc. 2d 470, 474, 408 N.Y.S.2d 249, 252 (N.Y. Sup. Ct. 1978)

[5] State v. Bazinet, 184 A.3d 448 (N.H. 2018)

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Phil Price

Phil Price

Phillip B. Price, Sr. has been representing citizens charged with DUI in Alabama for over thirty years. He is the only attorney in North Alabama who is Board Certified as a DUI Specialist. He has represented more people accused of the offense of DUI than any other lawyer in North Alabama. His success rate is astonishing. He is only the eighth person in the entire country to be awarded the prestigious Erwin-Taylor Award by the National College for DUI Defense (NCDD), the nation’s premier organization for DUI Defense attorneys. The award, which is the highest honor granted in the field of DUI Defense, was given to Mr. Price at the NCDD’s summer forum at the Harvard Law School in Cambridge, Massachusetts in 2012. He is a Founding Fellow of the NCDD. He served as Dean of the NCDD in 1997-98. He was the third attorney in the United States to become a Fellow of the NCDD. Mr. Price has been an invited lecturer in over 25 states, teaching other lawyers in various aspects of DUI Defense. He also instructs law enforcement officers how to perform better in their jobs of DUI enforcement. Mr. Price practiced law for many years with the late Macon L. Weaver, former U.S. Attorney for the Northern District of Alabama. Mr. Price served as president of the Alabama Criminal Defense Lawyers in 1992-93. Mr. Price is the author of the Alabama DUI Handbook (published by West®, a Thomson Reuters business) and has published many articles dealing with most aspects of DUI cases, including the subject of breath tests, field sobriety tests, jury selection and cross-examination. He is well known for his knowledge dealing with various breath testing instruments, including the Drager Alcotest MK III, Intoxilyzer Model 5000, and Alco Sensor IV. He owns each of these devices. He has taught courses on the operation of evidential breath test devices. In 1994, in a landmark decision, he persuaded the Alabama Supreme Court to throw out the Alabama breath test program. Even the definition of DUI as a crime in Alabama comes from a case he handled in the Alabama Supreme Court in 1989. He has been selected by his peers for Best Lawyers® and Super Lawyers®. He has been received an AV rating by Martindale-Hubbell®, the highest peer review rating in legal ability and ethical standards. He has received a “superb” rating from Avvo™.

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