DUI Defendants and Alcohol Blood Tests

Breath tests have traditionally been used as evidence in drunk driving cases because they are much more reliable than police testimony. However, breath tests only estimate blood alcohol concentration (BAC), they don’t measure it. Additionally, a large number of things can destroy the validity of such tests. They include a wide number of other substances commonly in the body that are similar in molecular structure to alcohol, physiological differences among people, ambient temperature, body temperature, humidity of the air, atmospheric pressure, medications, diseases, vomit, burp, smoke, radio signals, consumption of bakery products, dirt, tester error, improperly calibrated breath testing devices, and many, many more.

Because invalid tests can make it more difficult to obtain convictions, many law enforcement agencies now prefer to obtain blood samples, which have fewer sources of invalidity. But taking blood from people raises two serious questions: “How much force should police be able to use in extracting blood from uncooperative suspects? And should medical professionals, who are honor-bound to obey patients’ treatment wishes and protect; their privacy, be compelled to do otherwise?” ¹

Of course there are other problems. What about people for whom giving blood can be dangerous or even life threatening, such as hemophiliacs? And what about people for whom their religion prohibits the drawing of blood? And what about people who suffer severe needle phobias? And there are serious privacy and civil liberties issues. In such cases, blood tests aren’t necessary because breath or urine tests can be administered instead.

The Hippocratic Oath requires physicians to put their patients’ needs and desires first, to defend their patients’ privacy, and to respect their decisions to decline medical procedures. Therefore, the American College of Emergency Room Physicians opposes permitting, much less requiring, physicians to give blood test results to police because it conflicts with the appropriate and fundamental role of physicians in the physician-patient relationship.

Drawing blood over a patient’s objections is committing assault and battery insists Dr. Phil Brewer, President of the Connecticut College of Emergency Physicians and a fellow at the National Highway Traffic Safety Administration. He refuses to do it.

Drivers who refuse to submit to having their blood taken are routinely handcuffed, tied down, sat upon, beaten, and occasionally even killed in the process.

Although he is a strong advocate for much stronger anti-DUI laws, Judge Charles Schudson of the Wisconsin State Court of Appeals says the state’s blood-drawing procedures come “painfully close to a violation of civil liberties.”

And that’s the dilemma. We need to prevent drunk driving but we can’t violate peoples’ rights in doing so or we become a police state. ²