SETTING THE RECORD STRAIGHT ON DUI BLOOD DRAW POLICY
Some focused on conflict, not cooperation, between law enforcement and hospitals during DUI investigations.
The following editorial appeared in the Kansas City Star on
Saturday. In it, District Attorney Phill Kline explains
the time and evidence collection constraints that law
enforcement officers, investigators and prosecutors are faced
with as they gather evidence to prosecute DUI offenders.
In addition, the myth that HIPAA prohibits hospitals from assisting law enforcement is shown to be false (see links below the article for supporting documentation).
Finally, it should be noted that whether blood is drawn by a nurse with a court order or under the direction of a police officer who has probable cause under the authority of Kansas law (KSA 8-1001(k)), he or she is not violating HIPAA or the suspect's medical privacy.
AS I SEE IT
by Phill Kline
A woman with four DUI convictions runs a red light in Johnson County and slams into crossing traffic. The accident injures a 16-year-old and his grandmother, who suffer life-threatening injuries. It is unclear whether they will live.
The woman, with two children in the car, has the smell of alcohol on her breath and slurred speech. She and her children suffer minor injuries.
The responding officer requests a blood draw from the woman, suspecting she has engaged in her fifth DUI. She refuses.
The on-duty assistant district attorney is called and informs the medical personnel of Kansas law: An officer has probable cause to conduct a blood-alcohol test in any accident with severe injuries or death, even without a court order and without the suspect’s consent.
The hospital still refuses to draw the blood, citing “privacy concerns” for the suspect.
Privacy laws under Health Insurance Portability and Accountability Act, HIPAA, include specific law-enforcement exceptions, allowing hospitals to assist law enforcement in evidence collection.
In addition, Kansas law states that only qualified medical personnel may draw blood from a DUI suspect, and that a police officer may direct medical personnel to do so without the driver’s consent in any traffic accident where death or serious injury occurs.
Because blood testing must occur within two hours of the accident, and because police officers must rely on hospital workers to withdraw the blood, it is vital that hospitals understand the law if we are to effectively prosecute drunken drivers in Kansas.
In the above case, thanks to the insistence by the district attorney’s office that the hospital follow the law, the evidence was secured and the drunk driver pleaded guilty without an expensive trial to her fifth DUI . The victims survived but with permanent injuries.
Sadly, The Kansas City Star’s tabloid coverage of this story tried to pit prosecutors against nurses, when it should have simply reported our effort to educate both law enforcement and hospital personnel on the importance and legality of collecting DUI evidence.
As I see it, The Star’s story was a transparent attempt to create controversy where none exists.
Original Star article by Diane Carroll
