DUI Blood Tests in the Hospital after Birchfield v. North Dakota
This summer, the United States Supreme Court handed down a ruling that will impact the way health care providers in Nebraska and Iowa conduct blood alcohol tests at the request of law enforcement. In Birchfield v. North Dakota, the Court ruled that a blood test conducted at the request of law enforcement without a warrant, often permitted by drunk driving (implied consent) statutes and enforced through criminal penalties for refusing such a blood test, is an unlawful search and violates the Constitution. While the case consolidated cases from Minnesota and North Dakota, the ruling has implications across the country for lawfully testing blood from suspected drunk drivers. No longer will the hospital be able to perform the blood alcohol test at the request of law enforcement, nor can the test results be turned over to law enforcement without a warrant ordering both the test and the disclosure or a validly signed patient authorization. This may impact your hospital and the HIPAA exception it relied upon to perform these blood tests or disclose blood tests results to law enforcement when it did not have patient consent to treat and authorization to disclose.
Blood Testing under State Law
Iowa. Iowa has an implied consent statute for the chemical testing of blood for any person operating a motor vehicle in the state of Iowa. Like the state laws considered in the Birchfield decision, Iowa imposes criminal sanctions on individuals who refuse such test. The Iowa Code specifies the limited types of medical providers that can draw the blood for testing purposes. This implied consent would be considered unconstitutional post Birchfield. With regard to disclosing the results, unlike in Nebraska as discussed below, nowhere in the Iowa Code does it direct a hospital to provide the blood sample or test result to law enforcement–patient authorization is necessary.
Nebraska. Nebraska’s Motor Vehicle statute imposes implied consent on drivers so that a person operating a motor vehicle is considered to have consented to a blood, breath, or urine test. Nebraska is also one of the states that imposes criminal sanctions on those individuals who refuse such test as discussed by the Supreme Court. Under the Nebraska statute, a hospital is considered an agent of the state when drawing blood at the request of law enforcement. Additionally, a hospital must disclose a blood test result of a driver who is an accident victim to a prosecutor who requests the sample for criminal prosecution. Therefore, when a blood sample is drawn under this statutory provision, there exists a statutory requirement to turn over test results.
Based on the Birchfield decision, hospitals may no longer perform such tests based solely on a law enforcement officer’s request. Such warrantless blood tests are now unconstitutional in all states as violative of the protections against unlawful search and seizure. Regardless of the state in which your hospital is located, it is advisable to review and update pertinent policies and procedures for responding to such requests from law enforcement. New procedures will necessarily require a warrant to both draw the sample and to disclose the test results to law enforcement. A warrant would not be required in cases where the patient voluntarily consents to the blood draw and authorizes the disclosure to law enforcement.
Discussions with Law Enforcement
Some law enforcement agencies may be well versed in this new ruling and may no longer request hospitals to perform these unconstitutional blood tests. However, some law enforcement agencies may be unaware of this new restriction or what it means for the applicable Iowa or Nebraska DUI law. It may be prudent to proactively engage local law enforcement in a training and discussion regarding the impact of the Court’s ruling to avoid issues under the immediacy of a current request. This discussion should include the implications on the hospital’s ability to perform such tests and to disclose such samples without either a valid warrant or the patient’s consent to treat and authorization to disclose.
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016). Law enforcement continues to have both breath and urine tests available to screen suspected drunk drivers, and these tests do not require a hospital to perform the test, like Iowa and Nebraska statutes do for blood tests. The decision found the Fourth Amendment allows for warrantless breath tests. No case had warrantless urine tests at issue, so the Court did not find on the Constitutionality of such tests.
See Iowa Code Ann. § 321J.6.
See § 321J.9
See § 321J.11.
See Neb. Rev. St. § 60-6,197(1).
See § 60-6,197.04.
See § 60-6,202(1).