The Prosecutor, November-December 2009, Volume 39, No. 6

Drawing blood in the jail

Many jurisdictions have found dealing with hospitals for DWI blood search warrants and the newly increased mandatory blood samples to be problematic, expensive, or simply unworkable. This article chronicles Williamson County’s use of the local jail’s infirmary as a solution.

In January 2007, the Williamson County District Attorney’s Office initiated a formal program to use search warrants to obtain blood alcohol levels for all felony DWI cases in the county. Our district and county court judges agreed to be contacted for search warrants on a rotating basis, and we gave a cell phone to the on-call prosecutor so law enforcement could easily contact him or her. Once local peace officers were notified of our availability and assistance with warrants, we began seeing blood test results that were extremely helpful in prosecuting these cases.

Like any other new idea, there were obstacles to overcome. The Department of Public Safety crime labs were the lucky recipients of all these additional blood samples for testing from across the state. Hospitals in various locations and with different parent companies did not have a uniform method to deal with officers who brought DWI suspects in for a blood sample. Hospital administrators had concerns about potential liability for assisting with a blood draw pursuant to a search warrant. At least one group of hospitals in a neighboring county asked its police department not to bring suspects to emergency rooms for blood draws.

In our jurisdiction, the process was cumbersome for all involved because the arresting officer was required to contact a prosecutor, obtain the search warrant, locate a judge at home, travel to the judge’s location for a signature, then transport the defendant to a hospital for the actual blood draw. Even at its best, the whole scenario generally took a couple of hours. In the latter part of 2007, we began looking for ways to streamline the process to make the timing of the blood draw closer to the time of the traffic stop.

Working with hospitals

One of the first things we did was request a meeting with the CEO of St. David’s Georgetown Hospital because it is the closest to the Williamson County Jail. The administrators very graciously met with our elected DA, John Bradley, and me, and we talked about ways to make the process more efficient. One of the time-consuming things that we persuaded them to eliminate was the initial triage/medical evaluation. Because the DWI suspect was not being admitted as a patient, the hospital agreed that it was unnecessary to spend its staff’s time to perform a medical check-up on these folks, as they weren’t there for medical treatment.

Another concern involved the safety of their staff should a suspect become combative. Fortunately this rarely occurs, though it’s not unheard-of. My personal theory, however simple, is that when someone is standing there ready to put a needle in my arm, I’m going to hold still so that it doesn’t hurt worse!1

We also told them that we had begun working on a way to perform most of the blood draws at the jail. The fact that we were trying to find a way to remove them from the process when possible was significant to their willingness to help. Another key factor, in my opinion, was our ability to reassure them that it was the rare case that actually ends up in trial. It’s common for medical professionals to be concerned about having to spend time in court or waiting to testify. We assured them that if it ever became necessary, we would do everything in our power to make sure they didn’t spend days or even hours waiting to testify. A face-to-face conversation with the hospital folks went a long way when we explained the reasons for this process and listened to their concerns. I believe that most hospitals want to be good corporate citizens when given the chance. Who knows better than the local emergency room about the damage that can be inflicted by a drunk driver?

One person can make a difference

In Williamson County, credit goes to a DPS Trooper, Michael Scheffler, who called me one day to ask why blood draws couldn’t be done in the jail. Trooper Scheffler had already spoken to the sheriff about training some people to draw blood, and our Sheriff’s Office had already sent three medical officers to be trained and certified as phlebotomists. After several conversations with various people, including Clay Abbott at TDCAA, to find out whether and how this might work, we decided to find a way.

The first step was to confirm with the sheriff, James Wilson, his willingness to have this program in the jail and to train additional people in phlebotomy. That was the easy part. (Because Sheriff Wilson is the former director of the Department of Public Safety, it was a no-brainer.) We also discussed where in the jail to have the blood drawn. This was another easy decision. Our jail has an infirmary where the doctors who provide the inmates care conduct their examinations. During a personal visit to the medical area, I observed that it was as clean as any hospital I have visited.

The sheriff’s office already employed people with emergency medical treatment (EMT) training and paramedic experience for the infirmary to serve as medical officers. The Transportation Code at the time specifically excluded emergency medical services personnel from the definition of a “qualified technician” so, even though a paramedic is trained in drawing blood, the sheriff took the extra step of enrolling his medical officers in a specific course on phlebotomy. There is a 32-hour program in Austin on this topic; at the end of the course, the student takes a National Healthcareer Association (NHA) exam to be a “certified phlebotomist.” The cost is $750, and additional study is required every two years to maintain the certification.2 This training provides the additional assurance that they are acting as a “qualified technician.”

I also had a conversation with the jail doctor to be sure that he was comfortable with the program and would be prepared to testify that the location where the blood was drawn was a sanitary place. He pointed out that the jail staff draw blood for any number of medical diagnoses all of the time. Proof that the jail infirmary is a sanitary place would have to be based upon the testimony of various people, and because there is no definition, could be proved with all sorts of information that might help a jury reach that conclusion.

Establishing the protocol

It was important to have a procedure within the jail before we ever notified other county law enforcement agencies about a phlebotomist’s availability at the jail. Lt. Frank Price made sure we understood that while he would attempt to do his scheduling so that a phlebotomist would be available on most shifts, jail standards clearly made the distribution of medications in the jail a priority and sometimes nobody would be available to draw blood. We let our other agencies know this as well and reminded them that the Sheriff’s Office was performing a valuable service. We also told them to remember that the local hospitals could still be used for a blood draw when the jail was unable to accommodate the request.

Written instructions for officers were proposed by the DA’s Office and agreed upon by the Sheriff’s Office as follows:
1.    Call the booking desk (we provide the number) and ask to speak to the supervisor on duty.
2.    The supervisor will check with the medical staff to determine if a phlebotomist is available. If not, the officer can take the defendant to an area hospital. If a phlebotomist is available, the officer can proceed to the jail.
3.    When at the jail, the defendant will be taken to the medical department to a treatment room for a blood draw.
4.    Each department is responsible for bringing and providing its own blood draw kit. (Note: Kits are available through DPS, and most agencies already have some on hand.) The officer must also fill out the blood draw procedure form (in chapter 3 of TDCAA’s DWI Investigation & Prosecution) and have the phlebotomist sign it.
5.    After the blood sample has been obtained, it will be released to the arresting agency.
6.    The arresting officer’s agency is responsible for submitting the blood sample to the appropriate lab for testing.
7.    If there was a search warrant for the blood (no longer required in most felony cases), a copy of the warrant should be left with the phlebotomist.

And everybody (except the defendant) lived ­happily ever after

Since beginning the jail blood draw program on Valentine’s Day 2009, the jail phlebotomists have successfully drawn blood in about 40 felony DWIs pursuant to a search warrant. Additional blood draws have been performed when the defendant gave consent. While the program was originally established to handle blood draws for felony DWIs pursuant to search warrants, when the legislature expanded the mandatory blood draw statute effective September 1, 2009, we were in a great position to transition to a program where no search warrant was required.

One of the benefits that I didn’t anticipate is that occasionally a DWI suspect will consent to a blood draw instead of a breath test. While theoretically that option has always been available, in the 20 years I have been prosecuting, very few blood tests occur because of consent—I suspect that the cost involved in taking a defendant to a hospital for a blood draw was the prohibiting factor. (One of our law enforcement agencies found out the hard way when a suspect consented to a blood draw and the hospital sent the police department a bill because there was not a court order or search warrant.)

Because the program is still less than a year old, I am sure there will be challenges in the future, and we are prepared to meet those concerns. According to our assistant DAs, to this point, there have been no complaints from the defense bar, and a number of the defendants who have had their blood drawn in the jail have entered guilty pleas. Our law enforcement officers appreciate the availability of a more streamlined process and the medical officers are happy to provide the service. i

Endnotes

1 The jail infirmary has a nice chair with arm straps that can be helpful in this situation.
2 It’s interesting to note that 15 years ago, hospital phlebotomists didn’t have certification programs or any training available other than from on the job.