Blood-Testing for DWIs in Hospitals

Posted on December 8, 2008 by Dax Garvin

The combining of DWI investigations and driving while intoxicated (DWI ) investigations is rather common, especially for smaller municipalities that lack much of the funding or training for its officers about how to handle these matters.  In fact, health care professionals are not required to test for intoxication during treatment and even if they do, they are not required to report it to law enforcement.  Usually, what happens, is if officers suspect that alcohol was involved in a collision that sent someone to the hospital, it gets noted in a report and the prosecutor's office will subpoena the record medical record. 

Emergency room physicians are not required by law to report drunk drivers, and sometimes they rely on a financial reason not to test for intoxication:  they do not want the claim for their services denied by the health insurance provider.  This is a federal law that has been around for over half-a-century. 

So, what happens when a hospital draws blood and there is an associated DWI? Well, if the State handles the matter correctly, they will probably have access to that record, which will show the measure of alcohol in the blood.  However, if the records are not properly ordered, that is one set of testing that will likely not become part of a State's file.

In a world of ever-increasing pressure for "mandatory blood draws" like the one put on by the Austin Police Department over the Halloween, 2008, weekend, it should not come as a surprise that State officials may try to get these records, which is legal.  However, it is not legal for them to circumvent the search warrant requirement of the 4th Amendment to the US Constitution and related provisions under State law to have hospitals draw the blood, as part of an active investigation, without a warrant.  To do so would be to indirectly seize that which they legally cannot to begin with.  Proving this may be rather difficult, especially if you have a health care provider that is in collusion, but for now, I'm going to hope that is uncommon at most.


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Citizen Interaction / Rights v. Law Enforcement: Part 1

Posted on October 8, 2008 by Dax Garvin

Law enforcement, when done correctly, is critical, but we must all understand and use our rights that are provided by the Constitution.  Bad and over-zealous law enforcement needs to be eliminated as much as crime itself--the ends do not justify the means.

Here is my first attempt to inform people of their rights and let them know what they should and should not do when they encounter police officers.  As a former central Texas cop, I am particularly partial to this subject and it always amazed me how people would interact with me and other officers on a scene.

Try to remain calm and control your words, attitude, and body language/actions.  Do not argue with the cop, even if you truly believe you are justified and the officer is wrong.  I understand this is difficult and that you may be trembling with nervousness, but it is critical for you to gather your emotions here and control yourself.

Remember:

1)      Everything you say or do will be used against you if possible;

 

2)      Never run from the officer;

 

3)      Never touch the officer;

 

4)      Never resist—you will only get hurt and face more charges;

 

5)      Do not complain or tell the officer s(he) is wrong;

 

6)      Remain silent – make no statements;

 

7)      Refuse all searches, do not give in to their pressure to allow a search.  Nothing the officer says should change your mind... refuse searches;

 

8)      Ask for a lawyer if you are arrested and if any questions are being asked of you;

 

9)      Try to take note of any witnesses, cameras, or “extra” officers;

 

10)  Do not interfere or obstruct an officer’s action—that is a crime and you will go to jail for it;

 

11)  If the officer says they have a warrant, ask to see it---if they refuse to show you, continue refusing to allow the search;

 

12)   Never bad-mouth a police officer (even though it can be so hard not to—that’s your lawyer’s job);

 

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