Friday, January 9, 2009

Hospitals, Jail Officials Don't Want to Collect Suspects' Blood

Officials cite different reasons for not wanting to draw blood of drunken driving suspects.

Tony Plohetski
Austin American Statesman
Friday, January 09, 2009

Leaders of the city's two major hospital networks and Travis County Jail officials have told Austin police that they no longer wish to collect blood evidence of suspects in criminal investigations.

Officials for the county's central jail booking facility, where such samples have traditionally been taken, informed police last year that they no longer wanted nurses involved in the practice. Jail nurses stopped taking the samples, which are mostly used in drunken driving cases, on Jan. 1.

Hospital representatives have since asked Austin police not to bring suspects to emergency rooms for blood draws, a procedure that has grown in popularity among law enforcement agencies and prompted controversy locally.

Jail and hospital officials cite a variety of reasons for their decisions.

A Seton Family of Hospitals official said workers are worried about lawsuits, among other concerns. However, an expert in such blood draws for drunken driving cases said state laws are clear that nurses and hospitals are protected from such suits.

Dr. Steve Berkowitz, chief medical director for St. David's HealthCare, said, "We don't really feel that the emergency room is really the most appropriate place to be doing those types of procedures, because they really aren't being seen for a medical reason."Berkowitz said hospital officials still support police efforts to curb drunken driving.

Staff with the Travis County Sheriff's Office, which runs the jail, have decided that nurses should spend their time tending to inmates, not collecting evidence.

Police say they must now find a new way to get samples in cases in which they think the evidence is necessary.

"We have a moral and legal obligation to obtain evidence of a crime, and our ability to do so is being hampered by the decisions of entities we have no control over," Police Chief Art Acevedo said. "It presents a tremendous challenge for us."

The decisions come as the use of blood tests in drunken driving cases has grown among Austin police officers and others across the state.

During the New Year's Eve and Halloween holidays, Austin police conducted so-called "no refusal" operations in which they obtained the blood of drunken driving suspects who refused to give a breath test.

The department hired a phlebotomist for those operations, but has still sought blood samples for suspects when the "no refusal" efforts were not in place. Police estimate they have averaged about 30 such blood draws per month in recent months.

The effort to obtain blood evidence, which courts have upheld as a practice, has created controversy, with civil libertarians saying that blood draws are an unnecessary invasion. They say that officers should be able to build cases without such procedures.

Among other major Texas cities that also have begun collecting such samples, most, including San Antonio and Houston, continue having jail nurses draw suspects' blood, said Clay Abbott, a DWI resource prosecutor for the Texas District and County Attorneys Association.

Fort Worth police take suspects to a local hospital for the procedure, he said. Local paramedics collect blood samples in some small towns.

State laws allow police to use search warrants to obtain suspects' blood, which Abbott said gives nurses and hospitals lawsuit protection because they are acting under court order.

The law also permits police to draw the blood of suspects in drunken driving crashes involving serious injury or death without a search warrant. Abbott said nurses and medical facilities still have legal protection in those instances, as long as they are acting in the scope of their normal duties.

According to the law, "The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen."

Abbott and Jim Harrington, director of the Texas Civil Rights Project, said they are both unaware of any lawsuits in Texas against medical officials who have drawn blood of drunken driving suspects.

Greg Hartman, senior vice president for Seton, said hospital officials want more time to understand legal issues and other matters before collecting such samples.

For instance, he said emergency room nurses do not perform medical procedures without a doctor's order. When drawing blood for a criminal case, doctors seldom evaluate suspects, creating concerns among the nurses, he said.

Hartman said hospital officials also want to further discuss with police who will pay the salaries of nurses if they are called to testify in court for such cases. He said he is not aware of any nurses that have been summoned to court so far for such cases.

And Hartman said the legality of nurses collecting blood evidence hasn't been tested in court and that officials are concerned about suits against employees or hospitals.

"This is a very complicated issue," Hartman said. "We aren't making decisions as to whether (law enforcement) should be doing this."

Travis County sheriff's office Maj. Mark Sawa, whose agency was the first to prohibit nurses from drawing suspects' blood for evidence, said officials decided that they also did not want jail nurses called to testify in court cases and missing work.

He said that providing inmate care is their "essential function" and that the department is seeking a national certification in which jail nurses are not involved in evidence gathering.

Acevedo said police officials are now trying to find other options for collecting blood, including possible contracts with private clinics. He said it also is possible that the department might train a team of officers to collect blood.

Acevedo said he has no estimates on the cost of a possible contract or training of officers.

In the meantime, he said, officials will try to work out a temporary plan with either the jail or a hospital.

"We are going to do what we need to do to secure the evidence we need while minimizing the cost to taxpayers," he said.

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