County Attorney Seeks to Use Paramedic to Draw Blood for BA tests..your opinion sought.

He has written his fellow County Attorneys and asked for their opinions on this topic. LawReader is likewise asking by this posting that attorneys forward to us their opinions on this subject, and we will forward them to Mr. Wright.
E-mail your comments to Firstjudge@aol.com
 We note that the following case seems to open the door as to who can take a blood sample. But is this a “surgical procedure” which requires a physician’s prescription? 

 Matthews v. Commonwealth, 2001 KY 118 (KY, 2001)
[17]  It is more reasonable to interpret the purposes of the statute (KRS 189A. 103 ) and regulations 500 KAR 8:030 Section 2(2 ) (concerning the credentials of the individual drawing the blood as giving a presumption of regularity.

It is presumed that those individuals mentioned in the statute and regulations will perform the procedures properly; however, they are not the only persons in the world who can draw blood accurately.
 Here, the proper procedures were followed. Morever, to reject this evidence in the absence of any indication whatsoever of contamination or inaccuracy would place form over substance.
 
DISSENT BY JUDGE STUMBO:

Here, the proper procedures were followed. Morever DISSENT BY JUDGE STUMBO:(34) Relevant portions of KRS 189A. 103 provide as follows. Section (3)(a) “mandates that tests of the person’s breath, blood, or urine, to be valid pursuant to this section, shall have been performed according to the administrative regulations promulgated by the secretary of the Justice Cabinet or his designee.” Section (6) provides that “only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.”

(35) 500 KAR 8:030 Section 2(2) provides that, “the blood sample shall be collected by a person authorized to do so by KRS 189A. 103(6).”

 

Gallatin County Attorney Spike Wright asks:
  

“I was wondering if any other county attorney is struggling with similar blood testing issues as I am in my rural county.

We have no hospital to take DUI suspects to for blood testing or even drawing.  The arresting officer is required to drive the defendant to the next county 18 miles) to have the blood sample drawn at a hospital. I have a low success rate on those blood tests as it is hard to get the hospital personel to appear in court and when I have forced them to appear they conveniently can not remember what type of arm scrub they used, alcohol or non alcohol rub, etc.I am attempting to set up a protocol with the paramedics from the county ambulance service to draw our samples.Does any one see a problem with using the paramedics?  Does it create additional liability on the county?  Is anyone already using their paramedics?  Does anyone have a written protocol for this?KRS 189A.103(6) says:  “Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.” Matthews v. Commonwealth, 44 S.W.3d 361 (KY. 02/22/2001) discusses the issue with regard to nurses drawing the blood and whether they need a prescription or doctors order to perform a surgical procedure. 
 
My county judge is concerned about liability for the blood testing process.
 
I have attached you article for your reference.?
 
Any thoughts…
 
John G. Wright
Attorney at Law
101 East Market
P.O. Box 966
Warsaw, KY 41095
859 567 5555
 
LawReader has written on this subject
:
CAN A NURSE TAKE A BLOOD SAMPLE WITHOUT THE DOCTOR’S ORDER? 
 In a fact situation, where there was no doctor’s order directing the taking of the defendant’s blood sample.  The decision below (Matthews) seems to say that the court could allow admission of the test even when the nurse’s credentials were questioned, but on the basis that the court determined from the facts that all proper steps were nevertheless followed.  That may or may not be the correct standard for admission of a blood test.
 The Matthews case stands on the fact that the police officer was qualified as understanding all the correct procedures for taking a blood test.  If the officer can not be qualified or didn’t witness the procedure, then it is likely the test would not have been admitted into evidence under the Matthews standard.
 LawReader  had a user report to us that a hospital in Paducah refused to take blood tests at the request of a police office in the absence of a “prescription? or order of a physician.  They were concerned with their potential liability for performing a “surgical procedure? i.e. putting a needle in the defendant’s arm.
  It would be interesting to know if the test was taken for any medical purpose or only for the use of the police.  Also we have questioned the practice of the police bypassing the BA machine, even when it was in good working order, and instead taking a blood test.  That would appear to violate the intent of the statute providing BA machines for each county.
 If the judge in your case admits the test into evidence this does not end the potential challenge to the test.  There is a long line of decisions that preserve to the defense the right to argue to the jury any fact that helps them understand the law.
 If the law says surgical procedures must be performed only upon the authorization of a physician, then doing so without the authority of a physician would appear to violate KRS 189A.103…which has the words “not otherwise prohibited by law?.  It is certainly our understanding that a nurse cannot put a needle in a patient’s arm without an order or prescription by a physician.
 We suggest you explore the hospitals policy with regard to nurse’s administering blood tests without a physician’s order.
  KRS 189A.103 – (6) Only a physician, registered nurse, phlebotomist, medical technician, or medical technologist not otherwise prohibited by law can withdraw any blood of any person submitting to a test under this section.
 In the following  case the court allowed a nurse to take a blood sample.  This case had a police officer testify that he was familiar with the required steps in taking a blood sample and that the nurse had followed the correct procedure. 
  Matthews v. Commonwealth, 44 S.W.3d 361 (Ky. 02/22/2001)  “Only when the Commonwealth moved to introduce the report into evidence did Appellant object to the Commonwealth’s lack of a proper foundation for the reading, namely the credentials of the nurse who drew the blood. KRS 189A.103(6) authorizes blood to be drawn by a physician, registered nurse, phlebotomist, medical technician or medical technologist.
 

“The trial court took great pains to assure itself that the blood alcohol tests were conducted properly and that the results were admissible. After concluding that the procedures followed were sufficient to ensure substantial compliance with the law and that the sample wasn’t contaminated, the trial court overruled Appellant’s objection.?  It is more reasonable to interpret the purposes of the statute and regulations concerning the credentials of the individual drawing the blood as giving a presumption of regularity. It is presumed that those individuals mentioned in the statute and regulations will perform the procedures properly; however, they are not the only persons in the world who can draw blood accurately. Here, the proper procedures were followed. Moreover, to reject this evidence in the absence of any indication whatsoever of contamination or inaccuracy would place form over substance.
        In his reply brief, Appellant admits that “it is arguably true that trial counsel waited two questions too late to object to the introduction of the blood alcohol content.” Appellant’s explanation for this lapse in timeliness, once again from his reply brief, is that “the Commonwealth duped defense counsel into believing that it could produce appropriate witnesses and lay a proper foundation for trial testimony. Defense counsel clearly was conned into believing this since the foundation that was established came during the cross examination of Officer Gilsdorf, a witness for the Commonwealth.” (Emphasis added.)
While a proper foundation may not have been laid, and the Commonwealth may have been remiss in failing to prove that a registered nurse drew the blood, the record contains sufficient admissible evidence to sustain the conviction.?
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COMMENT BY BILL ADKINS OF WILLIAMSTOWN:

Saw your article re Spike’s request.

BR 165 – Representative Melvin B. Henley (08/08/07)
     AN ACT relating to driving under the influence.
     Amend KRS 189A.103, relating to blood testing for the purpose of determining alcohol concentration or presence of a substance which may impair one’s driving ability, to require that tests are performed using accepted medical practices; add paramedics to those authorized to perform tests.

     (Prefiled by the sponsor(s).)

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