Collecting sample in squad car with flashlight called inadequate
A Pima County Superior Court judge tossed out blood-alcohol evidence in an alleged drunken driving case, saying the state’s method of field blood draws is unconstitutional.
“Romantic though it may sound, phlebotomy in the back seat by the dashboard lights is, in this humble trial judge’s opinion, unconstitutional,” Judge Richard S. Fields wrote in his opinion, issued Wednesday.
Fields ordered that blood collected from Tucsonan Edward Noceo by a Department of Public Safety officer cannot be used by the state as evidence.
Chief Criminal Deputy County Attorney David Berkman said prosecutors will dismiss Noceo’s DUI charges and appeal Fields’ ruling.
“It’s just Judge Fields’ opinion,” Berkman said Friday. “It doesn’t change anything.”
Defense attorneys Tom Jacobs and Henry Jacobs, who represented Noceo, disagreed.
“Now, every DPS blood draw can be subject to challenge on the same basis,” Tom Jacobs said.
Jacobs said Pima County Consolidated Justice Court Justice Jose Luis Castillo issued a similar ruling in another case.
“What likely could happen is that (prosecutors) may have to dismiss a lot of cases that are pending,” Jacobs said. “It could have ripples statewide until it gets sorted out, until they improve the program or get the Court of Appeals to say (Fields’ ruling) is wrong.”
DPS declined to comment until the ruling was further studied.
Noceo’s blood was drawn as he sat in the dimly lit back seat of a DPS cruiser, with one officer holding a flashlight, Fields wrote in his ruling. The officer drawing the blood noted he wore gloves, but didn’t indicate whether he washed his hands beforehand.
The former director of University Medical Center’s emergency medicine unit, Dr. Kenneth Iverson, testified in an evidentiary hearing that blood draws by law enforcement officers are “degraded medicine,” Fields wrote.
“Lack of medical oversight and self-correction were noted as criticisms of the program,” Fields wrote. “Dr. Iverson noted that the law enforcement phlebotomists failed to follow protocols which themselves were drafted without medical input.”
Blood draws “carried out in roadside situations with poor lighting and in less than sanitary conditions” subject suspects to “an unreasonable risk of infection and injury,” Fields wrote.
The state police agency’s failure to ensure procedures are being followed, Fields wrote, violates the Fourth Amendment right against unreasonable search and seizure.
Fields said law enforcement agencies have alternatives such as using breath testers or having medical providers draw blood. “The goal of obtaining evidence cannot be allowed to wholly trump the goals of medical safety and human dignity if the intrusion is to pass Fourth Amendment muster,” Fields wrote.