In several states, the sight of police drawing blood to check for drug impairment is becoming common. But is it a practice we should adopt in Virginia?
Opioid abuse and addiction are epidemic in the U.S. today. Many states (including Virginia) have laws
that permit medical marijuana to be sold and used. To date, it is still illegal to operate a vehicle while impaired under the influence of marijuana or other drugs (whether medicinal or recreational). It is also illegal to operate a vehicle while under the influence of alcohol.
In 2017, 10,874 lives were lost to alcohol-impaired drivers, according to the NHTSA (National Highway Traffic Safety Administration). There is no comparable information available at this time about lives lost to drug-impaired drivers. There are several reasons this is true: (1) there are no standard reporting requirements across all states, (2) all states do not test those fatally injured in vehicle accidents for drugs, and (3) testing for drugs is most effective when conducted at the time of arrest because the amount of drugs in the blood stream dissipate over time.
“A report from the Governors Highway Safety Association found that in 2016, about 44 percent of fatally injured drivers who were tested for drugs had positive results, up more than 50 percent compared with a decade earlier. The data does not specify how many were at fault.” [https://www.insurancejournal.com/news/national/2019/04/23/524454.htm “Cops Draw Blood to Catch Impaired Drivers]
Most of the states that do roadside blood tests have trained police officers in a “law enforcement phlebotomy” program. These police officers are trained to draw blood and certified. In some states, these officers travel in specially equipped vans that ensure a clean and safe environment. The states with these programs (at the time of this writing) include: Arizona, Indiana, Maine, Minnesota, Ohio, Pennsylvania, Rhode Island, Utah, and Washington state. In addition, Illinois is beginning a program.
Drawing blood from a person suspected of impaired driving is not as innocuous as requiring them to take a breathalyzer test. The blood test is “invasive” and in most states cannot be done without a warrant. In light of the goal of drawing blood as close to the time of arrest as possible, it also becomes necessary to have a method for expediting the process of obtaining a warrant. One efficient way to address the need is to electronically transmit the request for a warrant to a judge who reviews it immediately and either issues or denies it.
To be sure, opportunities for error or abuse are present in the system: a judge could “rubber stamp” all requests for a warrant, a police officer could request a warrant to obtain a blood test from every driver pulled over, independent phlebotomists might be able to tamper with blood tests and results, phlebotomists could test the blood samples for any number of things not authorized in the warrant or having any bearing on the driver’s state of impairment. Yet safeguards could be implemented to prevent these and other potential abuses of the system.
This approach of blood tests in the field has the advantage of saving money (cost of a phlebotomist, cause of testing by a lab) and providing more reliable and stronger evidence in court. The approach seems to be working in several states. There is no “drug-alyzer” to test for drug use. The testing may also benefit both the person under the influence of drugs and the person who is not driving under the influence.
We are left with the essential question: Is this procedure something we should adopt in Virginia?
Please tell us what you think.
Bettina Altizer and her team at Altizer Law, P.C., in Roanoke, VA help people injured in automobile accidents through no fault of their own. Many auto accidents occur because others are driving drunk or drugged. If you or a loved one has been hurt due to the negligence or wrongdoing of another person, call us. We fight for every dollar that you are entitled to as fair compensation for your hurts and harms. We understand that when you are hurt, it’s about the money.