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highlighting the constitutionality of taking blood by a medically trained professional in Delaware when there is requisite probable cause to do so
Summary of this case from State v. BettsOpinion
CR.A. Nos. IN08-05-1014, 1015, 1016, 1017, 1018, DEF. I.D. No. 0710035391.
Date Submitted: September 20, 2008.
Date Decided: December 3, 2008.
Upon Consideration of Defendant's Motion to Suppress. DENIED.
Shawn E. Martyniak, Esquire, Deputy Attorney General, for the State of Delaware.
Joseph A. Hurley, Esquire, for the Defendant.
MEMORANDUM OPINION
I.
This matter is before the Court on the defendant's Motion to Suppress Evidence. After being involved in an automobile accident, the defendant, Joel Cardona ("Defendant"), was removed from the accident scene by officers of the Wilmington Police Department and taken to the Wilmington Police station where his blood was drawn for the purpose of conducting a blood alcohol test. He was later charged, inter alia, with driving under the influence of alcohol. In his motion, Defendant has challenged whether probable cause supported his arrest and whether a blood draw conducted at a police station rather than at a medical facility constituted an "unreasonable" search and seizure as proscribed by the United States and Delaware constitutions and Delaware statutory law. For the reasons that follow, the Court has concluded that probable cause supported Defendant's arrest and that the manner by which law enforcement officers obtained the Defendant's blood sample was lawful in all respects. Accordingly, Defendant's motion to suppress must be DENIED.
II.
On the evening of October 28, 2007, the night of the Wilmington Halloween Loop, Sergeant Michael Morrissey stopped a vehicle in the 1800 block of Pennsylvania Avenue upon determining that the vehicle had been involved in a hit-and-run collision with another vehicle. Sergeant Morrissey summoned Corporal Gerald Connor, an accident investigator assigned to the patrol division of the Wilmington Police Department, to assist in the investigation. Corporal Connor arrived two to three minutes later and found a red Nissan 350Z facing east on the southbound lane of Pennsylvania Avenue. Defendant was still seated in the driver's seat. Corporal Connor inspected the vehicle's exterior and discovered fresh damage to the front passenger-side fender and left front bumper. Sergeant Morrissey informed Corporal Connor that the hit-and-run had occurred at the intersection of 11th and Lincoln streets, approximately one block away from the investigation scene, and that the Nissan had fled the scene of the accident. No mention was made regarding the manner in which Defendant had been operating the vehicle at the time he was stopped, and Corporal Connor did not personally observe Defendant operating the vehicle.Corporal Connor asked Defendant if he had been involved in an accident. Defendant responded that his vehicle had been struck by another vehicle while driving south on Pennsylvania Avenue. Corporal Conner then asked Defendant to exit and move to the rear of his vehicle. When Defendant emerged, Corporal Connor detected a moderate odor of alcohol, and noted that Defendant's eyes were bloodshot and watery. Corporal Connor also observed that upon exiting the vehicle Defendant had difficulty keeping his balance and leaned against his vehicle for support.
Corporal Connor conceded that he did not "have any firsthand information to contradict [Defendant's] version that he was driving and he was struck by another vehicle" at the time he first made contact with Defendant. Suppression Hr'g Tr. 20:17-21:1. He relied instead on the accounts of the accident he received from Sergeant Morrissey. Id.
Corporal Connor asked Defendant a series of questions, including whether he was injured, if he had any medical issues, where he was coming from, where he was going, and how much alcohol he had consumed during the course of the evening. Defendant's responses were slurred and mumbled. He stated he had consumed one beer at Bank Shots, a local bar, and that he had not been injured in the accident. After confirming that Defendant had no injuries or disabilities that would interfere with his performance of field sobriety tests, Corporal Connor asked Defendant if he would submit to the tests at the scene of the investigation. Initially, Defendant agreed. He seemed to comprehend the instructions for the finger dexterity test and passed this test. Without explanation, however, Defendant refused to perform any additional tests. In response, Corporal Conner informed Defendant that he was under arrest for driving under the influence of alcohol ("DUI") and took him into custody. Corporal Connor patted Defendant down, handcuffed him, placed him in the rear seat of his patrol vehicle, and transported him to the Wilmington Police Department ("WPD").
Upon arrival at the WPD, Corporal Connor placed Defendant in an interview room and called Omega Medical Services ("OMS") to the station to draw a sample of Defendant's blood. OMS, per contract with the City of Wilmington, provides on-site phlebotomists to withdraw blood from DUI suspects in the police station for the purpose of determining blood alcohol content. Although the Wilmington Hospital was roughly fifteen blocks from the arrest scene, Corporal Conner opted to pass by the hospital on his way to the WPD and to conduct the blood draw at the station. He reasoned that the Halloween Loop was in full swing at the time and he had received reports of victims of assaults and robberies associated with the event, many of whom would likely be receiving emergency treatment at area hospitals. He concluded, therefore, that a DUI blood draw would be a low priority for hospital personnel. Further, Corporal Connor knew of no specific guideline or statute that required him to transport a DUI suspect to a hospital for a blood draw absent an injury. In fact, according to Corporal Connor, Wilmington Police officers routinely summon OMS to WPD to draw blood.
Corporal Connor informed Defendant that a phlebotomist from OMS would draw his blood. While Defendant did not specifically consent to the blood draw, he did not object either. In fact, Corporal Connor described Defendant as "cooperative" and "polite" throughout the process. When the phlebotomist arrived, Corporal Connor took him to the interview room where Defendant was seated. Corporal Connor broke the seal of the evidence kit in front of Defendant while the phlebotomist explained the procedure. OMS uses their own needles, but the WPD provides evidence vials. The phlebotomist asked Defendant which arm he preferred to use, cleaned the site of the blood draw with a sterile swab, placed a rubber band on his arm, drew two vials of blood, swabbed the arm again, and applied a band aid. Corporal Connor mixed the blood with a preserving powdered solution, labeled the vials with evidence stickers, and then followed the WPD evidence protocol for storage of blood samples. Defendant did not complain of any pain or injury during or following the procedure.
Suppression Hr'g Tr. 11:9-11:10.
During the hearing on this motion, Corporal Connor noted that the interview room is cleaned by a professional cleaning service, although he was unaware of the frequency of said cleaning or whether it involved any sort of sterilization. Suppression Hr'g Tr. 34:16-35:7.
Ultimately, Corporal Connor charged Defendant with vehicular assault second degree, driving under the influence, leaving the scene of an accident, failure to report an accident, and failure to remain stopped.
III.
A. Standard of ReviewOn a Motion to Suppress, the State bears the burden of establishing that the challenged search or seizure comported with the rights guaranteed Defendant by the United States Constitution, the Delaware Constitution, and Delaware statutory law. The burden of proof on a motion to suppress is proof by a preponderance of the evidence. Defendant asks the Court to suppress the results of a chemical analysis of his blood, alleging that probable cause did not support the seizure of the blood sample or his arrest for DUI. Additionally, Defendant alleges that the "reasonableness" requirements of the Fourth Amendment, its state constitutional counterpart, and Delaware's implied consent statute were violated when police directed OMS to withdraw his blood in a non-medical environment and in the absence of an administrative procedure or policy governing the withdrawal of blood from DUI suspects. In the face of Def endant's motion, the State must establish th at Defenda nt's blood sample was lawfully obtained.
Hunter v. State, 783 A.2d 558, 560-61 (Del. 2001).
State v. Bien-Aime, Del. Super., Cr. A. No. 1K92-08-326, Toliver, J. (March 17, 1993) (Mem. Op.) (citations omitted).
See U.S. CONST . AMEND. IV, 21 Del. C. § 2741.
B. Probable Cause Supported The Seizure of Defendant's Blood Sample and His Arrest
Probable cause is not measured by precise standard s, but instead "by the totality of the circumstances through a case by case review of 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.'" The totality of the circumstances need only suggest "a fair probability that the defendant has committed a crime" or that evidence of a crime will be found at the location to be searched. In making the determination that probable cause exists, police are not required to "uncover information sufficient to prove a suspect's guilt beyond a reasonable doubt or even to prove that guilt is more likely than not." In fact, "[t]he possibility that there may be a hypothetically innocent explanation for each of several facts revealed during the course of an investigation does not preclude a determination that probable cause exists for an arrest." A probable cause determination may be made based upon "either the police officer's direct observations or [] hearsay."
State v. Maxwell, 624 A.2d 926, 928 (Del. 1993) ( quoting Illinois v. Gates, 462 U.S. 213, 231 (1983).
Id. at 930 (citing Jarvis v. State, 600 A.2d 38, 42-43 (Del. 1991)). See also United States v. LaMorie, 100 F.3d 547, 552 (8th Cir. 1996) (equating probable cause with a "fair probability that the contraband or evidence of a crime will be found in the location to be searched.").
Id.
Id.
Barnett v. Division of Motor Vehicles, 514 A.2d 1145, 1146 (Del.Super. 1986).
The Court is satisfied that the State has established that Corporal Connor had probable cause to arrest Defendant for DUI and to obtain a sample of his blood. Corporal Conn or testified at the hearing on this motion that two officers in formed him that Defendant had been pulled over in the 1800 block of Pennsylvania Avenue after being involved in a hit-and-run motor vehicle accident approximately a block away, at the intersection of 11th and Lincoln. Corporal Connor detected a moderate odor of alcohol when he initially made contact with Defendant, and he personally observed Defendant's slurred speech, bloodshot and watery eyes, difficulty in keeping his balance, and use of his vehicle to steady himself. When questioned by Corporal Connor, Defendant admitted that he had been involved in a collision, and Corporal Connor found fresh damage on inspection of Defendant's vehicle. While Defendant adequately performed one field sobriety test, he refused to perform any additional tests. Lastly, Defendant admitted to Corporal Connor that he was coming from a bar and that he had consumed alcohol that evening. The "totality of [these] circumstances" and the facts "within [Corporal Connor's] knowledge and of which [he] had reasonably trustworthy information were sufficient to w arrant a prudent man in believing that the defendant had committed . . . an offense." Further, the "innocent explanation[s]" offered by Defendant — that he had consumed only a single beer, had passed one field sobriety test, and that his vehicle had been struck by another vehicle — did not preclude a finding of probable cause.
Suppression Hr'g Tr. 7:21-8-10.
Beck v. Ohio, 379 U.S. 89, 91 (1964). See e.g. State v. Baffone, 2008 WL 4726436 at *4 (Del. Com. Pl. 2008) (finding probable cause where a hit and run traffic accident occurred and Defendant was pulled over in a damaged vehicle matching description of the vehicle involved in the hit and run only ten to fifteen miles from the scene of the accident, Defendant admitted to being involved in the accident and to drinking before driving, had blood on his face and clothes, and arresting officer observed Defendant's eyes were bloodshot and watery, his speech was slurred, and he smelled of alcohol); In re Higgins v. Shahan, 1995 WL 108699 at * 3 (Del.Super. 1995) (finding probable cause where Defendant had been involved in an accident, officer observed Defendant's bloodshot, watery eyes, and detected an odor of alcohol, Defendant admitted to having consumed alcohol before driving and refused to submit to field sobriety tests).
Maxwell, 624 A.2d at 930 ( citing Jarvis, 600 A.2d at 42-43).
C. The Defendant's Blood Sample Was Lawfully Obtained
1. The Implied Consent Statutes
In Delaware, any person who operates a motor vehicle within the State is deemed to have given "constructive consent . . . to submit to testing for alcohol or other drugs" in cases where "an officer has probable cause to believe the person was driving . . . a vehicle in violation of § 4177." A person who is required to submit to chemical testing under § 2740 " may be informed that if testing is refused, the person's driver's license and/or driving privilege shall be revoked for a period of at least one year." After being informed of the penalty, a person may refuse to submit to testing and "the test shall not be given." An officer may, however, without consent, "take reasonable steps to . . . conduct such test[s] . . . without informing the person of the penalty of revocation for such refusal and thereby invoking the implied consent law.'" Stated differently, "a person suspected of drunk driving has no right to refuse testing 'unless a police officer informs him that he may lose his license for a year if he withholds consent." This series of statutes, in essence, enable an officer (1) "to require a [DUI] suspect to submit to testing, without that person's consent or a reading of the implied consent law, so long as the officer has probable cause; " and (2) to take all necessary steps to secure a sample of breath or blood for testing so long as the steps taken are reasonable under the Fourth Amendment to the United States Constitution and Article One, Section 6 of the Delaware Constitution.
Seth v. State, 592 A.2d 436, 443 (Del. 1991).
21 DEL. C. § 2742(a) (emphasis added).
Id. (emphasis added).
Id. (emphasis added). The question of reasonableness under Delaware's Implied Consent Statutes is informed by the United States Supreme Court's Fourth Amendment analysis set forth by Schmerber, infra n. 28, and its progeny. See McCann v. State, 588 A.2d 1100, 1102 (Del. 1991). These standards will be addressed below.
Seth, 592 A.2d at 445 (quoting McCann, 588 A.2d at 1101).
Id. (citing Brank, 528 A.2d at 1189-90). See also Field v. Hall, 1995 WL 360744 at *9 (holding that "a police officer who has probable cause to arrest for DUI is not required to inform the accused of the penalties under Delaware's Implied Consent Law for refusal to submit to chemical testing" because the suspect "was deemed under Delaware law to have consented to the withdrawal of blood for alcohol testing.").
The Court already has determined that Corporal Connor had probable cause to arrest Defendant for driving under the influence of alcohol. By choosing to drive a motor vehicle in Delaware, Defendant impliedly consented to submit his blood for chemical testing. Corporal Connor did not inform Defendant of the penalties for refusing to comply with the implied consent statute; instead, he informed Defendant that his blood would be withdrawn by a licensed phlebotomist. As such, Defendant had no right to refuse to submit to testing and, indeed, by all accounts, he cooperated fully when the testing was conducted. If "reasonable steps" were taken to secure Defendant's blood sample, then the test of Defendant's blood alcohol was in accord with Delaware's statutory testing scheme. As stated, the factors and analysis used to determine "reasonableness" in the constitutional context inform the "reasonableness" analysis under Section 2741(a). The Court will address this issue next.
2. The Reasonableness Requirements Of The United States and Delaware Constitutions and The Implied Consent Statute Were Not Violated
The Fourth Amendment and its State constitutional counterpart protect "personal privacy and dignity against unwarranted intrusion by the state." In the context of bodily intrusions, such as certain surgical and medical procedures, the United States Supreme Court has recognized that such intrusions involve a defendant's "most personal and deep-rooted expectations of privacy" and, therefore, implicate "a discerning inquiry into the facts and circumstances to determine whether the intrusion was justifiable." The Court has cautioned that while "minor intrusions into an individual's body under strictly limited conditions" may be constitutional, this "in no way indicates that [the Constitution] permits more substantial intrusions under other [than limited] conditions."
Schmerber v. California, 384 U.S. 757, 767 (1966). See also Graham v. Connor, 490 U.S. 386, 396 (1989).
Winston v. Lee, 470 U.S. 753, 760 (1985).
Schmerber, 384 U.S. at 772. See also Winston, 470 U.S. at 766 (holding that "the Fourth Amendment's protections are correspondingly less stringent" when bodily intrusion is minimal. The reverse is also true; "when the State seeks to intrude upon an area in which our society recognizes a significantly heightened privacy interest, a more substantial justification is required to make the search 'reasonable.'").
In some cases, the requisite "discerning inquiry" readily reveals that law enforcement overstepped constitutional bounds when conducting or ordering an intrusion into a suspect's body. For example, in Rochin v. California, police officers witnessed a suspect swallow two capsules and physically attempted to extract the capsules from his mouth. When they were unsuccessful in this effort, they handcuffed the suspect and took him to a hospital where his stomach was pumped against his will. Two morphine capsules were recovered. The Court concluded that the actions taken by police did "more than offend some fastidious squeamishness. . . ." Rather, according to the Court, "this course of proceeding by agents of government to obtain evidence . . . offend[ed] even hardened sensibilities." Similarly, in Winston v. Lee, the Court held that requiring an armed robbery suspect "to undergo a surgical procedure under a general anesthetic for removal of a bullet lodged in his chest" was a precise example of the more "substantial intrusion" against which they had previously cautioned. On the one hand, "it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community's vital interest in law enforcement." A forced surgical procedure, however, "implicates expectations in privacy and security of such magnitude that the intrusion may be 'unreasonable.'"
Rochin, 343 U.S. 165, 166 (1952).
Id.
Id.
Id.
Winston, 470 U.S. at 755.
Id. at 759.
Id.
Courts conducting a "discerning inquiry" into the withdrawal of blood from DUI suspects for the purpose of chemical testing have found that such a minimal bodily intrusion is usually justified, even in instances where no specific consent has been given an d even w here blood is forcibly with drawn against a suspect's w ill. The constitutional analysis in blood extraction cases hinges on three prongs: (1) probable cause to believe a suspect is driving under the influence; (2) a search warrant or a recognized exception under the Fourth Amendment, and lastly; (3) reasonableness. As to the first prong, the Court already has determined that Corporal Connor had probable cause to arrest Defendant for driving under the influence. As to the second, Delaware's Implied Consent Statute provides the applicable exception to the warrant requirement. Still to be decided is whether the draw of Defendant's blood comported with State and Federal notions of "reasonableness" in the search and seizure context.
See e.g. Schmerber, 384 U.S. at 772 (upholding the constitutionality of a forced blood extraction by a physician in a medical environment adhering to "accepted medical practices"); Breithaupt v. Abram, 352 U.S. 432, 433 (1957) (upholding the constitutionality of a b lood draw perfo rmed by a skilled technician while petitioner was unconscious and without his consent); Seth, 592 A.2d at 436 (upholding reasonableness of blood withdrawn from DUI suspect without his consent); McCann v. State, 588 A.2d 1100 (Del. 1991) (upholding as reasonable a forcible blood extraction from DUI suspect after officers used a stun gun to subdue him and then physically restrained him).
Schmerber, 384 U.S. at 768; Winston 470 U.S. at 760-761.
21 DEL. C. § 2740, et seq. deems any "person who drives . . . a vehicle . . . within this state . . . to have given consent . . . to a chemical test or tests of that person's blood, breath and/or urine for the purposes of determining the presence of alcohol or a drug." It is well established that consent is a valid exception to the warrant requirement. State v. Devonshire, 2004 WL 94724 at *2 (Del.Super. 2004). Consent may be express or implied. Id. Further, an officer with probable cause may take a blood sample for blood alcohol analysis under the statutes without consent or a reading of the Implied Consent law provided that he does not use excessive force. Seth, 592 A.2d at 445.
A determination of reasonableness involves a balancing of the "extent of the intrusion upon the individual's interests in personal privacy and bodily integrity" against the "community's interest in fairly and accurately determining guilt or innocence." When considering the extent to which a blood draw intrudes upon a suspect's personal privacy and bodily integrity, the United States Supreme Court has found that blood tests are "slight intrusions . . . of the kind which millions of Americans submit as a matter of course nearly every day." In this regard, the Court explained:
Winston, 470 U.S. at 763.
The procedure has become routine in our everyday lives. It is a ritual for those going into military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same . . . routine in becoming blood donors.
Breithaupt, 352 U.S. at 436,439.
In concluding that blood tests are minimal intrusions, the Court has been quick to point out that such tests are unlikely to "threaten the safety or health of an individual" when performed by a qualified individual adhering to proper procedures.
Winston, 470 U.S. at 761.
Conversely, it is generally accepted that the community has a compelling interest "in the scientific determination of intoxication, one of the great causes of the moral hazards of the road." The blood alcohol test is a "scientifically accurate method of detecting alcoholic content in the blood, thus furnishing an exact measure upon which to base a decision as to intoxication," and is considered a "reasonable means to make automobile driving less dangerous." In the DUI context, the Court has taken note of the fact that "the percentage of alcohol in the blood begins to diminish shortly after the drinking stops, as the body functions to eliminate it from the system." Under these circumstances, law enforcement officers are justified in attempting promptly "to secure evidence of blood alcohol content."
Breithaupt, 352 U.S. at 439. See also State v. Bell, 1990 WL 1222908 at *1 (Del.Super. 1990) (taking note of "statistics involving the mayhem caused by drunken drivers" and the State's compelling interest in convicting such drivers"); Brank v. State, 528 A.2d 1185, 1190 (Del. 1987) (citing the state's legitimate interest in enforcing its driving under the influence laws in order to prevent carnage caused by drunk drivers).
Breihaupt, 352 U.S. at 439. See also Schmerber, 384 U.S. at 771 (drawing blood is a reasonable method by which to measure blood alcohol content).
Schmerber, 384 U.S. at 770-71.
Id. (noting that blood tests are "commonplace in these days of physical examination and experience with them teaches that the quantity of blood extracted is minimal, and that for most people, the procedure involves virtually no risk, trauma, or pain.").
The "reasonableness" analysis takes on an added layer of complexity when the police use force, over and above the extraction itself, to secure an evidentiary sample. In instances where police officers forcibly extract physical evidence from a suspect — by physically holding him down during a blood draw, for example — the court must also consider the reasonableness of such force. In doing so, the court should consider, among other factors, "the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." The court should also take into account the physical characteristics of the suspect (e.g. size and strength) when compared to the physical characteristics of the officers or those assisting the officers in securing the evidence.
See Graham v. Connor, 490 U.S. 386, 388 (1989).
Id.
See Carleton v. The Superior Court of San Diego, 170 Cal. App.3d 1182, 1191 (1985).
To summarize, based on now well-settled precedent, the Court is satisfied that police officers may require DUI suspects to submit to chemical testing of their blood, even without consent, as long as "the means and procedures employed . . . respect[] relevant Fourth Amendment standards of reasonableness." In certain instances, the officers may use force to obtain the blood sample. To the extent Defendant's motion challenges either proposition, that challenge is rejected. Here, Defendant appears to be focused mainly on the question of whether constitutionally-based "reasonableness" standards can ever be met when the police direct that a blood draw occur outside of a medical environment. He points to a decision of the Court of Common Pleas, State v. Crespo, to argue that blood draws taken in non medical environments are per se unreasonable. Defendant apparently agrees that Crespo is the only decision in Delaware that arguably might address this issue directly. Accordingly, the Court will address Crespo first before turning to the broader issue raided by Defendant's motion.
Schmerber, 384 U.S. at 768.
See e.g. McCann v. State, 588 A.2d 1100, 1102 (Del. 1991) (upholding use of stun gun to secure sample of suspect's blood in a hospital for DUI testing).
State v. Crespo, Cr. A. No. 0506005562, Smalls, C.J. (Ct. Com. Pl., Dec. 20, 2007) (Mem. Op.) (not available from on line services). The Court notes that Crespo is currently on appeal to this Court and, by coincidence, is pending before this judge. As explained below, because the Court finds that Crespo is readily distinguishable on its facts, the Court need not decide at this time whether Crespo is correctly decided.
Suppression Hr'g Tr. 2:13-3:6 14:14-15:1 (at the suppression hearing counsel noted that the "Crespo issue" was raised only after counsel discovered that blood was drawn at WPD and not at a hospital, and relied upon the decision alone without further authority or argument to support suppression of the blood test results).
In Crespo, the defendant was suspected of driving under the influence of alcohol and taken back to the Delaware State Police troop for further investigation after she refused to participate in field sobriety tests at the scene of the traffic stop. Upon arrival at Troop 6, the defendant, described by the court as a woman "who is 5'3" tall and weighs approximately 125 pounds," refused to submit to an intoxilyzer breath test and, when asked, refused to cooperate in the withdrawal of a blood sample. Thereafter, two officers "held [the defendant] down by her upper arms and elbows preventing her from moving and [then] directed the phlebotomist to draw blood." Prior to trial, the defendant argued that the blood test results were inadmissible because the manner in which the blood sample was obtained violated the Fourth Amendment, its state constitutional counterpart, and the Delaware implied consent statute. The court agreed. Specifically, the court determined that the force used to obtain the blood sample, and the manner by which it was obtained (within a non medical environment), were not justified by the defendant's behavior or by the relatively minor crime with which she was to be charged (first offense DUI). Accordingly, the court suppressed the blood test results.
Crespo, supra, Mem. Op. at 4.
Id.
Id. at 11-13.
Significantly, the court in Crespo never once pronounced a rule that a blood draw ordered to occur in a non medical environment is per se unreasonable. Indeed, to the contrary, the court acknowledged the courts in other jurisdictions had sanctioned such practices when police were investigating felony-level criminal activity. The decision in Crespo turned on the facts that the police were investigating a first offense DUI and determined forcibly to extract blood from a woman of relatively small physical stature within the confines of a police station. While the court did express concern regarding the sterility of the environment in which the blood was drawn, it did not state or even intimate that this factor alone was sufficient to warrant a finding that the blood test was conducted in an unreasonable manner or that the evidence should otherwise be suppressed. Here, the offenses under investigation included vehicular assault and felony-level DUI. To the extent a suspect's physical characteristics are relevant, defendant is a man of some physical stature, not a woman of relatively small physical stature, and neither the officer nor the phlebotomist used force to extract the blood sample. Crespo is clearly distinguishable on its facts.
Id. at 11 (citation omitted).
Id. at 11-13.
Id. It is not clear whether the court in Crespo received evidence regarding whether unsterile conditions exist in a police station or the impact such conditions might have on the safety of a suspect who undergoes a blood draw in such conditions. Suffice it to say, no such evidence was presented in this case.
Although the issue sub judice (whether a blood draw conducted at a police station is per se unreasonable) has not been squarely addressed in Delaware, courts outside of Delaware have addressed the issue in a manner that provides meaningful guidance here. For instance, in State v. May, the Arizona Court of Appeals observed that the United States Supreme Court has not "attempt[ed] to set any specific rules for blood tests conducted outside the hospital setting." This observation was made in the context of the court's holding that blood draws had to be performed by trained personnel in accordance with accepted protocols. Other courts have shared the view that blood must be drawn by trained professionals pursuant to recognized procedures, but have likewise determined that to require "officers to go one step further by having the blood drawn in the hospital would serve no useful purpose but rather would increase the risk of loss of evidence of the alcohol content in the blood and further could endanger the safety of the officers."
State v. May, 112 P.3d 39, 41 (Ariz.Ct.App. 2005) (upholding blood withdrawn from a consenting DUI suspect by a sheriff's deputy while standing at the rear of the deputy's vehicle at the scene of the arrest).
Id.
See State v. Lanier, 452 N.W.3d 144, 146 (S.D. 1990) (upholding blood withdrawn without consent in a jail by a medical technologist where suspect resisted and had to be restrained and interpreting " Schmerber and its progeny to hold that blood tests are not required to take place in a hospital but rather under conditions which provide a medically approved manner for the specific purpose of drawing blood"). See also State v. Daggett, 640 N.W.2d 546, 550 (Wis.Ct.App. 2001) (finding blood withdrawn in a jail by a doctor in accordance with medically accepted procedures was reasonable because Schmerber "did not categorically reject the possibility that a blood draw could take place in a non-medical setting").
In reaching the conclusion that the Fourth Amendment does not require police to draw blood in a hospital or other medical setting, courts have noted the absence of evidence in the record that drawing blood in a non-medical environment presents any danger to a suspect's health or safety. Indeed, "blood is commonly withdrawn in non-sterile environments using medically acceptable procedures," for example in libraries and schools. It appears that the most significant factor in the reasonableness determination, therefore, is not where the blood is drawn but the qualifications of the person performing the procedure. In this regard, courts have observed that there typically is no basis to assume "that a medical professional authorized to withdraw blood" would do so either in a way "that would endanger the health of the blood donor," or "in any circumstances not medically acceptable so as to endanger public health."
See People v. Esayian, 112 Cal.App.4th 1031, 1041 (Cal.Ct.App. 2003) (noting that "nothing in [the] record justif[ied] an inference that the manner of drawing the blood was unsanitary, or subjected the suspect to any unusual pain or indignity"); People v. Ford, 4 Cal. App. 4 th[fn32,] 37 (Cal.Ct.App. 1992) (stating that "nothing in the record suggest that the [police station] in which this tests occurred was unsafe or unsanitary"); Daggett, 640 N.W.2d 546 at 551 (finding "no evidence in the record to suggest that the jail booking room, although not a sterile environment, presented any danger to [the suspect's] health").
Daggett, 640 N.W. 2d at 551.
See e.g. Ford, 4 Cal. App. 4th at 34 (upholding a blood draw in a police station by a licensed clinical technologist); People v. Mari, 528 P.2d 917, 919 (Colo. 1974) (upholding a blood draw performed in an open room at a sheriff's office by "a highly qualified and experienced medical technologist"); Lanier, 452 N.W.2d at 146 (upholding a blood draw performed in a jail by "a certified medical technologist"); Daggett, 640 N.W.2d at 550 (upholding a blood draw performed in a jail by a physician).
Daggett, 640 N.W.2d at 550-51.
Lanier, 452 N.W.2d at 146 n. 4.
In each of the cases cited above, the prosecution made a threshold showing that blood was withdrawn in compliance with the Fourth Amendment's reasonableness requirement by demonstrating that the blood technician was qualified and that he or she followed recognized protocols for withdrawing blood. The defendant was then given the opportunity to overcome that showing by presenting contrary evidence, as opposed to making conclusory allegations, that the manner or environment in which the blood was drawn somehow affected the reasonableness of the procedure. In each instance, the defendant either presented no such evidence or the evidence was found to be wanting. In either event, the courts declined to presume unreasonableness simply because the blood was not drawn in a hospital or other medical environment.
In this case, Defendant does not contend that the phlebotomist who withdrew his blood was unqualified under the statute, or that the phlebotomist who withdrew his blood did so in a medically unacceptable manner. He does not allege that the blood draw was accomplished by physical force, nor does he challenge the propriety of withdrawing his blood without his consent. With respect to the one aspect of the blood draw he has singled out as rendering the procedure constitutionally infirm, he has presented no evidence to demonstrate that his health or safety was endangered in any way by the fact that the procedure occurred at the WPD. In the absence of any specific evidence in the record to the contrary, the Court is unable to conclude that drawing Defendant's blood in a non-medical environment is per se unreasonable or was unreasonable in this case.
21 DEL. C. § 2746. Had Defendant attempted such an argument, it is unlikely the Court would have found it persuasive because "there is no reason to conclude that the legislature intended to prohibit phlebotomists, the medical personnel whose primary function is to withdraw blood, from doing so. On the contrary, the statute expressly authorizes medical technicians to withdraw blood, and phlebotomists are medical technicians." State v. Hartman, 1984 WL 553534 at *1 (Del. Super).
Defendant's final argument under Crespo is that the WPD's lack of an administrative policy governing withdrawal of a DUI suspect's blood renders the seizure of his blood unreasonable. According to Defendant, absent a policy, arresting officers are given too much discretion in determining whether blood will be drawn in a medical environment, at the police station or elsewhere. The Court is not persuaded. Once an officer has met the procedural requirements noted above by finding probable cause to believe the defendant was driving under the influence, complying with the implied consent statutes, and taking reasonable steps to secure a blood sample, the logistics of drawing a DUI suspect's blood for chemical testing are thereafter governed by 21 Del. C. § 2746. Section 2746 provides that:
Here again, the Court assumes Defendant intends to pursue this argument. As stated, the Defendant submitted the Crespo decision without additional authority or argument. The Court has attempted, therefore, to address each of the grounds for decision identified in Crespo.
only duly licensed physicians, registered nurses, licensed practical nurses or other persons trained in medically acceptable procedures for the drawing of blood and employed by a hospital or health care facility, acting at the request of a police officer, may withdraw blood from a person submitting to a chemical test under this subchapter.
This limitation imposed by the General Assembly protects defendants "both from harm which can be caused by persons not properly trained to draw blood, and from the possibility that the blood sample may be contaminated through the use of improper procedures." In deciding to address the issue in this manner, the General Assembly reflected its intent to protect DUI suspects "by requiring that the person drawing blood be properly trained, rather than requiring that each blood test conform to a specific standard of care."
Reeder v. State, 1993 WL 81292 (Del. 1993). See also O'Toole, 1997 WL 819134 at *3 (Del.Super. 1997) (noting that Section 2746 requires only that "the test be administered by a qualified individual.").
O'Toole, 1997 WL 819134 at *3 (Del.Super. 1997).
The Delaware statute is distinguishable from statutes in other jurisdictions which contain more stringent requirements for the performance of DUI blood tests. For example, the Missouri legislature chose to authorize a blood draw performed only by a "licensed physician, registered nurse or trained medical technician at the place of his employment." The Ohio legislature specified, inter alia, the type of equipment which must be used to draw blood, how the blood must be stored, and the type of antiseptic that must be used to clean the skin prior to drawing blood. The Delaware General Assembly, on the other hand, omitted any such requirements, instead choosing to protect defendants by limiting "who may draw blood, rather than the manner in which blood is drawn." The Court, as it must, presumes that the General Assembly, having addressed the issue, set forth all limitations to be adhered to in the drawing of blood for chemical testing. No additional limitations will be imposed here.
See MO. ANN. STAT. § 577.029 (2008) (emphasis added).
See OH ADC 3701-53-05 (2008).
O'Toole v. State, 1997 WL 819134 at *3 (Del.Super. 1997).
Ramirez v. Murdick, 948 A.2d 395 (Del. 2008) (noting that "the goal of statutory construction is to determine and give effect to legislative intent . . . courts must apply the words as written, unless the result of such a literal application could not have been intended by the legislature.") (internal citations omitted).
IV. CONCLUSION
For all of the foregoing reasons, Defendant's Motion to Suppress Evidence is hereby DENIED.
IT IS SO ORDERED.