Breaking News
More () »

Sacramento's Leading Local News: Weather, Traffic, Sports and more | Sacramento, California | ABC10.com

What are your California rights when police request a blood test?

Even if you are unconscious, if you are under lawful arrest, you do not have to give consent to a police request for a blood test.

Video of a Utah nurse being handcuffed after refusing to draw blood on an unconscious patient is exploding on the web.

The police body camera video taken at University Hospital in Salt Lake City shows nurse, Alex Wubbels, calmly explaining to Salt Lake detective, Jeff Payne, that she couldn't draw blood on a patient who had been injured in a car accident. She told the officer that under hospital policy, blood could not be taken from an unconscious patient unless the patient was under arrest or if there was a warrant allowing the draw. Otherwise, the patient has to consent.

The detective did not meet any of the requirements under hospital policy so the nurse refused to follow his request. The video ends with Payne placing Wubbels under arrest and forcefully moving her out of the hospital as she screamed.

According to the Salt Lake City Tribune, in a written report, Payne said he was responding to a Logan Police request to get a blood sample to determine whether the patient had illegal substances in his body at the time of the crash, which left another man dead. However, according to Wubbels' lawyer, the patient is considered a victim of the crash.

The video is sparking online conversations about the rights of patients and what police are legally allowed to do when requesting the blood sample of a patient who is not conscious for consent.

Here's what you should know about the laws in California:

1. The Fourth Amendment protects all American citizens from unlawful searches and seizures, and requires warrants be issued only upon probable cause.

In the Salt Lake City case, the detective didn't have a warrant or reason for a lawful search or arrest. Under the Constitution, a violation of Fourth Amendment rights could have been argued if he were to have successfully forced the blood test.

2. Under California law (Vehicle Code 13384), any person issued a state driver's license is required to consent in writing to submit to a chemical test or blood, breath, or urine test if under lawful arrest for driving under the influence, to determine drug and alcohol content. In other words, if you have a California driver's license, you have already consented to take a breath, blood or urine test if under arrest for drunk driving.

This is known as California's "implied consent laws".

However, recent Supreme Court rulings have found that drawing blood on a DUI suspect without a warrant is in violation of Fourth Amendment rights. While police have to notify the person that failure to submit a test could result in a fine, mandatory imprisonment and a license suspension, a person technically can refuse a test and ask for a warrant under their Fourth Amendment rights, according to the Supreme Court ruling, Birchfield v. North Dakota.

The Birchfield vs. North Dakota ruling basically found that criminalizing the refusal to take a blood test violates the Fourth Amendment, since it generally doesn't allow warrantless blood draws. A person cannot be punished for exercising their Constitutional rights.

There is currently a Santa Clara County Superior Court case pending for review by the Supreme Court where a man's blood was drawn without a warrant while he was unconscious. The Santa Clara County Superior Court denied the man's motion to suppress the blood test in a DUI case, on the basis the officer was acting in good faith in relying on the implied consent law to withdraw blood without a warrant. The Supreme Court will review whether or not Fourth Amendment rights were violated or if the good faith ruling will remain.

California implied consent laws are still the law but due to the recent Supreme Court rulings, the law could be deemed unconstitutional.

3. While a person under arrest for driving under the influence is required to provide a test under California law, a person does have a choice between a blood and breath test. Police are required to notify the person about the choice. If a person incapable of providing the test of choice, then the remaining test is done. If both the blood and breath test are not available, then a urine test is taken.

If a person chooses a breath test, but a police officer has reason to believe the person is under the influence of both drugs and alcohol, the officer can request a blood sample. The person can refuse and fight out the charges in court under the Fourth Amendment, but must keep in mind, it's still the current state law.

4. There are not very many exceptions to California's implied consent laws. Even if a person is unconscious or dead, they are still "deemed not to have withdrawn his or her consent and a test or tests may be administered whether or not the person is told that his or her failure to submit to, or the non-completion of, the test or tests will result in the suspension or revocation of his or her privilege to operate a motor vehicle."

However, people with a heart condition or afflicted with hemophilia are exempt from blood tests and have to submit a urine test.

5. Police should inform a person under arrest they do not have the right to have an attorney before stating whether or not they will submit to a test or deciding which test they want to take, or during test administration. In fact, refusal of the test could be used against them in court.

6. California law states, a preliminary alcohol screening, which is essentially a breathalyzer test, does not satisfy the obligation to submit to other tests if a police officer feels it's necessary. However, refusing a breath test is not something that is likely to be fought successfully in court since law officials need to have a way to determine probable cause for a DUI arrest.

The current state law is muddled due to the recent Supreme Court rulings. It's important to get in touch with an attorney if charged with a DUI.