Jack Shea's Law

[JJB531 652]

ALBANY, N.Y. — Gov. David Paterson has signed a new law authorizing certified nurse practitioners and advanced emergency medical technicians to draw blood without direct physician supervision from motorists suspected of driving under the influence of drugs or alcohol.

My link

[antiquefirelt 994]

My link

We have a similar law/ruling in Maine. It's more trouble for us than it's worth. Our EMS personnel are just that, not LEO's. Nothing like going into som SRO at 1 am to find a guy you've helped convict of OUI (DUI). We do not allow our personnel to do alcohol blood draws on duty or while wearing any RFD insignia. A few did this at the request of LE for awhile but got sick of being called 3-4 times a week after 11 pm. If LE needs more trained personnel to conduct this, they should be funded for such training. We like knowing the "bad guys" still think we're the "good guys" and aren't confrontational with the EMS crews.

[wraftery 1,275]

We have a similar law/ruling in Maine. It's more trouble for us than it's worth. Our EMS personnel are just that, not LEO's. Nothing like going into som SRO at 1 am to find a guy you've helped convict of OUI (DUI). We do not allow our personnel to do alcohol blood draws on duty or while wearing any RFD insignia. A few did this at the request of LE for awhile but got sick of being called 3-4 times a week after 11 pm. If LE needs more trained personnel to conduct this, they should be funded for such training. We like knowing the "bad guys" still think we're the "good guys" and aren't confrontational with the EMS crews.

Easy Solution: Teach cops to draw blood. It probably doesn't even have to be IV for DUI test.

[FFFORD 27]

I think its a good law. I learned to draw blood in PA school Day one. I would consider it a BLS skill.

[antiquefirelt 994]

Easy Solution: Teach cops to draw blood. It probably doesn't even have to be IV for DUI test.

Maine EMT-Intermediate level and above (medics) are taught to draw blood directly without the IV stick.This is the case for thse blood draws here. But I agree teach cops, it's not difficult and it's their case.

Another reason to avoid this is the opening of liability every time you penetrate a person's skin. Unlike starting an IV, injecting protocol drugs or making a blood glucose stick which are EMS necessities, the subject in this case is not happy you're doing this and are more likely to try and allege improper practice, poor technique, unsanitary procedure or anything else their lawyer can sue you for.

Edited July 13, 2010 by antiquefirelt

[abaduck 123]

Why is this even an issue? Why the need to draw blood for this purpose?

If it's a minor MVA and the suspect has no serious injuries, the LEO should breathalyze them right there and then. If they refuse the test, that's an offense right there, and it carries exactly the same penalty as a positive test - mandatory license suspension for one year, minimum. At least that's how it's done in the UK.

If there are more serious injuries and the suspect is being transported, get the blood in the ER.

This isn't rocket science.

[helicopper 1,050]

Why is this even an issue? Why the need to draw blood for this purpose?

If it's a minor MVA and the suspect has no serious injuries, the LEO should breathalyze them right there and then. If they refuse the test, that's an offense right there, and it carries exactly the same penalty as a positive test - mandatory license suspension for one year, minimum. At least that's how it's done in the UK.

If there are more serious injuries and the suspect is being transported, get the blood in the ER.

This isn't rocket science.

This isn't rocket science; you're absolutely right. This really just "cleans up" the existing law by allowing appropriately trained people to draw blood without direct physician supervision (as was required by the old statute).

90% of the time this becomes an issue in the hospital not on the street. If the person is not injured they do go to the PD for a breath test but when they are injured and are in the hospital, there are only certain people who were authorized - by law not by training - to perform the venipuncture to draw the bloods. Now the list is expanded to include personnel who may be appropriately asked to do the draw.

I don't think an EMS agency can be called out for a function such as this without a prior agreement between the EMS agency and the PD so if you're an EMS agency administrator and not comfortable with this, don't do it.

[SRS131EMTFF 471]

Does anyone have the exact language of the law?

[orangEMT246 6]

I don't think an EMS agency can be called out for a function such as this without a prior agreement between the EMS agency and the PD so if you're an EMS agency administrator and not comfortable with this, don't do it.

If you tell the PD no, and don't do the blood draw at their request, would that be considered "obstruction", opening up a set of problems for the EMS provider/agency?

[antiquefirelt 994]

If you tell the PD no, and don't do the blood draw at their request, would that be considered "obstruction", opening up a set of problems for the EMS provider/agency?

Oh I'd love to be charged with that! First it would have to be a lawful order by an officer, which I'm doubting most would do.

[INIT915 1,119]

If you tell the PD no, and don't do the blood draw at their request, would that be considered "obstruction", opening up a set of problems for the EMS provider/agency?

No, that's not "Obstruction."

Let's face a few facts. This law hasn't changed anything significantly. Paramedics have been allowed to draw blood for DWI arrests for quite sometime, but until now, a Physician had to be present. This law only takes away that requirement.

Very few agencies down this way would really need it, as we don't have a lack of hospitals with physicians on-site. I can speak from both sides of this, having played both roles, paramedic and law enforcement. There are lots of "what ifs", none of which are that realistic. Worried about the defendant recognizing you later? Let me tell you, they don't even recognize the arresting officers, think they'll recognize an EMS provider who they interacted with for three minutes? And worried about liability for a "bad stick"? If that's the case, you probably don't take a very aggressive approach in general, as lots of "liability" issues can arise.

The only time this type of scenario would really come into play is, as a result of some extraordinary circumstances, the defendant could not be transported to a facility where a doctor is present. In reality, you can look at it from the perspective of taking an active role in strengthening the case against a drunk driver, which is something anyone in emergency services should be on board with. And lets face it, it would rank right up there with actions that may not be mandated, but are part of the greater good. Even law enforcement takes actions that benefit EMS, although they are under no requirement to do so, it's just everybody working together towards a common goal.

[JetPhoto 626]

Will this cause Paramedics to be called into to court?

[JJB531 652]

Will this cause Paramedics to be called into to court?

A paramedic drawing blood in the course of a DWI investigation could very well be called into court to testify as to the methods/procedures used to obtain the blood sample. The collection of a blood sample is the collection of evidence that will be used to prosecute an individual... no different then a Crime Scene Investigator being called to testify on the collection of fingerprints or other evidence from a crime scene.

[antiquefirelt 994]

There are lots of "what ifs", none of which are that realistic. Worried about the defendant recognizing you later? Let me tell you, they don't even recognize the arresting officers, think they'll recognize an EMS provider who they interacted with for three minutes? And worried about liability for a "bad stick"? If that's the case, you probably don't take a very aggressive approach in general, as lots of "liability" issues can arise.

I can tell you first hand that many a drunken a-hole remembers the EMS providers that have treated them before. Maybe due to the relatively small population by comparison in the suburbs of NYC this is far less a concern. On the second case, most medics we employ are very aggressive, as part of the admin side of the FD, we must rein people in and ensure their decisions are in the best interest of 1)the patient, 2) the city and 3) the individual provider. Starting line or stick, "because I can" is a real problem with many medics and one that policy makers and legal counsel dread.

Let's not pretend medics don't put large bores in drunks while babying grandma. How about green medics sticking everyone they can find a remote protocol to cover as they feel their oats? Bad sticks are very rare, but so are the patients that don't want you to stick them. While many don't like IVs or needles, most understand the necessity of their treatment and accept we're helping them. Drawing blood for DUI's is not helping the person being stuck. People are very creative in how they fight prosecution, I'd not want ot be the medic dragged into court, nor the department who employees the same.

[INIT915 1,119]

I can tell you first hand that many a drunken a-hole remembers the EMS providers that have treated them before. Maybe due to the relatively small population by comparison in the suburbs of NYC this is far less a concern. On the second case, most medics we employ are very aggressive, as part of the admin side of the FD, we must rein people in and ensure their decisions are in the best interest of 1)the patient, 2) the city and 3) the individual provider. Starting line or stick, "because I can" is a real problem with many medics and one that policy makers and legal counsel dread.

Let's not pretend medics don't put large bores in drunks while babying grandma. How about green medics sticking everyone they can find a remote protocol to cover as they feel their oats? Bad sticks are very rare, but so are the patients that don't want you to stick them. While many don't like IVs or needles, most understand the necessity of their treatment and accept we're helping them. Drawing blood for DUI's is not helping the person being stuck. People are very creative in how they fight prosecution, I'd not want ot be the medic dragged into court, nor the department who employees the same.

Can you offer us data on a case where a paramedic faced legal action over a case such as the one we're discussing? And I agree, drawing blood is not helping the patient, as much as it's helping every other member of society that this patient put at risk.

[antiquefirelt 994]

Can you offer us data on a case where a paramedic faced legal action over a case such as the one we're discussing? And I agree, drawing blood is not helping the patient, as much as it's helping every other member of society that this patient put at risk.

No data, as I noted I can see far greater potential issues than those rising from medical necessity cases. As EMS providers we're not charged with helping every other member of society that the patient puts at risk. Or maybe LE should be able to call us to give Versed to combative perps who are kick the crap out o the cruisers? In fact I'm not sure you can call the alleged drunk driver a patient unless he/she has been injured in an MVA? Anyway, I really have no issue with dept's doing what they feel is best for their community, but I personally think this will blur the lies between care provider and law enforcement adjunct. Having seen many drunk drivers try all sorts of antics to get out of the charge, I think we'd be adding to the list of potential avenues for them to explore. As I said, no issue here, our personnel are banned from performing these tasks while acting in any capacity of our dept. and the local PD's know this.

Edited July 14, 2010 by antiquefirelt

[ny10570 745]

One thing people are forgetting, is the perp has to consent to a blood draw and all the other current procedures are still in place. One of the officers here can hopefully confirm this, but doesn't the blood have to be drawn at the location where it will be tested in NY? So where does this affect EMS providers?

[helicopper 1,050]

One thing people are forgetting, is the perp has to consent to a blood draw and all the other current procedures are still in place. One of the officers here can hopefully confirm this, but doesn't the blood have to be drawn at the location where it will be tested in NY? So where does this affect EMS providers?

No, the blood is drawn and collected as evidence by the PD and transported to, in Westchester County, the Department of Labs and Research for testing. In upstate areas, the bloods go to regional crime labs or facilities with agreements with a local PD so it may be tested in another part of the county or state.

The location where it is drawn would only be affected by state lines as our VTL doesn't apply in CT, NJ, etc.

New language (Jack Shea's Law):

Section 1. Subparagraph 1 of paragraph (a) of subdivision 4 of section 1194 of the vehicle and traffic law, as amended by chapter 406 of the laws of 1988, is amended to read as follows:

(1) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcoholic or drug content therein: (i) a physician, a registered professional nurse [or], a registered [physician's] PHYSICIAN assistant, A CERTIFIED NURSE PRAC TITIONER, OR AN ADVANCED EMERGENCY MEDICAL TECHNICIAN AS CERTIFIED BY THE DEPARTMENT OF HEALTH; or (ii) under the supervision and at the direction of a physician, REGISTERED PHYSICIAN ASSISTANT OR CERTIFIED NURSE PRACTITIONER ACTING WITHIN HIS OR HER LAWFUL SCOPE OF PRACTICE, OR UPON THE EXPRESS CONSENT OF THE PERSON EIGHTEEN YEARS OF AGE OR OLDER FROM WHOM SUCH BLOOD IS TO BE WITHDRAWN: a [medical] CLINICAL laboratory technician or [medical] CLINICAL LABORATORY technologist [as classified EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD00946-07-0

S. 46--B 2 by civil service] LICENSED PURSUANT TO ARTICLE ONE HUNDRED SIXTY-FIVE OF THE EDUCATION LAW; a phlebotomist; [an advanced emergency medical tech nician as certified by the department of health;] or a medical laborato ry technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law. This limitation shall not apply to the taking of a urine, saliva or breath specimen.

S 2. This act shall take effect immediately.

Original statute:

4. Testing procedures.

(a) Persons authorized to withdraw blood; immunity; testimony.

(1) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcoholic or drug content therein:

(i) a physician, a registered professional nurse or a registered physician’s assistant; or (ii) under the supervision and at the direction of a physician: a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law. This limitation shall not apply to the taking of a urine, saliva or breath specimen.

(2) No person entitled to withdraw blood pursuant to subparagraph one of this paragraph or hospital employing such person, and no other employer of such person shall be sued or held liable for any act done or omitted in the course of withdrawing blood at the request of a police officer pursuant to this section.

(3) Any person who may have a cause of action arising from the withdrawal of blood as aforesaid, for which no personal liability exists under subparagraph two of this paragraph, may maintain such action against the state if any person entitled to withdraw blood pursuant to paragraph (a) hereof acted at the request of a police officer employed by the state, or against the appropriate political subdivision of the state if such person acted at the request of a police officer employed by a political subdivision of the state. No action shall be maintained pursuant to this subparagraph unless notice of claim is duly filed or served in compliance with law.

(4) Notwithstanding the foregoing provisions of this paragraph an action may be maintained by the state or a political subdivision thereof against a person entitled to withdraw blood pursuant to subparagraph one of this paragraph or hospital employing such person for whose act or omission the state or the political subdivision has been held liable under this paragraph to recover damages, not exceeding the amount awarded to the claimant, that may have been sustained by the state or the political subdivision by reason of gross negligence or bad faith on the part of such person.

(5) The testimony of any person other than a physician, entitled to withdraw blood pursuant to subparagraph one of this paragraph, in respect to any such withdrawal of blood made by such person may be received in evidence with the same weight, force and effect as if such withdrawal of blood were made by a physician.

(6) The provisions of subparagraphs two, three and four of this paragraph shall also apply with regard to any person employed by a hospital as security personnel for any act done or omitted in the course of withdrawing blood at the request of a police officer pursuant to a court order in accordance with subdivision three of this section.

[antiquefirelt 994]

One thing people are forgetting, is the perp has to consent to a blood draw and all the other current procedures are still in place.

Is failure to consent an automatic charge?

[ny10570 745]

Is failure to consent an automatic charge?

Perp doesn't have to consent to blood. They can do breath or urine analysis (not sure if its available in all states). Sadly failure to consent doesn't necessarily mean conviction. It does guarantee license suspension but even thats flexible.

Edited July 17, 2010 by ny10570

[bfxfd 8]

Perp doesn't have to consent to blood. They can do breath or urine analysis (not sure if its available in all states). Sadly failure to consent doesn't necessarily mean conviction. It does guarantee license suspension but even thats flexible.

Why is it sad that failure to consent dosent mean a conviction? have you read the constitution recently? You have the right against self incrimination and against unlawful search and seizure. I could not be more against DWI but we still have to ensure our rights are not infringed upon. So unless a judge issues a warrant for the blood or urine analysis then its not lawful to require a suspect to surrender to the tests. The loss of your drivers license for one year is completely fine because driving is a privilege not a right.

[efdcapt115 1,511]

What about chain of custody for the evidence? I'd imagine non LE sources handling any evidence would potentially compromise it in the eyes of a defense attorney; I'm thinking the O.J. trial here as an outrageous example....

[helicopper 1,050]

What about chain of custody for the evidence? I'd imagine non LE sources handling any evidence would potentially compromise it in the eyes of a defense attorney; I'm thinking the O.J. trial here as an outrageous example....

No issue. The arresting or processing officer observes the blood draw and receives the sample and the chain is fine.

[efdcapt115 1,511]

Ahhhhh but what about.....Cross-contamination?

just kidding. Thanks for the answers here and on the PAPD thread Chris.

[abaduck 123]

Why is it sad that failure to consent dosent mean a conviction? have you read the constitution recently? You have the right against self incrimination and against unlawful search and seizure. I could not be more against DWI but we still have to ensure our rights are not infringed upon. So unless a judge issues a warrant for the blood or urine analysis then its not lawful to require a suspect to surrender to the tests. The loss of your drivers license for one year is completely fine because driving is a privilege not a right.

It's odd the things our constitution allows or prohibits, or some people think it allows or prohibits. I have no issue whatever with refusal to consent to a sample when an LEO has reasonable suspicion you've been drinking being an offense in and of itself, carrying the same penalty as providing a positive sample. That's exactly how it should be. Otherwise you have a huge incentive for drunks to simply refuse the test. Is that the law in any other states? It certainly is in the UK, and always has been.

But I have huge issues with things which are apparently allowed - such as 'presumed possession' laws, where if drugs or weapons are found in a place or vehicle, everyone in that place is presumed to be guilty of possession of them. That's just bad and wrong; most unjust. Ditto the asset confiscation laws they have some places, where you lose your car or money and have to prove you're NOT a criminal to get it back.

[ny10570 745]

Refusing a chemical test is the surest way to beat the rap. Then all you're faced with is your license revokation. Appeal that to a suspension and get your work/school waiver. Voila you're back behind the wheel. So yes I'd like an officers observations combined with a perps refusal to be enough to potentially convict.

[bfxfd 8]

Refusing a chemical test is the surest way to beat the rap. Then all you're faced with is your license revokation. Appeal that to a suspension and get your work/school waiver. Voila you're back behind the wheel. So yes I'd like an officers observations combined with a perps refusal to be enough to potentially convict.

This is a very slippery slope. Using a persons refusal to cooperate with their own incrimination to obtain a conviction is a dangerous and unprecedented legal action. While we all agree that drunk driving is a terrible and reckless act, we dont want to begin eroding our civil rights. It is one of the greatest protections we are afforded; lets protect it.

[ny10570 745]

The fact that they refused should never be indicative of guilt. True. I misspoke. However in the absence of a chemical test an officers observations of slurred speech, glassy eyes, smell of alcohol, etc should be enough.

[antiquefirelt 994]

This is a very slippery slope. Using a persons refusal to cooperate with their own incrimination to obtain a conviction is a dangerous and unprecedented legal action. While we all agree that drunk driving is a terrible and reckless act, we dont want to begin eroding our civil rights. It is one of the greatest protections we are afforded; lets protect it.

I'm less tolerant I guess, but if you have nothing to hide, then you submit to one of the test options granted. If not, your license is revoked. This is basically an admission of guilt as you're given a choice to prove you're sober and choose not to. SO the difference is the jail time served for a guilty conviction of DUI? Nonetheless the suspect has little choice, if they wish to keep their driver's license, but to submit to a test. I choose not to be nor allow our people to be the tester. Pretty simple, you're on the "bad guy" end of the system as the tester in the eyes of the suspect, a position EMS personnel should not be in. You want to play cop, go be one.

[abaduck 123]

This is a very slippery slope. Using a persons refusal to cooperate with their own incrimination to obtain a conviction is a dangerous and unprecedented legal action. While we all agree that drunk driving is a terrible and reckless act, we dont want to begin eroding our civil rights. It is one of the greatest protections we are afforded; lets protect it.

I agree with that statement; that's not what I'm proposing. I'm not saying refusal should be indicative of guilt of DWI - that's the same slippery slope as the 'presumed guilty of possession' example I gave. What I'm saying is that refusal to give a specimen when an LEO has *reasonable cause* to suspect DWI/DUI should be a V&T offense in and off itself; you're guilty of refusal to give a specimen, not guilty of DUI. You get tried and sentenced for refusal, simple as that. Does anyone know if that is in fact the law in any states?

Think of it as the equivalent of an obstruction charge where someone prevents or tries to prevent an LEO from performing a probable cause search. Does that make sense?