VCU Medical Center1

VCU Medical Center.

Prosecuting local DUI cases has gotten tougher since last year when VCU Medical Center started refusing law enforcement requests to draw blood from some patients suspected of impaired driving, authorities say.

“If we can’t collect evidence, we can’t prosecute cases,” said David Mitchell, general counsel for the Richmond Police Department. “It affects our officers’ ability to do their job, and prosecutors as well.”

VCU said it requires consent from the patient when drawing blood, a procedure it called “invasive,” whether for medical treatment or legal reasons. If a patient refuses the procedure, the nurse or hospital staff will not draw blood even if police provide a search warrant signed by a judge or magistrate, according to the hospital’s policy.

“We cannot decide for a patient whether to grant access to their body and blood,” VCU Health spokeswoman Laura Rossacher said in a statement.

The hospital has the legal right to refuse to draw blood even in cases where a search warrant has been obtained, according to Mitchell, local prosecutors and law professors. The Virginia statute governing warrants specifies that a law-enforcement officer collect the evidence, not hospital staff.

But police and prosecutors said that by refusing to draw blood, VCU Medical Center is essentially denying them what could be hard evidence in a potential DUI case. Once blood is drawn, it is tested by the Virginia Department of Forensic Science to determine whether alcohol or drugs are present and, if so, at what levels.

VCU’s stance on the issue sometimes forces police to take suspects to other hospitals that are more likely to take a blood sample.

Richmond prosecutor Christine Cestaro said that VCU’s policy on taking blood samples has forced her to obtain search warrants for leftover trauma blood or blood drawn for medical purposes. But often there is not enough remaining for the state lab to test, and the blood is destroyed within two days so it can’t be requested after that.

In one case, a DUI maiming, Cestaro subpoenaed the patient’s entire medical record, but she had to call 13 hospital staff members as witnesses to prove chain-of-custody.

Cestaro acknowledged that she can’t point to a specific case in which the absence of a toxicology report resulted in failure to prosecute a suspected impaired driver since VCU began refusing blood draws last year. But she dramatically knocked on wood when asked about it.

“I’m scared,” she said. It’s only a matter of time before that happens, she said.

***

VCU said its policy has remained consistent for years, but police and prosecutors said they began having issues getting blood drawn beginning in May 2017, when VCU last reviewed its policy regarding blood alcohol and drug testing for legal purposes. Until then, law enforcement officers simply presented the warrant, and nurses drew the blood, Cestaro and Mitchell said.

The VCU change was soon followed by an incident in Utah last summer that drew national scrutiny when a nurse was arrested by a Salt Lake City detective for refusing to draw blood from an unconscious driver. Video of the nurse’s arrest went viral. No charges were filed against the nurse, and the city agreed to pay her $500,000 in a civil settlement.

Earlier this year, Utah lawmakers passed new legislation clarifying that police may obtain a blood sample only if they have written or oral consent from the patient, obtain a warrant, or there is a “judicially recognized exception,” according to the law.

Virginia law states that search warrants may be issued for items like weapons, property and “alleging briefly material facts, constituting the probable cause,” according to state law.

Under Virginia law, anyone who is authorized by law to draw blood in accordance with a search warrant is protected from legal action, “except in cases of negligence in the withdrawing of blood or willful misconduct.”

Following the Utah incident, the RPD’s Mitchell issued a memo to city police officers saying that “under no circumstances should any hospital staff be arrested, or any other adverse action be taken, for refusing to perform a blood draw.”

Cestaro, the Richmond prosecutor, said it may take a legislative change by the Virginia General Assembly to force hospital officials to take blood samples when presented with a search warrant.

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Locally, the issue isn’t unique to Richmond law enforcement officials in their dealings with VCU. Virginia State Police and Henrico County police have said their departments have had warrants refused at VCU.

State police spokeswoman Corinne Geller said the department “has made necessary adjustments by utilizing other area hospitals.”

That’s also what Richmond police are now forced to do, Mitchell said. City officers now take a suspected drunk or drugged driver to Chippenham Hospital or Retreat Doctors’ Hospital, where warrants have been honored.

“If [the driver] doesn’t have injuries and it’s just for a blood draw, they need to choose which hospital is going to get it done,” Mitchell said.

But it often wastes time, which is critical in getting an accurate measurement of the level of intoxication at the time of the crash. Many drugs like cocaine and alcohol dissipate quickly, Cestaro said.

“Time kills us,” she said. “Over time, evidence is lost.” Defense attorneys often argue in DUI cases that a toxicology report doesn’t reflect the level of intoxication at the time of a crash.

Choosing to go to another hospital isn’t always an option, either — especially if the driver requires medical attention.

“That’s the problem,” Mitchell said. “When you get a really bad DUI, that’s when we run into this. That’s when it’s most important that we get the evidence because they’ve hurt somebody else or they hurt themselves.”

***

Cestaro says she’s concerned that more hospitals in the Richmond region will follow VCU’s example. Mitchell said it’s a trend happening nationally.

Bon Secours Health System, which runs several hospitals in the area, including St. Mary’s, St. Francis and Richmond Community, would not provide its blood draw policy but said in a statement that it “assesses each case based on its particular facts and circumstances, taking into account patients’ rights to privacy as well as legal requirements from law enforcement agencies.”

HCA Healthcare which manages the Henrico Doctors’, Parham Doctors’, Retreat Doctors’, Chippenham, Johnston-Willis and John Randolph hospitals, said its “emergency departments perform legal blood draws at the request of law enforcement, in accordance with Virginia law, or under a court-ordered search warrant.”

In a recent case in Chesterfield County, where 19-year-old Selvin O. Lazo Caballero allegedly crashed a stolen police vehicle while high on methamphetamine, police successfully executed a blood draw warrant at Johnston-Willis. Lazo Caballero refused the procedure on July 16 when he was brought in for medical treatment after the crash, but police returned with the warrant the next day.

VCU’s policy states that the hospital will draw blood for police if a patient consents or if the patient is unconscious and police have a warrant.

Julian Walker, vice president of communications for the Virginia Hospital & Healthcare Association, which represents 110 member hospitals including all of the local ones mentioned above, said that each health system and hospital has its own protocol even if there are some “over-arching directives.”

VCU said their policy is in keeping with the viewpoint of the Centers for Medicare & Medicaid Services, the Virginia Department of Health and The Joint Commission.

“Both the law enforcement community and health care community, while they are partners and work together, they perform different roles in the public space,” Walker said.

“The health care provider-to-patient relationship is established under the law and that comes with several duties to the patient. Those duties exist regardless of the particular, unique circumstance under which any individual patient would arrive at the emergency room.”

The blood draw issue is complex, he said, and one that “involves both legal and ethical issues.” It’s also an issue that’s been debated for years, not just since the incident in Utah.

***

Henrico County Chief Deputy Commonwealth’s Attorney Michael S. Huberman helps run an Advanced DUI training program for police officers and prosecutors for the Virginia Commonwealth’s Attorneys’ Services Council, and the blood-draw issue often comes up as a frustration for those in attendance.

“If more hospitals adopt this policy, it will clearly make it much more difficult, and at times maybe impossible, to prosecute,” Huberman said.

He added this is especially true in cases involving a driver who is under the influence of drugs rather than alcohol. Alcohol can be measured by other means like an intoxilyzer machine, commonly referred to as a Breathalyzer. But hospitals rarely run tests for illegal drugs that police are looking for in a suspect’s blood.

Other workarounds considered include hiring a department phlebotomist, a person trained to draw blood, but Mitchell said that was a non-starter because there were too many liability concerns. Plus, in a meeting with Cestaro last year, VCU Medical Center officials said the hospital would not allow someone from another agency to perform medical procedures at their facility.

Huberman said the main complaint he has heard from one hospital in the county is that it is too time-consuming and expensive for emergency room staff to perform these procedures for law enforcement officers and to testify in court. VCU denied that this played any role in their refusals.

University of Richmond School of Law professor Ronald J. Bacigal said there are other ways prosecutors can make their cases even without a toxicology test.

“In these cases, you get the officer to testify: ‘His eyes were glazed,’ ‘He smelled of alcohol’ or ‘He staggered when he walked,’” Bacigal said. “They’d much rather have that hard evidence.”

arockett@timesdispatch.com

(804) 649-6527

Twitter: @AliRockettRTD

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