Blood Draw Requirements
Here is a simplified explanation of the blood draw requirements from a DWI Lawyer in Arlington. A blood draw performed at an officer’s request after a DWI arrest has two main requirements: 1) a qualified person must perform the blood draw, and 2) the blood draw must occur in a “sanitary” place. Texas Transp. Code § 724.017(a) and (a-1).
Qualified Person Requirement
The statute lists five broad categories for persons qualified to perform a blood draw:
- a physician;
- a qualified technician;
- a registered professional nurse;
- a licensed vocational nurse; or
- a licensed or certified emergency medical technician-intermediate or emergency medical technician-paramedic (EMTs) authorized to take a blood specimen under subsection (c).
Subsection (c) has some specific restrictions. But, to put it simply, an EMT can only perform a blood draw if authorized by the EMT’s medical director and using protocol established by the medical director. Stated another way, an EMT is not a “qualified technician” under the statute. A phlebotomist is usually, but not always, a “qualified technician” allowed to perform the blood draw. In essence, a “qualified technician” is someone that doesn’t fit into the other categories but is “qualified” because of education, experience, etc..
Sanitary Place Requirement for Blood Draws
The “sanitary place” requirement, however, can be somewhat confusing. Part of the reason for confusion is that the statute does not define what “sanitary” means. There is also very little case law that defines “sanitary” for blood draws. Unfortunately, most of the case law says that a place only has to be “safe” rather than “ideal” to count as a “sanitary” place. There are a few cases that say that taking a blood draw on the floor of a place is not sanitary, even if the place itself is sanitary.
However, the Health and Safety Code can provide some minimal insight into what “sanitary” might mean. The code defines sanitary as “a condition of good order and cleanliness that precludes the probability of disease transmission”. This definition is only somewhat helpful. The code then defines public nuisance, which is a bit more helpful. Some of the key examples that we have seen in the past could fall under a public nuisance. These public nuisances include:
- a place, condition, or building controlled or operated by a state or local government agency that is not maintained in a sanitary condition;
- sewage, human excreta, wastewater, garbage, or other organic wastes deposited, stored, discharged, or exposed in such a way as to be a potential instrument or medium in disease transmission to a person or between persons;
- a place or condition harboring rats in a populous area;
- an object, place, or condition that is a possible and probable medium of disease transmission to or between humans.