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McAllister v State- if you cant beat em change the rules - closing the loophole of DUI refusals

Wednesday, February 05, 2014

no implied consent for blood warrantsTheNewspaper.com reported on January 31, 2014 about the Georgia Court of Appeals closing the DUI test refusal loophole by approving blood test warrants in DUI cases where suspects refuse the testing under the Georgia Implied Consent statute in the decision of McAllister v. State.  But is it really a good idea to take away a person's right to refuse to allow police to pierce their skin in a jail environment to get a test result in a DUI case.  The question presents itself that if a person is not intoxicated enough to prove DUI without a blood test why are we risking injury and possibly permanent physical disability just to prove they are DUI. Blood draw injuries are very real and can cause a lifetime of pain, injury and disability as revealed in a New York Times article on Phlebotomy injuries.  

Blood drawers are called phlebotomist.  Many states require training to become a phlembotomist. In Georgia, anyone interested in becoming certified in phlebotomy can be as long as they are a high school graduate, be 18 years of age, pass a criminal background check and complete 20 hrs of basic class training, 20 hrs of advanced class, 40 hrs of training within a clinical environment, and complete 50 successful venipunctures and at least 10 blood draws using real people.  That about as much training as is required to get a driver's license when you are 16 years old.  Now imagine having your blood drawn not in a hospital but in a jail cell being held down by prison guards or on the side of the road in the back of a police car. Even in optimal conditions, there are over 2,000,000 needle stick injuries every year according to the World Health Organization.  The World Health Organization estimates suggest that 10% of the population have a medically diagnosable fear of needles under the  the DSM-IV-TR classification of needle phobia.  This is a fear so severe that individuals suffering from this phobia will avoid life sustaining medical treatment such as insulin shots for diabetes.

By contrast according to National Highway Transportation Safety Administration fact sheet, there were 275,000 alcohol-related accidents in 2003.  NHTSA defines fatal collisions as "alcohol-related" if they believe the driver, a passenger, or non-motorist (such as a pedestrian or pedal cyclist) had a blood alcohol content (BAC) of 0.01% or greater. NHTSA defines nonfatal collisions as alcohol-related if the accident report indicates evidence of alcohol present. NHTSA specifically notes that alcohol-related does not necessarily mean a driver or non-occupant was tested for alcohol and that the term does not indicate a collision or fatality was caused by the presence of alcohol.  Is the cure worst than the harm?

In a recent personal injury claim, a Fulton County Jury awarded 5.4 million dollars to a young husband injured in his home during a routine medical exam.  The blood drawer was employed Quick-Med, Inc a subsidiary of Quest Diagnostics.  It was admitted that the employer had hired her without ever observing her blood draw techiniques. As a result of the blood draw, the young husband and father suffered permanent damage to the median nerve of his right arm, a major nerve about as wide as a Number 2 pencil that runs down the middle of the forearm into the hand.  It was discovered during depositions that the blood drawer was inserting the needle at a 45 degree angle which is in violation of the standard of care. Further, after the young father and husband expressed pain the technician kept probing the arm to find the vein also in violation of the standard of care. The nerve damage and debilitating pain were so severe that the young father had be treated at the Shepard Spinal Center in Atlanta for catastrophic injuries. The nerve injury led to the onset of Complex Regional Pain Syndrome, Type II, a debilitating chronic pain condition which has no known cure.  Stories of blood draw injuries are legion.  By definition, a force blood draw would violate the standard of care given a DUI subjects expression of pain and given that most DUI suspects are held to the floor by corrections deputies who then draw the blood making getting a less than 30 degree angle near to impossible.

 

 

- Author: George Creal

 



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