Blood-draw policies at both Charlottesville-area hospitals have prosecutors concerned about the ability to hold people suspected of driving under the influence accountable.
In the last six months, both the University of Virginia Medical Center and Sentara Martha Jefferson Hospital have implemented policies to not perform blood draws if the patient does not consent, regardless of whether police have obtained search warrants.
“The new policy of [UVa] and [Sentara Martha Jefferson] fails to honor a legally obtained warrant, which makes it almost impossible to hold drunk drivers accountable,” said Rusty McGuire, commonwealth’s attorney of Louisa County. “This means an alcoholic will get right back in the car, which puts the public at risk.”
Prosecutors from Charlottesville and the counties of Albemarle and Louisa said they have encountered these policies locally in recent months and are worried about the effect they could have on public safety.
Police sometimes use blood tests to try to determine what a breath test can’t, such as drug use, or to screen unconscious people. After a medical professional draws a person’s blood, police send it to the Virginia Department of Forensic Science to determine whether alcohol or drugs are present and, if so, at what levels.
In the 20 years he has been a prosecutor, McGuire said he has handled “hundreds, if not thousands,” of DUI cases, many of which involved death or serious injury. Addiction is one of the toughest things for people to deal with, he said, and his office often encounters repeat DUI offenders in short periods of time.
“Creating a policy that ensures that drunk drivers will drive again is reckless and dangerous,” he said. “I don’t know if they need more patients or they have a DUI defense attorney helping them draft the policy.”
Robert Tracci, Albemarle’s outgoing commonwealth’s attorney, shared similar concerns. According to Tracci, the decision frustrates the judicial process and is “an unprecedented departure from longstanding practice that took place without any consultation with, or notice to, area law enforcement partners.”
“Virginia law already immunizes medical personnel and hospitals from liability for honoring search warrants for blood draws,” Tracci said. “To the extent any additional clarification may be necessary, I strongly urge the General Assembly to immediately enact legislation to protect Virginia citizens from those who endanger public safety by driving under the influence of intoxicants.”
Joe Platania, Charlottesville’s commonwealth’s attorney, echoed those concerns but said he believes a solution can be found.
“I’m confident that we will be able to collaborate with our partners at the UVa Medical Center to find a solution to this problem,” he said.
According to UVa, its policy was influenced by media attention to the Virginia Commonwealth University Medical Center’s blood-draw policy and by events outside the commonwealth.
According to medical center spokesman Eric Swensen, discussion on the policy — which went into effect Aug. 1 — began following a 2017 incident at a Utah hospital where a nurse was arrested after a disagreement with a police officer over a blood-draw request.
In that situation, the nurse refused to allow the officer to withdraw the patient’s blood because the officer had not obtained a search warrant and the patient was unconscious and could not consent, according to the Salt Lake Tribune. The officer was later fired by the Salt Lake City Police Department after body cam footage of the arrest went viral.
Utah lawmakers have since passed a bill preventing similar showdowns, according to The Salt Lake Tribune, only allowing blood draws to occur if officers have written or oral consent from the patient; obtain a warrant; or a determination is made that there is a “judicially recognized exception to the warrant.”
Discussion at UVa was furthered by VCU Health’s virtually identical policy, which, according to the Richmond Times-Dispatch, also drew criticism in 2018. VCU requires consent from the patient when drawing blood, whether for medical treatment or legal reasons, according to reporting from the Times-Dispatch. 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.
Martha Jefferson’s policy resembles the one the VCU Medical Center implemented, but clarification of when the Charlottesville hospital’s policy went into effect could not be obtained by press deadline.
“If law enforcement has a warrant, Sentara Martha Jefferson administration will speak with law enforcement and request that they contact their commanding officer or work with the courts if the patient continues to refuse,” said spokeswoman Jennifer Downs.
The situation is further complicated by a state statute governing warrants that specifies a law-enforcement officer can collect the evidence, not hospital staff.
According to Swensen, the policy change was discussed with the UVa Police Department before it took effect and local law enforcement agencies were informed once the change was made.
Spokespeople for the Albemarle and Charlottesville police departments declined to comment for this story.
In May, according to Swensen, a work group of police chiefs, sheriffs, commonwealth’s attorneys, Virginia State Police, emergency physicians and hospitals and health systems began holding monthly meetings about to the policy.
“Ultimately, the work group developed a set of joint operating protocols and best practices intended to help local hospitals and law enforcement work through issues around blood specimen collection when they arise,” Swensen said.
It remains to be seen if the General Assembly will address the issue in its 2020 session.
Del. Rob Bell, R-Albemarle, said he is working on bills related to DUI issues but has not filed any yet. Last year, Bell’s DUI-related bill, HB 1941, passed, making it a Class 4 felony to cause serious bodily harm to another while driving under the influence.
The 2020 session of the Virginia General Assembly begins Jan. 8.