Posted by Edmund R. Folsom

December 18, 2015

DISCLAIMER:  The following is not legal advice.  It is not intended as legal advice and should not be taken as legal advice.  I offer it to potentially aid understanding only.

Sometimes average people have no idea what’s going on in the world of law enforcement. For instance, a number of people have told me over time that they have thought police officers are not allowed to lie. Think about that for a minute. As an interrogation technique, police investigators are TRAINED TO LIE TO PEOPLE.  It’s a simple matter of the ends justifying the means. Let me tell you about something else police are now being trained to do. I bet average Joe and Jane have no clue that Maine police officers are routinely being trained to stick needles in people’s arms and draw their blood for investigative purposes, but that’s exactly what’s happening.

Maine’s implied consent statute, which creates a duty to submit to an alcohol test if an officer has probable cause to believe the person is OUI, provides that when a blood sample is taken the person “may choose a physician, if reasonably available.” This requirement appears on the surface to provide protection to the individual, but it has no real value because under precedent from the Maine Law Court (State v. Chase, 2001 ME 168) it doesn’t matter if the police don’t actually provide a person the chance to choose a doctor for a blood draw- the test result comes in anyway. The Legislature enacted another superficial appearance of protection for the individual in the statute that governs the qualifications of those who are allowed to draw blood for forensic purposes, 29-A M.R.S. §2524. That statute states: “Only a physician, registered physician’s assistant, registered nurse or person whose occupational license or training allows that person to draw blood samples may draw a specimen of blood for the purpose of determining the blood-alcohol level or the presence of a drug or drug metabolite.” Notice how that starts off setting high qualifications for a person to be allowed to draw another person’s blood and limits the authority to those in the medical profession–physician, registered physician’s assistant, registered nurse– then quickly spirals down to a standard that allows anyone to do it whose occupational training allows the person to do it (The drafting of this statute is a prime example of the way statutes are often written so as to deceive the uninitiated, but that’s another kettle of fish for another day). Several years ago, I asked what would happen under this illusory standard if police departments simply decided to conduct in-house training for their officers and declare that the officers who take the training are qualified to draw blood.  That is close to what is now happening.  The Maine Bureau of Highway safety now puts on training programs for police officers to become “phlebotomy technicians,” who use their training to draw people’s blood in police stations.  A few years ago, I posted on Facebook about the trend for some Maine officers to draw blood from people in police stations after they had undergone (medical) EMT training. I pointed out that, in some other states, police officers had already moved on to the next stage of drawing people’s blood with the suspect’s arm resting on the trunk of a car, on the side of a highway. Back then, I even received a comment or two from police officers who found that disturbing. Well, at this point I have no doubt that’s where we are headed.  Acceptance of it demonstrates how our sensibilities become eroded through a series of small steps, until suddenly… Oh Brave New World!


In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court approved of the warrantless taking of a person’s blood sample in a hospital, by hospital personnel, under the probable cause/exigent circumstances exception to the requirement of a search warrant.  In declaring that the sample had been taken in a “reasonable” manner, for 4th Amendment purposes, the Court had this to say:

Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.   Schmerber, 384 U.S. at 771-772.

That is to say nothing of what else it might invite.  Call me squeamish, but I find something deeply disquieting about allowing police officers to penetrate people’s bodies in search of evidence.  Achtung!!!  Sign ze papers, old man!!!