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Testing For Intoxicants In Illinois

September 24, 2009

A recent news article described how a charge nurse at Illinois Masonic Medical Center was handcuffed and held in the back of a police car after being asked to draw blood on an allegedly drunken driver who was involved in a fatal motor vehicle accident. See stories from Chicago Sun Times here and here. See article from Chicago Tribune here.

Allegedly, the police officer arrived in the emergency department with the patient and had been waiting 3.5 hours for someone to draw the patient’s blood. When he asked a nurse to draw the patient’s blood, the nurse allegedly stated that the patient needed to be registered before his blood could be drawn and also stated that she needed to speak to a supervisor about the situation. At that point, the police officer handcuffed her and reportedly placed her in the back of his police car for 45 minutes.

So what does Illinois law say about medical staff who are faced with a request from law enforcement to draw blood from an allegedly intoxicated driver?

Several Illinois statutes apply to this situation. I don’t intend for this to be specific legal advice, so if you would like more information on any of the statutes cited, performing an internet search using the specific statutory citation will usually bring up the text of the statute at the Illinois General Assembly web site.

In Illinois, a person involved in a motor vehicle accident has the right refuse to submit to alcohol or drug testing … under most circumstances. Section 625 ILCS 5/11-501.2 of the Illinois Compiled Statutes states that if a law enforcement officer has “probable cause” to believe that a death or personal injury was caused by a person operating a motor vehicle under the influence of any “intoxicating compound,” the driver “shall” submit to blood, breath, or urine testing for drugs or other intoxicating substances. The statute gives examples of a “personal injury” as “severe bleeding wounds, distorted extremities, and injuries that require the injured party to be carried from the scene” and also notes that “personal injuries” generally require immediate professional attention in either a doctor’s office or a medical facility.
In other words, under this statute, a potentially intoxicated driver who causes a personal injury accident waives his right to refuse testing if a law enforcement officer requests the testing.

In addition, Section 625 ILCS 5/11-501.8 applies to drivers under age 21. Under subsection (b), if a person is “dead, unconscious, or … otherwise in a condition rendering that person incapable of refusal, tests may be taken on the individual’s blood, urine, breath, or other bodily substance at the request of a law enforcement officer.

If the patient is required to submit to testing, the next question becomes who will obtain the blood or urine samples.
In the case of a driver under the age of 21 who consents to testing, 625 ILCS 5/11-501.8(b)(ii) states that trained medical personnel may withdraw blood specimens, but that law enforcement officers may obtain urine or breathalyzer specimens.
In the case of a driver under the age of 21 whose condition makes him or her incapable of refusal and who is receiving medical treatment due to the motor vehicle accident, 625 ILCS 5/11-501.8(b)(vi) states that trained medical personnel “shall withdraw blood for testing purposes to ascertain the presence of alcohol upon the specific request of a law enforcement officer.” However, that testing cannot be performed until the patient has been stabilized (i.e. testing will not “interfere with or endanger the well‑being of the patient”).
In the case of a potentially intoxicated driver, I was unable to find any other law compelling a healthcare professional to obtain blood or urine samples for drug and alcohol testing at the request of a law enforcement officer.

Some health care providers may be hesitant to obtain body fluid specimens from patients against their will. There are a couple of other points to keep in mind.

First, if you don’t assist the officer in obtaining the specimen, you might prevent someone with a drinking problem from getting the help that they need. While a drunken driving conviction is difficult, allowing an intoxicated driver to avoid prosecution may make it more likely that the person will continue driving while intoxicated and injure himself or someone else.

Second, if you are worried about liability for obtaining a blood or urine specimen against a patient’s will, the Illinois legislature has provided protection for you. Section 625 ILCS 5/11-500.1 of the Illinois Compiled Statutes states that a healthcare professional who draws blood or collects urine at the request of a law enforcement officer for evidence under this Section is immune from civil liability unless the act is performed in a manner that “shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the health or safety of another.” It is unlikely that a simple blood draw – even if the patient is being restrained by the law enforcement officer – would rise to this “willful and wanton” level.

Physicians working in trauma centers may also need to obtain blood alcohol levels from trauma patients. The Illinois Administrative Code contains rules adopted through the Illinois General Assembly. Section 515 of the Illinois Administrative Code is the “Emergency Medical Services and Trauma Center Code” (the “Code”). Within the Code are reporting requirements for trauma centers to “provide the following information on each reportable trauma patient,” followed by a list of 116 pieces of information. Among those pieces of information that must be submitted are an “ED blood alcohol” and an “ED drug screen.”

The language in the statute specifies that the trauma center is responsible for providing the information on each reportable trauma patient, so it appears that alcohol and drug testing required under the Code only applies to hospitals that are designated as “trauma centers.” Under the current trauma system, half of all the money collected from “violations of laws or ordinances regulating the movement of traffic” is placed into a Trauma Center Fund. Hospitals that are designated as “trauma centers” receive a proportionate distribution of the money in that fund depending on the severity and number of trauma patients that facility sees.

The only penalty that I was able to find within the Code for not complying with the requirements was that a hospital’s trauma designation could be non-renewed if it does not “substantially comply” with the Code or the trauma designation could be revoked for serious violations of the Code. So, while a failure to abide by the Code could cost a hospital its “trauma center” designation, I was unable to find any statutory or administrative penalty specific to health care providers for failure to obtain blood alcohol levels or urine drug screens on trauma patients.

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