Blood-Testing for DWIs in Hospitals

The combining of DWI investigations and driving while intoxicated (DWI ) investigations is rather common, especially for smaller municipalities that lack much of the funding or training for its officers about how to handle these matters.  In fact, health care professionals are not required to test for intoxication during treatment and even if they do, they are not required to report it to law enforcement.  Usually, what happens, is if officers suspect that alcohol was involved in a collision that sent someone to the hospital, it gets noted in a report and the prosecutor’s office will subpoena the record medical record. 

Emergency room physicians are not required by law to report drunk drivers, and sometimes they rely on a financial reason not to test for intoxication:  they do not want the claim for their services denied by the health insurance provider.  This is a federal law that has been around for over half-a-century. 

So, what happens when a hospital draws blood and there is an associated DWI? Well, if the State handles the matter correctly, they will probably have access to that record, which will show the measure of alcohol in the blood.  However, if the records are not properly ordered, that is one set of testing that will likely not become part of a State’s file.

In a world of ever-increasing pressure for "mandatory blood draws" like the one put on by the Austin Police Department over the Halloween, 2008, weekend, it should not come as a surprise that State officials may try to get these records, which is legal.  However, it is not legal for them to circumvent the search warrant requirement of the 4th Amendment to the US Constitution and related provisions under State law to have hospitals draw the blood, as part of an active investigation, without a warrant.  To do so would be to indirectly seize that which they legally cannot to begin with.  Proving this may be rather difficult, especially if you have a health care provider that is in collusion, but for now, I’m going to hope that is uncommon at most.