In State v. Patrick McLeod Nissley, No. CR-15-0393-PR, (2/1/17), the Arizona Supreme Court held that nonconsensual warrantless blood draws as authorized by A.R.S. § 28-1388(E), Arizona’s Medical Blood Draw Exception, require the patient/ defendant either consent to medical treatment or be incapable of consenting to the treatment. The court also said the burden of proof is not on the patient/defendant to show he did not consent to the medical treatment, but rather on the State to show the patient/ defendant did consent to the medical treatment.
Generally a law enforcement officer must obtain a search warrant to take an involuntary blood sample from a patient who is also a suspect in a crime. An exception to the warrant requirement is. A.R.S. § 28-1388(E), Arizona’s Medical Blood Draw Exception. That statute requires medical personnel to provide a portion of any blood sample taken from a patient/suspect for medical circumstances when a police officer has probable cause to believe the patient/suspect had been driving under the influence of alcohol or other drugs and exigent circumstances exist, and the officer makes that request to medical personnel.
In State v. Patrick McLeod Nissley, No. CR-15-0393-PR, (2/1/17), the Arizona Supreme Court unanimously held that to use the blood test results at trial the State is required to prove the blood sample was obtained in the course of medical treatment for which the patient/suspect expressly or impliedly consented or that the treatment was being provided when the patient/suspect was incapable of directing his or her own medical treatment.
In Nissley, the defendant was involved in a traffic accident in which four people were injured and one person was killed. Emergency personnel quickly arrived and found the defendant was delirious, flailing his arms and screaming incoherently. The defendant demanded to be left alone. The defendant was uncooperative and was restrained, and then taken to a hospital were a blood sample was taken for medical purposes. A police officer asked for and was given a sample of the defendant’s blood. The officer did not first obtain a search warrant. The sample was tested and found to containing impairing drugs.
The State indicted the defendant on charges of second degree murder, endangerment (four counts), and possession or use of narcotic drugs. In the trial court the defendant moved to suppress the results of his blood test alleging it was illegally obtained, without a warrant or a valid exception to the warrant requirement. He argued that because he was treated against his will, A.R.S. § 28-1388(E), Arizona’s Medical Blood Draw Exception did not apply. After an evidentiary hearing the trial court denied the motion, finding the defendant did not expressly reject treatment and therefore the A.R.S. § 28-1388(E), Arizona’s Medical Blood Draw Exception applied. In essence the trial court said it was the defendant’s burden of proof to show the sample was obtained in the course of treatment he had expressly refused to consent to, as opposed to being the State’s burden to show the sample had been obtained in the course of treatment to which the defendant had consented.
At trial the defendant was convicted of Reckless Manslaughter and the court imposed sentence. On appeal, the Arizona Court of Appeals affirmed the trial court’s denial of the motion to suppress and the conviction.
Defense appealed again. The Arizona Supreme Court reversed the court of appeals decision, and in doing so vacated the court of appeals decision, but not the conviction and sentence imposed by the trial court. In doing so the court held the burden of proof is not on the defendant to show the sample was obtained in the course of medical treatment, but rather on the State to show the sample was lawfully obtained in the course of medical treatment which the defendant had consented to. The court said to justify the use of test results at trial under the A.R.S. § 28-1388(E), Arizona’s Medical Blood Draw Exception, State must show that,
- Probable cause existed;
- Exigent circumstances existed and it would have been impractical for the police to have obtained a warrant;
- The blood was drawn in the course of medical treatment for medical purposes;
- The blood was drawn in compliance with the defendant’s right to direct his or her own treatments and the defendant freely and voluntarily consented to treatment.
The court said however if the defendant was incapable of providing consent, such as when they are unconscious, the State need not prove the defendant consented to the medical treatment.
The Supreme Court then sent the case back to the trial court for a new motion to suppress based on this standard, with directions that if the State could not meet this standard the motion to suppress should be granted and the conviction and sentence vacated.
The case may be found at:
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