POLICE OFFICER BLOOD DRAWS

The problem with “phleboto-cops”1 and why Matthew Green should fight your DUI case if a law enforcement officer drew your blood

Police officers should not be taking blood samples from those accused of DUI—ever. The United States Supreme Court has warned local police departments not to allow their officers to do so, but many Arizona law enforcement agencies have disregarded these orders. Today, these police departments authorize their officers, the vast majority of whom have inadequate training, to perform the invasive medical procedure of drawing blood. More disturbing is the fact that the police officers typically draw blood outside of medical or clinical environments. Through cross examination of police officers, and testimony of expert witnesses, Mr. Green has exposed in court the many unsafe ways in which police officers in Arizona draw blood.

In fact, Matthew Green has dedicated much of his law practice to fighting against the blood tests in cases such as these. He was the first attorney in Arizona to substantially litigate the issue when, in March 2003, he conducted a multi-day evidentiary hearing in Maricopa County Superior Court. During the evidentiary hearing in that case, Mr. Green uncovered a variety of very disturbing facts related to the inadequacy of the Phoenix Police Department’s training and supervision of its officers who are allowed to perform blood draws. Mr. Green additionally exposed the inherently dangerous and unsanitary ways in which police officers regularly draw blood from people accused of DUI.

Since then, Matthew Green has worked closely and shared his work with other attorneys throughout Arizona in an effort to coordinate a statewide challenge against “phleboto-cops.” In Tucson, he has been involved with the fight by assisting the Pima County Public Defender’s Office, and the Law Offices of Charnesky and Dieglio, when they have challenged the issue in Pima County Superior Court, and successfully in Pima County Justice Court.

Statewide, Matt Green has mounted more challenges to the officer blood draw issue than any other single attorney. He was the first attorney in Arizona to win on this issue, and to have his clients’ cases dismissed based on problems with police blood draws. He jointly represented the person whose case will be the first to be heard by the Arizona Court of Appeals in the summer of 2005, and he was one of two lawyers who wrote that appeal. Mr. Green has given presentations to attorneys from all over Arizona to teach them how to properly take up the fight against cops who draw blood, and he continues to do so several times a year as the status of this litigation evolves.

Simply put, nobody knows more about officer blood draws than Matthew Green, nobody has more experience defending people with these kinds of cases, and nobody is more qualified to win such a case. If you have been charged with DUI and your blood has been drawn by a police officer, the Law Offices of Matthew H. Green represents your best chance of success in court.

Why is the blood draw issue so significant to your case?

If you’ve been charged with a DUI, the strongest evidence against you will be your blood alcohol concentration. The police and the prosecutor attempt to prove that your blood alcohol concentration was over the legal limit (.08 for “regular” DUI, .15 for “extreme” DUI) with the results of either a breath test, or a blood test. These tests are “searches” under the Fourth Amendment of the Constitution, and the collection of your breath or blood is a “seizure” of biological evidence from your body. The Constitution protects people accused of crimes, like DUI, from “unreasonable” searches and seizures. If a judge finds that the search and seizure of evidence in a criminal case was unreasonable and in violation of the Fourth Amendment, then that evidence must be suppressed, or thrown out. In a DUI case, suppression of the blood evidence substantially weakens the prosecutor’s case, and often leads to dismissal of the charges or a reduction in the seriousness of the offense.

A blood draw is an invasive search of your body. And although police officers regularly perform these invasive medical procedures in Arizona DUI cases, the United States Supreme Court has clearly stated that “serious questions would arise” if, in a DUI case, a blood draw was “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.” California v. Schmerber, 384 U.S. 757, 86 S.Ct. 1826 (1966).

Several judges in Arizona have already suppressed the blood test results in cases where Mr. Green and his colleagues have demonstrated that the police officers involved in those situations lacked the proper training, education, and supervision necessary to protect the constitutional rights of their clients. Mr. Green has also exposed during these hearings the sometimes shockingly unsanitary and dangerous environments in which Arizona police officers draw blood, and the general conflict of interest under the law that prevents police officers from safely playing the role of a phlebotomist.

Overview of the history of police blood draws in Arizona

Disturbed by what he noticed was a growing trend in Arizona, Matthew Green began the process of mounting a serious challenge to the constitutionality of officer blood draws in 2002. Working closely with James Charnesky of Charnesky and Dieglio in Tucson, Matt Green began coordinating the litigation of this issue in Maricopa County, while attorney James Charnesky did the same in Pima County. Due in part to the more demanding requirements of the Maricopa County Superior Court at that time, it soon became apparent that Mr. Green would have the first major “phleboto-cop” court hearing in Arizona. In preparation, he interviewed police officers, the lieutenant of the Phoenix Police Department in charge of that agency’s officer phlebotomy program, and expert witnesses in the area of phlebotomy, emergency medicine, and clinical health care. The first evidentiary hearing took place in March of 2003 and lasted for several days. Mr. Green and his co-counsel, Rebecca Potter, the Supervisor of the Maricopa County Public Defender’s Office Vehicular Crimes Unit, elicited testimony that confirmed the lack of adequate training most police officers have prior to becoming authorized to draw blood, the lack of appropriate supervision and ongoing training they receive after they begin drawing blood, and the many unsanitary and dangerous locations outside of medical facilities where they perform these invasive procedures.

For the next year and a half, Matthew Green coordinated the fight against cop blood draws in Maricopa County, and continues to do so statewide along with the law firm of Charnesky and Dieglio in Tucson. He conducted the evidentiary hearing in the case that is now pending before the Arizona Court of Appeals, and jointly worked on two other cases that are pending review at the appellate level.

Challenging the constitutionality of the blood draw in your case is complicated and requires the skill of a qualified attorney

Although several cases that Mr. Green has worked on are pending review by the Court of Appeals, it is most likely that the constitutionality, or legal status, of officer blood draws will continue to be disputed for some time. Why? Because the United States Supreme Court is probably the only court that can definitively address the issue. For this reason, as long as police officers in Arizona continue to draw blood, and as long as the highest court in the country has not ruled on the issue, the constitutionality of every single case where a police officer drew blood will probably be uncertain.

This is significant for several reasons. First, if avoiding a conviction for DUI is important to you, and your blood was taken by a police officer, you need to have a lawyer who knows how to properly attack the State’s case. In the case of a police blood draw, that means that your lawyer needs to do the following:

1. Request the proper materials and information from the police department involved in your case;

2. Skillfully review the evidence in your case and interview the police officers involved in your arrest about the manner and environment in which they took your blood;

3. Have a detailed understanding of the legal, medical, and scientific aspects of blood collection and testing;

4. Possess sufficient knowledge about the policies, protocols, and procedures that the particular police department in your case has implemented to supervise and coordinate its “officer phlebotomists”;

5. Know exactly what questions to ask of the police officers and their superiors during interviews, and on the stand when they testify at your evidentiary hearing;

6. Have a good working relationship with expert witnesses who he or she may need to consult with, or call to testify in court for the proper litigation of your case; and

7. Clearly understand the law, within and outside of Arizona, as it directly pertains to the legality of police blood draws.

Matthew Green is the most qualified lawyer in cases such as these because he pioneered the legal fight against “police officer phlebotomy.” He has invested hundreds of hours in officer blood draw cases—in and out of court—gathering research, conducting interviews, and consulting expert witnesses. In these kinds of cases, nobody has more experience presenting evidence, cross examining police officers and making arguments at blood draw evidentiary hearings in Arizona courtrooms.

But it is just as important to understand that, even if your attorney is unsuccessful in convincing the court to suppress the evidence and dismiss the charges, you will almost certainly be able to appeal your case in such a situation. Again, whether police can draw blood is an issue that will probably not be finally decided for several years. Until that time comes, you need to do everything possible to preserve your right to have your conviction reversed and your case dismissed. That means that your lawyer must have an understanding of how the “phleboto-cop” subject will progress through the various appellate courts.

From the beginning of his involvement in the litigation of “officer phlebotomy,” Matthew Green has placed enormous emphasis on being able to analyze not only what is best for his clients’ interests in the short term, but also on protecting them over the long run. As the first set of these cases begins to move to the Court of Appeals, Mr. Green stays involved with the drafting and filing of those appellate briefs, and with the arguments made to the Court of Appeals.

A lawyer who is only generally familiar with the officer blood draw issue may fail to do what is required to properly preserve your opportunity to prevail in the future, even if you don’t win your case in the first court. For people who cannot afford to have a DUI conviction on their record, this of the utmost importance, and the necessity of having an advocate on your side with the requisite skill to navigate through this technical area of the law cannot be stated strongly enough.

1 Phlebotomy is a medical term defined as “The act or practice of opening a vein by incision or puncture to remove blood.” The American Heritage® Stedman's Medical Dictionary Copyright © 2002, 2001, 1995 by Houghton Mifflin Company. Published by Houghton Mifflin Company.