A registered nurse, licensed practical nurse, clinical laboratory technologist, clinical laboratory technician, licensed emergency medical technician, licensed paramedic or, notwithstanding any other provision of law to the contrary, licensed emergency medical technician approved to establish intravenous catheters, technologist, or certified and/or nationally registered phlebotomist or at the direction of a medical examiner or other physician holding an unlimited license to practice medicine in Tennessee under procedures established by the department of health.

Remarkably, there are no provisions in this bill detailing the amount of training or even requiring that the person drawing the blood pass a proficiency test.  Nor are there provisions requiring a judge to determine that probable cause (the legal grounds required for arrest) exists before the blood is taken from the body.

While I am certainly far from a health care professional, I have had substantial experience as a non-certified phlebotomist when I worked in a hospital blood laboratory, albeit about 35 years ago.  I am aware of some of the potential complications from an improper blood draw such as thrombophlebitis, infection, damage to blood vessels, hematoma/bruising, and damage to the nerves near the venipuncture site.

Moreover, the proposed law gives no consideration to the fact that the officer may suffer from a contagious disease, is working in poor lighting conditions, or may be distracted by law enforcement duties during the blood draw. If a medical condition occurs during a blood draw—the criminally accused would have no immediate access to a healthcare provider for treatment.  In some situations, such as infection, the symptoms, etc. may manifest long after the actual blood draw.

Not surprisingly, the proposed law provides that the person drawing blood shall not incur any civil or criminal liability as a result of drawing the blood, except for damages that may result from negligence.  This means that a law enforcement officer with minimal training would be allowed to draw blood from a suspect with their arm on the hood of the police vehicle or similar unsterile environment.  This could be done without supervision from any other person, opening the door to abuse and negligence that would be difficult to prove except in a rare circumstance where the invasion of one’s body would be documented by video.

In 2006, Ann Japenga, a reporter for the New York Times, wrote about her debilitating injury that, after much suffering, was determined to have been caused by the needle going through her vein and causing dangerous but invisible bleeding into her arm.  The injury, caused by a phlebotomist in her doctor’s office, required surgery “to prevent permanent loss of the use of [her] arm, as well as a condition called “claw hand” that causes your digits to curl up like a sea anemone.”  The full article can be accessed here: http://www.nytimes.com/2006/05/30/health/30case.html.

Simply allowing the injured party to sue for negligence, as Senator Kelsey proposes, is not an appropriate remedy.  This type of case would have limited allowances for recovery.  With few exceptions, Tennessee law limits recovery against governmental entities to the amount of $300,000.00 pursuant to The Governmental Tort Liability Act.  Furthermore, this type of recovery would likely require the services of a civil lawyer who would (and should) charge a fee for his or her services.  Accordingly, the injured party would likely receive less than two-thirds of a recovery after attorney fees.  Moreover, expert fees, deposition costs and other trial expenses would have to be borne by the injured party.

If you have ever had a medical professional who is certified to draw your blood need to “stick” you on several occasions to obtain a sufficient sample, you can only imagine the type of abuse a suspect would receive from an uncertified law enforcement official.  I urge you to contact your Legislator to vote against this bill.

It is also most interesting that Senator Kelsey is sponsoring another bill making it a crime that carries a penalty of up to 30 days in jail for a law enforcement officer to unlawfully install a tracking device on a person or object (2012 Senate Bill 3046).  If he doesn’t trust a police officer to comply with a citizen’s right to privacy, how in the world would he expect an officer not to abuse a suspect when they stick a sharp object into their arm or other part of their body?

The lawyers at Oberman & Rice frequently monitor pending legislation that impacts the criminally accused, paying particular attention to those involving Tennessee DUI cases.  Should you have any questions about a Tennessee DUI issue, you may contact Steve, Sara, or Nate by calling (865) 249-7200.  You may also wish to review our website for additional information about Tennessee DUI Laws by clicking here.

Tennessee DUI law requires minimum amounts of jail time to be served for all DUI convictions.  If a defendant is convicted of a DUI, the judge MUST sentence that defendant to the minimum amount of time established by Tennessee DUI law, ranging from 48 hours in jail up to 150 days in jail, depending upon the offense.  On the other hand, the judge may sentence a defendant to more than the mandatory minimum amount of time – this is more likely to occur with multiple convictions.  Please visit our website for a full list of penalties for DUI convictions.

TN DUI lawyers know that any time in jail causes a major disruption in a person’s life, which is why anyone charged with DUI in Tennessee should consult with a Tennessee DUI attorney as soon as possible.  If you have questions about your Tennessee DUI charge and associated penalties, our lawyers are available to assist you.  Sara, Steve, or Nate will be happy to speak with you at (865) 249-7200.  

Why? Although popular culture has made Miranda a household word, movies and television shows do not fairly depict the complexity of when Miranda applies or the remedy available when Miranda is not explained to a criminal defendant.  Generally, the prosecution cannot use statements made by a suspect during a custodial interrogation unless it first demonstrates the use of procedural safeguards to secure the privilege against self-incrimination (Miranda rights).  At issue most often is the definition of “custodial interrogation.”  You should consult an experienced attorney to determine whether the statements you made were pursuant to a custodial interrogation.  If so, your lawyer may be able to keep the prosecution from using those statements against you in court (also known as suppression of evidence).

Her motivation for doing so is not entirely clear, whether it was a moralistic admission of guilt, unusual behavior provoked by intoxication, or a combination of both.

Reporting one’s own DUI is a surefire way of being charged with the offense and therefore of dealing with it through the court system. Sometimes it is best to pull over in a safe area, take the key out of the ignition and place it outside the vehicle, then call a friend or family member to come get you and/or the car.  Naturally, however, the most responsible option is to avoid driving under the influence altogether.

For more information about the crime of DUI in Tennessee and its consequences, feel free to contact The Oberman Law Firm at (865) 249-7200.