When do the police need a warrant to search blood in intoxication cases?
The Court of Criminal Appeals handed down State v. Martinez, answering whether the State’s testing of blood previously drawn by hospital personnel for medical purposes constitutes a search under the Fourth Amendment.
In facts similar to those in State v. Martinez, in 1991 the Court of Criminal Appeals handed down the plurality opinion in State v. Comeaux that the Fourth Amendment was violated when the State obtained a vial containing blood samples and tested the sample for blood-alcohol content without a warrant.
In both Martinez and Comeaux, the defendants were taken to a hospital for treatment following a traffic accident and blood was drawn by hospital personnel for medical purposes but was not tested for blood-alcohol content by the hospital. However, because it was a plurality opinion, Comeaux did not establish binding precedent and left open the question of whether blood-alcohol testing by the State constituted a search.
No expectation of privacy in the results of a blood test performed by hospital personnel.
The State in Martinez argued that State v. Hardy and State v. Huse held an individual does not have an expectation of privacy in vials of blood protected by the Fourth Amendment. In both Hardy and Huse, the State obtained grand jury subpoenas for the results of blood-alcohol tests conducted by hospital personnel. In Hardy, the Court of Criminal Appeals addressed whether the police need a warrant to obtain the results of a blood test when the blood is drawn and tested by hospital personnel for medical diagnosis. In answering the question, the Court discussed that an individual has potentially three separate privacy interests in his or her blood: the interest against the physical intrusion into the body to draw blood, the interest in exercising control over and the testing of the blood, and the interest in the results of the test.
At issue in Hardy was the interest in the results of the blood test. Reasoning that any interest society has in protecting the privacy of medical records was not sufficiently strong to require the Fourth Amendment protection of blood-alcohol testing results, the Court held that a warrant is not required to obtain the results of blood-alcohol testing performed by a hospital for medical diagnosis purposes.
Following the decision in Hardy, U.S. Congress passed the Health Insurance Portability and Accountability Act (HIPAA) designed to protect an individual’s privacy interest in medical information. In State v. Huse, the Court of Criminal Appeals took up the question of whether Hardy was still valid after the passing of HIPAA. Recognizing that HIPAA supports the claim that society recognizes a legitimate expectation of privacy in medical records in general, the Court determined that the expectation of privacy in medical records in general was not at issue because of HIPAA’s exception for information obtained pursuant to a grand jury subpoena.
Both Hardy and Huse explicitly established that an individual has no privacy interest in the results of a blood-alcohol content test but declined to determine whether a privacy interest in the exercise of control over and testing of a blood sample existed. In fact, Hardy only muddied the waters. Citing a United States Supreme Court case, Skinner v. Railway Labor Executives’ Association, the Court in Hardy noted that a blood draw instigated by the State for the purposes of testing for blood-alcohol content constitutes two discrete searches: the physical intrusion into the body and the subsequent analysis of the blood. However, while explicitly recognizing that blood analysis by the State itself is an invasion of a reasonable expectation of privacy, the Court refused to affirm the holding in Comeaux stating there “may” be a separate privacy interest in exercising control over and the testing of a drawn blood sample. Thus, the question at issue in Martinez was left largely unanswered by Hardy and Huse: to what extent does an individual have an expectation of privacy in the exercise of control over and testing over blood already drawn?
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An individual has a reasonable expectation of privacy in control over and testing of a blood sample.
Under the Fourth Amendment, a search is unreasonable if it invades a reasonable expectation of privacy. A reasonable expectation of privacy includes both an individual’s subjective expectation of privacy and society’s recognition of the expectation of privacy as reasonable or legitimate. An individual’s subjective expectation of privacy is dependent on the facts of the case. However, citing Comeaux, the Court provided some guidance by noting that a person does not assume that a blood sample given for the purpose of private testing will be given to the State or for a purpose other than that intended.
The Court went further to hold that an individual has an interest in the “private facts” in blood because blood contains information about an individual beyond the person’s intoxication and that the chemical analysis of the blood is an invasion of the individual’s privacy interest. Blood-alcohol testing was compared to a search of a cell phone, which requires a warrant due to the privacy concerns implicated by the information stored on the phone. This holding is consistent with the statement in Huse that HIPAA represents society’s expectation that private medical information should be kept free from discovery and disclosure. It is also consistent with the Supreme Court’s statement in Skinner that the chemical analysis of a blood sample following a blood draw constitutes a separate and distinct invasion of privacy. Given the private facts found in blood, the Court explicitly held that an individual has “an expectation of privacy in blood that is drawn for medical purposes.”
The bottom line is that the law is now much clearer about what privacy interests in an individual’s blood are subject to the Fourth Amendment. The Fourth Amendment is not implicated if the State seeks to obtain the results of a blood test performed by hospital personnel for medical diagnosis purposes. On the other hand, a warrant is required to satisfy the Fourth Amendment if the State seeks to draw and test an individual’s blood. Now, after Martinez, if the State desires to test the blood-alcohol content of blood previously drawn by hospital personnel for medical diagnosis, the Fourth Amendment requires a warrant.