By: Drew Frazier, Senior Compliance Associate, RCS Legal Support & Audit, Indiana University Health
On November 23, 2022, the Court of Appeals of Indiana unanimously agreed that blood test results of a minor, L.W., were obtained in violation of her federal and state constitutional rights against unreasonable search and seizure. L.W. v. State, No. 22A-JV-1138, 2022 WL 17172059 (Ind. Ct. App. Nov. 23, 2022).
In Indiana, a person impliedly consents to submitting to a chemical test for controlled substances or other drugs as a condition of operating a vehicle, Ind. Code § 9-30-7-2, and officers must offer drug tests to drivers believed to be involved in fatal car accidents. Ind. Code § 9-30-7-3. If one refuses to submit to a chemical test, they face criminal charges and a suspended license. Ind. Code § 9-30-7-5.
However, when a minor driver is involved, the law requires one extra layer of protection. To obtain proper consent, not only must the minor and his or her parent each consent, but they must also be able to first have “meaningful consultation.” Ind. Code § 31-32-5-1. In other words, a parent and his or her child must be able to speak privately among themselves about their decision to consent or the minor’s constitutional rights will be violated.
When L.W. got into an accident with a motorcyclist, the responding law enforcement officer was able to get consent from both L.W. and her parent to submit to a blood test at the hospital, but he failed to inform them of L.W.’s right to meaningful consultation. L.W. was driven to the hospital and the phlebotomist obtained a blood sample and the results showed evidence of THC. As a result, the State filed a delinquency petition alleging “L.W. acted recklessly by ‘operating a vehicle with a schedule I or II controlled substance or its metabolite in her blood,’” L.W. v. State, 2022 WL 17172059, at *5 (citing Appellant’s App Vol. 2, p. 48), which if committed by an adult, would have resulted in a Level 4 felony and a Level 5 felony for reckless homicide.
Hospitals and health care professionals are familiar with the requirements for informed consent, but what should they do when law enforcement asks to draw a blood sample from a minor? First, the Court never suggested a provider is responsible for ensuring that the elements of consent are met during a criminal investigation. Rather, the responsibility is clearly on law enforcement. However, a provider’s liability involving consent to obtain a blood sample is not zero. In 2017, a Salt Lake City nurse refused law enforcement’s request to take blood from an unconscious person who had been involved in a crash and was immediately arrested. The body camera footage went viral and drew national outrage. The officer was fired and the nurse eventually settled with the city and the university hospital for $500,000.
It is important to emphasize other aspects of Indiana’s consent laws. The motor vehicle statute refers to another section of the law, Ind. Code § 9-30-6-6(a), where providers must provide a blood sample and its results to law enforcement even if consent is not given. However, it explicitly states that a “physician, a licensed health care professional, a hospital, or an agent of a physician or hospital is not civilly or criminally liable” for obtaining blood samples or disclosing their results. Ind. Code § 9-30-6-6(b)(1)&(3). Importantly, the law does not require a specific person to perform a chemical test. Ind. Code § 9-30-6-6(f).
Thus, if a hospital or its staff refuses to obtain blood tests for criminal investigations, they could be in violation of these Indiana statutes. While complying with law enforcement’s request for a blood sample should remove the provider from criminal and civil liability, absent proper consent, the officer may be exposed to violations of an individual’s constitutional rights.
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