Blood Demands and Hospital Interactions

• Author: Karen Jokinen/Peter Keen
• Pages: 393-427

393

Blood

Demands

andHospital

Interactions

20

I. Introduction ............................................. 394

II. Why Blood Is Preferable to Oral Fluid or Urine as a

Source of Forensic Information .............................. 395

III. Practical Challenges in Obtaining Blood ....................... 395

IV. Methods for Seizure of Blood, Oral Fluid, or Urine .............. 400

V. Blood Demands .......................................... 400

A. Blood Demands by a Peace Ocer in Impaired by

Alcohol or “80 or Over” Cases: Section 320.28(1)(a)(ii) ..... 403

B. Blood Demands by a Peace Ocer in Drug Impaired

Operation and Drug Per Se Cases: Section 320.28(2) ...... 409

C. Evaluating Ocer’s Blood, Oral Fluid, or Urine

Demands in Drug Impaired Driving Cases ............... 410

VI. Who Can Take Blood: Section 320.28(6) ....................... 410

VII. Content of Blood Demands ................................. 411

VIII. Proof and Conclusive Proof ................................. 412

IX. Requirements for Taking a Sample ........................... 413

X. Methods of Proof and Qualied Medical Practitioner or

Qualied Technician’s Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413

XI. Blood Warrants ........................................... 415

XII. General Warrants and Production Orders ..................... 415

XIII. The Interaction Between the Police, Subject, andMedical

Personnel: Implications Arising from Privacy Rights ............. 416

A. The Police Can Attend in an Emergency Room, Provided

the Medical Practitioners in Charge of Those Places Consent ... 420

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394 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Blood may be seized in a number of dierent ways for evidentiary purposes. Blood

cannot be drawn as a screening tool. It may be seized by demand as an alternative

to seizing breath in drinking and operation cases. It may be seized by demand in

drugged operation cases. Warrants may be obtained requiring blood to be drawn from

an accused. Samples of the accused’s blood may also be seized from hospitals where

blood has been drawn for medical purposes. Where hospitals have drawn blood and

tested it for medical purposes, the police may seize the blood and medical records via

warrant to obtain results of the accused’s blood alcohol concentration (BAC) or blood

drug concentration (BDC). In addition, the police can demand samples of oral fluid

or urine for evidentiary purposes.

In this chapter, we briefly explain why blood is better than oral fluid or urine for

evidentiary use. We then set out the demands that may be made to seize oral fluid,

urine, and blood. Chapter 17, The Arrest and Evidentiary Demands, addresses

the statutory preconditions to make reasonable-grounds demands, so we will not

readdress that topic here. We will discuss established case law dealing with when

blood can be drawn as an alternative to breath samples. Also covered are the other

methods of seizing blood, including blood warrants and warrants to seize medical

records. Finally, we will address the competing rights, duties, and obligations at

play when the police are present in hospitals to investigate Criminal Code1 opera-

tion oences.

1 RSC 1985, c C-46.

B. What Are the Police Permitted to Observe? ............... 421

C. What Questions Can the Police Ask, and

What Questions Can Doctors Answer? .................. 421

D. Is the Person Able to Give a Breath Sample? How Long

Will the Subject Be Required to Stay Here For? ............ 423

E. Can I Speak to the Person to Take a Statement? ........... 424

F. Has the Hospital Drawn Blood for Medical Purposes? ..... 424

G. Placing Seals on a Blood Sample ....................... 425

H. Rights to Counsel at the Hospital ...................... 425

I. Advising the Accused on Whether to Consent to

Give a Blood Sample ................................. 425

XIV. Conclusion .............................................. 427

© 2023 Emond Montgomery Publications. All Rights Reserved.

Chapter 20 Blood Demands andHospital Interactions 395

II. Why Blood Is Preferable to Oral Fluid or Urine as a

Source of Forensic Information

Although evidence about alcohol and drug consumption can be obtained through oral

fluid and urine, blood is a better source of information. The per se drug and alcohol

oences all relate to blood alcohol or blood drug concentrations. Urine or oral fluid

does not provide direct evidence about BDC. The concentration of alcohol or a drug

in urine or oral fluid may not correlate to a particular BDC or BAC.2

III. Practical Challenges in Obtaining Blood

Although blood is a better source of information, it is more dicult for police to

obtain. Historically, blood has been seized only in cases where the driver has been

injured in a motor vehicle accident. It has been virtually unused in routine drinking

and operation or drugged operation cases. The reason is practical. Breath, oral fluid,

or urine can be seized by a police ocer with minimal intrusion and without the

need for medical attention. The seizure of blood must be done by medically trained

personnel, who will draw blood only in medically safe circumstances. Policeo-

cers don’t have the training to draw blood. Even if such training were provided,

ocers would be engaging in behaviour that is directly contrary to the interests of

the accused: investigating the accused for a criminal oence. It may be unreasonable

to expect individuals to permit an ocer, who is not working in the accused’s best

interests, to draw blood.

The practical ramifications of seizing blood mean that a non-police actor must be

involved in the process—historically, a medical doctor or medical technician. There-

fore, the police must secure the cooperation of a doctor or technician who likely has

a number of other responsibilities and duties to address, not least of which is a duty

of confidentiality toward the patient. Section 320.37(2) of the Criminal Code per-

mits medical personnel to draw blood in response to a demand from the police and

exempts them from liability when doing so. Part VIII.1 of the Criminal Code does not

contain a provision compelling medical personnel to cooperate, nor does it make non-

cooperation a criminal oence. Section 320.37(1) of the Criminal Code specifies that

medical practitioners and medical technicians shall not be found guilty of any oence

for refusing to draw blood if they have a reasonable excuse for doing so. The authors

are unaware of any case where a hospital sta member has been charged for refusing

to draw blood.

2 See e.g. Hallvard Gjerde et al, “Comparisons of Drug Concentrations in Blood and Oral Fluid

Collected with the Intercept Sampling Device” (2010) 34:4 J Anal Toxicol 204; Armand Caso-

lin, “Comparison of Urine and Oral Fluid for Workplace Drug Testing” (2016) 40:7 J Anal

Toxicol 479.

© 2023 Emond Montgomery Publications. All Rights Reserved.