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Wetsch v. North Dakota Dep't of Transportation5/5/2004
[ ] Wetsch argues Schmerber holds there is a two-step process which must be followed when law enforcement officials collect blood. First, the blood must be drawn by a person medically qualified. Second, the blood must be drawn in a medical setting, such as a hospital. However, other jurisdictions have considered this issue in the context of Schmerber and expressly rejected the notion that blood must be drawn in a hospital setting. See State v. Sickler, 488 N.W.2d 70, 73 (S.D. 1992) (rejecting the argument that blood tests must be performed in a hospital in order to qualify as reasonable); see also State v. Daggett, 2001 WI App 32, 15, 640 N.W.2d 546 (holding that drawing blood in a non-medical environment is reasonable under Schmerber).
[ ] Wetsch's reliance on Schmerber to argue that a blood draw incident to arrest must be performed by a medically qualified individual in a hospital is incorrect. In Schmerber, the Court did not establish a requirement that blood be drawn in a hospital in order to be reasonable. The Schmerber Court merely recognized that there may be circumstances where a blood draw may be unreasonable because of an "unjustified element of personal risk of infection and pain." Schmerber, at 772. This record is lacking any suggestion that such risks existed. Wetsch testified at the hearing and the hearing officer asked him to "be more specific about what concerned [him]." Wetsch responded, "[t]he entire process. The entire process of it not being a hospital, sanitary condition." Our legislature has addressed the concerns announced in Schmerber for risk of infection and pain by requiring a medically qualified person make the draw. When a medically qualified person is available and the record shows no other evidence of a justifiable reason to refuse a blood test, the demand to be taken to a hospital as a condition for the draw constitutes a refusal under N.D.C.C. ch. 39-20.
IV.
[ ] We affirm.
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