Always require search warrant for forcible searches
Taking a person’s blood or conducting any other invasive search is unconstitutional without a search warrant, explains David Smith, JD, a partner with the law firm of Garvey Schubert Barer in Seattle. Doing so opens up the hospital to serious liability.
In April 2013, the U.S. Supreme Court ruled in Missouri v. McNeely that warrantless blood draws were unconstitutional in most circumstances, Smith says. In so ruling, the Supreme Court overturned 46 years of precedent that had created a de facto exception to the warrant requirement for blood draws in arrests for driving under the influence of alcohol or drugs.
"Prior to McNeely, it was acceptable to justify warrantless searches under the exigent circumstances exception to the Fourth Amendment’s requirements based on the government’s argument that the natural elimination of alcohol from the bloodstream was sufficient justification for a warrantless search," Smith explains. "The Supreme Court rejected this argument in McNeely and required that warrants be obtained whenever possible."
Without a warrant it is likely that a common law battery claim could be established as a matter of law and that additional claims could be made for attorneys’ fees and other relief under the federal civil rights statute, Smith says.
"The bottom line is that no hospital should agree to conduct a search of a patient’s body for blood, drugs, or anything else without patient consent, a court order, or a warrant," he says.