AZ: Implied consent to treatment must be shown for obtaining blood sample from medical care provider for DUI

When a DUI suspect is unconscious, the state must still prove at least implied consent to medical treatment to get a blood draw from the medical care provider. State v. Nissley, 2017 Ariz. LEXIS 24 (Feb. 1, 2017), vacating 238 Ariz. 446, 362 P.3d 493 (App. 2015):

P1 A law enforcement officer must ordinarily obtain a search warrant to take an involuntary blood sample from a suspect. Arizona’s medical blood draw exception to the warrant requirement, however, requires medical personnel to provide upon request a portion of any blood sample taken from a patient when the officer has probable cause to believe that the patient had been driving under the influence of alcohol or other drugs. A.R.S. § 28-1388(E). This exception applies only when the sample is drawn for medical reasons and exigent circumstances exist. See State v. Cocio, 147 Ariz. 277, 286, 709 P.2d 1336, 1345 (1985).

P2 The issue here is whether and under what circumstances the exception can apply when a suspect contends that medical personnel rendered treatment against the suspect’s will. We hold that the state is required to prove that a suspect expressly or impliedly consented to medical treatment or that medical personnel acted when the suspect was incapable of directing his or her own medical treatment.

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P25 We vacate the court of appeals’ opinion. The record here does not conclusively establish whether Nissley was able or competent to direct his own medical treatment and whether medical personnel acted against that right. We therefore remand to the trial court to apply the standards set forth in this opinion and to determine in the first instance whether law enforcement lawfully obtained the blood sample. If it did not, the court must vacate Nissley’s convictions and sentences, suppress the blood alcohol evidence, and order a new trial.