TAKING OF BLOOD TO TEST INTOXICATION OF ONE CHARGED WITH DRIVING WHILE INTOXICATED -- WHETHER PRACTICE OF MEDICINE
Since said blood test is not for the treatment of disease it does not violate the medical code and does not involve the practice of medicine. Any law enforcement officer desiring said test to be made should secure the service of only a physician, nurse or other technician recommended by a physician or county health doctor acquainted with their training and ability.
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February 28, 1950
Honorable Boone Hardin
Bellingham, Washington Cite as: AGO 49-51 No. 227
You have asked whether a person who is not a licensed physician or surgeon, who takes a sample of blood from an individual charged with driving a motor vehicle while under the influence of intoxicants, is guilty of practicing medicine without a license.
Our conclusion is that it is no offense against the code of medicine and surgery, but that only experts recommended by physicians or surgeons should be employed by law enforcement authorities to take such samples of blood for test of intoxication.
You state in your letter that the blood tests are in every instance taken with the consent of the defendant upon request of the arresting officer, and that the owner and operator of a clinical laboratory takes the blood sample by use of a large syringe, the use of which severs the tissue and enters the vein in the arm of the defendant.
Said blood tests are made pursuant to section 4, chapter 196, Laws of 1949, amending section 119, chapter 189, Laws of 1937 (Rem. Rev. Stat. Supp. 6360-119), which provides that evidence based upon a chemical analysis of a defendant's blood may be admitted in support of a charge of drunken driving or driving while under the influence of intoxicants. The act does not state who shall take the samples of blood to be tested, or who shall make the chemical analysis.
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Section 8, chapter 134, Laws of 1919 (Rem. Rev. Stat. 10018), which is contained in the medical code of Washington provides:
"Any person who shall practice or attempt to practice, or hold himself out as practicing medicine and surgery in this state, without having, at the time of so doing, a valid, unrevoked certificate as provided in this act, shall be guilty of a misdemeanor. In each such conviction the fine shall be paid, when collected, to the state treasurer, and shall constitute a special fund for the prosecution of illegal practitioners as defined in this act, and the said board is authorized to prosecute all persons guilty of a violation of the provisions of this act."
It would therefore appear that while the taking of such blood for chemical analysis probably is not practicing medicine, since it is not taken for the treatment of disease, the operation obviously would require an expert, such as a physician, nurse or other technician, who has had proper training and is aware of the dangers involved.
We would therefore recommend that any law enforcement authorities who desire said blood test for determination of the intoxication of a defendant secure the services of a qualified physician or of a nurse or technician recommended by a physician or the county health doctor acquainted with the ability and training of any such nurse or technician.
Very truly yours,
PHILIP W. RICHARDSON
Assistant Attorney General