LIABILITY FOR IMPOSITION OF BLOOD TEST

MOTOR VEHICLES ‑- INTOXICATING LIQUOR ‑- HOSPITALS ‑- BLOOD TEST ‑- LIABILITY FOR IMPOSITION OF BLOOD TEST 

(1) The immunity from civil liability which is granted by RCW 46.61.508 to hospitals and their personnel administering blood tests in accordance with RCW 46.20.308 (implied consent) is not dependent upon the ultimate lawfulness of the accused person's arrest or a later court determination that the arresting officer had reasonable grounds to believe that the accused had been driving or was in actual physical control of the motor vehicle while under the influence of intoxicating liquor. 

(2) The question of possible civil liability by the arresting agency under such circumstances is not dependent upon RCW 46.61.508, and the possibility of liability on the basis of a hospital's negligence in administering the blood test would be dependent upon ordinary principles of tort law as between the plaintiff driver and the defendant county or other arresting agency. 

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                                                                 January 28, 1981 

Honorable Arthur D. Curtis
Prosecuting Attorney
Clark County
P.O. Box 5000
Vancouver, WA 98668
ATTN:  James M. Peters
       Deputy Prosecuting Attorney

Cite as:  AGO 1981 No. 1                                                                                                                  

Dear Sir:

            By recent letter you requested our opinion on two questions relating to the potential liabilities of a hospital and its personnel, and the arresting agency, in a case involving the administration of a blood test under RCW 46.20.308.  Specifically, you asked:

                         [[Orig. Op. Page 2]]

"(1) What protection does RCW 46.61.508 provide to hospitals who take a blood sample from a nonconsenting negligent homicide arrestee.  Specifically, if it is later determined that the arresting officer did not have reasonable grounds to believe the driver was under the influence, or if the arrestee was not actually under arrest at the time the sample was drawn, to what degree does the statute protect the hospital and its personnel from civil liability?

            "(2) Assuming an individual properly arrested for negligent homicide refuses to consent to a blood test, and pursuant to RCW 46.20.308 the officer requests blood, and the medical personnel who draws it, through some act of simple negligence, causes harm to the suspect, what liability accrues to the arresting agency?"

            We respond as set forth below.

                                                                     ANALYSIS

           The primary statute involved, RCW 46.61.508, was enacted by section 1, chapter 143, Laws of 1977, 1st Ex. Sess., and reads as follows:

             "No physician, registered nurse, qualified technician, or hospital, or duly licensed clinical laboratory employing or utilizing services of such physician, registered nurse, or qualified technician, shall incur any civil or criminal liability as a result of the act of withdrawing blood from any person when directed by a law enforcement officer to do so for the purpose of a blood test under the provisions of RCW 46.20.308, as now or hereafter amended:  PROVIDED, That nothing in this section shall relieve any physician, registered nurse, qualified technician, or hospital or duly licensed clinical laboratory from civil liability arising from the use of improper procedures or failing to exercise the required standard of care."

             [[Orig. Op. Page 3]]

            In turn, RCW 46.20.308, commonly known as the "implied consent" law, reads, in material part, as follows:

            "(1) Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of RCW 46.61.506, to a chemical test or tests of his breath or blood for the purpose of determining the alcoholic content of his blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor.  The test or tests shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor . . ."

             Question (1):

             In response to your first question it seems clear that, in order for a blood test to be administered on the basis of "implied consent" under RCW 46.20.308,supra, there must have been (a) an arrest for some offense and (b) a determination by the arresting officer, based on reasonable grounds, that the person arrested ". . . had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor . . ."  And, if either or both of those two conditions are lacking‑-or are later determined by a court to have been lacking‑-a civil tort action for damages could well be brought, successfully, by the person whose blood was withdrawn for testing purposes without his actual consent.  Moreover, while one obvious defendant in any such case would be the arresting officer himself and the governmental entity by which he was employed (in your case, the county), another defendant (or set of defendants) could well be the hospital where the blood test was administered‑-together with its responsible or participating employees.

                          [[Orig. Op. Page 4]]

            Question Presented:

             The basic issue raised by your first question is whether the protection of RCW 46.61.508,supra, may be availed of by the hospital and its personnel in such a case.  In other words, is the immunity from civil liability which is granted by that statute dependent upon the actual existence of both conditions which are required in order to give rise to a legally operative "implied consent" under RCW 46.20.308, supra?

             We think not.  Instead, as we read it, what is required by RCW 46.61.508 is simply that the hospital and its medical personnel are able to show that when they took the action complained of (i.e., withdrawing blood from the body of the plaintiff) they were doing so in response to some direction from a law enforcement officer for the purpose of making a blood test under the implied consent law.  If the hospital and its personnel were so directed, for that purpose, they will then be immune from civil liability unless‑-as further contemplated by the proviso to RCW 46.61.508,supra‑-there then occurred a use of improper procedures or a failure to exercise the required standard of care.

             As in the case of any legislative enactment, the provisions of RCW 46.61.508,supra, must be deemed to have been acted for some purpose‑-for it is to be presumed that the legislature does not engage in unnecessary or meaningless acts.  See,e.g.,State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977).  In this case, however, if the statute were read as granting immunity to the hospital and its personnel only in those cases where both conditions for the operation of RCW 46.20.308 are actually present, then it (i.e., the 1977 enactment) would, indeed, be meaningless.  For, in that instance, there would exist an "implied consent" by operation of law which, itself, would be a bar to any civil liability not based on some further showing of negligence in the actual administration of the blood test.

             Question (2):

             Your second question, repeated for ease of reference, asks:

             "Assuming an individual properly arrested for negligent homicide refuses to consent to a blood test, and pursuant to RCW 46.20.308  [[Orig. Op. Page 5]] the officer requests blood, and the medical personnel who draws it, through some act of simple negligence, causes harm to the suspect, what liability accrues to the arresting agency?"

             To begin with, we note that RCW 46.61.508, supra, has nothing to do with the answer to this question.  That statute relates only to the potential liabilities of the administering hospital and its personnel‑-and not to those of the county or other arresting agency.

             Secondly, as we understand it, this question (unlike your first) assumes the existence of both conditions required to trigger an "implied consent" under RCW 46.20.308,supra;i.e., an arrest for some offense and a determination by the arresting officer, based upon reasonable grounds, that the person arrested had been driving or was in actual physical control of the motor vehicle while under the influence of intoxicating liquor.

             Given those assumed facts, there would seem to us to be no basis for civil liability on the part of either the arresting agency or the hospital and its personnel which could be predicated purely upon a lack of consent.  Conversely, under the proviso to RCW 46.61.508, the possibility of civil liability on the part of the hospital and its personnel for negligence would still be present.  Quaere:  Could such liability based upon the hospital's negligence also be imposed upon the county or other arresting agency?

             If this, truly, is your question, we would think it generally answerable in the negative.  In addition, in order for the arresting agency to be liable, there would have to be some showing of related negligence on its part such as, for example, taking the arrested person to a hospital or other medical facility where past instances of negligent administration of blood tests were known to the arresting officer to have occurred.  In short, at this point, ordinary principles of tort law would come into play as between the plaintiff and the defendant county or other arresting agency.  RCW 46.61.508,supra, would not be applicable either as a basis for establishing liability on the part of the arresting agency or immunizing that agency from such liability.

              [[Orig. Op. Page 6]]

            It is hoped that the foregoing will be of some assistance to you.

 Very truly yours,
 KENNETH O. EIKENBERRY
Attorney General 

PHILIP H. AUSTIN
Deputy Attorney General