SB 5186 — Concerning the collection of blood samples for forensic testing.

S-0977.3SUBSTITUTES-0687.1SENATE SENATE BILL 5186State of Washington65th Legislature2017 Regular SessionBy Senate Law & Justice (originally sponsored by Senators Padden and Pearson)READPearsonRead FIRSTfirst TIMEtime 02/02/17.AN01/16/17. ACT Relating to the collection of blood samples for forensic testing;

Referred to Committee on Law & Justice.AN ACT Relating to the collection of blood samples for forensic testing;

c 3 s 21 are each amended to read as follows:It is not professional misconduct for a physician((physician licensed under chapter 18.71 RCW;

advanced emergency medical technician or paramedic licensed under chapter ((18.73))18.73 18.71 RCW;

((untiluntil July 1, 2016, health care assistant certified under chapter 18.135 RCW;

or))or medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW, or person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider,provider,)) person qualified by the department of health to collect a blood sample without a person's consent when the physician((physician licensed under chapter 18.71 RCW;

advanced emergency medical technician or paramedic licensed under chapter ((18.73))18.73 18.71 RCW;

((untiluntil July 1, 2016, health care assistant certified under chapter 18.135 RCW;))RCW; or medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW, or person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider withdrawing blood was directed by a law enforcement officer to do so for the purpose of a blood test under the provisions of a search warrant or exigent circumstances:

PROVIDED,or Thatmedical nothingassistant-certified inor thismedical sectionassistant-phlebotomist shallcertified relieveunder achapter physician18.360 RCW, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider)) person qualified by the department of health withdrawing blood was directed by a law enforcement officer to do so for the purpose of a blood test under chapterthe 18.71provisions RCW;of a search warrant or exigent circumstances:

PROVIDED, That nothing in this section shall relieve a ((physician licensed under chapter 18.71 RCW;

advanced emergency medical technician or paramedic licensed under chapter ((18.73))18.73 18.71 RCW;

((untiluntil July 1, 2016, health care assistant certified under chapter 18.135 RCW;))RCW; or medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW, or person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider withdrawing blood from professional discipline arising from the use of improper procedures or from failing to exercise the required standard of care.NEW SECTION.  Sec. 2.  A new section is added to chapter 46.04 RCW to read as follows:"Forensic phlebotomist" means a police officer, law enforcement officer, or employee of a correctional facility or detention facility, who meets the training and proficiency standards of his or her employer and who is collecting a venous blood sample for forensic testing pursuant to a search warrant, a waiver of the warrant requirement, or exigent circumstances.Sec. 3.  RCW 46.61.506 and 2016 c 203 s 8 are each amended to read as follows:(1) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the person's alcohol concentration is less than 0.08 or the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug.(2)(a) The breath analysis of the person's alcohol concentration shall be based upon grams of alcohol per two hundred ten liters of breath.(b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.(c) The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug.(3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose.

or medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW)) person qualified by the department of health, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider withdrawing blood from professional discipline arising from the use of improper procedures or from failing to exercise the required standard of care.NEW SECTION.  Sec. 2.  A new section is added to chapter 46.04 RCW to read as follows:"Forensic phlebotomist" means a police officer, law enforcement officer, or employee of a correctional facility or detention facility, who meets the training and proficiency standards of his or her employer and who is collecting a venous blood sample for forensic testing pursuant to a search warrant, a waiver of the warrant requirement, or exigent circumstances.Sec. 3.  RCW 46.61.506 and 2016 c 203 s 8 are each amended to read as follows:(1) Upon the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving or in actual physical control of a vehicle while under the influence of intoxicating liquor or any drug, if the person's alcohol concentration is less than 0.08 or the person's THC concentration is less than 5.00, it is evidence that may be considered with other competent evidence in determining whether the person was under the influence of intoxicating liquor or any drug.(2)(a) The breath analysis of the person's alcohol concentration shall be based upon grams of alcohol per two hundred ten liters of breath.(b) The blood analysis of the person's THC concentration shall be based upon nanograms per milliliter of whole blood.(c) The foregoing provisions of this section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor or any drug.(3) Analysis of the person's blood or breath to be considered valid under the provisions of this section or RCW 46.61.502 or 46.61.504 shall have been performed according to methods approved by the state toxicologist and by an individual possessing a valid permit issued by the state toxicologist for this purpose.

Instead, such challenges may be considered by the trier of fact in determining what weight to give to the test result.(5) When a blood test is administered under the provisions of RCW 46.20.308, the withdrawal of blood for the purpose of determining its alcoholic or drug content may be performed only by a physician((physician licensed under chapter 18.71 RCW;

an advanced emergency medical technician or paramedic licensed under chapter ((18.73))18.73 18.71 RCW;

((untiluntil July 1, 2016, a health care assistant certified under chapter 18.135 RCW;))RCW; or a medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW, person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws, or a forensic phlebotomist.

Whenor thea bloodmedical testassistant-certified isor performedmedical outsideassistant-phlebotomist thecertified stateunder ofchapter Washington18.360 theRCW)) withdrawalforensic ofphlebotomist blood for the purpose of determining its alcoholic or druga content may be performed by any person whoqualified is authorized by the out-of-statedepartment jurisdictionof tohealth. perform venous blood draws.

This limitation shall not apply to the taking of breath specimens.(6) When a venous blood sample is performed by a forensic phlebotomist, it must be done under the following conditions:(a) If taken at the scene, it must be performed in an ambulance or aid service vehicle licensed by the department of health under chapter 18.73 RCW.(b) The collection of blood samples must not interfere with the provision of essential medical care.(c) The blood sample must be collected using sterile equipment and the skin area of puncture must be thoroughly cleansed and disinfected.(d) The person whose blood is collected must be seated, reclined, or lying down when the blood is collected.(7) The person tested may have a licensed or certified health care provider listed in subsection (5) of this section, or a qualified technician, chemist, or other qualified person of his or her own choosing administer one or more tests in addition to any administered at the direction of a law enforcement officer.

The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer.(((7)))officer.(7) (8) Upon the request of the person who shall submit to a test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or her or his or her attorney.Sec. 4.  RCW 46.61.508 and 2015 2nd sp.s.

c 3 s 23 are each amended to read as follows:No physician((physician licensed under chapter 18.71 RCW;

advanced emergency medical technician or paramedic licensed under chapter ((18.73))18.73 18.71 RCW;

((untiluntil July 1, 2016, health care assistant certified under chapter 18.135 RCW;))RCW; or medical assistant-certified or medical assistant-phlebotomist certified under chapter 18.360 RCW, person holding another credential under Title 18 RCW whose scope of practice includes performing venous blood draws, or a forensic phlebotomist, or hospital, or duly licensed clinical laboratory employing or utilizing services of such licensed or certified health care provider, 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 a search warrant, a waiver of the search warrant requirement, exigent circumstances, or any other authority of law((, or RCW 46.20.308, as now or hereafter amended)):

PROVIDED,or Thatmedical nothingassistant-certified inor thismedical sectionassistant-phlebotomist shallcertified relieveunder suchchapter licensed18.360 RCW)) forensic phlebotomist or certifieda healthperson carequalified provider,by ((or))the hospitaldepartment of health, or hospital, or duly licensed clinical laboratory,laboratory employing or forensicutilizing phlebotomistservices fromof such licensed or certified health care provider, shall incur any civil or criminal liability arisingas froma result of the useact of improperwithdrawing proceduresblood orfrom failingany person when directed by a law enforcement officer to exercisedo so for the requiredpurpose standardof a blood test under the provisions of care.---a ENDsearch ---warrant, a waiver of the search warrant requirement, exigent circumstances, or any other authority of law((, or RCW 46.20.308, as now or hereafter amended)):

PROVIDED, That nothing in this section shall relieve such licensed or certified health care provider, or hospital or duly licensed clinical laboratory, or forensic phlebotomist, from civil liability arising from the use of improper procedures or failing to exercise the required standard of care.--- END ---