Attorney: Order that police pay for OWI blood draws may end ‘unfair’ practice

A Washington County trial judge has issued an order that a southern Indiana attorney said may uproot a long-standing practice requiring people suspected of drunk driving to pay for hospital blood-alcohol tests ordered by law enforcement, calling the practice “blatantly unfair.”

Concerns about the issue were raised by New Albany attorney Bart Betteau, who said it’s typical for Indiana hospitals to charge people who have blood tests performed at the request of the police.

“It is common that someone is detained for suspicion of drunk driving. The officer, in his discretion, decides that a hospital-performed blood-alcohol test is necessary to gather evidence for the prosecution. The test is performed at the officer’s request and then hospitals bill the subject for the service,” Betteau told Indiana Lawyer.

The police, after deciding that a blood test is necessary for the case, would then transport individuals in handcuffs to the local hospital, he said. The officer would then explain that under Indiana law, a person must consent to the test or have his or her license suspended.

“Most persons faced with the dilemma choose to consent to the blood test. Some persons refuse to consent. In most of those cases a court order is obtained, allowing the blood to be taken by force,” Betteau said. “It’s obvious in all the situations that the subject never requests or even wants the test. The test is conducted solely at law enforcement’s request and solely to benefit law enforcement.”

Afterward, the subject would be billed for the test. That issue prompted a lawsuit from plaintiff Julia Taylor, who raised the issue in March 2016 when she moved to certify a class action complaint and for declaratory judgment against St. Vincent Salem Hospital Inc.

The hospital filed subsequent motions in opposition, and Senior Judge Larry R. Blanton of the Washington Circuit Court in a March 18, 2021 order found that while the plaintiff met the requirements for class certification under Trial Rule 23(A) and 23(B), her request was moot.

Betteau, who represents Taylor, said he pursued the case pro bono with the intent of stopping what he calls a “horrible egregious procedure.”

“St. Vincent Salem assumed they were following lawful procedure when they charged the arrestees for medical services. The hospital was given reason to believe that the officers had the authority to create such obligation,” the trial court order reads. “An arresting officer, without court approval, cannot cause a suspect to suffer financial charges without the arrestee’s consent. It is a matter of common law that no man can incur debt obligating another person. The Legislature addressed this matter.”

Additionally, the trial court wrote, “the state cannot assess fines, fees and costs without a determination of guilt.”

“Arrestees are not responsible to the provider of services. They cannot be held to account nor can they be sued for services that are the responsibility of governmental or political divisions,” Blanton wrote

The delivery of suspects to the hospital for testing should be a rare occurrence, and as a result, the hospital has suffered from the regulatory dispute, the order reads.

The trial court further noted that resources of the hospital have been expended and time has been consumed without just cause or reason, requiring the hospital to incur legal costs in defending the suit.

“Under the law of ‘implied consent’ any operator of any vehicle can refuse tests and suffer the consequences that flow from their refusal. It is blatantly unfair to the arrestee to be threatened by law enforcement with loss of license for refusing an invasive procedure without a court order, and then be assessed a charge for those procedures,” the trial court wrote.

Blanton continued by pointing out that it’s reasonable to believe the state has provided instruments, testing equipment and has trained and certified law enforcement personal to determine intoxication and chemical impairment.

“Burdening hospital emergency rooms and causing financial harm to the County based on suspicion, accommodation or convenience is not in the public’s best interest,” the order reads.

In dismissing the plaintiff’s motion for declaratory summary judgment, the trial court found that they failed to show that the hospital was either culpable or malicious in its actions.

However, it noted that the responsibility of the stat-sanctioned testing lies with the political subdivision that requested the tests in the first place. As such, the trial court concluded that the sheriff’s department, detention center, or the Washington County government is responsible and that “St. Vincent Salem presented persons bills for charges that are not sustainable.”

“The arrestee upon a determination of [guilt] or violation of the rules of operating a motor vehicle, may voluntarily pay the fine and costs or they may use the benefits of medical insurance; and St. Vincent Salem must not bill the individuals subjected to law enforcement requests for testing and analysis. They are directed to seek payment pursuant to this order as stated above.”

“It’s my hope that … this practice and the practice is halted in the State of Indiana,” Betteau said.

The case is Julia Taylor v. St. Vincent Salem Hospital, Inc., 88C01-1603-MI-000146.