Problems of Forensic Sciences 2008 Vol. 75 (LXXV) 247-255
LEGAL AND MEDICAL ASPECTS OF BLOOD SAMPLE COLLECTION TO DETERMINE ALCOHOL CONTENT
Tomasz JUREK1, Barbara ŚWIĄTEK2, Krzysztof MAKSYMOWICZ2, Marcin ZAWADZKI2
1Medicinal Law Department, Chair of Forensic Medicine, Medical University, Wrocław, Poland
2Department of Forensic Medicine, Chair of Forensic Medicine, Medical University, Wrocław, Poland
Streszczenie
Blood collection to determine alcohol content is the first step in establishing a person’s state of intoxication (sobriety). There are three legal subjects taking part in the above procedure: the ordering authority, the examined person, and the physician taking the blood sample. The current legislation: Article 74 of the Code of Penal Procedure, the Act on Upbringing in Sobriety and Counteracting Alcoholism and the Road Traffic Law, notwithstanding some legal ambiguities, permit the ordering authority to collect a test sample without the consent of the examined person. However, the legal status of the physician in such a situation has not been clearly defined in the Medical Profession Act. In such a case the autonomy of the examined person is violated, which in accordance with the Constitution is only permitted as specified by statute. The legal solution for the physician is to exclude blood sample collection for evidential purposes from activities defined as healthcare services. The only contraindications to blood sample collection are: the priority to save life and the inability to safely conduct the procedure due to inability to overcome the resistance of the examined person.
Słowa kluczowe
Blood sample taking; Sobriety testing; Personal autonomy.