When any person has been admitted to a hospital or morgue as a result of any casualty and for any reason whatsoever is unable to give his or her consent to the taking of a sample of blood for analytical purposes, the coroner or peace officer in charge of the investigation of the circumstances surrounding the casualty may notify a medical examiner for the purpose of obtaining a blood sample to test for the presence of intoxicating substances or in the case of a dead body and where appropriate for the presence of infectious agents. The blood may be drawn by the medical examiner or at the medical examiner's direction. The medical examiner or his or her designee shall be entitled to a fee set in accordance with Code Section 35-3-151 for performing these services, which fee shall be paid in the same manner as set out in Code Section 45-16-22. The peace officer may also request any licensed physician, nurse, emergency medical technician, medical or laboratory technician, or other qualified person to withdraw blood for purposes of this Code section, in which event such person shall incur no civil or criminal liability. The medical examiner or the peace officer in charge shall submit the blood specimens to the division for analysis; and a report shall be submitted by the division to the submitting officer.
(Ga. L. 1961, p. 437, § 2; Ga. L. 1974, p. 561, § 1; Ga. L. 1982, p. 959, §§ 1, 2; Ga. L. 1984, p. 812, § 7; Ga. L. 1989, p. 829, § 2; Ga. L. 1990, p. 1735, § 3; Ga. L. 1997, p. 1421, § 10.)
Cross references.- Chemical tests for alcohol or drugs in blood of person charged with driving under influence of alcohol or drugs, § 40-6-392.
Operation of watercraft while under the influence of alcohol or drugs, § 52-7-12.
Editor's notes.- Ga. L. 1997, p. 1421, § 1, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Georgia Forensic Sciences Act of 1997.'"
JUDICIAL DECISIONS
Prior to the 1982 amendment, a blood sample could only be taken by a medical examiner or a designee; however, if O.C.G.A. § 40-5-55 was also applicable it would be read conjunctively with O.C.G.A. § 40-6-392 so that the results of a blood test taken by a lab technician who was not the medical examiner's designee could still be presented in court. Epps v. State, 169 Ga. App. 157, 312 S.E.2d 146 (1983), overruling Wilson v. State, 147 Ga. App. 560, 249 S.E.2d 361 (1978).
A foundation is necessary to show the identity of the sample tested with the decedent and the chain of custody to render the report admissible as relevant evidence. Elliott v. Leavitt, 122 Ga. App. 622, 178 S.E.2d 268 (1970).
Cited in Pittman v. State, 110 Ga. App. 625, 139 S.E.2d 507 (1964); Interstate Life & Accident Ins. Co. v. Whitlock, 112 Ga. App. 212, 144 S.E.2d 532 (1965); Mission Ins. Co. v. Ware, 143 Ga. App. 550, 239 S.E.2d 162 (1977); Stripling v. Godfrey, 143 Ga. App. 742, 240 S.E.2d 145 (1977); Wilson v. State, 147 Ga. App. 560, 249 S.E.2d 361 (1978).
OPINIONS OF THE ATTORNEY GENERAL
No violation of constitutional rights.
- When a medical examiner, acting in accordance with the provisions of O.C.G.A. § 45-16-46, extracts a blood sample from a person who has been involved in a casualty and is unable to give consent to such taking, the examiner does not violate any of the constitutional prohibitions against self-incrimination, as embodied in the Fifth Amendment and implied through the due process clause of the Fourteenth Amendment to the state, or the Fourth Amendment prohibition against unreasonable searches and seizures, as applied through the Fourteenth Amendment to state prosecutions. 1968 Op. Att'y Gen. No. 68-201.
Protection from civil liability.
- A medical examiner who acts pursuant to the authority of O.C.G.A. § 45-16-47 is not subject to civil liability when that examiner takes a blood specimen from a person killed in a casualty. 1968 Op. Att'y Gen. No. 68-201.
A medical examiner who, for analytical purposes, drew a blood sample from a person at the direction of the peace officer in charge of the investigation, and pursuant to the authority and under the conditions set forth in Ga. L. 1960, p. 1009, § 9 (see now O.C.G.A. § 45-16-47), was protected from civil liability under former Code 1933, § 105-1801 (see now O.C.G.A. § 51-11-1). 1978 Op. Att'y Gen. No. 78-61.
Coroner cannot consent to drawing of blood for test for intoxicating substances.
- Coroner does not have authority under Ga. L. 1960, p. 1009, § 9 (see now O.C.G.A. § 45-16-47) to direct a medical examiner to take blood from a dead body for purpose of testing for intoxicating substances. 1980 Op. Att'y Gen. No. U80-56.