No. 35706 (5-year Review): Rule R438-12. Rule for Law Enforcement Blood Draws

DAR File No.: 35706
Filed: 01/20/2012 09:13:48 AM

NOTICE OF REVIEW AND STATEMENT OF CONTINUATION

Concise explanation of the particular statutory provisions under which the rule is enacted and how these provisions authorize or require the rule:

Subsection 26-1-30(2)(s) indicates that the Department of Health (DOH) has and can exercise power to establish qualifications for individuals to withdraw blood pursuant to Subsection 41-6-44.10(5). Subsection 41-6-44.10(5) gives DOH the right to establish criteria to authorize individuals other than physicians and nurses to withdraw blood for this specific purpose.

Summary of written comments received during and since the last five-year review of the rule from interested persons supporting or opposing the rule:

A law firm claims that the Department is certifying unqualified persons under this rule. A group is looking into allowing all paramedics and properly trained EMT personnel to per se be qualified to draw blood for DUI purposes and not need to get a permit under the rule. A letter from a law firm that appears to argue that the Department is misapplying Rule R438-12 because it is issuing permits to persons who have received "training in blood withdrawal procedures obtained as a defined part of a successfully completed training course which prepares individuals to function in routine clinical or emergency medical situations," but who are not actually working in clinical or emergency medical situations. The rule establishes a training requirement for quality control purposes. It does not establish an employment requirement.

Reasoned justification for continuation of the rule, including reasons why the agency disagrees with comments in opposition to the rule, if any:

This rule establishes requirements for individuals, other than a physician or nurse, permitted to collect blood at the direction of a peace officer for the determination of alcohol or drug content. Therefore, this rule should be continued.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Disease Control and Prevention, Laboratory Services
4431 S 2700 W
TAYLORSVILLE, UT 84119

Direct questions regarding this rule to:

• David Mendenhall at the above address, by phone at 801-965-2530, by FAX at 801-965-2544, or by Internet E-mail at [e-mail]

Authorized by:

David Patton, Executive Director

Effective:

01/20/2012

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