Does an Arizona police officer who draws blood during a DUI stop need medical malpractice insurance?
Plain-English summary
Arizona has a Law Enforcement Phlebotomy Program. Officers trained under the program draw blood from DUI suspects roadside or at the station, instead of waiting for hospital staff. The program took off because rural agencies were losing DUI cases when transport time killed the evidentiary window, and because some hospitals were declining to draw blood for police.
In 2025 the Arizona Municipal Risk Retention Pool/Southwest Risk decided that what these officers do is a "medical procedure" and started requiring agencies to buy medical malpractice insurance to keep using the program. The Director of the Governor's Office of Highway Safety, which funds the training, asked the AG to answer: is a DUI blood draw really a medical procedure, and are these officers really subject to medmal lawsuits?
The AG said no on both counts. First, Arizona case law (Olcavage, May, Nissley) treats forensic blood draws as investigative tools, not medical care. The purpose is to get evidence of a crime, not to treat the patient. Second, Arizona's Medical Malpractice Act (A.R.S. § 12-561 et seq.) only covers claims against "licensed health care providers," and an officer who completes the LEPP one-week course gets a certificate of completion, not a license or certification from a state health-licensing agency like DHS or the Board of Nursing. Without that license, the officer cannot be sued under the Medical Malpractice Act.
The bottom line: the risk pool was wrong on the law. Officers running blood draws under A.R.S. § 28-1388(A) for forensic purposes don't need medmal coverage on top of their normal liability coverage. Officers also have an additional layer of statutory immunity in A.R.S. § 28-1388(F): a person who collects blood for DUI purposes at the request of an officer is not civilly liable absent gross negligence.
What this means for you
For police chiefs, sheriffs, and agency risk managers
If your insurer or risk pool tries to require medical malpractice coverage as a condition of running a Law Enforcement Phlebotomy Program, this opinion is your direct answer. Cite I25-005 and the controlling cases (Olcavage, May, Bailey-Null, Kenyon). Officers conducting forensic blood draws are not "licensed health care providers" within A.R.S. § 12-561, so the cause of action that medmal insurance covers literally does not exist against them in Arizona. You still want general liability coverage for civil rights claims, claims of excessive force during the draw, or negligence claims under tort law, but those are different products and probably already in your policy. Push back on insurers who treat the LEPP as adding a new exposure category.
For municipal risk pools and insurance carriers
The AG's view is that issuing a certificate of completion at the end of LEPP training is not the same as the State licensing or certifying someone to provide health care. Sahf v. Lake Havasu City Ass'n is the cleanest case the AG cites for that principle: even a facility certified by DES for residential services was not a "licensed health care provider" because the license that matters is from DHS or another health-regulatory agency. If you are pricing coverage for an LE phlebotomy program, this opinion suggests the medical malpractice exposure is minimal in Arizona, even if the activity looks medical at a glance.
For LEPP-trained officers and program coordinators
Run the program by the book. The AG's no-malpractice-liability conclusion rests on you acting as a "qualified person" under A.R.S. § 28-1388(A) to gather forensic evidence: drawing blood at an officer's request, with consent or a warrant, for use in a DUI prosecution. If you stray from that role (assisting medical care, drawing blood for non-DUI purposes, providing health-related services), the AG's analysis warns that "a different analysis may be required." The opinion explicitly limits itself to the DUI-investigation context.
For DUI defense attorneys
The AG's reasoning aligns with the appellate cases that already foreclose medmal claims against LE phlebotomists, but it does not foreclose other tort theories. A negligently performed blood draw can still support a § 1983 claim, a battery claim, or a negligence claim, depending on the facts. The opinion just settles the threshold question: don't expect a Medical Malpractice Act claim to survive a motion to dismiss.
For prosecutors
The opinion is short on direct prosecutor guidance, but it reinforces the existing framework: Olcavage, May, and Nissley already treat the DUI blood draw as forensic, and the medical-blood-draw exception in § 28-1388(E) carves out a separate path when blood is drawn by medical personnel for medical reasons. Nothing here changes admissibility doctrine; it confirms that the threshold "medical procedure" theory some defendants might raise to challenge officer-drawn blood doesn't carry weight.
Common questions
What is a Law Enforcement Phlebotomy Program?
It is Arizona's program, established in 1995, that trains law enforcement officers to draw blood for DUI investigations. Training is a one-week community-college course followed by 20-30 clinical hours and at least 50 successful venipunctures. Officers who complete it can draw blood roadside or at the station instead of transporting suspects to hospitals.
Why did anyone think officers needed medical malpractice insurance?
The Arizona Municipal Risk Retention Pool/Southwest Risk decided the blood draw was a "medical procedure" and started requiring agencies to buy medmal coverage. The Governor's Office of Highway Safety, which funds the training, asked the AG to weigh in. The AG disagreed with the risk pool's characterization.
Are officers immune from all lawsuits over a blood draw?
No. The AG's opinion is narrow: officers cannot be sued for medical malpractice under A.R.S. § 12-561 because they aren't "licensed health care providers." They can still face battery, negligence, civil rights, or excessive force claims. And § 28-1388(F) gives an additional layer of statutory immunity from civil liability for the act of collecting blood at an officer's request, except in cases of gross negligence.
Is this opinion binding on the Arizona Municipal Risk Retention Pool?
No. AG opinions are persuasive authority. The risk pool can theoretically continue requiring medmal coverage as a contractual matter, but the AG opinion gives agencies a strong basis to challenge that requirement and to argue the underlying exposure doesn't exist.
What about non-DUI blood draws?
The AG explicitly limits the opinion to DUI investigations under § 28-1388(A). If officers are drawing blood for any other reason (medical screening, drug testing in another context), the analysis would have to be redone.
Does this affect federal claims?
No. The opinion only addresses state-law medical malpractice. Federal claims under 42 U.S.C. § 1983 for Fourth Amendment violations, for example, are not addressed and are not affected.
Background and statutory framework
Arizona's implied-consent statute, A.R.S. § 28-1321(A)-(B), conditions the privilege of driving on a driver's submission to a blood, breath, or urine test when an officer has probable cause for DUI; refusal results in a one-year license suspension. Section 28-1388(A) sets out who can draw the blood: a physician, registered nurse, or other "qualified person." The Arizona Court of Appeals in Olcavage held that a "qualified person" need not be licensed, only competent through training or experience. May confirmed that an officer who completed LEPP training was qualified.
The Medical Malpractice Act, A.R.S. § 12-561 et seq., creates a cause of action only against "licensed health care providers." Section 12-561(1)(a) defines that term as a person or facility licensed or certified by the State to provide health care, medical services, or other health-related services. The Arizona Supreme Court in Kenyon v. Hammer was emphatic: "[a] malpractice claim asserted against an unlicensed health care provider is not covered by the statute." It is the identity of the defendant, not the type of claim, that triggers the Act.
The opinion also distinguishes the "medical blood draw exception" in § 28-1388(E), which addresses a different question: whether blood drawn by medical personnel for medical reasons can later be obtained by police without a warrant. That doctrine confirms the structural distinction between medical blood draws and forensic blood draws, but it does not change the malpractice analysis.
Citations
- A.R.S. § 12-561 et seq. (Medical Malpractice Act)
- A.R.S. § 12-561(1)(a) (definition of licensed health care provider)
- A.R.S. § 12-561(2) (definition of medical malpractice action)
- A.R.S. § 28-1321(A)-(B) (implied consent)
- A.R.S. § 28-1388(A) (qualified persons authorized to draw blood)
- A.R.S. § 28-1388(E) (medical blood draw exception)
- A.R.S. § 28-1388(F) (limited immunity for those who collect blood at officer's request)
- State v. May, 210 Ariz. 452 (App. 2005) (LEPP-trained officer is "qualified")
- State ex rel. Pennartz v. Olcavage, 200 Ariz. 582 (App. 2001) (forensic blood draw not a medical procedure)
- State v. Nissley, 241 Ariz. 327 (2017) (medical blood draw exception elements)
- State v. Peltz, 242 Ariz. 23 (App. 2017) (medical blood draw exception application)
- Bailey-Null v. ValueOptions, 221 Ariz. 63 (App. 2009) (medmal claims only against listed providers)
- Kenyon v. Hammer, 142 Ariz. 69 (1984) (defendant identity controls medmal coverage)
- Sahf v. Lake Havasu City Ass'n for the Retarded & Handicapped, 150 Ariz. 50 (App. 1986) (DHS license is the touchstone)
- Madrid v. Maricopa Cnty., 2011 WL 1578506 (D. Ariz. Apr. 27, 2011) (county jail medical facility not a "licensed health care provider")
Source
- Landing page: https://www.azag.gov/opinions/i25-005-r25-008
- Original PDF: https://www.azag.gov/sites/default/files/2025-08/I25-005.pdf
Original opinion text
To:
Jesse Torrez, Director of the Governor's Office of Highway Safety
Questions Presented
Does a blood draw conducted by a law enforcement officer during a DUI investigation constitute a medical procedure which would subject the officer to liability for medical malpractice?
Summary Answer
No, for two reasons. First, a blood draw conducted by a law enforcement officer during a DUI investigation is not a medical procedure but an investigative tool for gathering forensic evidence.[1] Second, a law enforcement officer conducting a blood draw for DUI purposes is not a "licensed health care provider," as defined in A.R.S. § 12-561, and therefore cannot be sued for medical malpractice under Arizona law.
Background
If a law enforcement officer has probable cause to believe a driver committed a DUI offense, Arizona's implied consent statute requires the driver to submit to a blood draw to determine their blood-alcohol concentration or drug content if requested by the officer, otherwise the driver risks having their license suspended for one year. A.R.S. § 28-1321(A)-(B). Arizona law permits a physician, registered nurse, or other "qualified person" to draw blood from a driver pursuant to the implied consent statute. A.R.S. § 28-1388(A). "A phlebotomist is a 'qualified person' under the statute [and] need not be certified, but rather, only 'demonstrate competence through training or experience."' State v. May, 210 Ariz. 452, 455 ¶ 10 (App. 2005) (cleaned up); see also State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, 588 ¶ 21 (App. 2001) (a phlebotomist is "a person who, through training or experience, is competent to draw blood").
Law enforcement officers who participate in Arizona's Law Enforcement Phlebotomy Program are generally "qualified" to draw blood within the meaning of A.R.S. § 28-1388(A). See May, 210 Ariz. at 455 ¶ 10 (officer who attended the Law Enforcement Phlebotomy Program and "had drawn blood 150 to 200 times," was "sufficiently qualified [ ] as a person competent to draw blood" within the meaning of the statute). Arizona's Law Enforcement Phlebotomy Program was established in 1995 to address the high number of DUI investigations "that resulted in no chemical evidence due to test refusals, the need for officers in rural areas to travel to obtain a blood draw on a DWI suspect, and the refusal or inability of hospital staff to obtain blood samples for law enforcement."[2] The Program "allows law enforcement officers with specialized training to draw blood for investigative purposes" and "eliminates the need for a suspect to be transported to a hospital or other facility to obtain a blood sample."[3] The training is focused on law enforcement procedures and consists of a one-week course at a community college and "20-30 hours in a clinical setting where [officers] complete more than 50 successful venipunctures."[4]
The Arizona Municipal Risk Retention Pool/Southwest Risk recently determined that a blood draw conducted by law enforcement officers is a medical procedure, and as a result, has required law enforcement agencies to obtain medical malpractice insurance. The Director of the Governor's Office of Highway Safety, which funds Arizona's Law Enforcement Phlebotomy Program, submitted a request for an Attorney General Opinion as to whether a blood draw conducted by a law enforcement officer under Arizona's DUI laws is a medical procedure that would require medical malpractice insurance.
Analysis
A blood draw conducted by law enforcement during a DUI investigation is not a medical procedure.
A law enforcement officer conducting a blood draw as a "qualified person" under A.R.S. § 28-1388(A) is, by definition, not a physician or registered nurse, but rather, "a person who, through training or experience, is competent to draw blood." Olcavage, 200 Ariz. at 588 ¶ 21. Simply because a blood draw is conducted by a "qualified person" does not mean that the blood draw is a medical procedure, particularly when the purpose of the blood draw is to obtain forensic evidence. In Olcavage, the Arizona Court of Appeals concluded that a law enforcement officer conducting a blood draw for forensic purposes under A.R.S. § 28-1388(A) could do so without the supervision of a licensed medical professional—as required by Title 36 and 32 for certain healthcare workers—because "phlebotomists who draw blood for DUI purposes are not assisting in a medical practice, nor are they collecting specimens as part of a medical procedure. Their actions are forensic in nature, not diagnostic or medical." Id. at 587 ¶ 15 (emphasis added). The Court found that the statutes governing medical professionals were not applicable in the DUI context because "[b]lood drawn for DUI purposes is not aimed at enabling medical personnel to make a medical determination. Rather the blood draw is intended to provide the evidence necessary to make a legal determination—namely, whether a suspect's blood alcohol content exceeds a legislatively imposed limit." Id. at ¶ 16. Olcavage thus makes clear that a blood draw is not a medical procedure per se; rather,the blood draw's purpose is the primary indicator of whether it is a health-related service or a non-medical investigative tool. And a blood draw conducted by an officer for DUI purposes falls into the latter category.
Arizona courts have also recognized the distinction between a blood draw conducted for medical purposes and a blood draw for the purposes of obtaining forensic evidence in a DUI investigation through what is known as the "medical blood draw exception." Section 28-1388(E) provides that if a law enforcement officer has probable cause to believe that a person has committed a DUI offense and a sample of blood "is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes." This exception to the warrant requirement, known as the "medical blood draw exception," allows a warrantless blood draw to be used in a DUI prosecution if "(1) probable cause existed to believe that the suspect was driving under the influence, (2) exigent circumstances made it impractical for law enforcement to obtain a warrant, (3) the blood was drawn by medical personnel for a medical reason, and (4) the provision of medical services did not violate the suspect's right to direct his or her own medical treatment." State v. Nissley, 241 Ariz. 327, 333 ¶ 24 (2017) (emphasis added). In other words, in order for blood evidence to be admissible under this exception, the State must show that the blood draw was not requested or carried out by law enforcement, but that an independent decision was made by medical personnel to draw the suspect's blood for a medical reason. State v. Peltz, 242 Ariz. 23, 33 ¶ 37 (App. 2017). The distinction courts have drawn in this context between a blood draw for medical purposes and a blood draw for law enforcement purposes demonstrates that a law enforcement officer acting as a "qualified person" who draws blood either with the driver's consent or pursuant to search warrant is not doing so for a medical reason, and the blood draw does not constitute a medical procedure.
Law enforcement officers are not licensed health care providers subject to liability for medical malpractice under Arizona law.
Arizona's Medical Malpractice Act (A.R.S. § 12-561 et seq.) governs any claim for medical malpractice in the State. Bailey-Null v. ValueOptions, 221 Ariz. 63, 70 ¶ 24 (App. 2009) ("Medical malpractice actions can be brought against a health care provider only on the grounds listed in A.R.S. § 12-561."). The Act defines a medical malpractice action as one "for injury or death against a licensed health care provider based upon such provider's alleged negligence, misconduct, errors or omissions [ ] in the rendering of health care [ ] or other health-related services or for the rendering of such health care [ ] or other health-related services, without express or implied consent including an action based upon the alleged negligence, misconduct, errors or omissions or breach of contract in collecting, processing or distributing whole human blood[.]" A.R.S. § 12-561(2). A licensed health care provider is a person or facility "licensed or certified by the state to provide health care, medical services [ ] or other health-related services and includes the officers, employees and agents thereof working under the supervision of such person [ ] in providing such health care, medical services, [ ] or other health-related services." A.R.S. § 12-561(1)(a).[5]
The Arizona Supreme Court has emphasized that it is not the type of claim that determines whether it is a medical malpractice claim, "it is the identity of the person against whom it is asserted." Kenyon v. Hammer, 142 Ariz. 69, 77 (1984). Indeed, "[a] malpractice claim asserted against an unlicensed health care provider is not covered by the statute[.]" Id. The Act encompasses only "claims against licensed health care providers for matters based upon such provider's rendition of health care services[.]" Id. In other words, no cause of action exists for medical malpractice unless the person against whom the claim is asserted is a "licensed health care provider" as defined by the Act. Law enforcement officers do not fall within this definition.[6]
Law enforcement officers are not "licensed or certified" by the State to provide any kind of "health care, medical services [ ] or other health-related services." As discussed previously, blood draws conducted for investigatory purposes are forensic in nature, they are not medical or health-related services. But even if they were, officers are not licensed or certified by the State to provide them. While the Act does not explain the terms licensed or certified, Arizona courts have found that the "license" referred to "is a license from DHS—the department created for the sole purpose of controlling licensing standards for health care institutions." Sahf v. Lake Havasu City Ass'n for the Retarded & Handicapped, 150 Ariz. 50, 58 (App. 1986); see id. (finding that facility was certified by DES to provide residential services, but this was distinct from the provision of health care services requiring DHS license, and therefore facility was not a "licensed healthcare provider" and not subject to suit for medical malpractice); Madrid v. Maricopa Cnty., No. CV-10-2031-PHX-GMS, 2011 WL 1578506, at *6 (D. Ariz. Apr. 27, 2011) (County jail's medical facilities could not be sued directly for medical malpractice because they were "not licensed or certified by the State" through DHS and thus did not qualify as "licensed healthcare provider"). The reasoning of these cases dictates that a licensed health care provider is licensed or certified by a state regulatory agency responsible for licensing and regulating healthcare facilities and providers.
In Arizona, there is no state licensing of phlebotomists. See Olcavage, 200 Ariz. at 584 ¶ 4 (parties stipulated there is no state licensing of phlebotomists).[7] Law enforcement officers are thus not licensed or certified by any state regulatory agency responsible for the licensing or regulation of healthcare professionals. And while officers may receive a certificate upon their successful completion of the Law Enforcement Phlebotomy Program, that certificate is not a "certification" provided by a state regulatory agency. Compare Certificate, Black's Law Dictionary (12th ed. 2024) ("1. A document certifying the bearer's status or authorization to act in a specified way; esp., an official paper stating that one has completed a course of study or passed an examination
Conclusion
A blood draw conducted by a law enforcement officer during a DUI investigation in order to obtain evidence is not a medical procedure. Moreover, a law enforcement officer "qualified" to conduct a blood draw though his or her training in the Law Enforcement Phlebotomy Program is not a "licensed health care provider," as defined in Arizona's Medical Malpractice Act, and therefore cannot be sued for medical malpractice under Arizona law.
Kris Mayes
Attorney General
[1] This Opinion only addresses a blood draw conducted in the context of a DUI investigation for the purpose of determining the alcohol concentration or drug content in the suspect's blood. If law enforcement officers perform blood draws in other contexts for purposes other than collecting forensic evidence, a different analysis may be required.
[2] Nat'l Highway Traffic Safety Admin., Law Enforcement Phlebotomy Toolkit: A Guide to Assist Law Enforcement Agencies with Planning and Implementing a Phlebotomy Program, 3 (2019), https://www.nhtsa.gov/sites/nhtsa.gov/files/documents/14222-phlebotomy_toolkit_final-032819-v1a_tag_0.pdf.
[3] Id. at 1.
[4] Phlebotomy Program Update May 1, 2025, Ariz. Governor's Off. of Highway Safety, https://gohs.az.gov/highway-safety-programs/impaired-driver-training/phlebotomy-program#:~:text=better%20interagency%20cooperation.-,Training,germane%20to%20law%20enforcement%20procedures. (last visited July 1, 2025)
[5] The Act also includes federally licensed blood banks and plasma centers in the definition of licensed health care provider, but that definition is not relevant here. A.R.S. § 12-561(1)(b).
[6] And even if they did, liability arguably would not exist for another independent reason—Arizona law specifically provides that a person who collects blood pursuant to Arizona's DUI laws "does not incur any civil liability as a result of this activity if requested by a law enforcement officer" unless the person acts with gross negligence. A.R.S. § 28-1388(F).
[7] For a complete list of Arizona's healthcare regulatory agencies, see https://azbn.gov/board/about/state-regulatory-agencies (last visited July 29, 2025).
[8] See https://azbn.gov/licenses-and-certifications/apply-license (last visited July 29, 2025).