[Code of Federal Regulations]
[Title 32, Volume 4]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR634.38]

[Page 56-57]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER V--DEPARTMENT OF THE ARMY (CONTINUED)
 
PART 634--MOTOR VEHICLE TRAFFIC SUPERVISION--Table of Contents
 
                     Subpart D--Traffic Supervision
 
Sec. 634.38  Involuntary extraction of bodily fluids in traffic cases.

    (a) General. The procedures outlined herein pertain only to the 
investigation of individuals stopped, apprehended, or cited on a 
military installation for any offense related to driving a motor vehicle 
and for whom probable cause exists to believe that such individual is 
intoxicated. Extractions of body fluids in furtherance of other kinds of 
investigations are governed by Rule 312(d), Military Rules of Evidence, 
and regulatory rules concerning requesting and granting authorizations 
for searches.
    (1) Air Force policy on nonconsensual extraction of blood samples is 
addressed in AFR 160-12.
    (2) Marine Corps personnel should not undertake the nonconsensual 
extraction of body fluids for reasons other than a valid medical purpose 
without first obtaining the advice and concurrence of the installation 
staff judge advocate or his or her designee.
    (3) DLA policy on nonconsensual taking of blood samples is contained 
in DLAR 5700.7.
    (b) Rule. Involuntary bodily fluid extraction is based on valid 
search and seizure authorization. An individual subject to the UCMJ who 
does not consent to chemical testing, as described above, may 
nonetheless be subjected to an involuntary extraction of bodily fluids, 
including blood and urine, only in accordance with the following 
procedures:
    (1) An individual subject to the UCMJ who was driving a motor 
vehicle involved in an accident resulting in death, personal injury, or 
serious property damage may be subjected to a nonconsensual bodily fluid 
extraction to test for the presence of intoxicants only when there is a 
probable cause to believe that such an individual was driving or in 
control of a vehicle while under the influence of an intoxicant.
    (i) A search authorization by an appropriate commander or military 
magistrate obtained pursuant to Rule 315, Military Rules of Evidence 
(Manual for Courts-Martial, chapter XXVII), is required prior to such 
nonconsensual extraction.
    (ii) A search authorization is not required under such circumstances 
when there is a clear indication that evidence of intoxication will be 
found and there is reason to believe that the delay necessary to obtain 
a search authorization would result in the loss or destruction of the 
evidence sought.
    (iii) Because warrantless searches are subject to close scrutiny by 
the courts, obtaining an authorization is highly preferable. Warrantless 
searches generally should be conducted only after coordination with the 
servicing staff judge advocate or legal officer, and attempts to obtain 
authorization from an appropriate official prove unsuccessful due to the 
unavailability of a commander or military magistrate.
    (2) If authorization from the military magistrate or commander 
proves unsuccessful due to the unavailability of such officials, the 
commander of a medical facility is empowered by Rule 315(d), Military 
Rules of Evidence, to authorize such extraction from an individual 
located in the facility at the time the authorization is sought.
    (i) Before authorizing the involuntary extraction, the commander of 
the medical facility should, if circumstances permit, coordinate with 
the servicing staff judge advocate or legal officer.
    (ii) The medical facility commander authorizing the extraction under 
Rule 315(d) need not be on duty as the attending physician at the 
facility where the extraction is to be performed and

[[Page 57]]

the actual extraction may be accomplished by other qualified medical 
personnel.
    (iii) The authorizing official may consider his or her own 
observations of the individual in determining probable cause.
    (c) Role of medical personnel. Authorization for the nonconsensual 
extraction of blood samples for evidentiary purposes by qualified 
medical personnel is independent of, and not limited by, provisions 
defining medical care, such as the provision for nonconsensual medical 
care pursuant to AR 600-20, section IV.
    (1) Extraction of blood will be accomplished by qualified medical 
personnel. (See Military Rules of Evidence 312(g).)
    (i) In performing this duty, medical personnel are expected to use 
only that amount of force that is reasonable and necessary to administer 
the extraction.
    (ii) Any force necessary to overcome an individual's resistance to 
the extraction normally will be provided by law enforcement personnel or 
by personnel acting under orders from the member's unit commander.
    (iii) Life endangering force will not be used in an attempt to 
effect nonconsensual extractions.
    (iv) All law enforcement and medical personnel will keep in mind the 
possibility that the individual may require medical attention for 
possible disease or injury.
    (2) Nonconsensual extractions of blood will be done in a manner that 
will not interfere with or delay proper medical attention. Medical 
personnel will determine the priority to be given involuntary blood 
extractions when other medical treatment is required.