New York Criminal Attorney Blog

As a former Manhattan Prosecutor I have presented hundreds of cases to grand juries in New York. As a partner at a prominent criminal defense firm I have sat with clients inside the grand jury as they were questioned by prosecutors. With recent news reports about the a New York County Grand Jury considering charges against New York Giants stars Plaxico Burress and Antonio Pierce, it is important to understand exactly what a grand jury is and how it operates.

No person may be tried on a felony charge in New York unless a grand jury has considered evidence and voted an indictment or unless the person has waived indictment. The grand jury itself is made up of between 16 and 23 people. They are charged with the duty of hearing and examining evidence involving offenses or misconduct whether or not the misconduct is criminal. In order for a grand jury to vote an indictment 12 of the grand jurors must vote to indict.

The burden to vote for an indictment is low. A grand juror need only find that there is reasonable cause to believe that a person committed an offense. In laymans terms that means that a grand jury need only find sufficient evidence to accuse a person of having committed a felony. This is a very different standard than the proof "beyond a reasonable doubt" needed to convict someone of a crime.

The burden to obtain an indictment is so low that the former Chief Judge of New York State, Sol Wachtler, humorously noted that a prosecutor could persuade a grand jury to "indict a ham sandwich." It is not only the low burden that makes it so easy to indict, it is an area of the Court that is almost exclusively controlled by the prosecutor. Although, in theory the grand jury is supervised by the Court, no Judge sits in the grand jury room while they are hearing evidence or deciding cases. It is the prosecutor that presents all of the evidence and instructs the grand jury on the law. It is the prosecutor who decides what evidence the grand jury will see and which witnesses they will hear.

Although the prosecutor truly controls the goings on in a grand jury, a target of a grand jury investigation or presentation has certain rights which will be discussed in a future blog. In the meantime, if you are charged with a felony or believe that a grand jury may be considering charges against you, contact one of the lawyers at the New York criminal defense firm, Tilem & Campbell.

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Posted In: CRIMINAL PROCEDURE , GUN CRIMES , IN THE NEWS , NARCOTICS

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If you are charged with DWI, you need criminal defense lawyers that not only know the law, but also know the science and procedures relevant to a Driving While Intoxicated cases. Continuing with my series of blogs pertaining to blood draws in New York Driving While Intoxicated cases, in this blog I will briefly review cases which make clear that when the blood is drawn by specifically listed technicians, phlebotomists and the like, such a blood draw must be under the “supervision and at the direction of a physician”.

In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), blood test results were suppressed where a medical laboratory technician did the draw at the direction of a nurse instead of a physician. Other cases firmly establish that only a physician can direct and supervise those technicians and the like listed in VTL 1194(4)(a)(1)(ii) to perform a blood draw for DWI purposes. The Fourth Department had previously reached the same conclusion in People v. Ebner, 195 A.D.2d 1006, 600 N.Y.S.2d 569 (4th Dept. 1993) where they suppressed the results of a blood test because a registered nurse, instead of a physician, authorized a medical laboratory technician to perform the blood draw.

In People v. Reynolds, 193 Misc.2d 697, 749 N.Y.S.2d 687 (N.Y.Co.Ct. 2002), the Essex County Court suppressed blood test results for non-compliance with the physician supervision requirement holding “[t]he People did not meet their burden of showing that a physician either directed or supervised the taking of a blood sample from Defendant by an AEMT. The blood test results should, therefore, be suppressed.”

Similarly, in People v. Griesbeck, 17 A.D.3d 717, 793 N.Y.S.2d 227 (3rd Dept. 2005), the Third Department upheld the trial court’s reversal of a jury’s guilty verdict because the People “failed to introduce evidence that the medical technologist who drew defendant’s blood was authorized to do so by a physician.”

The Appellate Term for Second Department has reached the same conclusion. In People v. Gertz, 189 Misc.2d 315, 731 N.Y.S.2d 326 (App. Term 2nd Dept. 2001), the Appellate Term held that the People did not establish that a physician directed a medical technologist to draw the defendant’s blood in the emergency room. In rejecting the People’s position, the Appellate Term observed that the technologist merely testified that he received a call to draw blood and that a doctor was on duty in the emergency room.

The above summarized cases establish that the courts strictly construe the supervision and direction of a physician requirement when the blood is drawn by one other than a physician, registered nurse or physician’s assistant.

For more information about Driving While Intoxicated laws in New York, call Westchester Criminal Defense Firm, Tilem & Campbell toll free at 1-877-377-8666.

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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Last Friday, Tilem & Campbell managing partner, John Campbell scored a major victory on a DWI case in the Town of Ramapo when a jury acquitted the client of all charges in connection with a DWI that police alleged was committed during the Jewish holiday of Purim. The client was charged with DWI and DWAI but was found not guilty on all charges. Although police alleged that the keys were in the ignition of the car and that the engine was running, the client was sleeping in the car and the jury found that the client did not "operate" the vehicle as required for a DWI conviction.

On Monday, the next business day, Tilem & Campbell was back in Ramapo Town Court this time representing a client charged with committing a second DWI just one month after pleading guilty to the reduced charge of Driving While Ability Impaired in connection with the client's first DWI. The client was again offered a plea to the reduced charge of Driving While Ability Impaired (DWAI) and entered a plea to the DWAI with a minimum fine. Other traffic infractions pending against the client were dismissed. This second case was handled by Tilem & Campbell senior partner Peter Tilem.

If you or a loved one has been arrested or charged with a DWI, DWAI or any criminal case in New York contact one of the experienced criminal defense attorneys at the Westchester criminal defense firm of Tilem & Campbell.

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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As I have previously explained, in a New York Driving While Intoxicated case where a blood test is directed by a police officer, only a physician, a registered nurse or a physician’s assistant my draw the blood unsupervised. [See NY VTL 1194(4)(a)(1)(i)]. Other specifically listed technicians and the like may also perform the blood draw but only under the supervision and direction of a physician. [See NY VTL 1194(4)(a)(1)(ii)].

But what if a registered nurse instead of a physician directs and supervises those specifically listed technicians to do the blood draw? The statute is very clear – only a physician may direct and supervise those listed technicians and the like. In People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624 (4th Dept. 1996), the blood draw was done by a medical laboratory technician at the direction of a registered nurse instead of a physician. The Fourth Department suppressed the blood test result observing that “[t]he critical element, deemed essential by the Legislature when it amended the statute in 1969 . . .is that a physician authorize the taking of the sample.”

Amazingly, the trial court in Olmstead had originally declined to suppress the blood test result holding that there was substantial compliance with the statute because the nurse, who could have drawn the blood without the physician's direction, was present and watched the blood being drawn. This substantial compliance exception created by the trial court in Olmstead was rejected by the Fourth Department.

Wouldn’t we all like to avoid the ramifications and sanctions of the law by simply telling a court that we substantially complied with such law? Wouldn’t it be nice to show up in traffic court and tell the judge to throw out your speeding ticket because you substantially complied with the law by exceeding the speed limit by only 10 mph? Or how about courts dismissing DWI cases where the driver blows .09 (just .01 over the limit) because such a small amount over the .08 limit is substantial compliance with the law.

Nevertheless, in the end the rule of law prevailed. If you have been charged with DWI or other Driving While Intoxicated offense, please call Tilem & Campbell toll free at 1-877-377-8666. We cover the entire downstate area including Westchester, Rockland, Dutchess, Orange and Putnam counties as well as New York City (Bronx, Queens, Brooklyn, Manhattan and Staten Island).

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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As outlined in our May 24, 2009 blog New York City bans certain items that are legal other places in New York State and most other places in our Country. New York City Auxiliary Police Officer Alexander Gonzalez found that out the hard way when he was arrested, while on duty, in Manhattan for possession of mace. Mace is one of those items which is illegal in New York City but was made legal in New York State in 1996.

New York City Auxiliary Police Officers are neither police officers or peace officers under New York Law and therefore are not entitled to possess any weapons that civilians are not also entitled to possess. Senior partner, Peter H. Tilem was interviewed for an article written about the case today.

Tilem & Campbell handles a large number of gun and weapons charges in New York and has seen an increase in overly aggressive enforcement of minor weapons violations in New York City for items such as Mace and knives.

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Posted In: CRIMINAL PROCEDURE , IN THE NEWS , WEAPONS OFFENSES

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As I previously discussed in Part 1 of this group of blogs pertaining to blood testing in NY DWI cases, one of the first areas of attack in a blood test DWI case is the person who drew the blood – the “drawer”. Briefly, at the request of a police officer only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]. For purposes of my blogs, I refer to this as the “first group” of drawers.

And, at the request of a police officer and at the direction and supervision of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)]. I refer to this group as the “second group” of drawers.

When the blood draw is done by someone in the second group of drawers, what exactly does at the “direction and supervision of a physician” mean? Recall, those in the second group of drawers may only draw at the “direction and supervision of a physician”.
In People v. Moser, 70 N.Y.2d 476, 522 N.Y.S.2d 497, 517 N.E.2d 212 (1987), the Court of Appeals held that the personal presence and supervision by a physician of a technician who drew a blood sample was not required by Vehicle and Traffic Law § 1194. In so holding, the Court of Appeals only required the physicians authorization of the test.

It’s important to note that the physician in Moser testified that he directed and supervised all activities in the emergency room and had authorized the drawing of the blood. In People v. Ellis, 190 Misc.2d 98, 737 N.Y.S.2d 232 (N.Y.Co.Ct. 2001), the Cattaraugus County Court distinguished Moser and held that the People had not established that a physician authorized the blood draw by an Advanced Emergency Medical Technician because the physician who allegedly authorized the test did not testify.

Therefore, while Moser held that the physician who directs and supervisors the blood draw need not actually watch the draw, that physician should testify at trial that he or she directed and supervised all activities in the emergency room (or similar locale) and had authorized the drawing of the blood. Defense counsel should object to the introduction of a blood test result where the draw was done at the direction and under the supervision of a physician if that physician does not testify at trial.

If you have been charged in New York with Driving While Intoxicated or impaired, contact Tilem & Campbell toll free at 1-877-377-8666 for a free telephone consultation.

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Anyone who drives in New York is deemed to have consented to the chemical testing of his or her breath, blood, urine, or saliva, to determine the alcoholic and/or drug content of their blood. [See NY VTL 1193(2)(a)].

Typically a New York DWI suspect’s breath is tested and he or she is asked to take a Breathalyzer [or similar type] test. However, a police officer might direct that the driver’s blood be tested instead. In this regard, at the request of a police officer, a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(i)]

Or, again, at the request of a police officer and under the supervision and at the direction of a physician, a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content. [See NY VTL 1194(4)(a)(1)(ii)].

Therefore, when defending a DWI blood test case, the first thing you want to look at with regard to the blood test itself is whether the blood was drawn by an authorized person and/or under the direction and supervision of an authorized person. In other words, at the request of a police officer, only a physician, a registered professional nurse or a registered physician's assistant may draw a motorist’s blood for the purpose of determining its alcoholic and/or drug content without additional supervision or direction. We will refer to these people as the first group of authorized blood drawers.

The second group of blood drawers authorized to draw blood at the direction of a police officer for alcohol and/or drug testing must do so under the supervision and at the direction of a physician. To review, this second group of blood drawers consists of a medical laboratory technician or medical technologist as classified by civil service; a phlebotomist; an advanced emergency medical technician as certified by the department of health; or a medical laboratory technician or medical technologist employed by a clinical laboratory approved under title five of article five of the public health law.

Again, always check the qualifications or title of the blood drawer and make the People prove it. Was that really a Registered Nurse? Did a doctor direct that the Emergency Medical Technician draw blood and further, did the doctor supervise the draw? Also, was the Emergency Medical Technician an “Advanced” Emergency Medical Technician?

In coming blogs on this topic I will discuss this issue at length and review some sample cases where who did the blood draw was an issue as well as cases regarding whether the blood draw was properly supervised. Meanwhile, if you have been charged in New York with Driving While Intoxicated or any similar offense, call Tilem & Campbell toll free at 1-877-377-8666 for more information.

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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So you have been charged in New York with Driving While Ability Impaired by Drugs (VTL 1192(4) or VTL 1192(4-a) if it’s a combination of drugs and alcohol) – specifically, the drug you are alleged to have ingested is cocaine. What comes next? Many times the officer who makes the initial stop is not a Drug Recognition Expert (DRE) so he might call for one to come to the scene. I will discuss DREs in a later blog. But typically, the arresting officer makes a few observations – dilated pupils, fidgety, talkative and of course, you admit to ingesting cocaine.

Once the arresting officer has your admission that you ingested cocaine, he will ask for a urine sample as opposed to a breath sample in a typical Driving While Intoxicated case. However, unlike a Breathalyzer test which supposedly can give a definitive Blood Alcohol Concentration based upon the alcohol present in your lower lung air, the urine test for cocaine can only tell us that there are cocaine metabolites in your urine thus establishing that the drug was used at some point in the past.

In fact, unlike with alcohol where the Legislature has set a .08 % blood alcohol content, as a cut off above which you are presumed intoxicated, with drugs, there is no such line of demarcation. Therefore, not only must the prosecution prove that you ingested a drug, they must also prove that such ingestion impaired your ability to drive with no regard for the amount of the drug in your system. In other words, there is no law in New York that says if one has a certain amount of nanograms per milliliter of urine, they are presumed impaired.

This proves very beneficial for the defendant because, the presence of cocaine metabolites in one’s urine only indicates that the drug was used in the past. No conclusion can be drawn about the degree on one’s impairment from the cocaine, if any, at the time of the urine testing. In fact, the amount of cocaine metabolite concentration in one’s urine tells us absolutely nothing about the amount of cocaine in one’s blood. There is no urine to blood ratio with regard to cocaine metabolites. Any toxicologists who says there is any such relationship is mistaken. Period.

In fact, famed toxicologist and pathologist Steven Karch has written that any attempt to infer impairment based upon urine concentrations of cocaine is “pure folly”. Without a blood test, it is impossible to for an expert to state with a reasonable degree of medical certainty that the defendant was impaired by cocaine based upon a urine test.

If you have been charged with driving under the influence of drugs in New York, you need experienced attorneys who are not just experienced with criminal defense but who are also well versed in the science behind your charges. Attorneys who can cross examine the People’s expert with knowledge of the science involved that not many attorneys have. We just don’t ask the standard scientific questions that so many attorneys ask without really knowing what they are talking about. We know these tests, we know the science behind them and we put the prosecution to the test. For more information call toll free 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

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Posted In: CRIMINAL PROCEDURE , DWI/DWAI

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