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DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 1

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.