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.
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