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NEW YORK DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 3 – DIRECTION AND SUPERVISION OF A PHYSICIAN

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).