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NEW YORK DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 4 – DIRECTION AND SUPERVISION OF A PHYSICIAN

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.