Articles Posted in CRIMINAL PROCEDURE

As previously discussed, officers are trained in three different Phases of Driving While Intoxicated detection. Phase 1 involves the officer’s observations of the vehicle in motion, Phase 2 involves the officer’s personal contact with the driver and Phase 3, which I will discuss here, involves Pre-Arrest Screening.

During Phase 3, the officer will determine whether the driver has consumed alcohol and whether such consumption has impaired the driver to the extent that he should be arrested. The main focus during Phase 3 is on the driver’s performance on the Standardized Field Sobriety Tests (SFSTs). During this Phase the officer might also ask the driver to blow into a Portable Breath Test (PBT) to determine the presence of alcohol but the PBT should only be used to support the SFST; it should not be used in place of SFSTs. In New York, the results of a PBT are not admissible at trial (but they are admissible at pre-trial hearings).

The SFSTs not only determine impairment but also whether the driver can perform divided attention tasks. The only three SFSTs validated by the National Highway Traffic Safety Administration (NHTSA) are the (1) Walk-and-Turn; (2) One-Leg-Stand; and (3) Horizontal Gaze Nystagmus. These will all be discussed separately in future blogs.

Those charged with a New York DWI/DUI or related offenses, should be pleased to hear that New York criminal defense lawyer, Peter Tilem, the managing partner at Tilem & Campbell recently completed two courses relevant to Driving Under the Influence, Driving While Intoxicated and Driving While Ability Impaired by Drugs. These courses are the same courses that some members of law enforcement take themselves. The knowledge gained in these classes will help Mr. Campbell better cross-examine police officers, toxicologists and others at trial.

With regard to DWI and/or DUI, Mr. Campbell has completed and has been certified by Blackwater Worldwide in Driving Under the Influence Detection. This 8 hour course concentrates on, among other things, the three “validated” Standardized Field Sobriety Tests which are the (1) Walk-and-Turn; (2) One Leg Stand; and (3) the Horizontal Gaze Nystagmus. The course also focuses on Preliminary Breath Screening (which is the handheld device officers sometimes ask a motorist to blow into on the side of the road), and “Red Flags” an officer looks for when observing moving vehicles that indicate a possible intoxicated driver. (weaving, swerving, no headlights at night, wide turns, etc)

Further, Mr. Campbell recently completed a course in, and has been certified by, NIK Public Safety in Narcotic Field Testing. This 2 hour course focused on the field testing of substances to identify illegal drugs such as cocaine and marijuana. Field testing of this type is usually done by law enforcement officers in the field to test substances found during searches, car stops, etc. Mr. Campbell was trained in how to use field testing kits and identify various drugs based upon the test results, how to properly use NIK’s Polytesting system which is utilized when the officer has no idea what the substance is (as opposed to most situations where an officer has an idea of what the substance is), and how to utilize NIK’s reference materials relating to narcotic field testing.

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.”

Last Friday, Tilem & Campbell managing partner, Peter Tilem 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.

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.

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”.