New York Criminal Attorney Blog

DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 5- STERILIZATION OF THE SKIN

August 10, 2009 | Tilem & Associates

If you have been charged with Driving While Intoxicated in New York you need criminal attorneys who know not just the law, but the science and procedures relevant to a DWI case.In continuing with my series of blogs concerning blood testing in New York Driving While Intoxicated cases, I will now discuss the “swabbing” or sterilization of the skin prior to the drawing of the blood. Recall, my prior blogs discussed who may actually draw the blood. After who actually did the draw is attacked by defense counsel, the next area of attack is the “swabbing” or sterilization process.

New York State Department of Health Rules and Regulations require that a non-alcoholic antiseptic be used. [See 10 NYCRR § 59.2(c)(3)]. Clearly, alcohol used to clean the draw site could find its way into the sample. In People v. Ward, 14 Misc.2d 518, 178 N.Y.S.2d 708 (N.Y.Co.Ct. 1958), the Westchester County Court held that it was reversible error to admit blood alcohol evidence where the defendant’s arm was cleansed with alcohol prior to the blood draw. In Ward, a chemist testified that it was possible that alcohol used to cleanse the draw site could have entered the blood sample.

Likewise, in People v. Maxwell, 18 Misc.2d 1004, 188 N.Y.S.2d 692 (N.Y.Co.Ct. 1959), the Orange County Court held that the blood test result was inadmissible because the defendant’s arm was sterilized with alcohol prior to the blood draw. See also People v. Douglas, 16 Misc.2d 181, 183 N.Y.S.2d 945 (N.Y.Co.Ct. 1959) where the Jefferson County Court reversed DWI conviction where doctor testified that the skin was swabbed with alcohol prior to the blood draw and the toxicologist testified that a small amount of alcohol could enter the sample thus effecting the result.

TILEM & CAMPBELL IN THE NEWS – COMMENTING ON THE TACONIC PARKWAY CASE

August 5, 2009 | Tilem & Associates

Senior partner, Peter H. Tilem, appeared on the five o’clock news earlier this evening commenting on the Taconic Parkway fatal collision that left the driver and seven others dead. The piece appeared on channel 7’s Eyewitness news shortly after 5 pm. Mr. Tilem, who is a former senior prosecutor in the New York County District Attorney’s Office, was asked about the possibility of charges being brought against the husband of the woman who was allegedly intoxicated and indicated that it would not be sufficient if the husband was merely are of a history of substance abuse.

The full video is available and can be viewed at Tilem & Campbell’s media page along with other videos of partners Peter Tilem and Peter Tilem in the news.

NEW YORK GRAND JURY SYSTEM, AN INTRODUCTION

July 28, 2009 | Tilem & Associates

As a former Manhattan Prosecutor I have presented hundreds of cases to grand juries in New York. As a partner at a prominent criminal defense firm I have sat with clients inside the grand jury as they were questioned by prosecutors. With recent news reports about the a New York County Grand Jury considering charges against New York Giants stars Plaxico Burress and Antonio Pierce, it is important to understand exactly what a grand jury is and how it operates.

No person may be tried on a felony charge in New York unless a grand jury has considered evidence and voted an indictment or unless the person has waived indictment. The grand jury itself is made up of between 16 and 23 people. They are charged with the duty of hearing and examining evidence involving offenses or misconduct whether or not the misconduct is criminal. In order for a grand jury to vote an indictment 12 of the grand jurors must vote to indict.

The burden to vote for an indictment is low. A grand juror need only find that there is reasonable cause to believe that a person committed an offense. In laymans terms that means that a grand jury need only find sufficient evidence to accuse a person of having committed a felony. This is a very different standard than the proof “beyond a reasonable doubt” needed to convict someone of a crime.

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

July 24, 2009 | Tilem & Associates

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.”

TILEM & CAMPBELL SCORES TWO MAJOR VICTORIES IN ROCKLAND DWI CASES

July 21, 2009 | Tilem & Associates

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.

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

July 19, 2009 | Tilem & Associates

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.

NEW YORK CITY AUXILIARY COP ARRESTED FOR MACE

July 15, 2009 | Tilem & Associates

As outlined in our May 24, 2009 blog New York City bans certain items that are legal other places in New York State and most other places in our Country. New York City Auxiliary Police Officer Alexander Gonzalez found that out the hard way when he was arrested, while on duty, in Manhattan for possession of mace. Mace is one of those items which is illegal in New York City but was made legal in New York State in 1996.

New York City Auxiliary Police Officers are neither police officers or peace officers under New York Law and therefore are not entitled to possess any weapons that civilians are not also entitled to possess. Senior partner, Peter H. Tilem was interviewed for an article written about the case today.

Tilem & Campbell handles a large number of gun and weapons charges in New York and has seen an increase in overly aggressive enforcement of minor weapons violations in New York City for items such as Mace and knives.

NEW YORK DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 2 – DIRECTION AND SUPERVISION OF A PHYSICIAN

July 12, 2009 | Tilem & Associates

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”.

DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 1

July 7, 2009 | Tilem & Associates

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)].

NEW YORK DRIVING WHILE ABILITY IMPAIRED BY DRUGS – COCAINE

July 1, 2009 | Tilem & Associates

So you have been charged in New York with Driving While Ability Impaired by Drugs (VTL 1192(4) or VTL 1192(4-a) if it’s a combination of drugs and alcohol) – specifically, the drug you are alleged to have ingested is cocaine. What comes next? Many times the officer who makes the initial stop is not a Drug Recognition Expert (DRE) so he might call for one to come to the scene. I will discuss DREs in a later blog. But typically, the arresting officer makes a few observations – dilated pupils, fidgety, talkative and of course, you admit to ingesting cocaine.

Once the arresting officer has your admission that you ingested cocaine, he will ask for a urine sample as opposed to a breath sample in a typical Driving While Intoxicated case. However, unlike a Breathalyzer test which supposedly can give a definitive Blood Alcohol Concentration based upon the alcohol present in your lower lung air, the urine test for cocaine can only tell us that there are cocaine metabolites in your urine thus establishing that the drug was used at some point in the past.

In fact, unlike with alcohol where the Legislature has set a .08 % blood alcohol content, as a cut off above which you are presumed intoxicated, with drugs, there is no such line of demarcation. Therefore, not only must the prosecution prove that you ingested a drug, they must also prove that such ingestion impaired your ability to drive with no regard for the amount of the drug in your system. In other words, there is no law in New York that says if one has a certain amount of nanograms per milliliter of urine, they are presumed impaired.