TITLE OF BILL:
An act to amend the vehicle and traffic law, in relation to testing
To remove a conflict between current medical practice and a statutory
requirement of Physician supervision of blood draws.
SUMMARY OF PROVISIONS:
Section 1. (i) allows a physician, a registered professional nurse, a
registered physician assistant, a certified nurse practitioner, or an
advanced emergency medical technician as certified by the department of
health to withdraw blood at the request of a police officer.
(ii) under the supervision and direction of a physician, registered
physician assistant or certified nurse practitioner, or upon express
consent of a person eighteen years or older a clinical laboratory tech-
nician or clinical laboratory technologist, a phlebotomist, a medical
laboratory technician, or a medical technologist may withdraw blood at
the request of a police officer.
Section 2. Effective date.
All too often, intoxicated drivers who are involved in motor vehicle
collisions escape prosecution. If a police officer requests that medical
personnel draw blood to test for intoxication after a collision, this
evidence is suppressed unless a physician is present to supervise the
procedure. This requirement is overly restrictive and impedes the abili-
ty of police and prosecutors to enforce laws against drunk or drugged
driving. The medical community allows trained medical personnel to
routinely withdraw blood from individuals without the direction and
supervision of a physician, yet the VTL does not. The following are a
few examples of the ongoing difficulty faced by law enforcement under
Jack Shea, a double Olympic gold medalist and 91-year-old patriarch of a
three generation Olympic family, was killed on January 23, 2002 in a
collision with a drunk driver. Although the driver was indicted for
vehicular manslaughter, criminally negligent homicide, and driving while
intoxicated, ultimately the district attorney could not present proof of
the driver's blood alcohol level. The blood was drawn at Adirondack
Medical Center, a small regional clinic where both men were brought for
treatment after the crash. No doctor was on duty to supervise the draw-
ing of the blood, only a physician's assistant. As Jack Shea was the
more severely injured of the two men and in need of immediate medical
attention, both the physician's assistant and the registered nurse at
the clinic were occupied with treating him. When the police officer
requested that blood be drawn from the driver, both the physician's
assistant and the nurse directed an advanced emergency medical techni-
cian to draw the blood. The driver consented to the blood test, which
showed a blood alcohol level of .15, and the physician's assistant later
testified that there was no danger to the driver in withdrawing the
blood. Nonetheless, in October 2002, the judge in the case ruled that
the blood-alcohol test was illegally administered because it was not
supervised by a physician. As a result, the District Attorney was unable
to use the blood as evidence and had to dismiss the charges. Although
the District Attorney appealed the ruling, the appellate court felt
compelled by the statute to uphold the suppression of the evidence.
However, the Judges called on the legislature to amend the statute to
remedy what they saw as an unnecessary restriction in the law. (People v
Reynolds, 307 A.D.2nd 391 (3rd Dept. 2003).
A defendant in Sullivan County escaped a felony drinking while driving
conviction because it could not be shown that a doctor had either
directly or indirectly supervised the drawing of blood for an alcohol
test. As reported by John Caher in the New York Law Journal on July 1,
2004, the Court revisited the admissibility of the blood draw after the
conviction and then suppressed the evidence, overturned the conviction
and dismissed the indictment. The technologist who drew the blood testi-
fied that she had never discussed the matter with a doctor, that there
was no paperwork indicating he was ultimately in charge of the blood
draw, and that she merely assumed that standard procedures were being
followed. The Court ruled according to the established interpretation of
the statute, which requires direct supervision by a physician, rather
than simple adherence to standard procedures.
The defendant's attorney, Mark J. Sherman, said that while the case does
not break new ground, it does reflect a disconnect between modern
medical practice and the requirements of the Vehicle and Traffic Law - a
disconnect that DWI defendants can sometimes use to their advantage. He
said at present there is probably no medical need to have a doctor
supervise the drawing of blood, yet the law requires it for law enforce-
ment purposes. "At some point someone will ask the Legislature to take a
look at current medical practice and compare it to the statute," he
said. "Someone is going to stand up and say that either the statute has
to bend or medical practice has to change. This decision may bring that
one day closer."
On May 27, 2001 a defendant in Nassau County rammed his car into the
back of a vehicle that was stopped at a red light, killing two men and
injuring three others. An advanced emergency medical technician withdrew
blood from the defendant in the emergency room. The Medical Director in
charge of Medical Control at Nassau County Medical Center testified that
the advanced emergency medical technician acted under a protocol that
had been established by an Emergency Medicine Committee of thirty physi-
cians. Yet, the Trial Court felt constrained to deny admission of the
defendant's blood alcohol content because the doctor in the emergency
room at that time had not specifically "directed" him to do so. The
Court stated "I agree with you, Gallub (the advanced emergency medical
technician who drew the blood) is probably more qualified than a regis-
tered professional nurse, probably, hut that's not what the statute
says." After the loss of this important evidence at trial, the defendant
was only convicted of criminally negligent homicide.
A defendant in Dutchess County also exploited this glaring statutory
omission. Robert Raphael, Jr. died on October 20, 2004, as a result of
the actions of a drugged driver. The offender, who was injured, was to
be transported to the nearest hospital, which was in the State of
Connecticut. The arresting officer, unsure of the legal efficacy of
attempting to get a blood test administered out of state, requested an
advanced emergency medical technician to withdraw blood at the scene.
The advanced emergency medical technician did so using accepted medical
standards. The advanced emergency medical technician was also author-
ized to withdraw the blood under a general and continuous written
authorization from the Connecticut hospital, a participant in the Hudson
Valley Regional EMS Advanced Life Support Protocols. Following the stat-
ute as currently written, the Court indicated a belief that the blood
test would be suppressed. The prosecutor had to accept a plea that
resulted in local jail time for the defendant when clearly state prison
would have been the appropriate sentence.
The Fourth Department has held that authorization by a registered nurse
who did not personally observe the sample being taken is not in compli-
ance with the statute, (People v. Ebner, 195 A.D.2d 1006, 600 NY.S.2d
569). Similarly, in People v. Olmstead (233 A.D.2d 837, 649 N Y.S.2d
624), the blood was drawn by a medical laboratory technician at the
direction of a registered nurse, rather than a physician, also resulting
in the suppression of the blood alcohol results (see also, People v.
Pickard, 180 Misc.2d 942, 692 N.Y.S.2d 88, Iv. denied 94 N Y.2d 865, 704
N.Y.S.2d 541; People v. Gertz, 189 Misc.2d 315, 731 NY.S.2d 326).
In response to this problem, which is not singular to New York, a number
of states have enacted legislation that allows the legal standard to
mirror the medical community's standard for the withdrawal of blood.
2006 Passed the Senate (S.7480/A.11356
2007-2008 Passed the Senate (S.5974-a/A.688-A)
This act shall take effect immediately.