Assembly Bill A8601

                                BILL NUMBER:A8601

TITLE OF BILL:  An act to amend the vehicle and traffic law, in relation
to persons authorized to withdraw blood

PURPOSE:  To  remove  a  conflict between current medical practice and a
statutory requirement of Physician supervision of blood draws.

SUMMARY OF PROVISIONS: Section!. Removes the requirement that  a  Physi-
cian  supervise  the  withdrawal of blood from an intoxicated driver and
lists the persons authorized to withdraw blood.

JUSTIFICATION: 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  restric-
tive  and  impedes the ability 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 current law.

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, 307A.D.2"d391 (3rd Dept; 1003).

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, but  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 authorized
to  withdraw  the  blood under a general and continuous written authori-

zation from the Connecticut hospital, a participant in the Hudson Valley
Regional EMS Advanced Life Support Protocols. Following the  statute  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 NY.S.2d624),
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  Mlsc.2d942,  692  NY.S.2d 88, Iv. denied 94 N.Y.2d 865,704 N.Y.S.2d
541; People v. Gertz, 189 Misc.2d 315, 731 N.Y.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.

LEGISLATIVE HISTORY:

2007- A11356 -Referred to Transportation
2008- A688-A -Referred to Transportation
2008- S5974-A- (Same as)- Passed Senate

FISCAL IMPLICATIONS: None.

EFFECTIVE  DATE: This act shall take effect on the first day of November
next succeeding the date on which it shall have become a law.