Articles Posted in CRIMINAL PROCEDURE

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”.

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)].

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.

Driving While Intoxicated in New York is a serious offense with serious consequences. You need an experienced New York criminal defense attorney who knows not only the law, but the science behind the testing. As I discussed in a previous blog, when one is suspected of Driving While Intoxicated but they do not submit to a chemical test such as a Breathalyzer or blood or urine test for many hours after their arrest, it is difficult, if not impossible, to determine what their Blood Alcohol Concentration (BAC) was at the time they were actually driving. As I discussed in a prior blog, in these situations, prosecutors attempt to prove the defendant’s BAC at the time of driving by Retrograde Extrapolation (RE).

To summarize, RE is a process whereby a subject’s BAC at an earlier time is determined by calculating backwards from the subject’s known BAC at a later time. However, the concept of RE (i.e., that one’s prior BAC can be determined by calculating backwards from their current BAC) is based upon some problematic assumptions. First, RE assumes that the subject is in the elimination stage. In other words, that his BAC is going down. That’s not always true. Even after one stops drinking, their BAC will continue to rise as the alcohol is absorbed into the blood stream. For example, one could drink and entire bottle of vodka and then immediately get in a car and drive 100 ft and have an accident. At the time of the accident that person’s BAC would be extremely low; the alcohol would not have had time to enter the blood stream. However, as the alcohol started, and continued, to enter the blood stream, that individual’s BAC would start to rise and would continue to rise for a while even after he stopped drinking. This is called the “absorption” stage.

An hour or more later when that individual takes a Breathalyzer, his BAC will be extremely high (considering he drank an entire bottle of vodka). A Retrograde Extrapolation analysis on that individual would incorrectly determine that his BAC at the time he was driving was even higher than when he was tested because RE is based on the assumption that the subject is in the elimination stage. This assumption is not always correct.

If you are arrested for Driving While Intoxicated (DWI) in New York, you generally, do not take a chemical test of your breath, blood or urine for up to two hours after your arrest (if you in fact take the test). Therefore, while the test you take (usually a Breathalyzer of some type) provides an alleged Blood Alcohol Concentration (BAC) at the time you actually take the test, it does not, nor could it, determine your BAC at the time you were actually driving. Nevertheless, in New York, if your BAC is over .08 based upon a test given within two hours after your arrest, you are guilty of Driving While Intoxicated based upon a BAC in excess of .08 (VTL 1192(2)).

Typically a motorist arrested for a New York DWI is asked to take a Breathalyzer. However, if a serious accident has occurred with serious injuries and/or death, the suspected intoxicated driver will many times refuse to take a Breathalyzer, blood or urine test. Even if they consent to a Breathalyzer, the Police, in such circumstances, may still seek a blood test. Where there are serious injuries or death involved and the suspected intoxicated driver refuses to submit to a chemical test, the police and/or District Attorney’s Office will seek a court order signed by a judge compelling the driver to submit to a test – usually a blood test.

It can take a long time to get a judge to sign an order compelling the driver to submit to a chemical test. As a criminal defense attorney, experienced with DWI matters, I was once involved with a case in which my client was not tested for 19 hours after the fatal accident. During this delay, the driver is eliminating alcohol from his system. How then, can we know the driver’s BAC at the time he was driving if the test was given many hours (even up to 19 hours) after he was driving?

As experienced New York DWI attorneys, we deal with many different types of New York DWI cases. Many times in a New York Driving While Intoxicated (DWI) case, the motorist will have an allegedly high Blood Alcohol Concentration (BAC) but yet perform well on Field Sobriety Tests (FSTs) such as the “Walk-and-Turn”, “One Leg Stand”, and “Finger-to-Nose” tests. Also, many times, despite a high BAC, the motorists will appear fine on a video. When this happens, defense attorneys argue the obvious – the Breathalyzer was not working properly and therefore, the high BAC score was incorrect. Why else would the motorist perform well of the FSTs and appear fine on the video?

In an effort to try and explain this apparent discrepancy between the motorists BAC score, the prosecution will try to offer “Tolerance” Evidence. In other words, the prosecutor will try to make the jury believe that the reason the motorists performed well of the FSTs but yet had a high BAC is because the motorists is a chronic drinker who has been drinking heavily for a long time and therefore, has developed a tolerance to the effects of the alcohol.

However, the prosecutor should not be allowed to offer evidence regarding the motorist’s tolerance where they have no evidence that the motorist is in fact a heavy drinker and has therefore developed a tolerance. Without knowing the motorist’s drinking history and whether they were in fact a heavy drinker, tolerance evidence is completely irrelevant.