DWI/DWAI Category Archives — Page 9 of 11 — New York Criminal Attorney Blog Published by White Plains, New York Criminal Defense Lawyers

DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 7 – CLOTTING OF THE BLOOD SAMPLE – WAS THE BLOOD SAMPLE AND THE ANTICOAGULANT PROPERLY MIXED?

August 20, 2009 | Tilem & Associates

As discussed in a prior blog, when you are charged in New York with Driving While Intoxicated or Driving While Ability Impaired, the most common method used by police to determine your blood alcohol concentration is a Breathalyzer type machine. However, the police may, and sometimes do, request a blood sample instead. I have already discussed who may perform the draw, the sanitizing of the skin and the need for the collections tubes to contain anticoagulant and anti-fermentation chemicals. Assuming the draw was done by an authorized person, the skin was properly sanitized with a non-alcoholic swab and the prosecution somehow was able to establish the collection tube contained the necessary anticoagulant and anti-fermentation chemicals, the next area of attack for New York defense counsel is whether said chemicals were properly mixed with the blood after the draw.

The mixing of the chemicals and the blood is critical. The instructions that come with the kit manufactured by NIK Public Safety Inc (the kit most commonly used by law enforcement agencies) instruct the blood drawer to slowly invert the collection tubes at least five times after blood collection is complete to assure the proper mixing of the anticoagulant and the blood. The kit also instructs that the officer who requested the blood test invert the collection tubes slowly at least 20 times immediately after the blood is drawn.

This requirement should be explored by defense counsel. Many times hospital personnel are not familiar with this requirement because they don’t normally do it when they take blood. Furthermore, I have seen police officers testify that they didn’t even know about this requirement. If the collection tubes are not properly inverted after collection, the chemicals will not properly mix with the blood. Just imagine a cup of coffee with sugar at the bottom. The coffee will not taste sweet unless the coffee is stirred or agitated to mix the sugar. If there is no testimony about the proper inverting of the tubes after the blood draw, you should move to have the blood test result suppressed. If it is not suppressed, your attorney should ask the toxicologist whether the failure to properly mix the chemical affects the integrity of the sample.

NEW YORK DRIVING WHILE INTOXICATED – BLOOD TESTING – PART 6 – CLOTTING OF THE BLOOD SAMPLE – DID THE COLLECTION TUBE CONTAIN AN ANTICOAGULANT?

August 14, 2009 | Tilem & Associates

If you have been charged with a New York Driving While Intoxicated charge or any other related charge such as Vehicular Manslaughter, you need criminal defense attorneys who not only know the laws relevant to DWI, but also the science and procedures involved with such charges. You need lawyers who can competently question the prosecution’s witnesses including their experts

If you are arrested for Driving While Intoxicated in New York and instead of the more typical Breathalyzer test being requested of you, the officer requests a blood sample, that blood sample is not immediately tested. In a typical Breathalyzer case, your breath sample is immediately tested by the machine. However, with a blood draw case, the blood sample is typically sent to a lab for testing. This procedure can take days and even weeks to complete. Two issues therefore, become a problem: (1) clotting; and (2) fermentation. I will discuss clotting in this blog.

We all know that blood exposed to the air will clot after a while. If parts of a blood sample start to clot, the alcohol will concentrate in the remaining liquid portion and it is the liquid portion that is tested. This will result in an erroneously high test result. In order to prevent clotting, the collection container or tube must contain an anticoagulant. [See 10 NYCRR § 59.2(c)(4)].

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 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 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.