New York Criminal Attorney Blog

As I discussed in a prior blog, Phase 1 of Driving While Intoxicated (DWI) detection involves the officer’s observations of the vehicle in motion. This blog will focus on Phase 2 of DWI detection which involves the officer’s personal observation of the driver once the officer stops the vehicle. Phase 2 involves the officer’s observations during both the stopping sequence of the vehicle as well as the face-to-face interaction between the officer and the driver.

During Phase 2 the officer is looking for such things as bloodshot eyes, difficulty producing or fumbling with the driver’s license, insurance card and registration, dirty or disheveled clothing and alcoholic beverages in the vehicle. The officer will also be looking at the driver’s facial expressions to see if they are consistent with sobriety. The officer will also note if the driver is looking at the officer as they speak or if the driver looking through the officer. The officer will be listening for slurred speech and/or admissions of drinking or drug use, inconsistent answers and abusive language or whether the motorist asks the officer to repeat questions. Other signs the officer is looking for during Phase 2 are the odor of cover-up scents such as mints, mouthwash, perfume or cologne.

While the officer will point out and report any signs of intoxication that were present when the officer observed and interacted with the motorists, the officer never identifies the dozens of signs of intoxication that were not present. That’s the job of a DWI defense attorney. A defense attorney in a DWI case should always point out all the signs of intoxication that were not present.

There are generally three Driving While Intoxicated (DWI) detection phases. Unless there is an accident or the officer comes upon a parked vehicle, Phase 1 is usually the vehicle in motion; Phase 2 of DWI detection is the personal contact phase; and the Phase 3 is pre-arrest screening. In this blog I will discuss Phase 1 – Vehicle in Motion.

The Vehicle in Motion phase involves the officer’s observations of how the vehicle is being operated. In 1997 the National Highway Traffic Safety Administration funded a study which identified specific erratic driving patterns performed those with a BAC in excess of .08. These erratic driving problems include:

Problems Maintaining Proper Lane Position

In continuing with my series of blogs on Driving While Intoxicated and blood testing, this blog will focus on the problem of fermentation within the blood sample collection tube. I previously explained that the collection tube is supposed to contain two chemicals – an anticoagulant and an anti-fermentation chemical. Preventing fermentation in collection tube is critical because if the sugar in the blood ferments into alcohol, that will obviously result in an erroneously high blood alcohol concentration result.

The collection tubes are therefore required to contain a preservative to prevent fermentation. Sodium fluoride is the most common preservative used and is the preservative used by NIK Public Safety, Inc. who manufactures the blood collection kits most commonly used by law enforcement agencies. NIK makes two kits; one contains 20mg of sodium fluoride and the other contains 100mg of sodium fluoride.

Inquiry should be made into whether the kit contained 20mg or 100mg of sodium fluoride because 100mg is required to prevent fermentation. There are problems with both. First, studies have shown that 20mg is insufficient to prevent fermentation and second, 100mg can cause an erroneously high result when “Head Space Analysis” testing is used (discussed later).

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.

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)].

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.