Opinion
84-04.
Decided June 21, 2004.
Hon. Stephen F. Lungen, Sullivan County District Attorney, Sullivan County Courthouse, By: Joey Z. Drillings, ADA, of counsel, Monticello, N.Y., Attorney for the plaintiff.
Mark J. Sherman, Esq., Liberty, N.Y., Attorney for the Defendant.
Defendant, through his attorney, moves to set aside the jury verdict pursuant to CPL § 330.30.
Defendant submits motion with exhibits including transcript of pertinent trial testimony and case law.
The People submit opposition and Memorandum of Law.
FACTS
Defendant was charged under Indictment # 84-04 with two counts of Driving While Intoxicated as felonies pursuant to VT § 1192(2)/1193(1)(c) and 1192(3)/1193(1)(c).
The defendant has four prior alcohol related convictions and was arrested on the present DWI charges when he was observed at 1:00 am in the vicinity of his truck which was "stuck" on the shoulder of the road.
After discovery and attempted plea resolution, jury trial commenced on May 7, 2004 and concluded with a jury verdict of guilty on both counts on May 10, 2004.
Sentencing was adjourned for the decision on the motion regarding the objection and suppression of the blood tests and results.
During the course of the jury trial the hospital laboratory technologist who drew defendant's blood testified to the drawing of the blood.
The defense timely objected to the People's witness testifying to the results of the blood alcohol test results on the grounds that the blood was not drawn in accordance with VT § 1194 by the hospital laboratory technologist and thus the foundation laid for the blood alcohol results was insufficient.
This Court reserved on said objection and allowed the blood alcohol results to be admitted through testimony of the People's witness.
This Court, at a side bar conference, clearly put the People on notice that if they were wrong it would necessarily mean a mistrial with prejudice. This Court also allowed the People to recall the medical technologist and to call the ER Doctor on this issue.
At the conclusion of the People's case in chief, and again after the defense rested, said objection was again raised by the defense. This Court again reserved decision and allowed the case to go to the jury.
The trial transcript shows the following in regard to the issue of the authorization to draw the defendant's blood:
The People called Coralie Rutter: (Direct)
Q Can you Please state your occupation for the record?
A I am a medical technologist.
Q Where do you work?
A I work at the Catskill Regional Medical Center.
Q And what is your employment at the Catskill Regional Medical Center.
A I work in the laboratory. I draw blood and for all intense (sic) purposes test blood as well.
Q Are you certified to do so?
A Yes, I am.
Q Did there come a time on the early morning of March 6th that you drew blood for the Fallsburg Police Department?
A Yes, I did.
Questions concerning the blood kit and signed consents from the defendant.
Q And so what happened at that point?
A At that point with the supervisor present and the officer present I drew his blood and we fill out the paperwork.
Further questions concerning the process of drawing blood.
The People: I have no further questions.
Cross-Rutter by defense:
Questions involving the time of the drawing of the blood and the blood kit.Redirect-Rutter by the People:
Q Mr. Sherman (defense attorney)showed you a document and in which it says you secured authorization to secure blood as a medical technician?
A Yes.
Q Ok. Do you need an authorizing physican?
A No. (Emphasis added.)
Q Do you need anybody else to authorize your securing the blood?
A There is a supervisor present.
Q At all times?
A Yes.
Q Was he present when this occurred?
A Yes.
Q What is his name?
A Vince Livingston.
Q Is he a physician?
A No, he is an Administrator Director of Nursing.
Further questions regarding the swabs.
The Court: Anything else? Mr. Sherman?
Defense Attorney: Not for this witness.
(Trial transcript p 66-72.)
Upon the People's application, this Court allowed, after the defendant's objection to the testimony regarding the blood test results, the People to recall the medical technologist and allowed ER Doctor or any other qualified witness to testify.
The People: Judge, very briefly I recall Miss Rutter to clear up this issue:
Q On March 6th at 2 o'clock in the morning who was the supervising doctor?
A Doctor Ahmud.
Q Ahmud?
A Yes.
Q Did he authorize the taking of the blood in Mr. Griesbeck's case?
A Yes.
Q OK. And there was some documentation sent up to the lab that was signed by Dr. Ahmud?
A No.
Q And is that sometimes what happens in the hospital sometimes it is signed, sometimes it isn't?
A It typically isn't signed.
Q Why is that?
A That is because where we are actually drawing the blood is not in the same location where the doctors are in the E.R. because the kit is opened in front of myself and my immediate supervisor to preserve the integrity of the documentation kept there.
Q So Dr. Ahmud authorized the taking of the blood correct?
A Yes.
Recross-Rutter by defense attorney:
Q Did you speak to Dr. Ahmud before you drew the blood?
A No.
Q Did Dr. Ahmud know you were drawing the blood?
A Yes.
Q How do he know you were drawing the blood?
A When you first bring the individual in they go through E.R. first so the doctor is made aware of everything that occurs within the E.R. and then go from E.R. to me where I would draw the blood.
Q Was there any paperwork provided to you with the doctor's signature?
A No.
Q So you're relying upon what you believe is procedure?
A Yes.
Q A procedure?
A Yes.
Q You are assuming in this case that that procedure was followed?A Yes. (Emphasis added.) Q But you did not speak to the doctor? A I did not personally. (Emphasis added.)
(Trial transcript p82-87.)
Despite this Court's allowance the People did not call the ER Doctor or anyone else and rested their case after this Court's clear admonition that it would reserve decision.
See footnote number 2.
This Court instructed the jury in accordance with the criminal jury instructions on the law in the jury charge. Specifically, the jury charge on VT § 1192(3), called "common law DWI", instructs the jury that they may use the blood alcohol reading testified to in court as one of the factors in determining whether the defendant was driving while intoxicated.
The jury returned a verdict of guilty to both count I and count II and sentencing has been adjourned pending decision on this trial motion.
THE LAW
The testing procedures for the drawing of blood in alcohol or drug related offenses are statutorily mandated in VT 1194.
In pertinent part the statute provides that a medical laboratory technologist may draw blood at the request of a police officer ". . . under the supervision and at the direction of a physician: . . .". V T § 1194(4)(a)(1)(ii).
Beginning with the seminal case of People v. Moser, 70 NY2d 476 (1987), and its progeny, courts in the State of New York have expounded on the meaning and legislative intent of V T § 1194 with regard to what constitutes "under the supervision and under the direction of a physician.
People v. Moser, supra, ruled that the direct supervision of the physician to the drawing of the blood by a qualified person is unnecessary as long as the physician authorized the test and was available for inquires and emergencies.
In People v. Ebner, 195 AD2d 1006 (4th Dept., 1993) the court suppressed the blood test results and dismissed the indictment stating, "Although a physician need not be "personally present" when a medical laboratory technician draws blood, the evidence must show that a physician directed and supervised all activities in the emergency room and that he authorized the taking of the sample." (Emphasis added.)
Again, in People v. Olmstead, 233 AD2d 837 (4th Dept., 1996) the court granted the motion to suppress the blood test results and dismissed the indictment. The court opined that "The critical element, deemed essential by the Legislature when amending the statute in 1969 (cite omitted), is that a physician authorize the taking of the sample." (Emphasis added.)
In a justice court appeal the Supreme Court, Chautauqua County reversed the defendant's DWI conviction upon the finding that there was no evidence that the drawing of the blood was done at the direction of a physician. The court stated, "The sole issue is the sufficiency of the testimony. No legal argument has been presented that would suggest that the testimony was not necessary to a conviction or that reversal of the conviction is not the appropriate remedy. The court finds that the testimony was insufficient." See, People v. Pickard, 180 Misc2d 942 (Sup. Ct, Chautauqua County, 1999). (emphasis added.)
The Appellate Term, Second Department reversed a defendant's DWI conviction (but affirmed a DWAI conviction) upon the finding that ". . . the People did not establish that a physician directed the medical technologist to draw defendant's blood in the emergency room." People v. Gertz, 189 Misc2d 315 (App. Term, 2nd Dept., 2001).
In both People v. Ellis, 190 Misc2d 98 (Cty.Ct., Cattaraugas Cty., 2001) and People v. Reynolds, 193 Misc2d 697 (Cty.Ct., Essex Cty., 2002) the court suppressed the blood test results after finding that there was no evidence that a physician authorized the blood draw.
CONCLUSION
This Court has reviewed the motion to suppress the blood test results and submissions thereon as well as the trial testimony of the medical laboratory technologist regarding the authorization to draw the defendant's blood.
As in People v. Pickard, supra, there is no testimony or documentary evidence produced herein that a physician authorized that defendant's blood be draw as statutorily mandated by the testing procedures of VT § 1194(4)(1)(a)(ii).
The emergency room physician, or anyone else from the E.R., did not testify and the medical laboratory technologist admitted that she did not speak to the ER Doctor nor get any paperwork signed by the doctor.
The evidence herein does not show that the physician directed or authorized the taking of the blood by Ms. Rutter.
In addition, the necessary jury instructions requested by the People and consented to by the defendant allowed the jury to use the blood alcohol reading which goes to 1192(2) as a factor to determine guilt on 1192(3), "common law DWI".
Since, this Court can not determine to what extent the jury used said factor, the use of such a determining factor, if the BAC results are suppressed than it must also result in the dismissal of such "common law DWI" count. (See, Court's admonition, footnote 1.)
Based upon the above, it is
ORDERED, that the objection to the blood test results is sustained and the results suppressed, and it is further
ORDERED, that the motion to set aside the verdict herein is granted, and it is further
ORDERED, that the judgment is vacated, and it is further
ORDERED, that Indictment #84-04 is dismissed.
This shall constitute the Decision and Order of this Court.