How Much Supervision Need Be Shown When a Blood Sample Is Drawn
February 13, 2008
When one seeks to determine whether a blood sample was withdrawn by the appropriate individual, he or she should turn to Vehicle and Traffic Law '1194(4), entitled testing procedures. This section provides:
4. Testing procedures. (a) Persons authorized to withdraw blood; immunity; testimony. (1) At the request of a police officer, the following persons may withdraw blood for the purpose of determining the alcoholic or drug content therein: (i) a physician, a registered professional nurse or a registered physician's assistant; or (ii) 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. This limitation shall not apply to the taking of a urine, saliva or breath specimen.
As you probably observed, the two internal subsections (I) and (ii) create categories of persons permitted to draw blood for Vehicle and Traffic Law offenses. Subsection (I) recognizes the obvious, physicians and nurses. These professionals quite properly have absolute authority to withdraw an evidentiary sample provided the sample is withdrawn at the request of a police officer. A voluntary sample withdrawn and turned over to the police (see, e.g., Koump v. Smith, [1968, 2nd Dept] 29 AD2d 981, 289 NYS2d 667) would be impermissible under the statute as it is presently drawn. Subsection (ii) sets out a qualified group, which, although statutorily entitled to physically withdraw the sample, must perform the draw under the supervision and direction of a physician whom of course is initially directed to withdraw the sample by a police officer. This group includes medical laboratory technicians or medical technologists, phlebotomists, advanced emergency medical technicians, medical laboratory technicians or medical technologists. Does the statutory reference to under the supervision and at the direction of a physician mean that the supervising physician is required to be physically present and observe the sample being withdrawn? It does not. In People v. Moser, (1987) 70 NY2d 476, 522 NYS2d 497, the Court of Appeals examined this issue and found that the apparent purpose of a 1969 amendment that empowered such individuals to draw blood was to relieve the burden on those already entitled to perform the procedure. Finding that it would be anomalous, considering the purposes of the amendment, to require the physician to put his other duties aside to watch the technician perform the procedure and that if such were the case there would be no reason to allow the technician to take the sample in the first place, the Court reversed a lower court opinion that strictly construed the statutory language. In our view, they observed in a per curium opinion, Athe concerns addressed by the supervision requirement are adequately served by the physician's authorization of the test, which presumably reflects his medical judgment that it will not put the patient at risk, and his presence to respond to inquiries and emergencies."
For all intents and purposes, therefore, the under the supervision and at the direction language of '1194(2) essentially means authorization. Even so, such authorization must be given by a physician. In People v. Ebner, (1993, 4th Dept) 195 AD2d 1006, 600 NYS2d 569, a blood sample was withdrawn by a medical laboratory technician following authorization by a registered nurse. Recognizing that the statute does not grant a registered nurse the power to supervise one of the subsection (ii) individuals, the Fourth Department found inadequate compliance with the statute to be had and therefore suppressed:
['1194(4)(a)(1)(ii)] requires that a physician supervise and direct the drawing of blood by a medical laboratory technician. * * * Here, the test was authorized by a registered nurse, who did not personally observe the taking of the sample. That procedure failed to safeguard the health of the patient, which is the purpose behind the supervision requirement. There was no showing that a physician had reached a 'medical judgment' that drawing blood would not put defendant, who was seriously injured, at risk or that a physician was present 'to respond to inquiries and emergencies'. Consequently, the results of the blood test must be suppressed and the indictment dismissed.
Interestingly, very little has been written as to the level of physician supervision that is required . . . until now. In People v. Pickard, (1999, Chautauqua County, Sup. Ct.) 180 Misc2d 142, 691 NYS2d 884, the defendant appealed her conviction for Driving While Intoxicated (Vehicle and Traffic Law ' 1192). She was convicted following a non- jury trial in the Town of Ellery Justice Court on April 1, 1998. At the time of the trial, The People presented the testimony of a medical technologist, Scott Lemk, who drew the blood samples upon which defendant's conviction was based. Mr. Lemk testified that Dr. George Conner was the supervisor in charge of the emergency room at the time the sample was drawn. At trial, the following exchange took place:
Q. And sir, did you ever speak to a doctor that night?
A. Yes, sir.
Q. What doctor was that please?
A. Dr. Conner.
Q. And that was the supervising doctor again?
A. Yes, he was.
Q. Do you know if Dr. Conner actually looked at or examined the defendant?
A. I do not know that.
Q. Did you ever engage in a conversation with Dr. Conner?
A. Yes, I did.
Q. Did you ever engage in a conversation with Dr. Conner with relation to the defendant?
A. Yes, I did.
Q. And based on that conversation soon thereafter, did you proceed to draw blood from the defendant?
A. Yes, I did.
Obviously missing from the foregoing exchange is any testimony whatsoever that Dr. Conner directed that the blood be drawn. In this regard, the Court (Gerace, J.) observed that:
The People, in their informal brief submitted in opposition to the appeal, state that the Assistant District Attorney had elicited that an attending physician supervised all activities within the emergency room and so directed Lemk secure the blood accordingly. No reference to this supposed testimony is given and the Court is certainly not able to locate it. The People would apparently have the Court assume that the conversation alluded to by Mr. Lemk included a direction to draw the blood. But it was their burden to prove that such a direction took place. They have not done so.
Accordingly, the Court reversed the defendant's conviction.
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