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On 16 April 2006, an officer was on routine motor patrol


On 16 April 2006, an officer was on routine motor patrol in Levittown, County of Nassau in the State of New York. At approximately 12:55 a.m., he received a radio assignment to respond to an automobile accident/motor vehicle accident at the intersection of Hempstead Turnpike and Wolcott Road. Upon arriving at the scene, the officer testified that he observed two vehicles which had obviously been involved in an accident. One vehicle had rear end damage and the other vehicle had extensive front end damage. The officer first approached the vehicle with extensive front end damage, a Saturn Sports Utility Vehicle. The officer asked the individual seated in the driver’s seat of the Saturn, the herein defendant, if he was ok and what happened. The defendant stated that he was driving his car when he hit the other vehicle. The officer testified that the Defendant had glassy bloodshot eyes and spoke with slurred speech. The officer also detected the odor of an alcoholic beverage emanating from the vehicle. The officer asked the defendant if he had anything to drink. The defendant stated that he had Martinis. Upon the defendant exiting the vehicle, the officer indicated that the defendant had difficulty maintaining his balance. Thus, the officer reached the conclusion that the defendant was intoxicated, Driving While Intoxicated or DWI, and arrested him at approximately 1:15 a.m. The defendant was then transported to the Nassau University Medical Center for a medical evaluation.

With the officer en route to the hospital, he contacted the Nassau County Highway Patrol Bureau to request that a Highway Patrol Officer respond to the hospital with a blood kit. The purpose of the blood kit was to take a blood sample from the defendant for the purpose of testing it for the presence of alcohol. The officer testified that a Nassau County Highway Patrol Officer eventually responded to the hospital with a blood kit. The officer testified that the patrol officer requested that an emergency room nurse draw a sample of the defendant’s blood. The officer indicated that he observed an emergency room nurse draw the defendant’s blood and the sample was sealed in the blood kit box provided by the patrol officer. The officer then took custody of the blood kit.

Consequently, the defendant is charged with one (1) count of violating the Vehicle and Traffic Law, Driving While Intoxicated or DWI as an Unclassified Misdemeanor.

On 9 August 2006, the Court conducted a hearing pursuant to an Order by the District Court Judge dated 5 January 2007. The scope of the hearing was: a Huntley, Mapp, and Dunaway hearing, and a hearing to determine whether the defendant’s blood test complied with the requirements of Vehicle and Traffic Law. The People called one witness at the hearing, the Police Officer of the Nassau County Police Department who responded to the subject automobile accident. The Defendant did not call any witnesses.

The Issues:

Is defendant liable? Is the blood sample including the corresponding test results thereof admissible in evidence?

The Ruling:

First, the Court finds the testimony of the Police Officer to be credible. The officer is a three year veteran of the Nassau County Police Department.Second, the Court finds that there was a sufficient basis for the initial Police interaction with the defendant. The officer’s interview with the defendant was justified based on his need to investigate the motor vehicle accident and determine if medical assistance was required.

Third, the Court finds that there was probable cause to arrest the defendant based on the accident in combination with the observations of the defendant by the officer during his investigation. Not only was it obvious from the scene that the defendant had been involved in a car accident, the defendant admitted driving and hitting another car, the defendant also admitted drinking alcoholic beverages, and the defendant exhibited classic signs of intoxication, i.e., glassy bloodshot eyes, slurred speech, the odor of an alcoholic beverage, and had difficulty maintaining his balance. Thus, the police officer had probable cause to arrest the defendant.

Fourth, the Court finds that when the defendant made the statements he was not in custody, he was not under arrest and he was not being interrogated. Consequently, Miranda warnings were not required. The questions asked by the officer were investigatory in nature, i.e., whether the defendant was ok, what happened, and whether the defendant had been drinking. The Court finds that the responses by the defendant were voluntarily given. Thus, the defendant’s motion to suppress the statements is denied.

Fifth, the court finds that the officer’s testimony with regard to the blood sample is hearsay. The only testimony elicited at the hearing with respect to the defendant’s blood test was that an emergency room nurse drew the blood. The nurse in question did not testify at the hearing and there was no testimony as to the name of the nurse, whether the nurse was male or female, title of the nurse, credentials of the nurse, or whether the nurse was a registered professional nurse or a registered physician’s assistant. There was no testimony regarding any of the facts or circumstances surrounding the drawing of the defendant’s blood and there was no testimony as to whether the drawing of the defendant’s blood by the nurse was supervised by or at the direction of a physician.

Sixth, the Court finds the argument that there is no basis in law to suppress the defendant’s blood test results at a pretrial hearing and therefore the defendant’s motion should be summarily denied as moot. This argument is one that should have been raised by the People before the Court considering the issue of whether to order the hearing, or in a motion to reargue/renew the Court’s ruling which ordered the hearing, or in an appeal from that Court’s decision. Said argument is not properly raised before the Court at the conclusion of a hearing ordered by another Judge.

And seventh, the Court finds that the naked hearsay testimony by a police officer that the defendant’s blood was drawn by a vague emergency room nurse is insufficient to satisfy the People’s burden of proof on this issue and does not establish that the person who drew the defendant’s blood was a person authorized to do so by the statute. The offer of the People to now re-open the hearing after its completion so that they may introduce additional testimony, if the Court deems it necessary, is contrary to the requirement that the People satisfy their burden of proof during the hearing and is, thus, rejected. The Court will not permit the People to conduct an entire hearing, rest on the testimony and evidence presented, and then request that the hearing be re-opened to cure glaring omissions identified by the Court. To allow such would be tantamount to the People receiving interim rulings from the Court as to the sufficiency of their proof.

In sum, the people failed to satisfy their burden of proving that the defendant’s blood was drawn pursuant to the provisions of the Vehicle and Traffic Law. Thus, the defendant’s motion to suppress the blood results must be granted.

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