People v Mar

[*1] People v Mar 2007 NY Slip Op 52230(U) [17 Misc 3d 1132(A)] Decided on November 26, 2007 District Court Of Nassau County, First District St. George, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 26, 2007
District Court of Nassau County, First District

The People of the State of New York

against

Lem Mar, Defendant.



9361/06

Norman St. George, J.

The Defendant is charged with one (1) count of violating Vehicle and Traffic Law §1192.3, Driving While Intoxicated as an Unclassified Misdemeanor.

On August 9, 2006, this Court conducted a hearing pursuant to an Order by District Court Judge Christopher G. Quinn dated January 5, 2007. The scope of the hearing was as follows: 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 Section 1194.

The People called one witness at the hearing, Police Officer Adam Fischer of the Nassau County Police Department. The Defendant did not call any witnesses. After the hearing, and at this Court's direction, both the People and the Defendant submitted a Post-Hearing Memorandum. After a review of the hearing submissions, and based on the testimony of Police Officer Adam Fischer, this Court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

This Court finds the testimony of Police Officer Adam Fischer to be credible. Officer Fischer is a three year veteran of the Nassau County Police Department.

On April 16, 2006, Officer Fischer was on routine motor patrol in Levittown, County of Nassau, State of New York. At approximately 12:55 a.m. he received a radio assignment to respond to an auto accident at the intersection of Hempstead Turnpike and Wolcott Road. Upon arriving at the scene, Officer Fischer testified that he observed two vehicles which had obviously been involved in an accident. Officer Fischer noticed that one vehicle had rear end damage and the other vehicle had extensive front end damage. Officer Fischer first approached the vehicle with extensive front end damage, a Saturn Sports Utility Vehicle. Officer Fischer asked the individual seated in the driver's seat of the Saturn (identified in Court as the Defendant) if he was ok and what happened. [*2]The Defendant stated that he was driving his car when he hit the other vehicle. Officer Fischer testified that the Defendant had glassy bloodshot eyes and spoke with slurred speech. Officer Fischer also detected the odor of an alcoholic beverage emanating from the vehicle. Officer Fischer asked the Defendant if he had anything to drink. The Defendant stated that he had Martinis. Upon the Defendant exiting the vehicle, Officer Fischer indicated that the Defendant had difficulty maintaining his balance. Officer Fischer reached the conclusion that the Defendant was intoxicated and arrested him at approximately 1:15 a.m. The Defendant was then transported to the Nassau University Medical Center for medical evaluation.

Officer Fischer stated that 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. Officer Fischer testified that Nassau County Highway Patrol Officer Oliveri eventually responded to the hospital with a blood kit. Officer Fischer testified that Officer Oliveri requested that an "emergency room nurse" draw a sample of the Defendant's blood. Officer Fischer 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 Officer Oliveri. Officer Fischer then took custody of the blood kit. No further testimony regarding the taking of the Defendant's blood was elicited by the People or testified to by Officer Fischer.

CONCLUSIONS OF LAW

PROBABLE CAUSE FOR THE ARREST OF THE DEFENDANT:

This Court finds that there was a sufficient basis for the initial Police interaction with the Defendant. Officer Fischer received a radio assignment to respond to a car accident. Upon arriving at the scene, Officer Fischer observed two cars which had obviously been involved in a car accident, one vehicle had rear end damage and the other vehicle had extensive front end damage. The car with the extensive front end damage was still occupied by the Defendant who was seated in the driver's seat. Officer Fischer's interview with the Defendant was justified based on his need to investigate the accident and determine if medical assistance was required.

This Court finds that there was probable cause to arrest the Defendant based on the accident in combination with the observations of the Defendant by Officer Fischer 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. Finally, 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. Hence, Police Officer Fischer had probable cause to arrest the Defendant.

STATEMENTS BY THE DEFENDANT:

The statements allegedly made by the Defendant, that he was driving, and that he had been [*3]drinking Martinis, occurred during Police Officer Fischer's initial investigation of the accident. This 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 Officer Fischer were investigatory in nature, i.e., whether the Defendant was ok, what happened, and whether the Defendant had been drinking. This Court finds that the responses by the Defendant were voluntarily given by the Defendant. Therefore, the Defendant's motion to suppress the statements is denied.

COMPLIANCE OF THE DEFENDANT'S BLOOD TEST WITH V.T.L. SECTION 1194:

The issue before this Court is whether the testimony elicited by the People at the hearing regarding the Defendant's blood test satisfies V.T.L. Section 1194. The only testimony elicited at the hearing with respect to the Defendant's blood test was that an "emergency room nurse" drew the blood. This testimony was hearsay testimony by Police Officer Fischer. The nurse in question did not testify at the hearing. Astonishingly, there was no testimony as to the name of the nurse, whether the nurse was male or female, the title of the nurse, the credentials of the nurse, or whether the nurse was a "registered professional nurse" or a "registered physician's assistant." Similarly, there was no testimony whatsoever regarding any of the facts or circumstances surrounding the drawing of the Defendant's blood. 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.

Vehicle and Traffic Law Section 1194(4)(a) provides as follows:

"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."

The People initially argue 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. 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 this Court at the conclusion of a hearing ordered by another Judge. Therefore, the People's argument [*4]is denied as moot.

Next, the People argue that they have satisfied their burden of establishing that the blood test was administered in compliance with V.T.L. Section 1194. The People assert that during the hearing they elicited testimony from Police Officer Fischer that the person who drew the Defendant's blood was an "emergency room nurse." The People contend that the hearing testimony of Officer Fischer when viewed in combination with "paperwork already submitted to defense counsel" establishes that the requirements of V.T.L. Section 1194 were met. The paperwork which the People refer to is the supporting deposition of Officer Fischer which apparently indicates that the emergency room person who drew the Defendant's blood was in fact a "registered nurse." The People further submit that if this Court requires additional testimony on this issue, then they would consent to re-opening the hearing.

It is important to note that the so called "paperwork already submitted to defense counsel" alluded to by the People in their memorandum was never referred to during the hearing by the Officer. Neither was this "paperwork" marked or admitted into evidence. The record is wholly and completely devoid of any specifics regarding the individual who drew the Defendant's blood. As noted above there is no testimony as to the name of the nurse, whether the nurse was male or female, the title of the nurse, the credentials of the nurse, or whether the nurse was a "registered professional nurse" or a "registered physician's assistant." The effort by the People at this stage to now cure the hearing testimony insufficiencies by suggesting that this Court incorporate into the hearing, by reference, documents not admitted during the hearing is completely inappropriate, unacceptable and absurd. A critical issue at the hearing was whether the Defendant's blood was drawn pursuant to V.T.L. Section 1194. V.T.L. Said statute is specific as to the those individuals who are authorized to draw blood which will be later tested for the presence of alcohol in a Driving While Intoxicated case. It was incumbent upon the People to present testimony and direct evidence during the hearing that the blood was properly drawn by a person who was authorized to draw the blood.

This Court holds that 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 this Court deems it necessary, is contrary to the requirement that the People satisfy their burden of proof during the hearing and is therefore rejected. This 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 this Court as to the sufficiency of their proof.

In light of the failure of the People to satisfy their burden of proving that the Defendant's blood was drawn pursuant to the provisions of V.T.L. Section 1194, the Defendant's motion to suppress the blood results must be GRANTED.

This constitutes the opinion, decision and order of the court. [*5]Dated: November 26, 2007

ENTER:

____________________________________

Norman St. George, District Court Judge