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Can a Vial of Blood be Taken During Course of Treatment be Later Used Against Him?

A New York Criminal Lawyer asks if a vial of blood taken from a defendant, in the course of treatment and diagnosis following an automobile accident, be later obtained and tested by the People and the results used in prosecuting that defendant for driving while intoxicated and other charges? For the reasons set forth below, both the blood and the blood test results are protected by the physician-patient privilege and are precluded from use at the trial in this case.
The defendant is charged with violating Vehicle and Traffic Law § 1192 (3) (driving while intoxicated), Vehicle and Traffic Law § 1212 (reckless driving), Penal Law § 120.20 (reckless endangerment in the second degree) and Penal Law § 145.00 (3) (criminal mischief in the fourth degree).

The defendant moves for various forms of relief: 1. Dismissal of the charges of: (A) reckless driving (Vehicle and Traffic Law § 1212); (B) criminal mischief in the fourth degree (Penal Law § 145.00 [3]); and (C) reckless endangerment in the second degree (Penal Law § 120.20) on the grounds that said charges are insufficient and defective, pursuant to CPL 170.30, 170.35, 100.15 and 100.40. 2. An order, pursuant to CPL 710.20, suppressing evidence of any chemical test of the defendant’s blood upon the grounds that the search warrant was based upon less than probable cause. 3. Preclusion of the evidence of any chemical test of the defendant’s blood upon the grounds that: (A) the search warrant abrogated the defendant’s rights pursuant to Vehicle and Traffic Law § 1194 (3); (B) the defendant’s blood was taken in violation of the physician-patient privilege; (C) the blood test results are unreliable as a matter of law; and (D) the People cannot establish a chain of custody for the blood test results. 4. Preclusion of the data results of the powertrain control module obtained from the defendant’s automobile on the basis that said results are scientifically unreliable or, in the alternative, the defendant seeks a Frye hearing. 5. Suppression, pursuant to CPL 710.20 (3), of the defendant’s alleged statements or, in the alternative, a Huntley hearing. 6. A Sandoval hearing. 7. An order, pursuant to CPL 200.95, for a court-ordered bill of particulars and pursuant to CPL 240.40 for court-ordered discovery.

A New York Criminal Lawyer said the People oppose the defendant’s motion. With permission of the court, the Nassau County Criminal Courts Bar Association filed an amicus curiae brief in support of the defendant’s position on the issue of physician-patient privilege.

On July 11, 2006, at approximately 9:45 P.M., the defendant, a member of the Nassau County Police Department, was traveling eastbound on Jericho Turnpike, in an automobile owned by the Nassau County Police Department. The defendant had a one-car accident. At least two persons witnessed the events leading up to the accident, CC and ZB.

A Staten Island Criminal Lawyer said as a result of the accident, the defendant suffered injuries. Ambulance medical technician (AMT) arrived at the scene. He observed that the defendant was disoriented. AMT RS placed a cervical collar on the defendant’s neck and placed him on a stretcher. AMT DH then arrived, and an oxygen mask was placed on the defendant. AMTs DH and RS treated the defendant for a serious head injury. As part of the treatment, while en route to Nassau University Medical Center (NUMC), AMT RS collected six vials of the defendant’s blood. Based upon NUMC’s standard practice, once the defendant arrived in the emergency room the emergency room nurses did not draw additional blood, but instead used the AMT drawn blood since the quantities were sufficient and were presented inside proper containers. That night, at the hospital, the vials’ contents were tested for a comprehensive metabolic profile, which did not include testing for alcohol. Five of the six vials were then discarded.

On July 13, 2006, NUMC medical technologist, removed the one remaining vial from the storage refrigerator, unsealed the vial, and tested its contents in order to determine the ethanol content of the blood in the vial. The latter performed this test not for purposes of medical treatment, but to see if ethanol was present.

On July 20, 2006, the Nassau County Police Department sought a search warrant for the one remaining vial of the defendant’s blood stored at the hospital. The affidavit in support of the search warrant was signed by RH, a member of the Nassau County Police Department and a detective with the internal affairs unit. The detective’s assertions were based upon information and belief, the sources being (1) the AMT who drew the defendant’s blood, (2) another civilian witness of the defendant’s accident, and (3) a civilian witness who was employed at the restaurant which the defendant attended before the accident.

That same day, July 20, 2006, the Honorable FG signed a search warrant for a vial or vials of first drawn blood taken from VM by an AMT on July 11, 2006. The warrant directed that the blood be taken to the Suffolk County Forensic Laboratory for alcohol and/or drug testing. On July 21, 2006, Officer RH served the search warrant and seized the one remaining vial of the defendant’s blood.

A Nassau County Criminal Lawyer said the blood was tested at the Division of Medical-Legal Investigations and Forensic Sciences, County of Suffolk, New York. A toxicology report dated July 21, 2006 indicates that the blood alcohol content in the defendant’s blood as seized was .21%.

The defendant seeks an order dismissing three of the four charges (Vehicle and Traffic Law § 1212; Penal Law §§ 120.20, 145.00 [3]). The charges for which the defendant seeks dismissal were all filed by way of District Court information.

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15; (2) sets forth allegations which provide reasonable cause to believe that the defendant committed the offense charged; and (3) contains nonhearsay allegations which establish, if true, every element of the offense charged and the defendant’s commission thereof. As stated by the Court of Appeals in Alejandro, this third requirement is also known as the prima facie case requirement.

On a motion to dismiss an information, the court must confine its analysis to the allegations contained in the information and in any depositions filed in support of it.

The information and the supporting depositions of CC and ZB allege that the defendant was: traveling with no lights on at 9:45 P.M.; speeding by; traveling at a high rate of speed; went flying by; and that he lost control of his vehicle. These allegations establish reasonable cause to believe the defendant was driving a motor vehicle in a manner which unreasonably interfered with the free and proper use of the public highway and unreasonably endangered users of the public highway. Accordingly, the court concludes that the District Court information charging the defendant with reckless driving is sufficient, as it satisfies the requirements of CPL 100.40. Defendant’s motion to dismiss this charge is denied.

The factual allegations contained in the information and supporting depositions of CC and ZB, as set forth previously, establish reasonable cause to believe the defendant acted recklessly. The information sworn to by Detective RH establishes that the defendant damaged property of another in the amount of $250. Accordingly, the court concludes that the District Court information charging the defendant with criminal mischief in the fourth degree is sufficient, as it satisfies the requirements of CPL 100.40. Defendant’s motion to dismiss this charge is denied.
The factual allegations contained in the information and supporting depositions of CC and ZB establish reasonable cause to believe that the defendant acted recklessly, which created a substantial risk of serious injury to another person. Accordingly, the court concludes that the District Court information charging the defendant with reckless endangerment in the second degree is sufficient, as it satisfies the requirements of CPL 100.40. Defendant’s motion to dismiss this charge is denied.

The defendant seeks suppression and/or preclusion of the blood test results set forth on the July 21, 2006 toxicology report on numerous grounds.

The defendant seeks “preclusion” of the blood test results of any chemical tests of the blood upon the grounds that the blood was not taken pursuant to Vehicle and Traffic Law § 1194 (3).
Vehicle and Traffic Law § 1194 (3) allows a police officer or district attorney to request and obtain a court order to compel a person to submit to chemical tests of breath, blood, urine, and saliva if, among other reasons, the defendant was arrested for driving while impaired and refused to submit to a chemical test. It is uncontroverted that the People did not comply with Vehicle and Traffic Law § 1194 (3). Rather, the People, nine days after the event, obtained a search warrant to seize the defendant’s blood sample which was stored at the hospital. Contrary to the defendant’s argument, however, the Court of Appeals has clearly acknowledged that Vehicle and Traffic Law § 1194 (3) is only one means of requiring a person to submit to a chemical test. If Penal Law or Vehicle and Traffic Law violations are involved, a search warrant may be issued authorizing the taking of a blood sample. A blood sample may be obtained pursuant to a validly issued search warrant without resorting to Vehicle and Traffic Law § 1194.
Accordingly, the portion of the defendant’s motion seeking suppression of the results of the chemical test on the grounds that the blood samples were not taken pursuant to Vehicle and Traffic Law § 1194 (3) is denied.

The defendant seeks to suppress the results of the blood test upon the grounds that the search warrant authorizing seizure of the defendant’s blood was issued upon less than probable cause. The defendant is actually seeking to controvert the search warrant in this case. The defendant refutes the allegations set forth in the ex parte affidavit in support of the warrant, claiming that the affidavit does not provide reasonable cause to believe any other violation of law occurred, other than speeding. Moreover, the defendant claims that a hearing should be held to resolve the factual discrepancy surrounding what the AMT allegedly said to the detective who signed the affidavit and what the AMT allegedly said to the investigator hired by the defendant.
There is a presumption of validity with respect to an affidavit supporting a search warrant. Probable cause does not require proof sufficient to warrant a conviction beyond a reasonable doubt but merely information sufficient to support a reasonable belief that an offense has been or is being committed or that evidence of a crime may be found in a certain place. Moreover, the defendant has failed to make a preliminary showing that a false statement, if made in the affidavit, was made knowingly and intentionally or with reckless disregard for the truth.
Accordingly, the portion of the defendant’s motion seeking suppression of the results of the chemical test of the defendant’s blood based on a lack of probable cause for the search warrant is denied. The court finds that the ex parte application and affidavit in support of the search warrant established probable cause to believe the defendant committed all of the alleged crimes.

The physician-patient privilege (CPLR 4504) is applicable in criminal proceedings. The physician-patient privilege may be asserted by a patient even though the patient is charged with a crime.

The defendant seeks preclusion of the blood test results based upon the grounds of the physician-patient privilege. The defendant contends that because the blood was taken for the purposes of diagnosis and treatment, the results are protected by the privilege. In opposition, the People contend that the blood test results are admissible because: (1) an “AMT” is not within the class of health care professionals who are subject to the physician-patient privilege of CPLR 4504, and (2) the results of the blood test were obtained pursuant to a search warrant. As such, these results do not constitute “information” acquired in attending a patient in a professional capacity, as required by CPLR 4504.

The People maintain that because an AMT is not specifically designated in CPLR 4504 as one of health care professionals who are subject to the physician-patient privilege, the privilege does not apply. This argument is misplaced. The entity subject to the privilege here is not the AMT, but the hospital (NUMC). The hospital possessed the information sought by the People in their warrant application, not the AMT. The hospital tested the blood, not the AMT. The hospital was served with the warrant, not the AMT.

Indeed, the AMT has no potentially privileged communication to divulge in this case, no information to impart. His involvement in obtaining the blood was limited to that set forth in his affidavit in support of the People’s application for a search warrant.

Thus, the AMT drew the blood, placed it in separate vials with separate caps, sealed it, and transported it directly to the hospital. Utilizing standard hospital practice, NUMC nurses found these samples acceptable and used them for testing. As such, it is clear that the AMT was acting solely to assist in the hospital’s attending to the defendant in a professional capacity.4 In this case, the AMT drew six vials of blood from a disoriented defendant with an oxygen mask covering his mouth in the course of treating that defendant for head injuries. Nine days later, the People sought and obtained a warrant for the one remaining vial of blood. If the test results of blood taken for diagnostic purposes are protected, the blood itself must be protected as well. To hold otherwise would defeat the purpose behind the physician-patient privilege. Patients in need of treatment would be forced to inquire of physicians the reasons for their taking the patient’s blood. Unconscious or incapacitated patients would lose all protections, and be at the mercy of medical practitioners who seek not to treat them but to obtain information of criminality. Such a result would only serve to discourage the candor and uninhibited communication contemplated by CPLR 4504.

Results of a blood sample obtained by the prosecution pursuant to a search warrant cannot be used against the defendant at trial, where the blood was taken by an AMT acting in a professional capacity to treat and diagnose the patient. Defendant’s motion to preclude the introduction of the blood test results at the trial in this case is therefore granted.

The defendant seeks preclusion of the blood test results upon the grounds that the results are unreliable as a matter of law and that the People cannot establish a chain of custody. Inasmuch as the court has already precluded the use of the blood test results, the court will not address these issues.

The defendant seeks the preclusion of the results of the data from the powertrain control module (black box) obtained from the defendant’s automobile after the accident, based upon the grounds that the results are scientifically unreliable. In the alternative, the defendant requests that the court conduct a Frye hearing prior to the trial to ascertain the reliability of the results.
The admissibility test for expert testimony was established in Frye v United States. It requires that expert testimony be based on scientific principle or procedure which has been sufficiently established to have gained general acceptance in the particular field in which it belongs. The New York Court of Appeals has unanimously affirmed the continuing validity of the Frye test, rather than the federal Daubert test standard. The Frye test standard only applies to novel scientific theories or tests. Whether the Frye standard has been satisfied with respect to a particular type of scientific evidence is for the trial judge to decide. A court may be able to make its determination by reference to scientific literature or judicial opinions. If there is insufficient scientific literature or judicial opinions, a court may conduct a hearing on the issue of general acceptance in the relevant scientific community.

In New York, trial level courts have held that data recorded on a Sensing Diagnostic Module (SDM) or a black box seized from a defendant’s automobile is reliable, without holding a Frye hearing. In Nassau County, the Judge, after conducting a Frye hearing, found the data recorded on a SDM to be scientifically reliable. Notwithstanding the foregoing, however, no appellate court in New York State has ruled on the admissibility of data recorded on a SDM. Nor have the People presented this court with any literature concerning the scientific principles of a SDM or the reliability of data recorded on a SDM. Thus, this court finds that there is a lack of binding judicial precedent on this issue and this court cannot admit into evidence the data recorded on the black box without first holding a hearing on its reliability. Moreover, in the instant case the data was recorded on a powertrain control module (black box), not a SDM (black box). The court is not certain whether a powertrain control module and a SDM are one and the same.

In view of the foregoing, the portion of the defendant’s motion seeking an in limine pretrial evidentiary ruling prohibiting the use of data from the black box found in the defendant’s automobile is granted to the extent that a Frye hearing shall be held prior to trial.

The defendant moves for an order, pursuant to CPL 710.60 (4), suppressing from the use at trial any statements allegedly made by the defendant to a public servant upon the ground that the statements were involuntarily made within the meaning of CPL 60.45 or, in the alternative, the defendant requests a Huntley hearing. The People consent to a Huntley hearing. The defendant’s motion is granted to the extent that a Huntley hearing is hereby granted. Said hearing shall be held prior to trial.

The defendant’s motion for a Sandoval hearing to determine previous alleged bad acts, arrests, or convictions to be used by the People to impeach the defendant’s credibility if the defendant chooses to testify at trial is granted. Said hearing shall be held before trial.

The defendant’s demand for court-ordered discovery is denied. The People have supplied the defendant with the requested discovery. The portion of the defendant’s motion for a court-ordered bill of particulars is denied as moot as to those items which the People have already supplied and denied as to the remaining items.

The defendant’s application for Rosario material is granted to the extent that the People shall provide all such material in their possession as provided by CPL 240.44 and 240.45.The remainder of the defendant’s motion is denied.

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