People v. Olmstead

Appellate Division of the Supreme Court of New York

People v. Olmstead

233 A.D.2d 837, 649 N.Y.S.2d 624, 1996 N.Y. App. Div. LEXIS 13295

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 8, 1996

StatusPublished

Cited by5 cases

This text of 233 A.D.2d 837 (People v. Olmstead) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Olmstead, 233 A.D.2d 837, 649 N.Y.S.2d 624, 1996 N.Y. App. Div. LEXIS 13295 (N.Y. Ct. App. 1996).

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Opinions

Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: Defendant appeals from a judgment convicting her of felony driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and § 1193 (1) (c), i.e., operating a motor vehicle with a blood alcohol level in excess of .10% after a prior conviction. She contends that the trial court erred in failing to suppress the results of a chemical test performed on a blood sample drawn from her body in violation of Vehicle and Traffic Law § 1194 (4) (a). We agree and thus reverse and dismiss the indictment.

Section 1194 (4) (a) requires that a physician supervise and direct the drawing of blood by a medical laboratory technician. "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’ (People v Moser, 70 NY2d 476, 477)” (People v Ebner, 195 AD2d 1006, 1007). Here, as in Ebner, the blood was drawn by a medical laboratory technician at the direction of a registered nurse, not a physician. The trial court concluded that there was substantial compliance with the statute because the nurse, who could have drawn the blood without the physician’s direction, was present and watched the blood being drawn. We reject the view that the statute may be read to authorize a medical laboratory technician to draw blood at the direction of a nurse (see, People v Ebner, supra). The critical element, deemed essential by the Legislature when it amended the statute in 1969 (see, L 1969, ch 669, § 1), is that a physician authorize the taking of the sample (see, People v Moser, supra).

All concur except Lawton, J., who dissents and votes to affirm in the following Memorandum.

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Judgment reversed on the law, motion granted and indictment dismissed. Memorandum: Defendant appeals from a judgment convicting her of felony driving while intoxicated in violation of Vehicle and Traffic Law § 1192 (2) and § 1193 (1) (c), i.e., operating a motor vehicle with a blood alcohol level in excess of .10% after a prior conviction. She contends that the trial court erred in failing to suppress the results of a chemical test performed on a blood sample drawn from her body in violation of Vehicle and Traffic Law § 1194 (4) (a). We agree and thus reverse and dismiss the indictment.

Section 1194 (4) (a) requires that a physician supervise and direct the drawing of blood by a medical laboratory technician. "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’ (People v Moser, 70 NY2d 476, 477)” (People v Ebner, 195 AD2d 1006, 1007). Here, as in Ebner, the blood was drawn by a medical laboratory technician at the direction of a registered nurse, not a physician. The trial court concluded that there was substantial compliance with the statute because the nurse, who could have drawn the blood without the physician’s direction, was present and watched the blood being drawn. We reject the view that the statute may be read to authorize a medical laboratory technician to draw blood at the direction of a nurse (see, People v Ebner, supra). The critical element, deemed essential by the Legislature when it amended the statute in 1969 (see, L 1969, ch 669, § 1), is that a physician authorize the taking of the sample (see, People v Moser, supra).

All concur except Lawton, J., who dissents and votes to affirm in the following Memorandum.

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Bluebook (online)

233 A.D.2d 837, 649 N.Y.S.2d 624, 1996 N.Y. App. Div. LEXIS 13295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-olmstead-nyappdiv-1996.

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