New law closes 'loophole' in DWI arrest procedures

July 12, 2010
By MICHAEL AMON

Closing what prosecutors called a "loophole" that hindered serious drunken driving cases, Gov. David A. Paterson Monday signed into law a measure allowing advanced emergency medical technicians to draw blood evidence at the scene of fatal crashes without a physician's presence.

Prosecutors said the law's impact would be immediate: blood evidence would be collected faster and result in more convictions.

And it will be felt acutely on Long Island, where hundreds of blood samples are collected annually in drunken and impaired driving cases involving death and injuries, said Maureen McCormick, a Nassau assistant district attorney who publicly advocated for the new law. She cited several cases in Nassau in which charges were reduced after a judge suppressed blood evidence collected by a first responder.

For more than 20 years, as blood evidence has become more important in criminal prosecutions of deadly crashes, prosecutors say they have been hampered by a 1988 law requiring emergency medical technicians to have a doctor present when collecting blood for police. When doctors weren't available to supervise the blood collection, judges sometimes suppressed the evidence, stopping cases cold.

The most high-profile example was two-time Olympic gold medalist speed skater Jack Shea, who was killed near Lake Placid in 2002 in a crash with a driver whose blood-alcohol level was .15 - .05 higher than the legal limit then. The results were thrown out when a judge learned the samples were not collected with a doctor present.

The law was named for Shea, who was 91.

"Today's signing is a giant step forward in ensuring justice," said Nassau District Attorney Kathleen Rice. "It closes the gaping loophole that allowed Jack Shea's killer to go free."

Joe McCormack, an assistant district attorney in the Bronx, was even harsher in his assessment of the old law. "It was an abomination," he said Monday at a news conference in Lake Placid where Paterson signed the bill, sponsored by two Long Island lawmakers - Assemb. Harvey Weisenberg (D-Long Beach) and State Sen. Charles Fuschillo (R-Merrick).

The new law applies to advanced emergency medical technicians and certified nurse practitioners, who undergo more training than regular EMTs. Advanced emergency medical technicians, whose ranks include paramedics, respond to the most serious crashes involving death or injury. They now can draw blood at the request of only a police officer, joining physicians, physician assistants and some nurses with that power.

Phlebotomists and certified lab technicians now may collect blood for police, though only under supervision.

The new law also should help police get blood samples faster because they no longer have to wait for a suspect to get to a hospital, McCormick said. If a suspected drunken driver is unconscious, police have a two-hour window of "implied consent" during which they can get samples without a court order, she said.

Shea's son, Jim Shea, also a winter Olympian, had fought for the law change since 2003, but the bill never made it out of committee in the Assembly. "Seven years to fix something that is so simple - it's frustrating beyond words," he said.

The reasoning behind the 1988 law was unclear. McCormick said it was simply "poorly written legislation," while Rice said, "It was one of those laws, in my opinion, that made no sense."

One lawmaker said advanced EMTs - once denigrated as little more than ambulance drivers - have gained respect and responsibility over the years. Suffolk District Attorney Thomas Spota said the new law recognizes the now "commonly accepted practice" of advanced medical workers drawing blood.

Paterson suggested physicians may have held up the bill, saying "the medical profession wants to make sure that certain actions . . . must only be performed by an attending physician." But the physician and trial attorney lobbies registered no opposition this year.

By By MICHAEL AMON
Posted Monday, July 12, 2010

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