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People v. LeRow

November 20, 2009


The opinion of the court was delivered by: Peradotto, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 24, 2010

Fourth Department, November 20, 2009

{**70 AD3d at 68}


The primary issue on this appeal by the People from an order granting defendant's motion to suppress the results of a chemical blood alcohol test is one of first impression, namely, whether a New York State police officer has the authority, pursuant to New York's implied consent statute (Vehicle and Traffic Law § 1194 [2] [a]), to direct the withdrawal of blood from a suspect who is physically located outside of the state. We agree with the People that, under the circumstances of this case, County Court erred in suppressing the results of the blood test. We therefore conclude that the order insofar as appealed from should be reversed.

Factual History and Procedural Background

On June 29, 2007, shortly before midnight, defendant was involved in a single-vehicle motorcycle accident in the Town of Charlotte. Defendant was traveling at a high rate of speed when he failed to negotiate a curve in the road, drove off the roadway, struck a large rock, and was ejected from his motorcycle. An eyewitness and police and fire officials who responded to the scene of the accident detected alcohol on defendant's breath. Defendant was initially transported to WCA Hospital (WCA) in Jamestown, New York, and was later transferred to Hamot Medical Center (Hamot) in Erie, Pennsylvania. Chautauqua County Sheriff's Deputy Forsberg traveled to Hamot and asked a registered nurse to obtain a blood sample from defendant, who was unconscious. After Deputy Forsberg explained the procedures for a legal blood draw in New York State and supplied a blood draw kit, the nurse complied with his request and drew a sample of defendant's blood. A subsequent blood test performed in New York revealed that defendant had a.12% blood alcohol content.

Thereafter, defendant was indicted by a Chautauqua County grand jury and was charged with two counts of driving while intoxicated ([DWI] Vehicle and Traffic Law § 1192 [2], [3]). Defendant moved to suppress the results of the blood test and contended, inter alia, that the police lacked probable cause to{**70 AD3d at 69} arrest him and that the blood sample was obtained without his consent and in violation of Pennsylvania law. At the suppression hearing, the eyewitness estimated that defendant was traveling at a speed of approximately 75 to 80 miles per hour immediately prior to the accident. When the eyewitness approached defendant and attempted to ascertain if defendant was breathing, he smelled the odor of alcohol emanating from defendant's body. The eyewitness relayed this observation to the police officers who responded to the scene.

Deputy Desnerck of the Chautauqua County Sheriff's Department testified at the suppression hearing that he was the first officer to respond to the scene. Upon his arrival, defendant was being treated by members of the fire rescue unit, who indicated to the Deputy that defendant had been drinking. Deputy Desnerck knelt down beside defendant in an attempt to engage him in conversation, but defendant was unable to respond. At that point, the Deputy detected the odor of alcohol on defendant's breath, and he requested the presence of a DWI unit.

Deputy Forsberg, a member of the DWI unit, testified that he responded to the accident scene and spoke with Deputy Desnerck and the eyewitness, each of whom informed him that they had detected the odor of alcohol on defendant. Defendant was airlifted to WCA, and Deputy Forsberg followed the helicopter to the hospital. When Deputy Forsberg asked staff members at WCA to obtain a blood sample, they refused to do so, advising him that they were performing only lifesaving measures. Defendant was thereafter transported by Starflight to Hamot, the hospital in Pennsylvania. As previously noted, defendant was unconscious when Deputy Forsberg arrived at Hamot, and a registered nurse complied with his request to obtain a blood sample. Deputy Forsberg testified that he followed the same procedure in Pennsylvania for obtaining a blood sample that he would have followed had defendant been located in New York.

Following the suppression hearing, the court denied defendant's suppression motion, concluding that Deputy Forsberg had reasonable cause to believe that defendant had been operating his motorcycle in violation of Vehicle and Traffic Law § 1192 and reasoning that "[d]efendant should not be allowed to obtain a fortuitous benefit simply because medical personnel chose to treat him at a facility outside of New York State." Defendant then filed a motion for reconsideration, contending that his blood was withdrawn in violation of a Pennsylvania statute (75{**70 AD3d at 70} Pa Cons Stat § 3755 [a]), which according to defendant required that blood be withdrawn by an emergency room physician or his or her designee. In granting defendant's motions for reconsideration and for suppression, the court agreed with defendant that the blood was not drawn in compliance with Pennsylvania law. The court further concluded that, under New York's implied consent law, a New York police officer may not request the withdrawal of blood from an unconscious suspect while the suspect is located outside of the state.


We note at the outset that the People are correct that New York law applies to the administration of defendant's blood test because "procedural and evidentiary issues are governed by the law of the forum" state (People v Benson, 88 AD2d 229, 231 [1982]; see People v Johnson, 303 AD2d 903, 904 [2003], lv denied 100 NY2d 539 [2003]; People v Sebelist, 206 AD2d 901 [1994], lv denied 84 NY2d 910 [1994]), and "New York has a paramount interest in the application of its ...

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