People v. LeRow

• Decision Date: 20 November 2009
• Docket Number: No. 1302 KA 09-01072,1302 KA 09-01072
• Citation: 70 A.D.3d 66,2009 NY Slip Op 8648,889 N.Y.S.2d 813
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. TIMOTHY S. LeROW, Respondent.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 66

889 N.Y.S.2d 813

2009 NY Slip Op 8648

THE PEOPLE OF THE STATE OF NEW YORK, Appellant, v. TIMOTHY S. LeROW, Respondent.

No. 1302 KA 09-01072

Appellate Division of the Supreme Court of New York, Fourth Department.

Decided November 20, 2009.

David W. Foley, District Attorney, Mayville (Derek V. Gregory of counsel), for appellant.

James P. Subjack, Fredonia, for respondent.

OPINION OF THE COURT

PERADOTTO, J.

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 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 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.

Discussion

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 laws to this case" (Benson, 88 AD2d at 231; see People v Ostas, 179 AD2d 893, 894 [1992], lv denied 80 NY2d 932 [1992]).

Under New York's implied consent law, any person who operates a motor vehicle within the state is deemed to have consented to a chemical blood alcohol test conducted "at the direction of a police officer ... having reasonable grounds to believe" such person to have been operating a motor vehicle in violation of Vehicle and Traffic Law § 1192, provided that the test is administered "within two hours after such person has been placed under arrest for any such violation" (§ 1194 [2] [a] [1]; see People v Goodell, 79 NY2d 869, 870 [1992]). "Where these conditions are satisfied, the statute furnishes authority for the administration of a blood alcohol test even in the absence of a court order or the suspect's actual consent" (id.). A formal arrest is not required where the suspect is unconscious or is otherwise unable to appreciate the significance of an arrest (see Goodell, 164 AD2d 321, 325 [1990], affd 79 NY2d 869 [1992]; People v Bradway, 285 AD2d 831, 833 [2001], lv denied 97 NY2d 639 [2001] ["the necessity of a formal arrest prior to a blood test may be `vitiated by (a) defendant's unconscious and delirious condition'" (quoting People v Bagley, 211 AD2d 882, 883 [1995], lv denied 86 NY2d 779 [1995])]; see also People v Skinner, 203 AD2d 891 [1994], lv denied 84 NY2d 832 [1994]). Under those circumstances, a chemical blood alcohol test may be administered provided that the police officer who orders the test has probable cause to arrest the suspect (see Goodell, 164 AD2d at 325; see also People v Carkner, 213 AD2d 735, 739 [1995], lv denied 85 NY2d 970 [1995], 86 NY2d 733 [1995]).

The People contend that, at the time the blood test was ordered, Deputy Forsberg had probable cause to believe that defendant had been operating his motorcycle under the influence of alcohol, in violation of Vehicle and Traffic Law § 1192. We agree. Upon arriving at the scene, Deputy Forsberg spoke with two other deputies and an eyewitness, each of whom indicated that defendant had been traveling at a high rate of speed immediately prior to the accident. Defendant's motorcycle had crossed over into the left lane of the roadway and entered an adjoining yard, where the motorcycle crashed into a large rock and defendant was ejected therefrom. Both Deputy Desnerck and the eyewitness informed Deputy Forsberg that they detected the odor of alcohol emanating from defendant. We therefore conclude from the totality of the circumstances, including the nature of the accident and the odor of alcohol detected by the eyewitness and police and fire personnel, that there was probable cause to believe that defendant was driving in violation of Vehicle and Traffic Law § 1192 (see People v Mojica, 62 AD3d 100, 114 [2009], lv denied 12 NY3d 856 [2009]; People v Scalzo, 176 AD2d 363, 364 [1991], mot to amend remittitur granted 178 AD2d 444 [1991]; People v Rollins, 118 AD2d 949, 950 [1986]).

Thus, Deputy Forsberg complied with the requirements of Vehicle and Traffic Law § 1194 inasmuch as defendant's blood was drawn by a registered nurse at his direction and based upon the requisite probable cause that defendant had been operating his vehicle while under the influence of alcohol (see Vehicle and Traffic Law § 1194 [2] [a] [1]; [4]). Here, however, because defendant's blood was drawn at a hospital in Pennsylvania, the issue is whether Deputy Forsberg, a New York State police officer, had the authority to order a blood draw in Pennsylvania. In other words, what is the effect of New York's implied consent law beyond the territorial jurisdiction of the state?

As noted at the outset, the specific question of whether a New York State police officer has the authority, under New York's implied consent law, to direct the withdrawal of blood from a suspect who is physically located outside of the state is a case of first...