People v. Lerow (4th Dept. 11/20/2009) (Peradotto, J.) presents a question of first impression for New York courts and will likely be taken up by the Court of Appeals. In that case, the defendant was injured in a motorcycle accident. Responding officers, as well as an eyewitness, reported the defendant's breath smelled of an alcoholic beverage. Because of his injuries, the defendant was transported to a hospital in Pennsylvania. A New York sheriff's deputy went to the hospital and requested that a nurse take a sample of the defendant's blood. The question is whether this blood draw was lawful because it was done out-of-state.
The Fourth Department unanimously concluded that deputy had authority to order the blood draw even though he was out-of-state. The court distinguished between official acts that depend on the sovereignty of the state — such as the power of arrest — with mere evidence gathering. A "police officer" does not lose his status as an agent of the state under the latter category merely because he leaves the state. Moreover, the court held that it would be illogical to limit the reach of the implied consent statute based on the "fortuity" of the defendant requiring medical care outside of the state. The court cited favorably decisions of other states upholding the authority of their officers to collect DWI blood samples out-of-state. Since Pennsylvania has a similar implied consent law, the court's rule would not offend Pennsylvania law or that state's public policy.
(The court also rejected an argument that Pennsylvania law, which requires blood draws by physicians, not nurses, should control, reasoning that choice-of-law principles dictated the application of New York law, the law of the prosecution forum.)
The court's arguments are persuasive, but I am not entirely convinced by its reasoning. The sheriff's deputy was not merely collecting evidence — at least not in the same sense that a detective does when he interviews witnesses out-of-state, for example. Rather, the authority under the implied consent statute is a specific grant of authority by the state only to a certain class of persons: "police officers." Only official "police officer" may request a blood draw, not a private citizen. In contrast, any private citizen could conceivably go into another state and take witness statements. (LC)