When a defendant expressly consents to a blood draw, the lack of arrest does not make the subsequent taking of blood invalid. In People v. Centerbar (3d Dept. 1/20/2011), the Defendant was taken to the hospital after his motorcycle crashed, killing his passenger. At the hospital, the Defendant consent to a blood draw to test for his BAC. On appeal, he argued that the blood draw was unlawful because the police had not arrested him first. The Third Department rejected this argument. The requirements of (1) a valid arrest and (2) a blood draw within two hours of the arrest are only for an application of the state's implied consent law. "[T]he arrest requirement in the implied consent law, like the two-hour time frame therein … has no application where a driver expressly and voluntarily consents to the administration of a blood alcohol test."
The court went on to conclude that the Defendant's consent was the product of free will. Although in pain, the Defendant was communicative, not restrained, and not sedated. The Defendant was fully alert. The consent was obtained prior to the Defendant's condition deteriorating, which required emergency surgery. (LC)