Vehicle & Traffic Law Coupled With Physician-Patient Privilege Trumps Search Warrant in DWI Case

Vehicle & Traffic Law Coupled With Physician-Patient Privilege Trumps Search Warrant In DWI Case

By Alexander G. Bateman, Jr., Esq. and Joshua L. Kirsch, Esq.1

A blood sample from a defendant, obtained in a timely fashion subsequent to the defendant’s arrest, holds obvious allure for law enforcement authorities. No one can seriously discount the value a jury places on scientific verification that a defendant’s blood alcohol content exceeded legal thresholds or that a defendant’s toxicology revealed that the defendant had drugs in his system while behind the wheel. Indeed, not unreasonably, society continues to show diminishing tolerance and sympathy for those who jeopardize both themselves and others by converting their vehicle into an implement of destruction by virtue of their impaired state. Nonetheless, not every person accused of driving with impaired ability is guilty and sometimes, these persons (as well as those who are in fact guilty) refuse to have their blood analyzed when requested by police. This in turn raises the issue of what forms of recourse law enforcement personnel have at their disposal to obtain the blood sample they desire. It would seem that a search warrant would suffice. But as one recently decided case points out, a search warrant is not always enough.

In People v. Bashkatov,2 the defendant, charged with operating a vehicle under the influence of alcohol, moved to suppress evidence regarding his blood, which he contended police seized illegally. Specifically, following his arrest, police transported the defendant to a hospital for medical care because he repeatedly struck his head into a partition separating him from the front of the vehicle transporting him. At the hospital, the police “offered the defendant a blood test for the purpose of determining blood alcohol content.”3 The defendant refused, and allegedly, screamed, spoke incoherently, and otherwise failed to respond when the police inquired as to whether he would submit to the test. While at the hospital a nurse nevertheless took blood from the defendant “for diagnostic purposes.”4 A day after the defendant’s arraignment, the police executed a search warrant at the hospital which authorized them to seize two vials of the defendant’s blood.

The defendant moved pursuant to Criminal Procedure Law § 710.20(5),5 for an order suppressing evidence of any chemical test of his blood. According to the defendant, the search warrant obtained by the police abrogated both his rights pursuant to Vehicle and Traffic Law § 1194(3) and the physician-patient privilege. VTL § 1194(3) provides a mechanism by which a police officer or district attorney may “request and obtain a court order to compel a person to submit to chemical tests of breath, blood, urine, and saliva, if among other reasons, the defendant was arrested for driving while impaired and refused to submit to a chemical test.”6 The Bashkatov Court did not state that the police’s failure to adhere to the provisions of VTL § 1194(3) nullified the legality of the search warrant they obtained.7 Rather, the Court chose to focus on whether the search warrant violated the defendant’s physician-patient privilege. In the Bashkatov Court’s estimation, the execution of the search warrant resulting in the seizure of the defendant’s blood did unquestionably violate the defendant’s expectations to physician-patient confidentiality.

The Bashkatov Court reasoned that CPL § 60.108 incorporated CPLR § 4504. CPLR § 4504 provides in pertinent part that “[u]nless the patient waives the privilege, a person authorized to practice medicine, registered professional nursing, licensed practical nursing, dentistry, podiatry or chiropractic shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” Owing to the breadth of the scope of the physician-patient privilege, as outlined above, the Bashkatov Court determined that the police did not have the right to seize the defendant’s blood by means of a traditional CPL search warrant.

The Bashkatov Court resisted multiple arguments raised by the People, aimed at a contrary result. Specifically, the People relied on People v. Bolson.9 In Bolson, a nurse took multiple blood samples from a defendant, “including one sample to test for alcohol content,” despite the fact that no need existed to take the latter sample for purposes of treating the defendant.10 The Court found Bolson unpersuasive, noting that the decision in Bolson did not clarify whether the People sought to admit all samples of blood taken from the Bolson defendant, or only that sample taken for assessing his blood alcohol content. The People also contended that “the results generated by the defendant’s treating physician at the hospital for the purpose of treatment and diagnosis remain under the protective aegis of the physician-patient privilege, but not the blood itself. . .”11 The Bashkatov Court disagreed.

Practitioners should consider the Bashkatov Court’s decision significant because it does not limit its scope to instances in which blood is taken solely for diagnostic purposes. In fact, it expressly rejects that position, observing that “even where blood is taken without governmental involvement, it is irrelevant whether the blood was taken for diagnostic purposes. In either situation, if an objection to the introduction of privileged information is raised at trial or in limine, the evidence must be suppressed.”12 The Bashkatov Court’s stance finds support in the case of People v. Petro,13 where the Third Department found that the salient factors in determining whether to suppress blood withdrawn from a defendant rested on the determination of whether “the blood test was performed in the course of attending defendant in a professional capacity,” and whether defendant waived the privilege.14 Moreover, the Bashkatov Court leaves the People with the admonition that, “[i]n the future, the People or the police should seek a court order for a blood test pursuant to VTL § 1194(3),”15 thereby establishing VTL § 1194(3) as the preferred method for obtaining blood from an uncooperative defendant.

Practitioners representing defendants charged with alcohol or drug related driving crimes should consider the ramifications of Bashkatov for their own cases. If an argument exists on the facts presented that the police or the prosecution violated their client’s expectation of privacy pursuant to the physician-patient privilege, consideration should be given to a suppression motion. Moreover, the government may wish to give first preference to the procedures outlined in VTL § 1194(3). Otherwise, they may quickly find themselves defending a motion to suppress whose determination risks compromising the foundational underpinning of their entire case.
 

    [1]Mr. Bateman is a member of Ruskin Moscou Faltischek, P.C., located in Uniondale, New York and chairs the Firm’s White Collar defense group. Mr. Kirsch is an associate at the Firm and works in the Firm’s Health Law practice group as well as the White Collar defense group. Mr. Bateman and Mr. Kirsch wish to acknowledge the efforts of Ms. Dina Karman, in the preparation of this article. Ms. Karman is a law clerk at the Firm. Her admission to the Bar is pending.
    [2]13 Misc 3d 1101 (NY City Crim Ct 2006); see also, New York Law Journal, “Decisions of Interest,” p. 24 (November 6, 2006). Richmond County Criminal Court’s, Judge Sciarrino, determined the merits of the defendant’s motion.
    [3]People v. Bashkatov, supra.
    [4]People v. Bashkatov, supra.
    [5]CPL § 710.20 provides in pertinent part as follows: “Upon motion of a defendant who (a) is aggrieved by unlawful or improper acquisition of evidence and has reasonable cause to believe that such may be offered against him in a criminal action . . . a court may, under circumstances prescribed in this article, order that evidence be suppressed or excluded upon the ground that it . . . (5) Consists of a chemical test of the defendant’s blood administered in violation of the provisions of subdivision three of section eleven hundred ninety-four of the vehicle and traffic law . . . or any other applicable law . . .”
    [6] People v. Bashkatov, supra
    [7] In fact, the Bashkatov Court noted another case in which a private person turned over blood taken from a defendant. People v. Ameigh, 95 AD2d 367, 369 (3d Dep’t 1983). Because the government did not have a hand in the seizure, the Bashkatov Court did not feel that a violation of the Ameigh defendant’s constitutional rights or statutory rights pursuant to VTL § 1194(3) transpired. However, the Bashkatov Court seemed to suggest that the Ameigh defendant’s rights pursuant to the physician-patient privilege should prevail to work a suppression of the blood seized.
    [8]CPL § 60.10 provides that “[u]nless otherwise provided by statute or by judicially established rules of evidence applicable to criminal cases, the rules of evidence applicable to civil cases are, where appropriate, also applicable to criminal proceedings.”
    [9]183 Misc 2d 155 (Sup Ct Queens Cty 1999).
    [10] People v. Bashkatov, supra.
    [11] People v. Bashkatov, supra.
    [12] People v. Bashkatov, supra.
    [13] 122 AD2d 309 (3d Dep’t), appeal denied, 68 NY2d 772 (1986). The Petro Court did indicate, however, that a specific statutory exception could trump the physician-patient privilege. Id., 122 AD2d at 310.
    [14]People v. Bashkatov, supra.
    [15]People v. Bashkatov, supra.

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Alexander G. Bateman, Jr., Esq. is a partner in the Health Law Department at Ruskin Moscou Faltischek, P.C.  He can be reached at 516-663-6589 or abateman@rmfpc.aw-develop.com.

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