Closing the loophole: Shea's Law and DWI blood draws in New York State under Vehicle and Traffic Law s. 1194(4) (a) (1).

• Author: Gross, Daniel
• Position: Driving while intoxicated

Every year in New York State, drunk drivers are responsible for approximately 9000 accidents and 400 deaths. (1) On July 13, 2010, New York State took another step to reduce this troublesome statistic with the passage of "Shea's Law." (2) This legislation, which amends the New York State Vehicle and Traffic Law, expands the list of medical personnel who can withdraw blood from a drunk driver without a doctor's supervision, (3) and further marks the closing of a "legal loophole which enabled indisputably impaired drivers to evade prosecution." (4)

The source of this "loophole" was former section 1194(4)(a)(1)(i) of the New York State Vehicle and Traffic Law. (5) Under the former statute, a DWI blood draw, performed to test a drunk driver's blood alcohol level, was admissible into evidence only if it was performed in a certain manner by statutorily-enumerated medical professionals. (6) This former statute led to various instances of drunk drivers escaping prosecution because, although blood was drawn in a safe and reasonable manner by a medical professional, the blood draw was not performed specifically according to the statute. (7) The best known example of this was People v. Reynolds, (8) where former Olympic gold medalist Jack Shea, the name-sake of the new bill, (9) was killed by a drunk driver who would completely escape prosecution due to the blood draw. (10)

Shea's Law has been pending in the New York State Legislature in various forms since 2006. (11) The bill's recent passage has been lauded as "a commonsense measure," (12) and a "simple and straightforward remedy" (13) in New York's fight against drunk driving. (14)

The first section of this comment gives the background and history of drunk driving legislation in New York State. The second section tells the story of Jack Shea and other victims of the loophole which existed in former section 1194(4)(a)(1). The third section outlines and analyzes the problems that accompanied former section 1194(4)(a)(1), including both the Court of Appeals interpretation of the statute and the statute's conflicts with other New York statutes and regulations. The fourth section examines the public policy behind DWI legislation, and that policy's impact on judicial decision-making in New York and other states. The final section examines and analyzes the amended section 1194(4)(a)(i) under Shea's Law.

1. DWI LEGISLATION IN NEW YORK STATE

   New York State has a long and distinguished history of developing legislation and programs to improve highway safety, specifically regarding DWI prosecution. (15) The first DWI law in the nation originated in New York State in 1890--section 158 of the former Highway Law--which provided: "No person owning any carriage for the [conveyance] of passengers, running or traveling upon any highway or road, shall employ, or continue in employment, any person to drive such carriage, who is addicted to drunkeness, or to the excessive use of spiritous liquor...." (16)

   Additionally, in 1910 the first "modern" DWI statute was passed in New York State, enforcing drunk driving rules against those operating cars with motors. (17) More than a half-century later, New York passed legislation allowing prosecutors to introduce evidence of alcohol in the blood stream for DWIs. (18) This was the first of many chemical testing laws from a legislature that "has clearly expressed its interest in promoting the goal of public safety by enacting legislation providing for compulsory chemical tests to facilitate the prosecution of intoxicated or impaired drivers whose actions result in serious injury or death." (19)

   Perhaps the most visible legislation in New York's battle against drunk driving was the "STOP-DWI" (20) program, introduced in 1981, which made it lucrative for the counties of New York State to engage in and prosecute alcohol-related driving offenses. (21)

   These ongoing efforts have positively impacted the safety of New York's highways. From 1999 to 2008, fatal crashes, as well as other fatalities on New York's roadways, have declined by approximately twenty percent. (22) The STOP-DWI program has proven especially helpful in reducing alcohol-related motor vehicle crashes. (23)

   However, there is a statewide concern that this progress is flat-lining, as fatal DWI crashes have begun to account for a significant portion of all the driving fatalities in New York State. (24) Statistics show that despite the statewide decrease in the amount of alcohol-related non-fatal injury crashes, (25) there has been an increase in the percentage of fatal crashes where alcohol was involved. (26) According to the New York State Department of Transportation, between 2004 and 2008, New York State experienced an increase in the number of alcohol-related fatal crashes. (27) In 2004, alcohol-related fatal crashes accounted for 24.3% of all fatal crashes in New York State; in 2008, alcohol-related fatal crashes accounted for 30.6% of all fatal crashes--an increase of over 6%. (28)

   Further, a study by the Institute for Traffic Safety Management and Research estimated that there are approximately 85,000 incidents of drinking and driving every day in New York State. (29) This is especially problematic for law enforcement, as it is estimated that "[n]ationally in crashes that caused death or serious injury in 2003, only 24 percent of surviving drivers and 66 percent of killed drivers had their blood alcohol content (BAC) tested and available" (30)--significantly reducing the ability to know if a driver was intoxicated, and to prosecute individuals driving while intoxicated.

   Currently, under New York State's implied consent law, any person who operates a motor vehicle upon a public highway is "deemed to have given consent to a [blood] test" (31) for the determination of their BAC, whenever they are arrested or taken into custody for DWI. (32) This implied consent legislation was developed by the legislature "as a means to address the scourge of drunk driving and aid in the prosecution of drunk drivers." (33) Despite New York State's established policy of discouraging drunk drivers through enhanced police enforcement and prosecution, an anomaly existed in New York Vehicle and Traffic Law section 1194(4)(a)(1), which led to a few troubling examples of drunk drivers escaping prosecution. Consider the following:

2. THE LOOPHOLE

   Jack Amos Shea was born on September 7, 1910 in Lake Placid, New York. (34) Mr. Shea grew up to become an accomplished Olympic speed skater, culminating in two gold medals won at the 1932 Winter Games. (35) Mr. Shea spent the majority of his life in Lake Placid, and was instrumental in helping the town organize its bid to host the 1980 Winter Games. (36) Mr. Shea's son, Jim, and grandson, Jim Jr., also competed in later Olympic Games. (37) Sadly, Mr. Shea would never get to see his grandson compete, as the elder Olympian was killed by a drunk driver shortly before the 2002 Winter Olympics. (38)

   On the afternoon of January 21, 2002, the ninety-two-year-old Olympic legend was heading northbound in his 2001 white Cadillac Deville, driving through the sleepy Adirondack town of North Elba on a snow-covered, unplowed road. (39) At about 4:30 p.m., Mr. Shea noticed a white cargo van ahead driving erratically in the southbound lane. (40) After unsuccessfully negotiating a turn on the unplowed road, the oncoming van swerved into Mr. Shea's lane. (41) In an attempt to avoid a collision, Mr. Shea slowed his car and pulled it towards the right of the road. (42) The maneuver was in vain--the cargo van slammed head-on into the Olympian's car. (43) From the time of his lunch, the driver of the cargo van had ingested "at least five bottles of beer." (44)

   Mr. Shea and the intoxicated driver were both ambulanced to a rural emergency room--the "Lake Placid satellite branch of the Adirondack Medical Center" ("AMC"). (45) The emergency room consisted of a limited medical staff, often including only one physician's assistant, one registered nurse, and one advanced emergency medical technician ("AEMT"). (46) At the time of the accident there was no physician present. (47) More troublingly, victims from another motor vehicle accident were en route as well: the number of patients would exceed the emergency room's limited capacity. (48)

   Upon arrival at the emergency room, the medical staff inspected Mr. Shea and the intoxicated driver. (49) The drunk driver had suffered only minor injuries and, aside from a blood alcohol test, would not require immediate medical attention. (50) Mr. Shea did not fare as well: shortly after arriving, he suddenly collapsed-requiring the attention of the entire staff. (51)

   While the staff fought to save Mr. Shea's life, a second AEMT arrived at the emergency room. (52) The police officer that accompanied the intoxicated van driver to the emergency room asked the second AEMT to administer a blood draw to determine the van driver's blood alcohol content. (53) Considering the quickly accumulating backlog of work, and the fact that a blood draw posed "no health risk," the physician assistant who was supervising the emergency room allowed the AEMT to perform the blood draw as he and the rest of the medical staff battled in vain to save the Mr.

   Shea's life. (54) Eventually, a blood sample was taken from the intoxicated driver, revealing a BAC of almost twice the legal limit. (55) The drunken van driver was prosecuted for, among other offenses, vehicular manslaughter for the death of Jack Shea. (56) However, the charges were dropped. (57) The trial court suppressed the results of the blood draw because the emergency room failed to comply with New York Vehicle and Traffic Law section 1194(4)(a)(1), which states that an AEMT can only perform a DWI blood draw at the direction of and under the supervision of a physician--not a physician's assistant. (58)

   Testimony at the suppression hearing revealed persuasive policy reasons to deny the drunk drivers' motion to...