Prior results do not guarantee a similar outcome.

Each year, lawmakers in Albany offer several proposals to increase the penalties against drunk drivers, in the hopes of decreasing the number of drunk driving accidents in New York. Last year, the state legislature successfully passed Leandra’s Law, which made it a felony to drive intoxicated with a child in the vehicle.

This year, the legislature is taking steps to make it easier to convict drivers of DWI charges by amending state law to increase the number of professionals authorized to take blood samples after a suspected drunk driving accident.

Under current state law, police officers can request drivers suspected of drunk driving who have been involved in an accident to take a preliminary breath test. If the test comes back positive for alcohol, then the police can request the driver to consent to a chemical test to check their blood for alcohol and drugs. The law, however, limits who is authorized to take the blood sample for testing.

Under §1194 of the Vehicle and Traffic Law, only a physician, registered professional nurse or registered physician’s assistant may take the sample. Others, including lab technicians and technologists, phlebotomists and EMTs, only can take a sample if under the supervision or direction of a physician.

Prosecutors have long complained that §1194 makes it difficult for them to secure convictions against drunk drivers. While it would be most convenient for law enforcement officials to have someone available to take a blood sample at the scene of the accident, this rarely if ever happens. Instead, the blood draw may not be taken until hours later at the hospital, giving the suspected intoxicated driver time to “sober up.” Prosecutors argue that this, in turn, results in a less accurate blood alcohol content reading.

Further, if someone not authorized under the law or under the supervision of a physician takes the sample, then a court may suppress the blood alcohol test results. In these cases, it may be difficult if not impossible to convict the driver of a DWI.

Senate Bill 46-A

To close this legal gap and make it easier for law enforcement to obtain quicker blood draws, Sen. Charles Fuschillo (R-Merrick) introduced Senate Bill 46-A. Dubbed the “Jack Shea Law,” the bill was named after former Olympian Jack Shea who was killed by an alleged drunk driver in New York in 2002. The case against the driver was dismissed after it was revealed that the ER tech who performed the blood draw was not properly supervised by a physician.

The proposed law would remove the requirement that certain professionals must be supervised by a doctor prior to taking the blood sample of a suspected drunk driver. Instead, the law would authorize any of the following personnel to perform the blood draw:

  • Physicians
  • Licensed registered nurses
  • Licensed practical nurses
  • Nurse practitioners
  • Registered physician’s assistants
  • Medical laboratory technicians
  • Medical technologists
  • Phlebotomists
  • Advanced EMTs certified by the Department of Health
  • Anyone else licensed by the state to draw blood

This is not the first time state legislators have attempted to amend §1194; Senator Fuschillo first introduced the bill back in 2006. Each year, the bill has been passed by the Senate only to die in the Assembly. It is not clear yet whether 2010 will be the exception. The bill was passed by the Senate in early March and currently is under review by the Assembly’s Transportation Committee.


Alleged drunk drivers are treated very harshly under state laws. As state lawmakers continue to pass new laws in the area of DWI and increase the penalties against them, it is vital that those facing DWI charges seek the advice of experienced legal counsel. The penalties for a drunk driving charge can last long after the initial fines are paid and jail time is served.

For more information, contact an experienced criminal defense attorney today.

New laws for New York are coming that could authorize more professionals for taking blood samples to test for DWI. This article is brought to you by Larkin Ingrassia, PLLC.