Opinion 15-02

January 29, 2015

Digest:         A judge is disqualified in DWI cases involving blood drawn at a hospital where, in the judge’s capacity as a physician, he/she is responsible for regulatory compliance with the hospital’s emergency department phlebotomy services.

Rules:          22 NYCRR 100.2; 100.3(E)(1); Opinions 14-11; 08-124; 08-31.

Opinion:

         The inquiring part-time judge is also a licensed physician. In that capacity, he/she oversees blood extraction (phlebotomy) services at a hospital. The judge asks if he/she may preside in cases involving charges of driving while intoxicated (DWI), where the defendant’s blood was drawn in the hospital’s emergency department. The judge is not a hospital employee, does not order or participate in the drawing of blood, does not transport, test or review individual blood specimens, and does not have authority to hire or fire hospital employees.

         Instead, the hospital has a contractual relationship with the judge’s business entity; under this contract, the judge’s business entity must ensure that the hospital’s “practices and procedures fulfill regulatory requirements.” The judge explains that his/her directorship at the hospital “is established by contract through my [business entity].”

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must disqualify him/herself in a proceeding in which the judge’s impartiality might reasonably be questioned (see 22 NYCRR 100.3[E][1]).

         The Committee has advised that a judge who transports patients to a local health care facility in his/her capacity as a certified emergency medical technician is not, without more, required to disqualify him/herself in cases involving the health care facility, provided the judge believes he/she can be fair and impartial (see Opinion 08-124). By contrast, the Committee has advised that a part-time judge who provides health care services to individual patients is disqualified, subject to remittal, in any proceeding where a current or former patient appears as a lawyer or litigant, for a period of two years after the medical relationship ends (see Opinion 08-31).

         The situation here appears to fall between these two prior opinions. On the one hand, the inquiring physician/judge does not participate in drawing or testing patients’ blood in DWI cases, and such defendants are not the inquirer’s patients, unlike the judge in Opinion 08-31. Nonetheless, this judge’s role is more directly relevant in certain cases than is the emergency medical technician in Opinion 08-124, who merely transported patients to a medical facility. Critically, a DWI defendant who challenges a blood specimen offered by the prosecution will scrutinize the entire process, starting with sample collection. Such challenges may include, for example, whether the sample was properly drawn and labeled, the sample’s integrity, and issues of chain of custody, storage, or transmission to the test site. All these issues involve regulatory rules governing hospitals and collecting blood, which this physician/judge oversees at the hospital.

         The Committee believes the inquiring judge’s oversight of the hospital’s phlebotomy services and regulatory compliance places the judge in a position where his/her impartiality might reasonably be questioned whenever a DWI defendant challenges the integrity of a hospital drawn blood sample (see 22 NYCRR 100.3[E][1]). Indeed, it is possible a DWI defendant appearing before this judge might hesitate to assert certain challenges to the integrity of a proffered blood sample in light of this judge’s oversight function, perhaps raising additional concerns in criminal cases involving the constitutional rights of the accused (cf. Opinion 14-11 [emphasizing that a judge must “ensure he/she can be fair and impartial” in criminal cases, “given the constitutional dimensions of a judge’s duties”]). Thus, this physician/judge should not preside in a DWI case involving blood drawn at the hospital where he/she oversees phlebotomy services.

         The Committee notes, absent other factors, the judge may preside over DWI cases where a defendant’s blood was not drawn at the hospital, or if a defendant underwent a breathalyzer test only.