Even When the Killer Driver Is Drunk, Obstacles to Justice Abound

After two incidents in two months of off-duty NYPD officers running down and killing pedestrians, then refusing to submit to Breathalyzer tests, police Commissioner Ray Kelly this week convened a panel aimed at expediting the collection of blood evidence from motorists arrested on suspicion of driving drunk.

valnord_nivac2.jpgThe deaths of Vionique Valnord and Drana Nivac may spur movement to reevaluate procedures employed to gather DWI blood evidence. What took so long? Photos via New York Times

In September, Andrew Kelly, an officer with Brooklyn’s 68th Precinct, was taken into custody when the SUV he was driving struck Vionique Valnord as she attempted to hail a taxi in Flatlands. According to prosecutors, a sergeant at the scene reported that alcoholic beverages were present in the vehicle, and said Kelly smelled of alcohol, had red, watery eyes and slurred speech. Yet when authorities were finally able to secure a warrant and draw a blood sample some seven hours later, Kelly had no alcohol in his system, potentially compromising the criminal case against him.

It took five hours to get a blood sample from Kevin Spellman, the NYPD detective who reportedly stumbled out of his government-leased Chevy Malibu after hitting 67-year-old Bronx grandmother Drana Nikac last week. Even so, officials said Spellman was found to have a blood alcohol level of .21. As with the Andrew Kelly case, the lag time between the arrest and obtaining blood evidence was heavily scrutinized by the media, perhaps putting pressure on Commissioner Kelly to act.

According to Commissioner Kelly, a major task of his panel will be to suss out the procedures used by all five city district attorney’s offices in obtaining warrants for blood.

"I feel it is extremely possible to speed up the process and can say the DA offices are very interested in working with the Police Department to do so," says Joseph McCormack, chief of the Vehicular Crimes Bureau of Bronx DA Robert Johnson’s office. "There are also some legal changes that would help."

One proposed measure supported by McCormack would remove the state requirement that a doctor be present to supervise blood withdrawals. In 2002, 91-year-old former Olympian Jack Shea was killed in Saranac Lake by a driver who was indicted for vehicular manslaughter, criminally negligent homicide and DWI. Charges were ultimately dropped after courts ruled blood evidence inadmissible based on the fact that, since there was no doctor on duty at the small clinic where Shea and the driver were taken after the crash, the sample was drawn by an EMT. Appellate judges in the Shea case, according to the bill, "called on the legislature to amend the statute to remedy what they saw as an unnecessary restriction in the law."

McCormack and Nassau prosecutor Maureen McCormick are also working on a proposal to remove the up-front warrant requirement in cases of death or serious injury where there is probable cause for DWI. Such procedure is common in other states, says McCormick: "There is no constitutional issue of self-incrimination, which applies only to statements. Blood is physical evidence and subject to a different analysis. The trial judge would review the arresting officer’s assertion of probable cause during pre-trial hearings and if there was not sufficient probable cause to take the evidence it would be suppressed."

Both stress that altering current warrant protocol would enhance the ability of police and prosecutors to gather crucial evidence, but would not change evidentiary requirements.

"These are the exact same circumstances under which blood can be drawn now," McCormick says. "The only change is that instead of precious time being taken up front for a judge to review the probable cause — while the BAC evidence is literally disappearing — the judicial review would take place pre-trial, when time is no longer such a critical issue."

On the subject of time, one can’t help but wonder of Commissioner Kelly’s new committee: What took so long? It’s common knowledge among police, for example, that it is to their advantage to refuse breath tests if suspected of DWI. Did two more innocent people have to die — and at the hands of NYPD officers — for officials to address such a blatant systemic shortcoming?