On October 31st of 2008, I posted an entry about the difficulties of the prosecution of proving DWI cases involving blood draws-- that is, where the blood alcohol content (BAC) is measured by blood analysis in the New Jersey State Police Laboratory. In those cases, the nurse at the hospital and the chemist must be available for cross-examination by the defendant.
Of course, the chemists are state employees working in a civilian capacity, but also work for a division of the state police. So, when the prosecutor asks that they appear in court to testify, they usually appear unless they have a conflict with another court.
But the nurses are generally ignoring subpoenas to testify. My guess is that they are not being compensated by their hospital employer, they work crazy hours, have families and just want their days off-- like all of us.
Some judges are suppressing the BAC results, which may be tantamount to a dismissal, but other judges are taking a hard-line approach and threatening to issue arrest warrants for the nurses to appear in court.
In the mean time, the police and county prosecutor's office, at least in Gloucester County, New Jersey, are implementing a new program. A hand-full of police officers are being trained as certified phlebotomists. These officers will be on-call to respond to emergency rooms where DWI defendants are being treated.
This program is in it's infancy stage, but is sure to raise an assortment of legal issues.
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