By MICHAEL VIRTANEN
Associated Press

ALBANY - New York's top court ruled Tuesday that police didn't violate the privacy rights of an injured Brooklyn motorist when they seized the hospital blood-alcohol sample later used to help convict him of manslaughter.

In a unanimous ruling Tuesday, the Court of Appeals rejected Fritz Elysee's argument that the blood test at Kings County Hospital was covered by doctor-patient privilege. Instead, the court said that drivers in New York essentially waive that privacy right, automatically consenting under the traffic law to toxicology tests when they have a fatal crash or get arrested.

The wreck on Christmas morning in 2003 killed a pickup-truck passenger and injured several others. That first test showed blood alcohol content of 0.23 percent, exceeding the 0.08 legal limit for driving.

The hospital routinely drew blood samples from trauma victims for treatment purposes. A judge ordered a blood-alcohol test on Elysee, which nine hours later showed a concentration of only 0.05 percent. A New York City toxicologist said that level would have been consistent given the time that passed after the initial finding.

Four days after the crash, a judge issued a warrant for police to seize the earlier sample.

Elysee, convicted by a jury of second-degree manslaughter, second-degree assault, third-degree assault and driving while intoxicated, appealed his conviction. He wanted the evidence of his earlier blood samples suppressed, arguing that they were privileged under state civil-procedure law, which prevents medical professionals from disclosing patient information without the patient's permission.

A midlevel appeals court disagreed, concluding that a blood specimen is not protected by physician-patient privilege.

The top court upheld the evidence, but said it didn't need to decide whether the law on privileged medical information applies.

Instead, the six judges ruled that under state traffic law, drivers in New York automatically consent to testing of breath, blood, urine or saliva for alcohol or drug content after crashes causing deaths or serious injuries or when they've been lawfully arrested for certain traffic violations.

"Therefore, even if these samples were privileged, under the facts and circumstances of this case, the privilege was overcome when the police officers executed the court order," Hon. Theodore Jones Jr. wrote. Hon. Carmen Beauchamp Ciparick, Hon. Victoria Graffeo, Hon. Susan Read, Hon. Robert Smith and Hon. Eugene Pigott Jr. agreed.

Defense attorney Warren Landau said he and Elysee were disappointed and that patient privilege did apply.

Craig Esswein, chief of the vehicular crimes unit in the Brooklyn District Attorney's Office, said it's "not infrequent" that they can get hospital blood samples, with a court order, but that hasn't been consistent in courts outside New York City.

"The hospital blood is a big thing. We use it every time it's available," Esswein said. Getting a judge's order for a separate blood test can take so long that a defendant will have eliminated all alcohol from his system, Esswein said.