People v. Elysee, 49 A.D.3d 33, 847 N.Y.S.2d 654 (2d Dept. 2007) is an interesting case. The defendant was involved in an automobile accident which involved a fatality. Shortly thereafter, the defendant was transported to the hospital and a blood samples were obtained via a warrant.
The defendant moved to suppress the blood test results, making the novel argument that the seizure of his blood violated the physician-patient privilege.
The Court disagreed with the defendant’s assertion, holding that a blood specimen taken by a medical professional is not “information” protected by New York’s statutory physician-patient privilege:
In conclusion, there is nothing in the language of CPLR 4504(a) or in the case law interpreting it that supports its application to the physical blood samples at issue here. Moreover, there is simply no compelling public policy interest that would justify expanding the physician-patient privilege to a physical blood sample. To hold otherwise would deprive the jury of lawfully seized material and probative evidence. Thus, we conclude that the physician-patient privilege is not applicable to a physical blood sample drawn by a medical professional and lawfully seized pursuant to CPL 690.10. Accordingly, the Supreme Court properly denied that branch of the defendant's motion which was to suppress the search warrant blood samples.
I haven't researched this issue, but if other Department's have not yet addressed this issue, it might be worth a shot. Another novel argument that I've seen made in other jurisdictions is that seizure of a blood sample violates HIPAA. I'm not sure if that argument has been made in New York, but again--it's worth a try.