City of Muskego v. Godec
| Decision Date | 08 April 1992 |
| Docket Number | No. 90-2619,90-2619 |
| Citation | 167 Wis.2d 536,482 N.W.2d 79 |
| Parties | CITY OF MUSKEGO, Plaintiff-Appellant, v. Alois F. GODEC, Jr., Defendant-Respondent. |
| Court | Wisconsin Supreme Court |
For the plaintiff-appellant there was a brief by H. Stanley Riffle, Eric O. Schlieter and Arenz, Molter, Macy & Riffle, S.C., Waukesha and oral argument by H. Stanley Riffle.
For the defendant-respondent there was a brief (in the court of appeals) by T. Michael Schober, Rodney W. Carter, and Schober & Radtke, S.C., New Berlin and oral argument by Rodney W. Carter.
This case arises out of two citations issued to the defendant-respondent, Alois F. Godec, Jr., by the city of Muskego Police Department for operating a motor vehicle while under the influence of an intoxicant, a violation of sec. 346.63(1)(a), Stats., 1 and operating a motor vehicle with a blood alcohol content in excess of .10 percent, a violation of sec. 346.63(1)(b). 2 The principal issue before this court is whether an alcohol content blood test, obtained for diagnostic reasons, can be made available for prosecutorial purposes. Other issues are whether the circuit court's ex parte order for obtaining health care records was proper and whether the circuit court correctly remanded the case to the municipal court.
The municipal court for the city of Muskego, Waukesha county, found Godec guilty of both operating a motor vehicle while under the influence of an intoxicant and operating a motor vehicle with a blood alcohol content in excess of .10 percent. Blood test results were admitted into evidence through the testimony of an attending physician.
The Waukesha county circuit court, Judge Clair H. Voss, suppressed the chemical test results, dismissed the second citation and remanded the matter to the municipal court for further proceedings. Both the dismissal and the remand were appealed. The court of appeals certified the appeal pursuant to sec. 809.61, Stats., and we accepted certification. This court reverses the order of the circuit court and holds that both citations must be set for trial in circuit court with directions that the city of Muskego be allowed to introduce evidence regarding Godec's blood alcohol concentration.
The charges arose out of an accident involving a single automobile driven by Godec as he proceeded through a "T" intersection, struck a tree and received serious injuries. When the city of Muskego police responded to the scene, they observed medical technicians tending to Godec. The police officers proceeded to photograph and document the accident scene, prepare a landing field for the "Flight for Life" helicopter and perform other functions necessary to facilitate medical attention to Godec. The officers, however, made no determination as to whether Godec had been consuming alcoholic beverages. Moreover, the officers did not ask the medical personnel treating Godec to obtain a breath, blood, or urine test to determine his alcohol concentration. Godec was taken to the Milwaukee County Medical Complex for treatment.
An investigation of the accident by Muskego police officers revealed that witnesses had seen Godec drinking at a party prior to the accident. In addition, the officers learned that one of the emergency medical technicians who had tended to Godec at the accident scene had noticed "a strong odor of alcoholic beverage" on his breath. Further investigation prompted Muskego police to interview Godec at the medical facility where he was receiving treatment. During the interview, Godec confirmed that he had been drinking prior to the accident; however, he could not recall how much he had to drink, when he left the party, or where he was going prior to the accident. Based on the collective information from the investigation, the Muskego police issued Godec a citation for operating a motor vehicle under the influence of an intoxicant, a violation of sec. 346.63(1)(a), Stats.
Shortly thereafter the Muskego Police Department learned that a blood test which revealed blood alcohol concentration had been performed on Godec at the Milwaukee County Medical Complex. The test had been ordered by the attending physician for diagnostic purposes. When Muskego police asked permission to see the test results, Godec refused to have his medical records released.
The city of Muskego filed a request for an ex parte order with the circuit court pursuant to sec. 908.03(6m)(b), Stats., to release Godec's medical records. Judge Mark S. Gempeler issued an order to subpoena Godec's medical records. The records revealed that Godec had a .28 percent blood alcohol content when he was admitted to the medical facility. This information prompted Muskego police to issue a second citation to Godec for operating a motor vehicle with a blood alcohol content in excess of .10 percent, a violation of sec. 346.63(1)(b).
The municipal court found Godec guilty of violating both secs. 346.63(1)(a) and 346.63(1)(b), Stats. The circuit court suppressed the test results and dismissed the sec. 346.63(1)(b) citation. The court concluded that the test results were health care records as defined under sec. 146.81(4). 3 It reasoned that because the results of Godec's blood alcohol tests constituted "patient health care records," under sec. 146.82, the results of the tests must remain confidential and cannot be released without Godec's permission. 4 Because Godec did not give his consent for the release of his health records to the city, the test results could not be used as evidence. The matter concerning the first citation was remanded to the municipal court for further proceedings.
The city of Muskego contends that the circuit court erred in suppressing the blood test evidence and in dismissing the citation and complaint relating to the blood alcohol concentration. The city argues that the case of State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d 109 (1977) sets forth the controlling precedent. In Jenkins the defendant was involved in an automobile accident and was taken to a hospital where, during a period of unconsciousness and without his consent, a number of tests were performed, including a blood test for alcohol content.
The city of Muskego points to similarities between Jenkins and the present case. In both cases, blood tests were performed for diagnostic purposes--the defendant was not under arrest at the time, and the blood tests were not taken at the request of a police officer. Another similarity is that the police did not attempt to obtain blood alcohol test results until subsequent investigations. In the present case and in Jenkins, test results revealed blood alcohol content in excess of .10 percent. The two cases are also similar with respect to the evidence being introduced through the testimony of an attending physician. 5
When this court reviewed Jenkins, we were asked to decide whether the results of blood tests taken for blood alcohol content were admissible in court when the blood tests were taken for diagnostic reasons only and not at the request of a police officer. We ruled that the blood tests were admissible and the procurement of the test results by the police did not constitute an illegal search and seizure. The court stated: "[W]here a blood test is taken at the request of a physician, solely for diagnostic purposes and not at the request or suggestion of any governmental authority, there is no search and seizure within the meaning of the fourth amendment to the United States Constitution." Id. at 433-34, 259 N.W.2d 109. Accordingly, the city of Muskego contends that the blood test results in the present case were obtained without fourth amendment implications.
The city also argues that the results of medical tests taken for diagnostic purposes are admissible at trial if the case involves an exception to the physician-patient privilege. We applied sec. 905.04(4)(d), Stats., in Jenkins which is an exception to the doctor-patient privilege. 6 The city of Muskego argues that the exception that appropriately applies to this case is found under sec. 905.04(4)(f), Stats., which reads: "There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or blood alcohol concentration." The city reasons that because there is no privilege concerning the results of chemical tests for intoxication or blood alcohol concentration, there can be no expectation of privacy concerning the test results.
Godec argues that the diagnostic health care records cannot be used by the city to show that he was operating a motor vehicle with a blood alcohol content in excess of .10 percent. Godec maintains that sec. 146.82, Stats., requires that the records remain confidential and prohibits the release of test results without patient consent. Godec argues that if the legislature had intended to allow law enforcement officials access to all diagnostic medical tests, it would have exempted all tests from the confidentiality provisions of the patient health care records law rather than limiting the exemption to implied consent tests under sec. 343.305(2). 7
Godec also argues that Jenkins is not controlling because first, Jenkins dealt with a homicide, and second, the case was decided prior to the enactment of the privacy requirements outlined in secs. 146.81 and 146.82, Stats. Furthermore, Godec reasons that sec. 146.82 exempts only tests under the implied consent law from confidentiality requirements and therefore it must be concluded that the legislature has deemed confidential all health records that are not specifically excluded under 146.81(4).
The construction of a statute and its application to a set of facts is considered a question of law. Hobl v. Lord, 157 Wis.2d 13, 20, 458 N.W.2d 536, 539 (Ct.App.1990). An appellate court is not bound by a trial court's conclusions of law and decides the matter de novo. First Nat. Leasing Corp. v. Madison, 81 Wis.2d 205, 208, 260...
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