Com. v. Hipp

• Decision Date: 05 December 1988
• Citation: 380 Pa.Super. 345,551 A.2d 1086
• Parties: COMMONWEALTH of Pennsylvania v. Billy Robert HIPP, Appellant.
• Court: Pennsylvania Superior Court

Page 1086

551 A.2d 1086

380 Pa.Super. 345

COMMONWEALTH of Pennsylvania v. Billy Robert HIPP, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 17, 1988.

Filed Dec. 5, 1988.

Jenny Steinen, Asst. Public Defender, Philadelphia, for appellant.

Stuart B. Suss, Asst. Dist. Atty., West Chester, for Com., appellee.

Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.

McEWEN, Judge:

We here consider whether the results of a medical purposes blood alcohol test, voluntarily provided by hospital personnel to a police officer, are admissible at trial where the defendant subsequently exercised his statutory right to refuse to submit to a blood-alcohol test. We find no statutory or constitutional impediment to the introduction of such evidence and, therefore, affirm the judgment of sentence imposed after appellant was found guilty of driving while under the influence of alcohol.

Appellant was transported by ambulance to Chester County Hospital on December 16, 1983, for emergency treatment following a two-car collision. Blood was withdrawn from appellant by hospital personnel for medical purposes and was tested, pursuant to the routine hospital procedure, for alcohol content. A police officer charged with the investigation of the accident arrived at the hospital shortly thereafter and spoke with appellant in the emergency room. The officer, noting that appellant's eyes were bloodshot and his speech slurred and detecting a strong odor of alcohol on appellant's breath, requested that hospital personnel obtain a blood sample from appellant to be tested for alcohol content. A member of the emergency room staff advised the officer that a test would be unnecessary as one had already been performed, and then volunteered the results of that test to the officer. The officer subsequently placed appellant under arrest, issued Miranda warnings, and requested that he submit to a blood alcohol test. Appellant refused and the officer left the hospital. The Commonwealth subpoenaed the results of the medical purposes blood test and at trial, the laboratory technician testified as to the results of that test. Testimony concerning appellant's refusal to submit to the blood alcohol test requested by the officer was also admitted into evidence over objection. Appellant was found guilty of driving under the influence, in violation of 75 Pa.C.S. § 3731(a)(1) and (a)(4), and of overtaking a vehicle on the left, and thereafter sentenced to serve a term of imprisonment of from seven days to twenty-three and one-half months, and to pay a fine of $300.00. A divided panel of this Court found that the trial court had erred in admitting evidence of the medical purposes blood test since appellant had been denied the opportunity to exercise the statutory right of refusal to submit to such a test as provided by Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).

Appellant first argues that the results of the medical purposes blood alcohol test should have been suppressed since the hospital personnel, when they volunteered the results of the blood alcohol test to the investigating officer, violated the regulations of the Pennsylvania Department of Health concerning the confidentiality of medical records. Appellant's argument is predicated upon the following two regulations promulgated by the Pennsylvania Department of Health:

Records and reports of examinations of all specimens shall be confidential.

28 Pa.Code § 5.53. ¹

All records shall be treated as confidential. Only authorized personnel shall have access to the records. The written authorization of the patient shall be presented and then maintained in the original record as authority for release of medical information outside the hospital.

28 Pa.Code § 115.27. ²

The Commonwealth argues, however, that the general provisions providing for confidentiality of all medical records are subject to the exceptions contained in Section 1547(j) ³ and Section 3755 ⁴ of the Motor Vehicle Code, pertaining to the release by hospital personnel of results of blood alcohol tests. We agree.

The proper role of this Court, when called upon to construe statutory provisions, is to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921. The Statutory Construction Act, which is applicable to both statutes and the Pennsylvania Code, 1 Pa.C.S. § 1502(a)(1), provides that when a general provision is in conflict with a specific provision in the same or another statute, the two provisions shall be construed, if possible, to give effect to both. If, however, "the conflict between the two provisions is irreconcilable, the special provision shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail." 1 Pa.C.S. § 1933 (emphasis supplied).

The general provision applicable to the case at bar is the blanket confidentiality provided to all medical test results and records. The specific, and conflicting, provisions are the sections of the Vehicle Code which provide that no hospital or medical personnel may refuse to perform, or to provide the results of, a blood alcohol test when requested to do so by a police officer.

Since the specific provisions of the Vehicle Code are clearly in conflict with the general regulations promulgated by the Department of Health, and cannot be reconciled, the provisions of the Vehicle Code dealing specifically with blood alcohol tests must be construed as exceptions to the general and earlier enacted provisions of the Pennsylvania Code providing for the confidentiality of all medical records. ⁵ See and compare: Olshansky v. Montgomery County Election Board, 488 Pa. 365, 369-70, 412 A.2d 552, 554 (1980); Commonwealth ex rel. Platt v. Platt, 266 Pa.Super. 276, 285, 404 A.2d 410, 415 (1979). We, therefore, reject the argument of appellant that the results of the medical purposes blood alcohol test could not be released to the investigating officer due to the confidentiality provisions of the Pennsylvania Code. ⁶

Appellant next argues that admission of the results of the medical purposes blood alcohol test violated his legitimate expectation of privacy in his personal medical records, a right guaranteed to him by the United States Constitution as well as by Article I, § 8, of the Pennsylvania Constitution. ⁷ The administration of a blood test is a search within the meaning of the Fourth Amendment to the United States Constitution and Article I, § 8, of the Pennsylvania Constitution, if performed by an agent of, or at the direction of, the government. Commonwealth, Department of Transportation v. McFarren, 514 Pa. 411, 417, 525 A.2d 1185, 1188 (1987); Commonwealth v. Murray, 441 Pa. 22, 25, 271 A.2d 500, 501 (1970); Koleski v. Park, 363 Pa.Super. 22, 30, 525 A.2d 405, 408 (1987); Commonwealth v. Cieri, 346 Pa.Super. 77, 82-85, 499 A.2d 317, 320-321 (1985); Commonwealth v. Funk, 254 Pa.Super. 233, 241, 385 A.2d 995, 999 (1978). The blood test in the instant case, however, was performed prior to the arrival of any officer and was conducted as a routine part of the emergency treatment of the appellant, and not at the request of any governmental official. Thus, the medical purposes blood test itself did not violate appellant's constitutional rights. See: Commonwealth v. Goldhammer, 322 Pa.Super. 242, 246-47, 469 A.2d 601, 603 (1983), aff'd., 507 Pa. 236, 489 A.2d 1307 (1985), rev'd; Pennsylvania v. Goldhammer, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), conformed to Commonwealth v. Goldhammer, 509 Pa. 546, 505 A.2d 601 (1986), on remand, Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, Goldhammer v. Pennsylvania, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987).

Appellant argues, however, that his constitutional rights were violated when hospital personnel volunteered the results of that test to the police officer and when the results of that test were obtained, pursuant to a subpoena, by the government and introduced at trial. Individuals clearly have a privacy interest in their medical records which "finds explicit protection in the Pennsylvania Constitution, Art. I, § 1...." In re June 1979 Allegheny County Investigating Grand Jury, 490 Pa. 143, 150, 415 A.2d 73, 77 (1980). Our Supreme Court has held that "[t]he protection provided by Article I, § 8, of the Pennsylvania Constitution extends to those zones where one has a reasonable expectation of privacy." Commonwealth v. DeJohn, 486 Pa. 32, ----, 403 A.2d 1283, 1289 (1979), cert. denied, Commonwealth v. DeJohn, 444 U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980).

While we agree with appellant that his reasonable expectation of privacy in his medical records is a constitutionally protected interest, we hasten to note that the proper function of the Fourth Amendment to the U.S. Constitution, as well as Art. I, § 1 and Art. I, § 8 of the Pennsylvania Constitution, is "to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Schmerber v. California, 384 U.S. 757, 758, 86 S.Ct. 1826, 1829, 16 L.Ed.2d 908, 912 (1966). Accord: Koleski v. Park, supra at 30, 525 A.2d at 408.

Section 3755 of the Motor Vehicle Code provides that hospital personnel shall promptly take blood samples from those persons who require medical treatment in a hospital emergency room when probable cause exists to believe that that person violated Section 3731 of the Vehicle Code. Thus, where a police officer determines that probable cause exists to believe that the individual was operating a motor vehicle while under the influence, and requests hospital personnel to obtain a blood sample for testing, hospital personnel have an affirmative duty to perform the test and report the results to...