Pollard v. State
Decision Date | 24 August 1982 |
Docket Number | No. 1-282A36,1-282A36 |
Citation | 439 N.E.2d 177 |
Parties | Dale POLLARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
Court | Indiana Appellate Court |
Allen F. Wharry, Martin, Wharry & Disler, Lebanon, for defendant-appellant.
Linley E. Pearson, Atty. Gen., Stephan E. Wolter, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.
Defendant-appellant Dale Pollard (Pollard) was convicted by a jury in the Boone Circuit Court of the offense of driving while intoxicated which resulted in the death of another person under Ind.Code 9-4-1-54(b) (Supp.1981), a Class C felony. From a sentence of imprisonment he appeals.
We affirm.
The evidence most favorable to support the conviction is as follows: On September 17, 1980, between 7:30 and 7:45 p. m. a three car wreck occurred on Indiana State Highway 39. Highway 39 consists of two lanes running north-to-south on the north edge of Lebanon in Boone County, Indiana. Near the scene of the wreck, various restaurants and businesses were located along the highway. Within a few hundred yards the speed limit for the south bound lane decreased from the standard 55 m. p. h. limit to 45 m. p. h. and then to 35 m. p. h. At the point of impact it was 45 m. p. h. though it became 35 m. p. h. about 200 feet further south. At the time of the collision, the road was dry, the weather was clear, and, although it was growing dark, the area of the collision was well lighted.
The decedent, Betty Warren, entered the highway from a K-Mart Shopping Center on the west side of the road. Just as she was crossing the south bound lane, a south bound car driven by Pollard struck Betty Warren's car in the left side and knocked it into yet a third car, causing serious damage to her car. Betty Warren died at the scene of the collision from injuries she received when she was thrown from her car. Pollard was trapped in his car and special equipment was necessary to extricate him. He was found unconscious or semi-conscious under the steering wheel, with an open, half empty bottle of beer between his legs. At least two other beer containers and a six-pack carton were found strewn about the front seat. The entire car smelled of alcoholic beverages.
At the Witham Hospital, where Pollard was taken to be treated for injuries, officers observed him in the hall on a gurney outside the emergency room loudly, profanely, and abusively cursing the doctors and nurses who were trying to assist him. Blood alcohol chemical analysis which revealed an alcohol level of .31 percent of blood serum, was performed by hospital personnel for the purpose of treatment, and later the test was repeated by Indiana State Police chemists on the same sample, revealing a blood alcohol level of .31 percent of blood serum, the equivalent of .26 to .27 percent of whole blood.
A filling station attendant identified Pollard as the man who, about an hour to an hour and a half prior to the wreck, came to his station in Lebanon to ask directions. When Pollard alit from his car, he, for no discernable external reasons, fell down. He then crawled and pulled himself back into his car. The attendant smelled alcohol and saw the above described beer containers and six-pack carton on the front seat. One witness to the accident estimated Pollard's speed immediately before the wreck at 70 to 75 m. p. h., and stated that Pollard was going out of control. Another witness testified that judging from the impact, Pollard was traveling at a high rate of speed.
Pollard raises the following issues for review:
I. Whether the trial court erred in overruling Pollard's motion to suppress the results of the blood alcohol tests performed on the blood sample taken from him at the hospital;
II. Whether the trial court should have sustained Pollard's objection to the blood alcohol test results on the grounds that the State failed to lay a proper foundation;
III. Whether the trial court erred in overruling Pollard's motion to quash subpoena;
IV. Whether the trial court erred in allowing a hospital technician to testify to allegedly privileged information, i.e. the blood alcohol tests;
V. Whether the trial court properly permitted the Indiana State Police Laboratory technician to testify to the results of a test the technician performed on Pollard's blood;
VI. Whether the trial court erred by sending all exhibits to the jury room after deliberations had commenced; and
VII. Whether the evidence was sufficient to support the conviction.
We have chosen to discuss Issues I, III, IV, and V together as those issues concern the same subject matter.
Issue I. Motion to Suppress; Issue III. Motion to Quash Subpoena; Issue IV. Privilege; Issue V. Results of State Police Laboratory Blood Test
Witham Hospital laboratory technician Becky Bartlett, at the emergency room physician's request for the purpose of diagnosis and treatment, performed a blood alcohol test which revealed evidence of alcohol consumption. The test was performed at the hospital without the request of the police. The investigating officer, upon learning of the existence of the blood test, reported it to the prosecuting attorney who gave him a subpoena for the blood sample. The officer served the subpoena upon Becky Bartlett who gave him the blood sample, and the officer transported it to the Indiana State Police Laboratory for a second analysis. That analysis, performed by Robert Reed, a State Police chemist, showed an alcohol level of .26 to .27 percent. Both Becky Bartlett and Robert Reed were permitted to testify at trial as to the results of their analyses. Pollard's motion to suppress both test results proceeds on the following theories: (1) physician-patient privilege applies, (2) no consent was given by him, and (3) the blood sample was not taken pursuant to the implied consent statute, Ind.Code 9-4-4.5-1 through Ind.Code 9-4-4.5-7 (Supp.1981).
We are of the opinion that any question concerning the admissibility of the results of Becky Bartlett's analysis was resolved by Ind.Code 9-4-4.5-7 (Supp.1981), in force on the date of the events in question, the validity of which statute Pollard does not challenge.
"Chemical test operators; disclosure of test results; limitations
Sec. 7. (a) A physician, or a person under the direction of a physician, who performs a chemical test on blood obtained from another person, shall disclose the results of such a test to any law enforcement officer when a prosecutor or his deputy requests the results as a part of a criminal investigation.
(b) A physician, hospital, or an agent of either is not civilly liable for disclosing test results in accordance with this section.
(c) For the purposes of this section, the privileges arising from a patient-physician relationship do not apply to the test results described in this section, and these test results may be admitted in a criminal proceeding in accordance with the applicable rules of evidence.
(d) The exceptions to the patient-physician relationship specified in subsection (c) do not affect those relationships in any proceedings not covered by this section.
(e) The test results obtained by a law enforcement officer under subsection (a) may only be disclosed to a prosecuting attorney or his deputy for use as evidence in a criminal proceeding.
(f) Nothing in this section requires a physician or person under the direction of a physician to draw blood or perform a chemical test on blood."
Becky Bartlett was called as a witness by the prosecuting attorney. Her testimony was not privileged under this statute, and Pollard's consent was not required. The fact that police officers subpoenaed the original blood sample does not alter this result; the subpoena was served after the hospital's test was complete and had no relevance to that test or the above statute.
We next turn to the test results testified to by Robert Reed. The trial court's decision to admit Reed's testimony can be supported by the following two cases which are factually similar to the one before us. Schmerber v. California, (1966) 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, held that neither the Fifth and Fourteenth Amendments privilege against self incrimination, nor the Fourth and Fourteenth Amendments privilege against unreasonable search and seizure proscribed blood alcohol tests performed in a reasonable manner with probable cause on a defendant charged with driving while intoxicated. In Schmerber the defendant was arrested at the hospital while receiving treatment for injuries suffered in the wreck that gave rise to the charge. Over the objection of the defendant made on advice of counsel, a police officer directed the attending physician to take a blood sample; analysis of the blood revealed an incriminating blood alcohol level. The Supreme Court based its decision upon these grounds: (1) a blood sample was not evidence of a testimonial or communicative nature protected by the Fifth and Fourteenth Amendments, (2) the Fourth and Fourteenth Amendments protect only from unreasonable searches or searches made in an improper manner, and this search was made in a reasonable manner, upon probable cause, incident to a lawful arrest, and (3) exigent circumstances existed because of metabolic destruction of evidence.
In Shultz v. State, (1981) Ind.App., 417 N.E.2d 1127 (transfer denied), the defendant, while being treated in a hospital emergency room for injuries received in a wreck, had a blood sample withdrawn. The trial court permitted the laboratory technician who performed the blood test to testify to the incriminating blood alcohol level the test had revealed. Shultz attempted to distinguish Schmerber on the ground that he was not under arrest as Schmerber had been. The court held that the police intended to arrest Shultz, had probable cause to do so at the earliest possible time, and therefore the blood sample was...
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