State ex rel. Allen v. Bedell

• Decision Date: 06 January 1995
• Docket Number: No. 22359,22359
• Citation: 193 W.Va. 32,454 S.E.2d 77
• Parties: STATE of West Virginia ex rel. William A. ALLEN, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County, Respondent.
• Court: West Virginia Supreme Court

Page 77

454 S.E.2d 77

193 W.Va. 32

STATE of West Virginia ex rel. William A. ALLEN, Petitioner, v. Honorable Thomas A. BEDELL, Judge of the Circuit Court of Harrison County, Respondent.

No. 22359.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 13, 1994.

Decided Dec. 9, 1994.

Concurring Opinion of Justice

Cleckley, Jan. 6, 1995.

Syllabus by the Court

1. West Virginia Code § 17C-5-4 (1991) does not govern the admissibility of the results of a diagnostic blood alcohol test conducted prior to the arrest of a defendant and at the direction of a defendant's treating physician or other medical personnel.

2. Medical records containing the results of blood alcohol tests ordered by medical personnel for diagnostic purposes are subject to subpoena and shall not be deemed inadmissible by virtue of the provisions of West Virginia Code § 57-5-4d (Supp.1994).

3. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' State v. Louk, W.Va. [639, 643], 301 S.E.2d 596, 599 (1983)." Syl.Pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983).

Jerald E., Jones, West & Jones, Clarksburg, for petitioner.

Jacquelyn I. Custer, Sr. Asst. Atty. Gen., Charleston, for respondent.

WORKMAN, Justice:

The Petitioner, William A. Allen (hereinafter "the Petitioner"), seeks a writ of prohibition against the Honorable Thomas A. Bedell, Judge of the Circuit Court of Harrison County. By order entered April 13, 1994, the lower court denied the Petitioner's motion to suppress the State's introduction of the results of a blood alcohol test administered upon the Petitioner by the United Hospital Center (hereinafter referred to as "UHC"). The Petitioner argues that the results of the blood test should have been ruled inadmissible and that hospital records relied upon by the State regarding the results of the blood testing should not have been available to the State. We find no error in the decisions of the lower court and hereby deny the requested writ of prohibition.

I.

On November 8, 1992, at approximately 12:17 a.m., the Petitioner was driving an automobile which veered off the highway and overturned. The Petitioner's stepbrother, a passenger in the vehicle, was killed as a result of the accident. The Petitioner was also injured in the accident and was transported to UHC. According to the Petitioner's treating nurse, Rosemary Cain, the Petitioner's treating physician ordered a blood sample as part of routine medical care and for diagnostic purposes. Ms. Cain also explained that because the odor of alcohol emanated from the Petitioner, standard hospital procedure indicated that a blood alcohol test be performed. According to Ms. Cain, the blood sample was drawn at 1:07 a.m. on November 8, 1992. The results of this test indicated that the Petitioner had a blood alcohol level of 0.14%.

At approximately 2:40 a.m., another blood sample was taken from the Petitioner by Ms. Cain at the direction of Deputy Kevin Haught of the Harrison County Sheriff's Department in conjunction with the issuance of a citation for driving under the influence of alcohol. This second blood sample was tested by the State Police Forensic Laboratory and was found to contain a blood alcohol level of 0.06%. When Deputy Haught requested this second test, he was unaware that UHC had already performed the first test. Deputy Haught also testified that the Petitioner had not been placed under arrest nor had any citation been issued at the time the first blood test was performed.

The Petitioner was subsequently charged with one count of causing a death while driving under the influence of alcohol in violation of West Virginia Code § 17C-5-2 (1991). ¹ The Petitioner filed a motion to suppress, arguing that the results of the first blood test should be ruled inadmissible because the testing was not performed in compliance with West Virginia Code § 17C-5-4 (1991). A suppression hearing was held before the lower court on March 31, 1994, and evidence regarding the blood testing was introduced. ². ². The lower court concluded that "the State may introduce proper testimony at trial with respect to the said United Hospital Center blood sample, but shall not seek the admission into evidence of any United Hospital Center documentation or other paperwork relative to that blood sample."

On appeal to this Court, the Petitioner contends that the lower court erred by (1) determining that the results of the Petitioner's first blood test were admissible at trial, and (2) permitting the State, during the suppression hearing, to use evidence obtained from the Petitioner's medical records.

II.

The Petitioner contends that the first blood test was not performed in accordance with the requirements of West Virginia's implied consent statute, West Virginia Code § 17C-5-4, and that the trial court erred in ruling that the results of that test were admissible. West Virginia Code § 17C-5-4, in pertinent part, provides as follows:

Any person who drives a motor vehicle in this state shall be deemed to have given his consent by the operation thereof, subject to the provisions of this article, to a preliminary breath analysis and a secondary chemical test of either his blood, breath or urine for the purposes of determining the alcoholic content of his blood.... A secondary test of blood ... shall be incidental to a lawful arrest and shall be administered at the direction of the arresting law-enforcement officer having reasonable grounds to believe the person to have committed an offense....

The statute also provides that refusal to submit to a secondary chemical test will result in license revocation for a period of at least one year and up to life. W.Va.Code § 17C-5-4.

In State v. Cribb, 310 S.C. 518, 426 S.E.2d 306 (1992), the treating physician of a defendant hospitalized subsequent to an accident ordered a blood test. 310 S.C. at 519, 426 S.E.2d at 307. Shortly thereafter, the highway patrol officers arrived at the hospital and requested the defendant's treating physician to conduct a blood alcohol test. Id. at 520, 426 S.E.2d at 308. Rather than ordering a second blood sample, the physician ordered that a blood alcohol test be performed on the sample taken from the defendant. The officers later obtained an arrest warrant for the defendant based on the results of the blood alcohol test. Id. The Cribb court concluded that South Carolina's implied consent statute, almost identical to our section 17C-5-4, was inapplicable since an arrest had not been effected at the time the blood test for alcohol was performed. Id. The Cribb court reasoned that the legislature intended to limit the application of the implied consent statute to situations in which blood alcohol content was measured after an arrest had been effected. Id.

The Petitioner in the present case appears to imply that a blood test obtained outside the scope of section 17C-5-4 should be deemed inadmissible. We find no such conclusion implicit within the statute. Section 17C-5-4 simply authorizes a law enforcement officer to obtain a blood test incident to a lawful arrest where the officer has reasonable grounds to believe that the individual committed an offense and creates an administrative mechanism through which an individual's license may be revoked. The inclusion of such authorization within our statutory scheme certainly does not intimate a legislative intent to disallow in the criminal context evidence of alcohol content obtained by medical personnel in the course of treatment.

The Petitioner's first blood test was ordered by medical personnel for diagnostic purposes. He had not yet been charged with a crime, and the deputy had not even arrived at the hospital to investigate the accident. Thus, West Virginia Code § 17C-5-4, which provides guidelines for the manner in which law enforcement officials shall obtain blood alcohol tests, has no application to the facts in this case and does not serve as a prohibition to admissibility. West Virginia Code § 17C-5-4 does not govern the admissibility of the results of a diagnostic blood alcohol test conducted prior to the arrest of a defendant and at the direction of a defendant's treating physician or other medical personnel. ³

III.

The Petitioner also contends that the lower court erred in allowing the treating nurse to testify at the suppression hearing regarding information contained in the Petitioner's hospital records and that such testimony violated a qualified privilege established by West Virginia Code § 57-5-4d (Supp.1994). ⁴ The Petitioner further maintains that the State has no right to obtain or introduce the medical records.

Upon review of West Virginia Code §§ 57-5-4a to -4j (Supp.1994), we conclude that the objective of these provisions is the establishment of guidelines for hospitals regarding the proper method for furnishing subpoenaed hospital records. West Virginia Code § 57-5-4d does direct the judge or court to "first ascertain that either: (1) The records have been subpoenaed at the insistance (sic) of the patient involved or his counsel of record; or (2) the patient involved or someone authorized in his behalf to do so for him has consented thereto and waived any privilege of confidence involved[,]" prior to opening sealed hospital records. However, nothing in section 57-5-4d should be interpreted to limit the State's subpoena power over medical records, nor should that section be considered tantamount to a physician/patient privilege. We have no statutory scheme establishing a physician/patient privilege, nor has this Court judicially recognized such a privilege.

Even in some jurisdictions which recognize a physician/patient privilege pursuant to Rule 503 of the Uniform Rules of Evidence, only confidential disclosures by the patient have been protected by the privilege, thus permitting introduction of routine blood tests...