State v. Davis

• Decision Date: 17 December 2010
• Docket Number: No. 2009–315.,2009–315.
• Parties: The STATE of New Hampshirev.Jacob DAVIS.
• Court: New Hampshire Supreme Court

161 N.H. 292

12 A.3d 1271

The STATE of New Hampshire

v.Jacob DAVIS.

No. 2009–315.

Supreme Court of New Hampshire.

Argued: April 22, 2010.Opinion Issued: Dec. 17, 2010.

Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.Michael J. Cornelio, of New London, on the brief and orally, for the defendant.BRODERICK, C.J., retired, specially assigned under RSA 490:3.

The State appeals the decision of the New London District Court ( McSwiney, J.) granting a motion of the defendant, Jacob Davis, to suppress blood test results obtained by the police from the New London Hospital. We reverse and remand.

The relevant facts are not in dispute. On September 26, 2008, Officer Valerie Peters of the Sutton Police Department responded to a report about an intoxicated student at the Kearsarge Regional High School. Shortly after she arrived, the defendant was taken by ambulance to New London Hospital. While at the school, Peters learned that the defendant had driven a teacher's automobile shortly before she was called to the high school, and that while driving he had backed into a tree. She also learned that the student who was with him had been so concerned about his apparent intoxication that he had refused to allow the defendant to continue driving.

Peters proceeded to the New London Hospital Emergency Room, where she interviewed the defendant and asked him to submit to alcohol testing under the Implied Consent statute, RSA 265–A:4 (Supp.2010). He refused. Meanwhile, as part of its treatment of the defendant, the hospital drew his blood and tested it to determine his blood alcohol concentration. After being released from the hospital, the defendant was charged with unlawful possession of alcohol and driving while intoxicated (DWI).

On October 2, 2008, Peters filed a Request for Hospital Blood Records on a Sutton police form indicating that she was investigating the defendant for operating a motor vehicle while under the influence of an intoxicating liquor or controlled drug. The form stated that Peters was, “pursuant to New Hampshire RSA 329:26 ... requesting the release of any blood and urine samples and copies of any laboratory tests for blood alcohol content taken from this subject while in the care of the New London Hospital.” The following day, Chief John Sims of the Sutton Police Department submitted a second request for the release of blood alcohol results on a New London Hospital form. The form indicated that Sims was investigating the defendant for the crime of operating a motor vehicle while under the influence of an intoxicating liquor or controlled drug, and that he was, “[p]ursuant to New Hampshire RSA 329:26 ... requesting the release of any blood samples taken from [the defendant] on or about [September 26, 2008], and copies of the results of any laboratory tests that reveal the blood alcohol and/or controlled drug levels content of those blood samples.” At no time did the State seek a search warrant for the results of the blood test.

Thereafter, the hospital released a laboratory report to the police showing that the defendant had a blood alcohol level of .295 percent. The police subsequently charged the defendant with aggravated DWI pursuant to RSA 265–A:3, III (Supp.2010).

Prior to trial, the defendant filed a motion to suppress, in which he argued that seizure of his medical records without a warrant violated Part I, Article 19 of the New Hampshire Constitution and his right to privacy under the federal Health Insurance Portability and Accountability Act (HIPAA). The State objected, arguing that RSA 329:26 (Supp.2010) gave the police the authority to obtain the test results, and that the defendant had no reasonable expectation of privacy in the results. After a hearing, the district court granted the motion to suppress. This appeal followed.

When reviewing a trial court's ruling on a motion to suppress, we accept the trial court's findings unless they are unsupported by the record or are clearly erroneous. State v. Robinson, 158 N.H. 792, 795, 973 A.2d 277 (2009). We review the trial court's legal conclusions de novo. Id.

The State argues that the trial court erred when it ruled that the State's failure to obtain a search warrant for the defendant's blood test results violated the defendant's rights under Part I, Article 19 of the New Hampshire Constitution and the Fourth Amendment to the United States Constitution. We first address the defendant's claim under the State Constitution, State v. Ball, 124 N.H. 226, 231, 471 A.2d 347 (1983), and cite federal opinions for guidance only, id. at 232–33, 471 A.2d 347.

Part I, Article 19 of our State Constitution provides: “Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions.” Evidence that is obtained in violation of Part I, Article 19 may be subject to exclusion from evidence in a criminal trial. State v. Canelo, 139 N.H. 376, 386–87, 653 A.2d 1097 (1995).

To determine whether a warrantless search may give rise to a violation of the State Constitution, we apply an expectation of privacy analysis. State v. Goss, 150 N.H. 46, 48–49, 834 A.2d 316 (2003). A warrantless search implicates Part I, Article 19 only if the defendant has exhibited an actual (subjective) expectation of privacy and that expectation is one that society is prepared to recognize as “reasonable.” Id. at 49, 834 A.2d 316. Without an invasion of the defendant's reasonable expectation of privacy, there has been no violation of the defendant's rights under Part I, Article 19. Robinson, 158 N.H. at 796, 973 A.2d 277.

It is well settled that the government's withdrawal of blood from a person's body without a warrant or consent is a search and seizure under Part I, Article 19 of the New Hampshire Constitution. State v. Steimel, 155 N.H. 141, 147, 921 A.2d 378 (2007). Here, however, the blood was drawn by the hospital for medical purposes. As there was no state involvement in its withdrawal or testing, the drawing of the defendant's blood did not implicate Part I, Article 19. See State v. Nemser, 148 N.H. 453, 454, 807 A.2d 1289 (2002) (protections against unreasonable searches and seizures apply only to state action).

The question remains, however, whether the State's request for, and acquisition of, the blood test results without a search warrant violated Part I, Article 19. See State v. Summers, 142 N.H. 429, 432, 702 A.2d 819 (1997). We will assume, as the defendant argues, that the proper inquiry is whether the defendant had a subjective expectation of privacy in the results of his blood test, and whether that expectation is one that society is prepared to recognize as reasonable. Goss, 150 N.H. at 48–49, 834 A.2d 316. We need not decide whether the defendant had a subjective expectation of privacy in his blood alcohol test results because we conclude that it is not one which society considers reasonable.

Courts in other jurisdictions addressing whether a reasonable expectation of privacy exists in blood test results in the DWI context have reached different conclusions. Several courts have found that society does not recognize a reasonable expectation of privacy under the Fourth Amendment in “blood alcohol test results obtained and recorded by a hospital as part of its consensual treatment of a patient, where those results are requested by law enforcement for law enforcement purposes only in the investigation of an automobile accident.” Hannoy v. State, 789 N.E.2d 977, 991 (Ind.Ct.App.2003); see also Tims v. State, 711 So.2d 1118, 1122–24 (Ala.Crim.App.1997); People v. Perlos, 436 Mich. 305, 462 N.W.2d 310, 319–21 (1990); State v. Guido, 698 A.2d 729, 733–34 (R.I.1997); State v. Hardy, 963 S.W.2d 516, 523–27 (Tex.Crim.App.1997); State v. Jenkins, 80 Wis.2d 426, 259 N.W.2d 109, 113 (1977). Others have held that the government's acquisition of medical records under circumstances similar to those in this case violates the defendant's rights under state constitutional provisions prohibiting unreasonable searches and seizures, see, e.g., Com. v. Shaw, 564 Pa. 617, 770 A.2d 295, 299 (2001), or state constitutional provisions that guarantee a right to privacy, see, e.g., King v. State, 272 Ga. 788, 535 S.E.2d 492, 494–97 (2000); State v. Nelson, 283 Mont. 231, 941 P.2d 441, 446–50 (1997).

While the decisions of courts in other jurisdictions are not binding upon us, we find persuasive the reasoning of those cases that focused upon the unique circumstances presented when the government requests and acquires the results of blood tests administered for the purpose of diagnosis and treatment of injuries sustained in an automobile accident. See Tims, 711 So.2d at 1122–24; Hannoy, 789 N.E.2d at 990–92; Perlos, 462 N.W.2d at 315–21; Hardy, 963 S.W.2d at 523–27. We also agree that, “although not determinative, one source in analyzing the reasonableness of an expectation is to look to the Legislature,” Perlos, 462 N.W.2d at 319, and that whether a privilege exists may be some evidence of societal expectations, Hardy, 963 S.W.2d at 524.

Here, the physician-patient privilege did not exist at common law. State v. Elwell, 132 N.H. 599, 603, 567 A.2d 1002 (1989) (decided under prior law). It “was created in our State by statutory enactment in 1969, Laws 1969, ch. 386, and has been incorporated into the rules of evidence, N.H. R. Ev. 503.” Id. Interpreting an early version of the statute, we held that a blood sample taken by hospital staff at the request of a physician in the course of treatment fell within the physician-patient privilege and could not be used as evidence in the defendant's trial for negligent homicide. Id. at 606, 567 A.2d 1002. In 1996, however, the legislature amended the statute to exempt from the privilege the type of evidence at issue in Elwell. See Laws 1996, 267:2. The current version of the statute...