State v. Drdak
| Citation | 330 N.C. 587,411 S.E.2d 604 |
| Decision Date | 10 January 1992 |
| Docket Number | No. 107PA91,107PA91 |
| Parties | STATE of North Carolina v. Robert Joseph DRDAK. |
| Court | United States State Supreme Court of North Carolina |
On discretionary review of the decision of the Court of Appeals, 101 N.C.App. 659, 400 S.E.2d 773 (1991), reversing the judgment of Allen (W. Steven), J., entered on 15 November 1989 and ordering a new trial in the Superior Court, Forsyth County. Heard in the Supreme Court on 16 October 1991.
Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen., Raleigh, for State.
D. Blake Yokley and Donald K. Tisdale, Winston-Salem, for defendant-appellee.
The dispositive issue on this appeal is whether the Court of Appeals erred in reversing the trial court's order denying defendant's motion to suppress the medical records of defendant that showed his blood alcohol level to be 0.178. We hold that the court did so err and, therefore, reverse the decision of the Court of Appeals.
The evidence offered by the State showed that on 14 February 1989 at 5:00 p.m. the defendant, Robert Drdak, met a fellow Federal Bureau of Investigation agent, at Shober's Restaurant in Winston-Salem. They each drank a beer while discussing a case and then made plans to meet for dinner at 7:30 p.m. The defendant arrived for dinner at the fellow agent's home at 7:30 p.m. in a black 1985 Chevrolet Monte Carlo. Between 7:30 and 10:00 p.m., the defendant drank two scotch and waters before dinner, a portion of a glass of wine with dinner and a glass of cognac after dinner. Around 10:00 p.m. the defendant left driving the Monte Carlo in which he had arrived.
That same evening, Terry Austin and John Allgood were meeting with Judith Kay in her home at 360 Staffordshire Road. About 10:05 p.m. they heard a "dull thump" and went outside to investigate. Although it was dark they discovered that a vehicle had struck a tree across the street. Ms. Austin moved her car and shined her headlights toward the passenger side of the wrecked car. She opened the passenger door of the wrecked vehicle and found the defendant unconscious and lying on his right side on the front seat. Ms. Austin reached in and supported the defendant's head until help arrived about twenty minutes later.
After notifying the police of the crash, Ms. Kay joined Ms. Austin outside to aid the defendant. Both Ms. Austin and Ms. Kay were in close proximity to the defendant, and each noticed a moderate odor of alcohol on his breath.
Scott Emerson, an emergency medical technician employed with Forsyth County Medical Services, responded to Judith Kay's call and arrived at the collision scene at 10:18 p.m. While Mr. Emerson examined the defendant for injuries he detected a moderate odor of alcohol on his breath.
Officer Lichtenhan arrived at the collision scene at about 10:35 p.m. His report indicated that on the night of the collision road conditions were dry, that the road surface was of coarse asphalt with no painted center lines, that there were no tire marks on the surface leading to the defendant's vehicle, that from his recollection there were no restrictions regarding parking on the street, and that the speed limit in that area was 35 miles per hour. Officer Lichtenhan was informed that the defendant had been transported to Forsyth Memorial Hospital by emergency personnel.
Following his investigation at the crash scene, Officer Lichtenhan proceeded to the emergency room of the hospital, arriving around 11:40 p.m. He observed that the defendant was seriously injured and detected a slight odor of alcohol about him. Officer Lichtenhan stated in his report that the defendant had been drinking, but he was unable to form an opinion that the defendant was impaired. He did not order a blood sample to be analyzed for blood alcohol content.
Officer Lichtenhan returned to the hospital on 21 February 1989 to interview the defendant. Mr. Drdak stated that he could not recall the collision, but knew he had not been wearing his seat belt because it was broken.
Dr. Daniel Sayers attended to the defendant upon his arrival at the Forsyth Memorial Emergency room and ordered a routine series of laboratory tests including one for blood ethanol level. Jo Annette Matthews, a phlebotomist employed by Forsyth Memorial Hospital Laboratory, received the request that blood samples be taken from the defendant. She drew blood samples from the defendant between 10:50 and 11:00 p.m. using an iodine prep thatcontained no ethanol alcohol. She delivered the samples to the appropriate laboratory for testing.
Kathleen Thore, a medical technologist with the Forsyth Hospital Laboratory, analyzed the defendant's blood on 14 February 1989. The defendant's blood alcohol concentration result was 0.178 grams per milliliter of blood. Pursuant to hospital procedure, the results were recorded, and the blood samples were discarded after seven days.
On 22 February 1989, the Winston-Salem Journal reported the blood alcohol content of the defendant's blood. This information was obtained by the newspaper without the district attorney's knowledge or consent. On 1 March 1989 the district attorney filed a motion to compel disclosure of the defendant's medical records.
The following facts were stipulated by the State and counsel for the defendant for the purposes of the defendant's pretrial motion to suppress the laboratory results:
(1) On 21 February 1989 the defendant refused to release any medical records to the police.
(2) Neither Forsyth Memorial Hospital nor its agents authorized the release of the defendant's blood tests.
(3) On 22 February 1989, the Winston-Salem Journal reported that "confidential hospital records" in their possession indicated that FBI Agent Robert Drdak was driving while impaired with a blood alcohol content of 0.178 grams per milliliter of blood.
We hold that the evidence as to defendant's blood alcohol level was admissible. On 1 March 1989, the district attorney filed a motion to compel disclosure of defendant's medical records. This motion was heard at a plenary hearing on 9 March 1989, and the records were ordered disclosed to the State. Although defendant objected, he did not appeal this order. Therefore, the evidence as to defendant's blood alcohol level was properly in the possession of the State.
It is to be noted that the physician-patient privilege has no common law predecessor and is entirely a creature of statute. State v. Martin, 182 N.C. 846, 109 S.E. 74 (1921). N.C.G.S. § 8-53 sets forth the procedure to compel disclosure of information which ordinarily is protected by the doctor-patient privilege. Such information may be disclosed by order of the court if in the opinion of the trial judge disclosure is necessary to the proper administration of justice. This decision is one made in the discretion of the trial judge, and the defendant must show an abuse of discretion in order to successfully challenge the ruling. State v. Barts, 316 N.C. 666, 343 S.E.2d 828 (1986).
The defendant urges us to hold that disclosure pursuant to N.C.G.S. § 8-53 should only be allowed in more serious cases such as involuntary manslaughter. We reject this invitation and adhere to our previous rulings that it is a matter in the trial judge's discretion whether to allow disclosure pursuant to the statute.
The Court of Appeals held that the trial judge erred in denying defendant's motion to suppress because the blood test was not performed according to the procedure authorized under N.C.G.S. §§ 20-16.2 and 20-139.1. This contention of the defendant flies squarely in the face of the plain reading of the statute, N.C.G.S. § 20-139.1(a), which states: "This section does not limit the introduction of other competent evidence as to a defendant's alcohol concentration, including other chemical tests." This statute allows other competent evidence of a defendant's blood alcohol level in addition to that obtained from chemical analysis pursuant to N.C.G.S. §§ 20-16.2 and 20-139.1.
For the results of the blood test in the present case to be admissible, the State must produce evidence as to a proper foundation to sustain its admissibility. The State showed that the hospital's blood alcohol test was performed less than an hour after the defendant's car crashed into the tree, that an experienced phlebotomist withdrew the blood sample under routine procedure pursuant to the doctor's orders, and that a trained laboratory technician analyzed the blood sample using a Dupont Automatic Clinical Analyzer which was capable of testing either whole blood or serum. The result was 0.178 grams per milliliter of blood. The result was recorded and relayed to the attending physician by computer screen in order to assist him in his determination of appropriate treatment of the defendant. The results of...
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