State v. Dress

• Decision Date: 17 December 1982
• Citation: 10 Ohio App.3d 258,10 OBR 372,461 N.E.2d 1312
• Parties: , 10 O.B.R. 372 The STATE of Ohio, Appellee, v. DRESS, Appellant. *
• Court: Ohio Court of Appeals

Page 258

10 Ohio App.3d 258

461 N.E.2d 1312, 10 O.B.R. 372

The STATE of Ohio, Appellee, v. DRESS, Appellant. ^*

Court of Appeals of Ohio, Sixth District, Lucas County.

Dec. 17, 1982.

Syllabus by the Court

1. The physician-patient privilege set forth in R.C. 2317.02(B) is in derogation of the common law and must, therefore, be strictly construed against the person asserting it.

2. The physician-patient privilege set forth in R.C. 2317.02(B) can be waived only by the methods provided for in that statue. Since R.C. 2317.02(B) does not make reference to R.C. 4511.191(A) (the implied consent statute), R.C. 4511.191(A) may not be used to defeat the physician-patient privilege of R.C. 2317.02(B).

3. A blood-alcohol test administered in connection with a patient's physical examination constitutes a "communication" as the word is used in R.C. 2317.02(B).

4. Where, in a prosecution for driving while intoxicated (R.C. 4511.19), the defendant seeks to suppress the results of a blood-alcohol test on the basis that such evidence is not admissible due to the physician-patient privilege set forth in R.C. 2317.02(B), and where the evidence shows that the blood-alcohol test was not administered at the request of a police officer pursuant to R.C. 4511.19 and 4511.191(A), but was administered solely pursuant to the request of the defendant's attending physician following an accident, the public interest in the sensible and efficient administration of criminal justice outweighs the policy considerations which support the physician-patient privilege and the results of the blood-alcohol test are admissible, notwithstanding the physician-patient privilege of R.C. 2317.02(B).

5. Where, in a prosecution for driving while intoxicated (R.C. 4511.19), the defendant seeks to suppress the results of a blood-alcohol test on the basis that the blood sample was not analyzed by an individual possessing a valid permit issued by the director of health pursuant to R.C. 3701.143, the test results are, nevertheless, admissible, provided the prosecution first establishes, by expert testimony (and other foundational proof), that the testing procedures used were reliable and that the person doing the testing had sufficient training and skill to qualify him in that regard.

Sheilah H. McAdams, City Prosecutor, for appellee.

Gary F. Kuns, Bowling Green, for appellant.

WILEY, Judge.

This case comes before the court on appeal from a judgment of the Maumee Municipal Court, wherein defendant-appellant, Emery A. Dress, was convicted and sentenced for violating R.C. 4511.19 (driving while intoxicated).

The undisputed facts precipitating this appeal are as follows. On December 26, 1981, appellant was driving his pickup truck eastbound on U.S. Route 24 near Bailey Road, when he lost control of the vehicle. Appellant's truck left the road, crashed and turned over. The accident occurred at approximately 6:30 p.m. State Highway Patrol officers arrived on the accident scene shortly thereafter and began their investigation. The record indicates that some of these officers noticed an odor of alcohol on appellant's person. Appellant sustained injuries from the accident and was taken by ambulance to St. Luke's Hospital. He was admitted to the emergency receiving room where the attending physician conducted a physical examination. Appellant's injuries consisted of several minor cuts, bruises and abrasions. Trooper Walker, who had come from the accident scene, was present in the emergency room during appellant's examination. The examining physician, on his own initiative, ordered and administered a blood-alcohol test to determine the alcohol concentration in appellant's bloodstream. At no time did Trooper Walker order a blood-alcohol test or suggest that one be given; however, he was present in the room when the blood sample was extracted. A hospital lab technician analyzed the blood sample, and it is undisputed that he did not possess the standard testing permit issued by the Director of the Ohio Department of Health under R.C. 3701.143. Appellant's blood sample revealed a blood-alcohol concentration of 0.25 percent. Trooper Walker did not take appellant into custody, but he did issue a citation for the offense of operating a motor vehicle while under the influence of alcohol, in violation of R.C. 4511.19.

On December 31, 1981, appellant filed a motion in limine seeking to prohibit the prosecution from using at trial the hospital records containing the results of his blood-alcohol test. The court held a hearing on said motion on February 10, 1982, at which time it directed both the prosecution and the defense to submit memoranda addressing the legal issues raised in appellant's motion. Both parties filed such memoranda. On March 31, 1982, the trial court rendered its judgment and written decision denying appellant's motion in limine. Appellant filed a motion for reconsideration which was considered and denied by the trial court. A jury trial commenced on June 29, 1982. On June 30, 1982, the jury returned a verdict finding appellant guilty of the offense charged, and the court imposed sentence thereon. Appellant has timely prosecuted this appeal in which he presents two assignments of error, the first of which is as follows:

"The Trial Court erred when it interpreted Section 4511.191 Revised Code (Ohio's implied consent statute) as constituting an implied waiver of the physician-patient privilege, § 2317.02, and on that basis admitting into evidence the results of a blood-alcohol test which was obtained by Defendant's physician during the course of a medical examination."

The physician-patient privilege expressed in R.C. 2317.02(B) does not preclude the admission in evidence of the results of the blood-alcohol test herein, even though R.C. 4511.191 does not constitute an implied waiver of the privilege. The trial court did not err in admitting the test, even though, arguably, for the wrong reason.

R.C. 2317.02 establishes several testimonial privileges which operate to exclude communications made or acts done in the course of certain relationships specified therein. The statute extends a privilege to the physician-patient relationship, providing in pertinent part:

"The following persons shall not testify in certain respects:

" * * *

"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient * * *."

In Ohio, the general evidentiary rule favors the competency of witnesses, and no witness may claim a privilege to obstruct the receipt of relevant evidence unless a statute or case law otherwise provides. In re Frye (1951), 155 Ohio St. 345 , 98 N.E.2d 798. Moreover, the common law traditionally extended no testimonial privilege to the physician-patient relationship. In re Loewenthal (1956), 101 Ohio App. 355, 357 , 134 N.E.2d 158. Consequently, the privilege set forth in R.C. 2317.02(B) is in derogation of the common law and must, therefore, be strictly construed against the person asserting it. Weis v. Weis (1947), 147 Ohio St. 416 , 72 N.E.2d 245; In re Roberto (1958), 106 Ohio App. 303, 307 , 151 N.E.2d 37. Cf. State v. Halleck (1970), 24 Ohio App.2d 74, 81 , 263 N.E.2d 917.

At the outset, we note that appellant's first assignment of error appears to present this court with a heretofore unresolved legal question in this state. Neither party to this appeal has cited an Ohio case which squarely addresses the precise issue raised herein, and our independent research has disclosed none. In support of his first assignment, appellant vigorously argues that the physician-patient privilege rendered inadmissible in evidence the hospital records containing his blood-alcohol test results. He maintains that since the blood-alcohol test was administered by the physician as part of the treatment of appellant's injuries, the privilege precludes its admission at trial. He supplements his argument by reference to several Ohio cases which address the nature and extent of a privileged communication between a physician and his patient. Among these are Baker v. Indus. Comm. (1939), 135 Ohio St. 491 , 21 N.E.2d 593, and Weis v. Weis, supra. In response, appellee contends that appellant's blood-alcohol test did not rise to the status of a privileged communication. Appellee additionally contends that even if the "communication" of the blood-alcohol test result is determined to be a privileged one, appellant should be found to have implicitly waived his privilege by operation of law under the implied consent provisions of R.C. 4511.191(A).

R.C. 4511.191(A) states, in part, as follows:

"(A) Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. * * * "

Appellee's contention that this section constitutes an implied waiver of appellant's right to assert his privilege is not without merit. However, the Ohio Supreme Court has clearly indicated that the privilege set forth in R.C. 2317.02(B) can be waived only by the methods provided for in that statute in personal injury actions. State, ex rel. Lambdin, v. Brenton (1970), 21 Ohio St.2d 21, 24 , 254 N.E.2d 681; see, also, Ausdenmoore v. Holzback (1914), 89 Ohio St. 381, 383, 106 N.E. 41. Cf. State, ex rel. Floyd v. Court of Common Pleas (1978), 55 Ohio St.2d 27, 28 , 377 N.E.2d 794. R.C. 2317.02(B) does not make reference to the implied consent statute, R.C. 4511.191(A), and, in strictly construing R.C. 2317.02(B), we decline to adopt appellee's waiver theory. We cannot conclude that the legislature intended R.C. 4511.191(A) to be an implicit exception to R.C. 2317.02(B). Yet, for reasons more fully developed below, the policy underlying the...