State v. Dyal

• Citation: 478 A.2d 390,97 N.J. 229
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Peter DYAL, Defendant-Respondent.
• Decision Date: 31 July 1984
• Court: United States State Supreme Court (New Jersey)

Page 229

97 N.J. 229

478 A.2d 390

STATE of New Jersey, Plaintiff-Appellant, v. Peter DYAL, Defendant-Respondent.

Supreme Court of New Jersey.

Argued April 3, 1984.

Decided July 31, 1984.

Allan J. Nodes, Deputy Atty. Gen., for plaintiff-appellant (Irwin I. Kimmelman, Atty. Gen., attorney; Allan J. Nodes, Richard T. Carley, and Victoria Curtis Bramson, Deputy Attys. Gen., of counsel and on the brief).

Neil H. Shuster, Princeton, for defendant-respondent (Carchman, Annich, Sochor, & Shuster, Princeton, attorneys).

The opinion of the Court was delivered by

POLLOCK, J.

The main issue on this appeal is whether the patient-physician privilege created by N.J.S.A. 2A:84A-22.2 precludes admission of results of a blood test into evidence in the prosecution of a death-by-auto case. A second issue is whether the prosecutor's reference during summation to a .10% blood alcohol reading as the "legal threshold" constitutes reversible error.

In this case, a hospital employee took a blood sample for medical diagnosis, not for police investigative purposes. The employee told the defendant, who had operated a motor vehicle involved in a tragic accident, that the purpose of the test was to determine his blood type in the event a transfusion was necessary. No police officer was present and the defendant, who had not been arrested and was not in custody, consented to the test. As the police subsequently learned, the results indicated that the defendant was under the influence of alcohol while operating the motor vehicle.

The trial court denied defendant's motion to suppress the results, which were admitted into evidence at trial, and the jury convicted the defendant of causing death-by-auto. In an unreported decision, the Appellate Division ruled that the blood test fell within the patient-physician privilege and that it should not have been admitted into evidence. The court also found that the prosecutor's reference to the legal threshold under the drunken driving statute was reversible error. Consequently, the Appellate Division reversed the conviction and remanded the matter for trial.

We granted certification, 95 N.J. 182, 470 A.2d 408 (1983). We now hold that to obtain the results of a blood test protected by the patient-physician privilege, the police should apply to a municipal court judge for a subpoena duces tecum. Upon a showing by the police that they have a reasonable basis to believe the defendant was operating a motor vehicle while under the influence, the judge may issue a subpoena. In establishing a reasonable basis, the police may rely on objective facts known by them at the time of the event or within a reasonable time thereafter. Consequently, we modify the judgment of the Appellate Division to the extent it ruled inadmissible the results of the blood test and remand the matter for trial. On remand, the police may renew their application to introduce the results of the blood test. We also hold that the prosecutor erred in referring on summation to the ".010 legal threshold," but that the error was harmless.

I

At approximately 7:15 p.m. on April 6, 1979, defendant, Peter Dyal, accompanied by Jan Kane, his close friend and only passenger, was driving his 1979 Porsche on Ridge Road, in South Brunswick. While negotiating a sharp curve in the road, Dyal lost control of his car, which flipped over and landed in an adjacent field.

Patrolman Ronald Horinko of the South Brunswick Township Police Department arrived on the scene at about 7:27 p.m. He observed Miss Kane, who was unconscious and lying face down in the field, as well as defendant, who was in an ambulance. Officer Horinko climbed into the ambulance and, from a distance of two feet, ascertained from defendant that he was the operator of the vehicle. The officer did not detect any odor of liquor or anything else that might indicate defendant was under the influence of alcohol. He left as Miss Kane was carried into the ambulance, which then took her and Dyal to Princeton Medical Center (PMC).

At the suppression hearing, the trial court found that "[b]ecause Dyal and Kane needed immediate hospital care, Horinko was unable to question Dyal as to the cause of the accident. The urgency also deprived Officer Horinko of an opportunity to observe Dyal for any meaningful period for evidence of drinking."

Officer Horinko returned to Ridge Road, placed flares along the curve, took some measurements, summoned a tow truck, and interviewed the driver of the car behind defendant's vehicle. Thereafter he returned to police headquarters and twice called PMC that evening to inquire about the condition of Miss Kane and defendant. Although he learned that they were still receiving treatment, Officer Horinko did not request that a blood test of defendant be taken for investigative purposes.

After being taken from the scene to PMC, defendant was treated for a cut over his right eye. In response to defendant's inquiry, a hospital employee explained to defendant that a blood test should be made in the event he needed a transfusion. Based on that explanation, defendant allowed a blood sample to be taken. Tests performed on the sample revealed, among other things, a serum alcohol reading of .161. After about two hours, defendant was released from the hospital early in the morning of April 7.

On April 8, Jan Kane died from the injuries sustained in the accident. At that time Officer Horinko had no suspicion that alcohol had played any part in the tragedy. Two days later, however, Penny DeMetro and Sandra Lee, two employees at Princeton Meadows Country Club, where Miss Kane had been the manager, voluntarily went to South Brunswick Police Headquarters to give statements about events preceding the accident. Both witnesses also testified at trial, where the following facts emerged.

Mrs. DeMetro was tending bar when defendant arrived at the club, where he was a member. She placed his time of arrival between 2:00 p.m. and 4:00 p.m., and he placed it closer to 5:00 p.m. Mrs. DeMetro did not serve defendant any alcoholic beverages, and she was talking to him when Miss Lee arrived to tend bar at 5:00 p.m.

According to Miss Lee, she served defendant three to four drinks, each consisting of approximately one to one-and-one-quarter ounces of "Seagrams VO" and water. Her testimony was roughly consistent with that of the defendant, who stated that he had had three drinks during a period of two to two-and-one-half hours.

After interviewing Mrs. DeMetro and Miss Lee, Officer Horinko obtained a subpoena from the South Brunswick Municipal Court Clerk ordering PMC to release the results of defendant's blood alcohol test. At that time no proceeding was pending in connection with the accident, and nothing indicates that the officer made any showing of facts to support the issuance of the subpoena. Apparently, he simply asked the court clerk for the subpoena, and she complied with his request.

The subpoena issued on April 11, and Horinko obtained the records on the same day. He forwarded the records to the New Jersey State Police Laboratory, which informed him two weeks later, on April 25, that the .161 serum reading converted to a 0.12% blood alcohol content. On the following day, April 26, Officer Horinko issued a summons charging defendant with operating a motor vehicle while under the influence of alcohol contrary to N.J.S.A. 39:4-50. Thereafter, in November 1979, defendant was indicted on charges of death-by-auto in violation of N.J.S.A. 2A:113-9.

The trial court denied defendant's motion to suppress the results of the blood test, and defendant unsuccessfully sought leave to appeal that ruling. At the trial, the results were introduced into evidence and the jury convicted defendant of causing death-by-auto.

The Appellate Division reversed defendant's conviction, finding that the blood test results were within the patient-physician privilege of N.J.S.A. 2A:84A-22.2. In rejecting the State's argument that the statutory privilege should yield to the full disclosure of truth at trial, the Appellate Division characterized the State's position as advocating "a per se rule that would virtually eliminate the applicability of the physician-patient privilege to a criminal prosecution for death by auto."

II

No patient-physician privilege existed at common law in New Jersey, Hague v. Williams, 37 N.J. 328, 334-35, 181 A.2d 345 (1962), throughout the United States, or in England. See 8 J. Wigmore, Evidence § 2380, at 819 (McNaughton Rev.1961) (Wigmore ). Starting in New York in 1828, however, state legislatures began enacting statutes providing for the privilege, and more than two-thirds of the states now recognize it. 8 Wigmore, supra, § 2380, at 819-20 (1961 & Supp.1984).

Originally, the commissioners on uniform state laws rejected the privilege, but then reversed their position and included it in the 1955 version of the Uniform Rules of Evidence. See Report of the Committee on the Revision of the Law of Evidence to the Supreme Court of New Jersey R. 27, drafter's comment, at 71 (1955). In this state, the original Supreme Court Committee on the Revision of the Law of Evidence specifically recommended that the privilege be excluded from the Rules of Evidence, id. at 71-72, and no such rule has ever been adopted by this Court. See State v. Soney, 177 N.J.Super. 47, 57, 424 A.2d 1182 (App.Div.1980), certif. den., 87 N.J. 313, 434 A.2d 67 (1981). In 1968, however, the Legislature adopted N.J.S.A. 2A:84A-22.2, which provides:

Except as otherwise provided in this act [see N.J.S.A. 2A:84A-22.3 to -22.7], a person, whether or not a party, has a privilege in a civil action or in a prosecution for a crime or violation of the disorderly persons law or for an act of juvenile delinquency to refuse to disclose, and to prevent a witness from disclosing, a communication, if he claims the privilege and the judge finds that (a) the communication was a confidential communication between patient and...