State v. Elwell, 88-470

• Decision Date: 29 December 1989
• Docket Number: No. 88-470,88-470
• Citation: 132 N.H. 599,567 A.2d 1002
• Parties: The STATE of New Hampshire v. Larry ELWELL.
• Court: New Hampshire Supreme Court

Page 1002

567 A.2d 1002

132 N.H. 599

The STATE of New Hampshire v. Larry ELWELL.

No. 88-470.

Supreme Court of New Hampshire.

Dec. 29, 1989.

John P. Arnold, Atty. Gen. (Peter G. Beeson, Sr. Asst. Atty. Gen., on the brief and orally), for the State.

Joanne Green and W. Kirk Abbott, Asst. Appellate Defenders, Concord (Joanne Green on the brief and W. Kirk Abbott orally), for defendant.

BROCK, Chief Justice.

The defendant, Larry Elwell, was convicted after a jury trial in the Superior Court (Temple, J.) of negligent homicide, RSA 630:3. He argues on appeal that the trial court committed reversible error by admitting into evidence test results from a blood sample taken from him for the purpose of diagnosis and treatment. For reasons that follow, we reverse and remand.

On the evening of April 18, 1988, police officers John Caldwell and Paul Barnet were in a patrol car headed south on Route 16 in Rochester. They observed a pickup truck approaching them in the northbound lane at a high rate of speed, recorded on radar as 61 miles per hour. They activated their blue lights and reversed direction in order to follow the truck. The truck appeared to be accelerating, and the officers lost sight of the vehicle as it rounded a curve and went over a rise in the road. As it went out of view, Officer Caldwell observed the truck crossing the double yellow line and entering the southbound lane. The officers continued their pursuit and came upon the scene of an accident involving the pickup truck and a passenger vehicle.

Diane Kent, accompanied by her fiance, had been driving the passenger vehicle north on Route 16 out of Rochester. At approximately 8:12 p.m., Ms. Kent turned on her left directional signal and began a turn across the southbound travel lane. In the midst of the turn, the pickup truck, approaching from behind, struck Ms. Kent's vehicle in the area of the left front door, and the two vehicles traveled together approximately fifty feet before coming to rest. Ms. Kent subsequently died from injuries suffered as a result of the collision.

The defendant, who was found behind the wheel of the pickup truck, was assisted by the police as he exited the vehicle. On the floor of the pickup truck was an open beer can and a cooler containing ice, water and three more beer cans, two full and one empty. Despite the presence of the beer cans, the police officers did not smell alcohol on the defendant's breath or observe any behavior that would lead them to believe that his ability to drive had been impaired by intoxicating liquor.

The defendant was taken to police headquarters, where he was booked on charges unspecified in the record and released at 9:26 p.m. On his own initiative, he then went to Frisbee Memorial Hospital, where he sought treatment for dizziness and lacerations. At the request of a physician who was working in the emergency room, a blood sample was taken from the defendant at 10:20 p.m. The blood serum was tested and yielded a blood alcohol content of .14 percent.

The following day, an employee of the hospital voluntarily contacted the police to inquire whether the defendant had been arrested for driving while intoxicated. Upon being informed that he had not, the employee notified the police of the existence of the blood sample and provided details of the procedure used by the hospital.

On April 20, two days after the accident, the police obtained a search warrant to seize the remaining portion of the defendant's blood sample. The sample was taken to the State laboratory where the whole blood was tested. The test yielded a blood alcohol content of .12 percent, a result consistent with the hospital's analysis of the blood serum. A blood alcohol content of .10 percent or greater is prima facie evidence that a driver of a motor vehicle is under the influence of intoxicating liquor. RSA 265:89 (1982) (current version at Supp.1988).

On May 19, 1988, the defendant was indicted under two separate subparagraphs of the negligent homicide statute, RSA 630:3. The first indictment, brought under RSA 630:3, I(a), alleged negligent homicide as a result of his driving "at a speed that was not reasonable and prudent ... and by crossing the yellow line." The second, brought under RSA 630:3, I(b), alleged negligent homicide "as a consequence of his being under the influence of intoxicating liquor while driving." The defendant did not attempt to sever the charges or to quash either of the alternative indictments.

Prior to trial, the defendant moved to suppress the results of the tests conducted on the blood sample drawn by the hospital. He contended, inter alia, that he was entitled to assert the physician-patient privilege as found in New Hampshire Rule of Evidence 503 and in RSA 329:26. After a hearing on the motion to suppress, the trial court denied the motion, ruling that:

"Whether the drawing of blood falls within the statutory/evidentiary privilege is questionable; in balancing the public interest in this criminal case against the defendant's interest in having his confidential communication/relationship protected from disclosure is marginal and must yield in favor of the sensible, efficient administration of justice."

At trial, over the defendant's objection, the State introduced evidence regarding the blood sample taken from the defendant, including the results of the tests performed by the hospital and by the State laboratory. The test results also played an important role in the testimony of an expert witness, called by the State, who testified that the defendant's blood alcohol content could have been no less than .12 percent at the time of the accident.

The defendant was found guilty on both indictments. He was sentenced to three and one-half to seven years at the State Prison on the indictment alleging unreasonable speed and crossing the yellow line. The State did not seek sentencing on the indictment alleging driving while intoxicated.

The defendant argues on appeal that the trial court erred in admitting into evidence the results of the blood tests for alcohol content and the related testimony. He contends that the blood test evidence should have been excluded because it came within the statutory, RSA 329:26, and evidentiary, N.H.R.Ev. 503, physician-patient privilege.

The State argues that the blood tests are not protected by the physician-patient privilege because they are not confidential communications. It argues, further, that even if the hospital test was covered by the privilege, the test conducted by independent State laboratory personnel was not. The State also argues that if such a privilege exists, it should yield because of compelling countervailing considerations and because the defendant placed his physical condition in issue by pleading not guilty. Finally, the State asserts that even if the admission of the blood sample evidence was erroneous, it was harmless error and does not merit reversal of the trial court's ruling.

We begin our analysis by noting that the majority of cases previously decided by this Court with regard to the physician-patient privilege involved civil litigation. See Nelson v. Lewis, 130 N.H. 106, 534 A.2d 720 (1987); In re Kathleen M., 126 N.H. 379, 493 A.2d 472 (1985); State v. Kupchun, 117 N.H. 412, 373 A.2d 1325 (1977). However, RSA 329:26 (Supp.1988) provides no indication that the legislature intended the privilege to be distinguishable between civil and criminal matters. Therefore, we will apply the precedents found in prior cases, despite their civil character, to the parties' claims.

The physician-patient privilege did not exist at common law. State v. Kupchun, 117 N.H. at 416, 373 A.2d at 1327. 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. The privilege is intended to encourage patients to fully disclose information for the purpose of receiving complete medical treatment. State v. Kupchun, 117 N.H. at 415, 373 A.2d at 1327. It protects the confidentiality of relations and communications between physician and patient. Id.

Statutory privileges should be strictly construed, In re Brenda H., 119 N.H. 382, 385, 402 A.2d 169, 171 (1979), according to the common and approved usage of language, State v. Hart, 130 N.H. 325, 326, 540 A.2d 859, 859 (1988); RSA 21:2. The statute creating the physician-patient privilege, RSA 329:26 (Supp.1988), states in pertinent part:

"The confidential relations and communications between a physician or surgeon licensed under provisions of this chapter and his patient are placed on the same basis as those provided by law between attorney and client, and, except as otherwise provided by law, no such physician or surgeon shall be required to disclose such privileged communications. Confidential relations and communications between a patient and any person working under the supervision of a physician or surgeon that are customary and necessary for diagnosis and treatment are privileged to the same extent as though those relations or communications were with such supervising physician or surgeon."

(Emphasis added.) In interpreting the plain meaning of this statute, see Theresa S. v. Sup't of YDC, 126 N.H. 53, 55, 489 A.2d 592, 593 (1985), we find that the boundaries of the privilege extend beyond communications and encompass the "confidential relations" which exist between physician and patient. Although these boundaries are not specified, the statute places the privilege on the same basis as that which exists by law between attorney and client. Therefore, a review of the legal protections afforded attorney-client relations provides guidance in determining the limits of the physician-patient privilege.

We have held that the communications and relations between attorney and client are protected from disclosure by what was known at common law as the attorney-client privilege, Riddle Spring Realty Co. v. State, 107 N.H....