State v. Kavlich, 51291

• Decision Date: 12 December 1986
• Docket Number: No. 51291,51291
• Citation: 515 N.E.2d 652,33 Ohio App.3d 240
• Parties: The STATE of Ohio, Appellee, v. KAVLICH, Appellant. *
• Court: Ohio Court of Appeals

Page 240

33 Ohio App.3d 240

515 N.E.2d 652

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

No. 51291.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Dec. 12, 1986.

Syllabus by the Court

1. The physician-patient privilege provided by R.C. 2317.02(B) is unavailable to a defendant charged with aggravated vehicular homicide, because the public policy of enforcing the prohibition against aggravated vehicular homicide outweighs the policy considerations in support of the privilege.

2. Evidence that a driver of a car had a blood-alcohol level of .152 percent, veered over the center line, and collided head-on with an on-coming vehicle is sufficient to establish the element of recklessness for the crime of aggravated vehicular homicide. (R.C. 2903.06[A].)

3. A violence specification pursuant to R.C. 2941.143 may be included in an indictment for aggravated vehicular homicide, R.C. 2903.06(A), and is not subject to a motion to strike as surplusage.

John T. Corrigan, Pros. Atty. and H. Anthony Marolt, Cleveland, for appellee.

Gerald L. Steinberg, Cleveland, for appellant.

PRYATEL, Judge.

James Kavlich, defendant-appellant, was indicted for the following crimes: (1) two counts of aggravated vehicular homicide (of Laura Donnell and Frances Telekese) with driving under the influence of alcohol and violence specifications; and (2) driving under the influence of alcohol. (There was a nolle prosequi as to the driving under the influence count.)

Defense counsel filed a motion to suppress the results of a blood-alcohol test administered by defendant's treating physician on the ground that it violated the physician-patient privilege pursuant to R.C. 2317.02. The trial court overruled the motion to suppress.

Defendant pled no contest to the crimes charged. The prosecutor stated that the evidence would show that on October 19, 1984, at approximately 3:40 a.m., defendant was driving north on Warren Road. Defendant veered his car over the center line and struck an automobile head-on that was proceeding south, killing Laura Donnell, the passenger in the car, who was pronounced dead at 4:39 a.m. Frances Telekese, the driver, suffered injuries and ultimately died on November 15, 1984. ¹ The coroner testified that the deaths were the result of the automobile collision.

Defendant was transported to the hospital for treatment of injuries he sustained. Defendant's physician ordered a blood analysis. The results of this test revealed that defendant's blood-alcohol content level was .152.

The court found defendant guilty as charged. Defendant filed the instant appeal, raising three assignments of error.

Assignment of Error I

"The trial court erred in denying defendant's motion to suppress all evidence relating to his blood-alcohol content in contravention of the privilege as established by Section 2317.02, Ohio Revised Code."

R.C. 2317.02 provides, in relevant 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 * * *."

Appellant contends that pursuant to R.C. 2317.02, the court erred in allowing the results of his blood-alcohol tests to be used against him. Appellant recognizes that blood-alcohol test results were held admissible in State v. Dress (1982), 10 Ohio App.3d 258, 10 OBR 372, 461 N.E.2d 1312, and State v. Tu (1984), 17 Ohio App.3d 159, 17 OBR 291, 478 N.E.2d 830. Nevertheless, appellant argues that these decisions were made with "tortured reasoning" and should be ignored. To support his position, appellant points to several civil cases which discuss the physician-patient privilege. See, e.g., Baker v. Indus. Comm. (1939), 135 Ohio St. 491, 14 O.O. 392, 21 N.E.2d 593; Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245; In re Roberto (1958), 106 Ohio App. 303, 7 O.O.2d 63, 151 N.E.2d 37.

In Dress, supra, 10 Ohio App.3d at 261, 10 OBR at 375-376, 461 N.E.2d at 1317, the court noted that an increasing number of jurisdictions are disallowing application of the physician-patient privilege in criminal prosecutions. See State, In the Interest of M.P.C. (1979), 165 N.J.Super. 131, 397 A.2d 1092; State v Erickson (N.D.1976), 241 N.W.2d 854; State v. District Court of Iowa (Iowa 1974), 218 N.W.2d 641; State v. Bedel (Iowa 1971), 193 N.W.2d 121; State v. Betts (1963), 235 Ore. 127, 384 P.2d 198; State v. Bounds (1953), 74 Idaho 136, 258 P.2d 751. Cf. State v. Kuljis (1967), 70 Wash.2d 168, 171-172, 422 P.2d 480, 492. In holding that the court did not err in admitting the results of a blood-alcohol test in a driving while intoxicated case, the Dress court noted:

" ' * * * The purpose of this [physician-patient] privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient in having his condition remain confidential, must be balanced the interest to the public in detecting crimes in order to protect society.' * * * [ State v. Antill (1964), 176 Ohio St. 61, 64-65, 26 O.O.2d 366, 368, 197 N.E.2d 548, 551.]

" * * *

"We concede that the law, to a reasonable degree, should encourage a frank and uninhibited flow of information between doctor and patient by protecting their private, confidential communications. However, the privilege is not absolute and must yield when the public interest outweighs the policy considerations supporting the privilege. This is especially so in the context of a prosecution for the offense of driving while intoxicated. To allow the privilege to be invoked so as to exclude evidence tending to prove that appellant was driving while intoxicated would be against the public interest and would not serve the purpose of R.C. 2317.02(B). The privilege was not designed to operate in this matter, nor will we sanction such use. See State v. District Court of Iowa, supra, at 644.

" * * *

"As we noted above, R.C. 2317.02(B), being in derogation of the common law, is to be given a strict construction. Weis v. Weis, supra. In balancing the public interest in prosecuting those charged with driving while intoxicated against the patient's interest in having his confidential communication protected from disclosure and use in a court of law, we conclude that the public interest is acute and the patient's interest, under the facts of this case, is marginal at best. Consequently, the policy considerations militate in favor of the sensible and efficient administration of criminal justice. The incidental burdens imposed on the physician-patient relationship in this case are far outweighed by the substantial benefits to the public in effectively enforcing R.C. 4511.19." (Emphasis sic.) Dress, supra, 10 Ohio App.3d at 261-262, 10 OBR at 375-377, 461 N.E.2d at 1317-1318.

Similarly, in Tu, supra, where the defendant was charged with driving while intoxicated and vehicular homicide, the court held that the physician-patient privilege does not preclude the admission of blood-alcohol test results:

"Unlike the Dress case, appellant's intoxicated driving in this case proximately caused another person's death. Consciously inebriating oneself to the point where driving a car becomes as dangerous (and as deadly) as recklessly discharging a firearm on a public sidewalk is inexcusable conduct that cannot be tolerated. We can hardly give our tacit imprimatur to it by approving the use of an artificial evidentiary privilege that excludes probative evidence of illegality. State v. Dress, supra, at 261-262, 10 OBR 372, 461 N.E.2d 1312. Simply put, the privilege must yield to competent evidence of conduct the law defines as criminal. The overriding public policy favoring the sensible and effective enforcement of R.C. 4511.19 far outweighs the limited purpose of and narrow policy considerations supporting Ohio's physician-patient privilege." Tu, supra, 17 Ohio App.3d at 163, 17 OBR at 295, 478 N.E.2d at 834.

We conclude that the public policy of sensibly enforcing R.C. 2903.06 (aggravated vehicular homicide) outweighs the narrow policy considerations offered in support of the physician-patient privilege. Appellant's first assignment of error is overruled. ²

Assignment of Error II

"Defendant's conviction of aggravated vehicular homicide pursuant to Section 2903.06, Ohio Revised Code, was against the manifest weight of the evidence."

Although appellant incorrectly labels this assigned error in terms of weight of the evidence, in essence, he is contending that the facts recited by the prosecutor did not establish that he committed aggravated vehicular homicide. At most, appellant contends he committed vehicular homicide.

In State v. Thorpe (1983), 9 Ohio App.3d 1, 9 OBR 1, 457 N.E.2d 912, paragraph two of the syllabus, this court noted that:

"The trial court has clear authority in a felony case to determine whether the facts alleged in the indictment, information, or complaint are sufficient to justify conviction of the offense charged. If an indictment alleges facts sufficient to support a conviction, the trial court's acceptance of a no contest plea requires a guilty finding. If not, the court may dismiss the charge or find the defendant guilty of a lesser included offense which is shown by those alleged facts."

See, also, Cleveland v. Technisort, Inc. (1985), 20 Ohio App.3d 139, 20 OBR 172, 485 N.E.2d 294, paragraph two of the syllabus.

The crime of aggravated vehicular homicide is defined in R.C. 2903.06(A) as follows:

"No person, while operating or participating in the operation of a motor vehicle, * * * shall recklessly cause the death of another." (Emphasis added.)

Vehicular homicide is similar to aggravated vehicular homicide except that it is couched in terms of negligence, not recklessness. R.C. 2903.07(A) reads as follows:

"No person,...