State v. Lucero
| Docket Number | A-1-CA-38776 |
| Decision Date | 28 February 2023 |
| Citation | 528 P.3d 762 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Janice LUCERO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Raúl Torres, Attorney General, Santa Fe, NM, John Kloss, Assistant Attorney General, Albuquerque, NM, for Appellee
Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Luz C. Valverde, Assistant Appellate Defender, Albuquerque, NM, for Appellant
{1} Defendant Janice Lucero entered a conditional plea of guilty in metropolitan court to a first offense of driving under the influence of intoxicating liquor or drugs (DWI), contrary to NMSA 1978, Section 66-8-102 (2010, amended 2016). The charge arose out of a single-car rollover accident in which Defendant was injured. With her conditional plea, Defendant reserved the right to appeal the metropolitan court's denial of her motion to suppress what Defendant claims are physician-patient communications privileged under Rule 11-504 NMRA. The communication Defendant seeks to suppress is a conversation she had with an emergency medical technician (EMT) for the purpose of diagnosis or treatment,1 during which Defendant disclosed, in answer to a question from the EMT, that she had consumed alcohol before driving. Defendant's communication to the EMT was overheard and recorded by a law enforcement officer who entered the ambulance where the conversation took place just after the EMT began questioning Defendant, and, according to Defendant, without her knowledge. The metropolitan court concluded based on the circumstances that "it was unreasonable for ... Defendant to believe her communication with the [EMT] was private and therefore the confidentiality requirement of the Doctor-Patient privilege was not met." The district court affirmed the metropolitan court's decision.2 We conclude that the metropolitan court failed to apply the correct standard of law. We therefore reverse and remand to the metropolitan court to make the factual findings required under the correct principles of law.
{2} Defendant also argues on appeal that she was denied due process of law by delay in the resolution of her appeal in the district court. Not persuaded by her due process argument, we affirm the district court's denial of Defendant's motion to dismiss.
{3} The following evidence was adduced at a hearing in the metropolitan court on Defendant's motion to exclude from evidence at her DWI trial "any statements made while being attended to by any health care professional," pursuant to physician-patient privilege, Rule 11-504
{4} Defendant was in a single-vehicle rollover crash on January 18, 2015. Deputy Weeks was the first law enforcement officer to arrive at the scene of the accident. Deputy Weeks found Defendant still in her overturned, smoke-filled vehicle; he broke the vehicle's rear passenger-side window and Defendant was able to crawl out through the broken window.
{5} With Deputy Weeks steadying her, Defendant walked across the road and sat on a curb. An ambulance arrived within a few minutes. Deputy Weeks told the paramedics that Defendant was having trouble walking and difficulty with speech. The paramedics immediately attended to Defendant, asking her if she was okay. Defendant told them that she had injured her right knee and that the pain was very bad. The paramedics got her onto a gurney and took her to the ambulance.
{6} Deputy Cordova, who had arrived on the scene of the accident just before the ambulance, testified that when he got close to Defendant, he smelled alcohol near her face, her speech was slurred, and he saw vomit on her dress. Based on these observations and the fact that Defendant had been involved in a rollover crash, Deputy Cordova decided to pursue a DWI investigation. He followed the gurney to the ambulance.
{7} When the gurney reached the ambulance, the paramedics loaded the gurney with Defendant on it, face up, into the bay of the ambulance through its open back doors. The bay of the ambulance was empty and Defendant and the EMT were briefly alone. Deputy Cordova entered through the side door of the ambulance immediately after Defendant was placed in the ambulance. The side door was behind Defendant, and Deputy Cordova testified he did not walk past her when he entered. The EMT had already started questioning Defendant. Almost immediately, Deputy Cordova heard the EMT ask Defendant how many drinks she had consumed. Defendant responded that she had "three Crown and Cokes."
{8} About a minute or two after entering the ambulance, Deputy Cordova spoke for the first time. He asked Defendant if she had had anything to drink that night. Defendant did not immediately respond. Then she asked Deputy Cordova if he was recording. Deputy Cordova said, "Yes." Defendant was crying and did not answer him further. Deputy Cordova asked Defendant whether she would take a blood test for alcohol. Defendant did not respond. According to Deputy Cordova, she either began nodding off or pretended to be nodding off. Deputy Cordova took this as a refusal to answer his questions or, to consent to alcohol testing. Deputy Cordova placed her under arrest for DWI and the ambulance left to take her to the hospital.
{9} At the hearing on Defendant's motion to exclude her communications to the EMT, Defendant testified to her belief that she was alone in the ambulance with the EMT during the examination. Defendant described being in intense pain from her knee injury, said she did not hear the deputy's radio and was complaining about the pain to the EMT.
{10} Deputy Cordova was asked by the metropolitan court judge whether he had any indication that Defendant knew he had entered the ambulance. Deputy Cordova admitted that Defendant could not see him directly. He stated that he believed Defendant knew he was there given that he was only a few feet from her, the noise his radio made, her awareness that police officers were present at the accident scene, and his belief he was likely visible in her peripheral vision. He could not remember whether Defendant turned to look at him when he entered the ambulance.
{11} Deputy Cordova filed a criminal complaint charging Defendant with aggravated DWI, citing his observation of the smell of alcohol near Defendant, Defendant's bloodshot and watery eyes, her slurred speech, the vomit he saw on her dress, and Defendant's answer to the EMT's question during her medical examination telling the EMT that she had consumed "three Crown and Cokes."
{12} A few days after the suppression hearing, the metropolitan court announced its decision from the bench. The metropolitan court made the following findings of fact: (1) Defendant was conscious; (2) Defendant was alert and aware of her surroundings; (3) Defendant knew she was at an accident scene and officers were present on the scene; (4) Defendant complained only of knee pain, not of headache or other head "actions"; (5) the doors to the ambulance were open and an officer was present; (6) Defendant was facing the rear doors and would have had to turn her head to talk to the EMT; (7) Deputy Cordova was two to four feet from Defendant; (8) Deputy Cordova was not hiding; and (9) Defendant should have been aware of who was present, should have closed the ambulance doors, and should have excluded any third party. The metropolitan court's written order denying Defendant's motion to exclude the allegedly privileged evidence states that "it was unreasonable for ... Defendant to believe her communication with the [EMT] was private, and therefore the confidentiality requirement of the [physician-p]atient privilege was not met."
{13} Defendant entered a conditional guilty plea, preserving for appellate review the issue of whether her communication to the EMT made in an ambulance for the purpose of diagnosis or treatment was protected by the Rule 11-504 physician-patient privilege. Defendant filed her appeal to the district court on August 26, 2015. The district court affirmed the metropolitan court's denial of Defendant's motion to exclude evidence on December 4, 2019.3 Defendant's appeal to this Court followed.
{14} Because Defendant does not challenge the metropolitan court's findings of fact, we assume that these facts are supported by substantial evidence in the record. Resolution of this appeal requires us to determine both whether the metropolitan court correctly construed the law of privileges, a question we review de novo, see Allen v. LeMaster , 2012-NMSC-001, ¶ 11, 267 P.3d 806, and whether the metropolitan court correctly applied that law to the circumstances of this case, a question which we also review de novo. See Pacheco v. Hudson , 2018-NMSC-022, ¶ 24, 415 P.3d 505 ().
{15} Rule 11-504(B) describes the scope of the physician-patient privilege as follows:
A patient has a privilege to refuse to disclose, or to prevent any other person from disclosing, a confidential communication made for the purpose of diagnosis or treatment of the patient's physical, mental, or emotional condition, including drug addiction, between the patient and the patient's physician, psychotherapist, or state or nationally licensed mental-health therapist.
{16} This appeal focuses on the definition of the term "confidential communication." Rule 11-504(A)(5) defines a "confidential communication" as a communication "made privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication." This appeal asks this Court to determine under what circumstances, if any, a communication between a physician and a patient, overheard by a...
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