State v. Miller, A150972

• Decision Date: 19 April 2017
• Docket Number: A150972
• Citation: 284 Or.App. 818,395 P.3d 584
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jacob Matthew MILLER, Defendant-Appellant.
• Court: Oregon Court of Appeals

284 Or.App. 818

395 P.3d 584

STATE of Oregon, Plaintiff-Respondent,

v.Jacob Matthew MILLER, Defendant-Appellant.

A150972

Court of Appeals of Oregon.

Argued and submitted January 21, 2014.

April 19, 2017

Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Hadlock, Chief Judge, and DeVore, Judge.^*

DUNCAN, P.J.

ORS 676.260(1) imposes a mandatory reporting duty on health care facilities under certain circumstances. A health care facility "shall notify" a law enforcement officer present at the facility investigating a motor vehicle accident if, immediately after the accident, the facility treats "a person reasonably believed to be the operator of a motor vehicle involved in the accident" and, in the course of treatment, tests the person's blood and discovers that the person's blood alcohol level exceeds .08 percent or that the blood contains a controlled substance.¹

As part of defendant's treatment for injuries sustained in a single-vehicle accident, hospital staff drew and tested a sample of his blood that showed a blood alcohol content (BAC) of .333 percent. Acting pursuant to the requirements of ORS 676.260(1), hospital staff disclosed the BAC test result to a state trooper who was at the hospital to investigate the accident. Defendant was prosecuted for three driving-related offenses, and he moved to exclude evidence of the hospital's disclosure of his BAC test result to the trooper, arguing, among other things, that the disclosure violated his state and federal constitutional rights to privacy of his medical records. The trial court denied the motion. Defendant entered a conditional guilty plea and now appeals that denial. In light of defendant's arguments, we conclude that, under the circumstances, defendant had no protected privacy interest in his BAC test result under the Oregon Constitution or the United States Constitution. Because there was no constitutional violation, defendant was not entitled to suppression of evidence of his BAC test result. Consequently, we affirm.

I. FACTS

In reviewing a trial court's denial of a motion to suppress, we review for legal error, deferring to the trial court's findings of fact when there is sufficient evidence in the record to support them. State v. Ehly , 317 Or. 66, 74-75, 854 P.2d 421 (1993). We recite the pertinent facts, which are undisputed, in accordance with that standard. After a single-car accident, Trooper Dunlap responded to the scene. Defendant, the driver of the vehicle, had already been trans-ported to the Bay Area Hospital for treatment of his injuries, and Dunlap went there. As he approached defendant's bed in the emergency room, Dunlap smelled alcohol and could hear defendant screaming profanities. Dunlap saw that defendant's eyes were bloodshot, glassy, and watery. Defendant's face was flushed and he had a dazed, "stuporous" expression. Dunlap suspected that defendant had been driving under the influence of intoxicants and requested defendant's consent to draw his blood to test for its alcohol content. Defendant refused.

As part of defendant's medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260(1), hospital staff verbally disclosed to Dunlap that defendant's BAC was .333 percent and Dunlap included that information in his police report.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, reckless driving, ORS 811.140, and criminal mischief, ORS 164.354. Before trial, he moved to exclude evidence of the BAC test result because it had been obtained without a warrant. Defendant argued, among other things, that the hospital staff's disclosure of his BAC test result to Dunlap was "suppressible, as state action, under search and seizure analysis." After a hearing, the trial court denied defendant's motion, concluding, as relevant here, that the hospital's disclosure of defendant's BAC test result to Dunlap did not violate defendant's constitutional rights because it did not constitute state action. Defendant entered a conditional guilty plea to DUII and reckless driving, and the trial court entered a judgment convicting him of those offenses. The criminal mischief charge was dismissed.

II. ARGUMENTS ON APPEAL

On appeal, defendant contends that the trial court erred in denying his motion to exclude evidence of the disclosure of the BAC test result to Dunlap, asserting that the hospital's disclosure of that information to Dunlap without a warrant pursuant to ORS 676.260(1) was state action that violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution to privacy of his medical records.² Defendant challenges only the hospital's disclosure of information—the BAC test result—to Dunlap; he does not challenge the blood draw or testing. He also does not dispute that the requirements of ORS 676.260(1) were met.

Thus, defendant contends that the hospital staff's disclosure of his BAC test result to Dunlap was a "search," for purposes of Article I, section 9, and the Fourth Amendment, and that no exception to the warrant requirement applied. Although the privacy interests that the two constitutions protect are defined differently, under either constitution, a "search" requires state action that invades a protected privacy interest. State v. Newcomb , 359 Or. 756, 764, 375 P.3d 434 (2016) ("For purposes of Article I, section 9, a search occurs only if governmental action invades 'a protected privacy interest.' State v. Wacker , 317 Or. 419, 426, 856 P.2d 1029 (1993)."); State v. Campbell , 306 Or. 157, 164, 759 P.2d 1040 (1988) ("[T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right ." (Emphasis in original.)); see alsoUnited States v. Jacobsen , 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (Fourth Amendment search occurs when governmental action infringes "an expectation of privacy that society is prepared to consider reasonable").

Defendant contends that the disclosure was state action because the hospital staff disclosed the information to Dunlap pursuant to ORS 676.260(1), a legislative man-date. He further contends that, under both Article I, section 9, and the Fourth Amendment, he had a constitutionally protected privacy interest in his medical records, including his BAC.

The state first responds that defendant failed to preserve the claim that he raises on appeal. We reject that argument without further discussion. On the merits, the state asserts, among other things, that defendant lacked a protected privacy interest in his BAC under either constitution. As explained below, given defendant's arguments, we agree. Accordingly, we need not, and do not, consider whether the fact that ORS 676.260(1) required the hospital staff to disclose defendant's BAC to law enforcement means that the disclosure constituted state action.

III. ANALYSIS

A. Article I, section 9

We begin with defendant's argument under Article I, section 9, that he had a protected privacy interest in his BAC, as reflected in state statutes limiting the unauthorized disclosure of a person's medical records. See ORS 192.553(1)(a) ("It is the policy of the State of Oregon that an individual has * * * [t]he right to have protected health information of the individual safeguarded from unlawful use or disclosure[.]"); ORS 192.558 (enumerating circumstances under which health care providers may disclose protected health information). Defendant acknowledges that, in State v. Gonzalez , 120 Or.App. 249, 852 P.2d 851, rev. den. , 318 Or. 61, 865 P.2d 1297 (1993), we rejected the argument he raises, but he asserts that Gonzalez was plainly wrong and should be overruled. The state asserts, among other arguments, that we are bound by Gonzalez .

In Gonzalez , hospital staff drew the defendant's blood while treating him for injuries sustained in a motor vehicle accident resulting in the death of another person. A test of the blood showed a BAC of .12 percent, and the defendant was charged with manslaughter, DUII, and reckless driving. 120 Or.App. at 249, 251, 852 P.2d 851. The state subpoenaed the hospital records showing the defendant's BAC, but the defendant successfully challenged the admission of the evidence at trial. The state appealed, asserting that the trial court had erred in excluding the evidence.

In reversing the trial court's ruling, we considered and rejected the defendant's argument that the state's use of a subpoena instead of a warrant to obtain the hospital records violated Article I, section 9. We expressly rejected the defendant's contention that statutes relating to the privacy of medical records and demonstrating a legislative policy of confidentiality for medical records created by third persons gave rise to a protected privacy interest in hospital records under Article I, section 9.³ We held in Gonzalez that the state does not violate Article I, section 9, by obtaining a defendant's hospital records without a warrant. 120 Or.App. at 256, 852 P.2d 851 ("The statutes cited create a legislative policy of confidentiality for medical records created by third persons; they do not create constitutionally protected privacy or possessory interests.").⁴

As noted above, defendant acknowledges that Gonzalez is dispositive of his state constitutional challenge, but he asserts that the case was wrongly...