State v. Schroeder

• Decision Date: 02 December 1994
• Docket Number: No. 940088,940088
• Citation: 524 N.W.2d 837
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Dallas SCHROEDER, Defendant and Appellant. Crim.
• Court: North Dakota Supreme Court

Page 837

524 N.W.2d 837

STATE of North Dakota, Plaintiff and Appellee, v. Dallas SCHROEDER, Defendant and Appellant.

Crim. No. 940088.

Supreme Court of North Dakota.

Dec. 2, 1994.

Mark R. Boening, Asst. State's Atty., Fargo, for plaintiff and appellee.

Robin L. Olson, Evans & Olson, argued for Nelson Law Office, Fargo, for defendant and appellant.

VANDE WALLE, Chief Justice.

Dallas Schroeder appealed from a judgment of conviction for driving while under the influence of alcohol. We reverse and remand for further proceedings.

At about 10:30 p.m. on May 12, 1993, Schroeder was involved in a single-vehicle, motorcycle accident on an exit from Interstate 29 in Fargo. Schroeder suffered a head injury and was taken to the emergency room at Dakota Hospital, where he was treated by Dr. Robert Lane Tassin. Deputy DuWayne Nitschke of the Cass County Sheriff's Department was dispatched to the emergency room to see Schroeder. At the emergency room, Nitschke detected the odor of alcoholic beverages on Schroeder, and Schroeder told Nitschke that he had been drinking earlier. Nitschke read Schroeder the implied consent advisory, arrested him for driving under the influence of alcohol, and directed a nurse to draw a blood sample from Schroeder. The result of that test indicated Schroeder's blood-alcohol concentration was .11 percent.

Over Schroeder's objection, the trial court admitted into evidence the result of the blood test requested by Deputy Nitschke. Nitschke also testified about his observations of Schroeder and Schroeder's statements to him at the emergency room. The State also introduced testimony of Brad Espe, a witness to the accident. Espe testified that, immediately before the accident, he was traveling south on Interstate 29 when Schroeder's motorcycle "came flying by" Espe's vehicle "like it wasn't even there," and when Schroeder entered the exit, he hit a pole. Espe testified that he found Schroeder unconscious at the accident scene and detected the odor of alcoholic beverages on his breath. Espe testified that the road conditions were good and that he believed Schroeder was under the influence of alcohol.

In its case-in-chief, the State also called Dr. Tassin to testify. The trial court refused to allow Dr. Tassin to testify about any statements Schroeder made to him and refused to consider the results of a blood-alcohol test ordered by him for diagnostic purposes. Over Schroeder's objection, the court allowed Dr. Tassin to testify about his observations and examination, including that Schroeder "had numerous scrapes and bruises, a bruised kidney, a closed head injury," and that he was "[b]elligerent, [had an] obnoxious behavior, an odor of alcoholic beverages and ataxia." Dr. Tassin further testified that although those symptoms were consistent with a closed head injury, he nevertheless believed Schroeder was under the influence of alcohol.

The trial court found Schroeder guilty of driving while under the influence, and he appealed.

I

Schroeder argues that NDCC Sec. 39-20-01, which establishes procedures under North Dakota's implied consent law, requires law enforcement officials to give DUI arrestees an implied consent advisory after an arrest. Schroeder concedes that Deputy Nitschke gave him the implied consent advisory before the arrest, but argues that the results of the blood test must be suppressed because Nitschke failed to give him the advisory after the arrest.

The State responds that Schroeder waived his right to raise this issue, because he did not raise it in a pretrial motion under N.D.R.Crim.P. 12 to suppress the results of the blood test. Alternatively, the State argues that N.D.C.C. Sec. 39-20-01 does not impose a specific sequence for the implied consent advisory and arrest, but only requires that both occur before a blood sample is taken. Relying on State v. Abrahamson, 328 N.W.2d 213 (N.D.1982), the State also asserts that N.D.C.C. Sec. 39-20-01 applies only to license revocation proceedings and does not affect the admissibility of evidence in a criminal proceeding.

Under N.D.R.Crim.P. 12(b)(3), a motion to suppress evidence on the ground that it was illegally obtained must be raised prior to trial and the failure to do so generally constitutes a waiver. City of Fargo v. Cossette, 512 N.W.2d 459 (N.D.1994); State v. Raywalt, 436 N.W.2d 234 (N.D.1989); State v. Valgren, 411 N.W.2d 390 (N.D.1987). However, if the movant establishes "just cause," the court may, in its discretion, grant relief from the waiver. State v. Neset, 462 N.W.2d 175 (N.D.1990); State v. Raywalt, supra; State v. Valgren, supra.

In this case Schroeder filed three pretrial motions. ¹ None of those motions raised an issue about the sequence of the implied consent advisory and an arrest. Schroeder's argument, raised for the first time during trial, is essentially that the result of that blood test was illegally obtained because of an improper law enforcement practice. Motions to exclude evidence on that ground must be made prior to trial. City of Fargo v. Cossette, supra. Schroeder has not established "just cause" for his failure to raise this issue prior to trial, and his failure to do so constitutes a waiver under N.D.R.Crim.P. 12. We will not further consider that issue.

II

Schroeder argues that Dr. Tassin's testimony about his observations and treatment violated the physician-patient privilege under N.D.R.Evid. 503. The State responds that Dr. Tassin's testimony did not violate the physician-patient privilege, because it did not consist of any "communications" by Schroeder within the meaning of N.D.R.Evid. 503. The State argues that communications mean "verbal statements" between the patient and physician. For purposes of the physician-patient privilege, we refuse to construe "communications" that narrowly.

At common law there was no physician-patient privilege. Booren v. McWilliams, 26 N.D. 558, 145 N.W. 410 (1914). See 81 Am.Jur.2d, Witnesses Sec. 436 (1992); 1 McCormick on Evidence Sec. 98 (4th ed. 1992); 8 Wigmore on Evidence Sec. 2380 (McNaughton Rev.1961). Because the physician-patient privilege did not exist at common law and is a creature of statute or rule, its existence and scope depends upon the specific language of the statute or rule authorizing it. The language of those statutes and rules varies extensively. Some rules preclude the admission into evidence of a patient's "confidential communications" to a physician, while others preclude the admission of confidential "information acquired [by the physician] in attending the patient which was necessary to enable him to prescribe or act for the patient." 1 McCormick, supra, at Sec. 100; 3 Erwin, Defense of Drunk Driving Cases, Sec. 30.03 (3rd Ed.1994).

According to one commentator, the protective scope of a rule precluding the admission of "information acquired in attending the patient" is significantly greater than a rule precluding the admission of a patient's "confidential communications." 3 Erwin, supra, Sec. 30.03. See also Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989); Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982). However, McCormick suggests that, although a "confidential communications" rule facially appears to be more restrictive than a "any information" rule, the former generally has been construed to confer as broad a privilege as the latter. 1 McCormick, supra at Sec. 100. See Branch v. Wilkinson, 198 Neb. 649, 256 N.W.2d 307 (1977). Without noting the different language, other authorities generally recognize that communications may include a physician's observations as well as a patient's oral or written statements. 8 Wigmore, supra at Sec. 2384. See 81 Am.Jur.2d, Witnesses, supra at Sec. 472.

N.D.R.Evid. 503 authorizes a physician-patient privilege for "confidential communications":

"(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family."

In interpreting our rules of court, we apply principles of statutory construction to ascertain intent. Walker v. Schneider, 477 N.W.2d 167 (N.D.1991); State v. Manke, 328 N.W.2d 799 (N.D.1982). In determining intent, we first look to the language of the rule. Walker v. Schneider, supra. Unless words in a statute are defined in the code, they are given their plain, ordinary, and commonly understood meaning. N.D.C.C. Sec. 1-02-02; Kim-Go v. J.P. Furlong Enterprises, Inc., 460 N.W.2d 694 (N.D.1990). We construe statutes as a whole to give meaning to each word and phrase, if possible. Stewart v. Ryan, 520 N.W.2d 39 (N.D.1994). We have also said that evidentiary privileges should be narrowly construed because they are in derogation of the search for the truth. Knoff v. American Crystal Sugar Co., 380 N.W.2d 313 (N.D.1986) [attorney-client privilege].

The privilege authorized by N.D.R.Evid. 503 is not limited to verbal statements, but applies to communications. Although N.D.R.Evid. 503 does not define communications, it defines when a "communication is 'confidential' " ² to include "the consultation, examination, or interview," and "the diagnosis and treatment." That definition suggests that the term has a broader meaning than verbal statements. Additionally, Webster's New World Dictionary, Second College Edition (1980) at p. 287, defines "communication" as "the act of transmitting" and "a giving or exchanging of information, signals, or messages by talk, gestures, writing, etc." That plain, ordinary, and commonly understood meaning of communications is not restricted to verbal statements and also supports a broader meaning for the...