State v. Smith

• Citation: 929 P.2d 1191,84 Wn.App. 813
• Decision Date: 27 January 1997
• Docket Number: No. 38271-3-I,38271-3-I
• Court: Court of Appeals of Washington
• Parties: The STATE of Washington, Appellant, v. Wilbur Lamar SMITH, Respondent.

Page 813

84 Wn.App. 813

929 P.2d 1191

The STATE of Washington, Appellant, v. Wilbur Lamar SMITH, Respondent.

No. 38271-3-I.

Court of Appeals of Washington,

Division 1.

Jan. 27, 1997.

Brenda Louise Bannon, King County Pros. Atty., Seattle, for Appellant.

Allen M. Ressler, Browne & Ressler, Seattle, for Respondent.

ELLINGTON, Judge.

The question we must resolve on discretionary review is whether evidence of blood alcohol is admissible in this prosecution for vehicular assault where the blood sample was taken at a hospital for purposes of treatment, rather than by police following an arrest. We hold the evidence is admissible.

Facts

Lamar Smith drank beer and whiskey with Chris Warren and Mike Frier at two different bars, then crashed his Oldsmobile Bravada into a utility pole. As a result of the accident, Frier is paralyzed. At the scene of the accident, Smith was unsteady, staggering, and smelled of alcohol. His speech was slurred and his eyes were bloodshot and watery. He later testified he had "blacked out" and was "dazed." He told the first police officer on the scene that he was the driver and the accident was all his fault.

Some witnesses to the accident thought that Warren had been the driver because Smith had exited by the passenger door. ¹ When Smith learned that some officers thought Warren had been driving, Smith changed his story and gave a written statement to that effect. Warren was arrested and charged with vehicular assault. Smith was taken to Overlake Hospital and treated for his injuries.

Later, however, the police became convinced that Smith was the driver. The charges against Warren were dropped and Smith was arrested. Prosecutors then attempted to seize his medical records and a blood sample taken by the hospital. Smith claimed the evidence was protected by the physician-patient privilege, and the trial court agreed.

The court ruled that police had probable cause to arrest Smith when the accident occurred, and could have seized a blood sample under the implied consent statute, but the State could not now violate Smith's privilege to remedy its error. The court rejected the argument that public policy outweighed the defendant's privilege. Therefore, the court denied the State's motion to compel production of Smith's blood sample ² and medical records, but indicated the ruling was subject to reconsideration if Smith waived the privilege or placed his medical condition at issue. The court held, though, that Smith would not waive the privilege simply by examining the State's witnesses about his injuries or state of sobriety.

At trial, Smith testified he drank two beers and nursed a third beer at the Sharks tavern. At TGI Fridays, he was served three drinks made with Crown Royal whiskey, but testified they were ordered for him by someone else, and because he did not like them, he only sipped them. Smith denied that the accident occurred because he had too much to drink. In closing, Smith's counsel talked about the evidence of how much Smith had to drink, and made detailed hypothetical calculations of his probable blood alcohol level depending on the quantity of alcohol he had consumed. The jury was unable to reach a verdict, and the court declared a mistrial.

The State filed a motion for discretionary review, arguing that its ability to effectively prosecute Smith for vehicular assault was substantially limited by the trial court's refusal to order Smith to produce his medical records and the blood sample. The State also argued the trial court erred in concluding Smith had not opened the door to cross-examination about the medical records and blood, and in concluding that Smith did not waive the physician-patient privilege.

Smith filed a cross-motion for discretionary review regarding the trial court's reckless driving instruction. We granted the State's motion, denied Smith's, and asked the parties to address "whether RCW 46.20.308(3) [the implied consent statute] entitled the State access to Smith's blood draw once he was arrested for this offense as well as the interaction of that statute with RCW 5.60.060(4) [the physician-patient privilege] and whether Smith's defense and/or testimony waived the physician-patient privilege."

The Implied Consent Statute Does Not Control

The State argues that the implied consent statute (RCW 46.20.308) and the physician-patient privilege (RCW 5.60.060(4)) are in conflict in this case, and that the implied consent statute supersedes the privilege. Smith argues that the implied consent statute simply does not apply, so the court need not construe it or balance the interests of the two statutes.

The implied consent statute deems drivers to have consented to a blood or breath test if, at the time of arrest, the arresting officer reasonably believes the person was driving while intoxicated:

(1) Any person who operates a motor vehicle within this state is deemed to have given consent, subject to the provisions of RCW 46.61.506, to a test or tests of his or her breath or blood for the purpose of determining the alcoholic content of his or her breath or blood if arrested for any offense where, at the time of the arrest, the arresting officer has reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor. [Emphasis added.]

RCW 46.20.308(1) If there are reasonable grounds to administer a breath or blood test, it is to be administered at the direction of an officer after the driver has been informed of his right to refuse the test. RCW 46.20.308(2). If, however, the driver has been arrested for vehicular homicide or vehicular assault, a blood or breath test may be administered even if the driver has refused consent:

(3) Except as provided in this section, the test administered shall be of the breath only. If an individual is unconscious or is under arrest for the crime of vehicular homicide as provided in RCW 46.61.520 or vehicular assault as provided in RCW 46.61.522, or if an individual is under arrest for the crime of driving while under the influence of intoxicating liquor or drugs as provided in RCW 46.61.502, which arrest results from an accident in which another person has been injured and there is a reasonable likelihood that such other person may die as a result of injuries sustained in the accident, a breath or blood test may be administered without the consent of the individual so arrested.

RCW 46.20.308(3). Smith agrees that if police had arrested him for vehicular assault at the time of the accident, they could have used the authority of the implied consent statute to seize and test a blood sample. But, he claims, the implied consent statute does not authorize the State to seize and test blood taken by a physician when the defendant was not under arrest. The State argues that because there was probable cause to arrest Smith, the intent of the statute dictates that the State should have access to the blood sample.

No Washington appellate court has previously considered the issue, but we agree with Smith that the implied consent statute is not controlling. Nothing in the statute allows the State to seize and test blood taken by a physician when the defendant was not under arrest.

Courts in other jurisdictions applying similar statutes agree that implied consent statutes do not control the admissibility of blood alcohol evidence taken by a physician when the defendant was not under arrest. State v. Vandergrift, 535 N.W.2d 428, 430 (S.D.1995); State v. Cribb, 310 S.C. 518, 426 S.E.2d 306, 308 (1992); State v. Waring, 779 S.W.2d 736, 740-41 (Mo.1989); State v. Zielke, 137 Wis.2d 39, 403 N.W.2d 427, 432-33 (1987); State v. Pitchford, 10 Kan.App.2d 293, 295, 697 P.2d 896 (1985); Nelson v. State, 650 P.2d 426, 427 (Ak.1982); State v. Baker, 184 Neb. 724, 171 N.W.2d 798, 800 (1969).

As courts in other jurisdictions have also concluded, however, such evidence may be seized in accordance with general search and seizure law, and may be admitted at trial. Cribb, 426 S.E.2d at 308, n. 2; Waring, 779 S.W.2d at 740-41; Zielke, 403 N.W.2d at 432-33 (1987); Pollard v. State, 439 N.E.2d 177, 183 (Ind.App.1982); see also Vandergrift, 535 N.W.2d at 429-30.

In Zielke, Wisconsin's implied consent statute, like Washington's, did not explicitly require suppression when a blood sample was taken for medical purposes before the defendant was under arrest. To determine whether the sample was nevertheless admissible, the court presumed the Legislature intended an interpretation that advanced the purpose of the statute, which was to remove drunk drivers from the road. Zielke, 403 N.W.2d at 430. The implied consent law was designed to facilitate, not impede, the gathering of chemical evidence to prosecute drunk drivers. Zielke, 403 N.W.2d at 430. It was not designed to give greater fourth amendment rights to an alleged drunk driver than those afforded other criminal defendants. Zielke, 403 N.W.2d at 432. Therefore, the court concluded the statute did not prevent the court from admitting evidence obtained by alternative constitutional means. Zielke 403 N.W.2d at 432, citing Schmerber v. California, 384 U.S. 757, 766-72, 86 S.Ct. 1826, 1833-36, 16 L.Ed.2d 908 (1966) (the warrantless seizure of a blood sample is constitutional under the fourth amendment if probable cause and exigent circumstances exist). "Suppressing the constitutionally obtained evidence in this case would frustrate the objectives of the law, lead to absurd results, and serve no legitimate purpose." Zielke, 403 N.W.2d at 428.

We agree with the Zielke court's analysis. Absence of authorizing language in a statute does not convert it into a rule of exclusion. While the implied consent statute does not authorize seizure or admission of Smith's blood sample, neither does the statute prevent its seizure or admission on other grounds. Here there was both probable cause and relevance. The failure...