State v. Tu, s. WD-83-54

• Decision Date: 10 February 1984
• Docket Number: WD-83-55,Nos. WD-83-54,s. WD-83-54
• Parties: , 17 O.B.R. 291 The STATE of Ohio, Appellee, v. TU, Appellant. *
• Court: Ohio Court of Appeals

Page 159

17 Ohio App.3d 159

478 N.E.2d 830, 17 O.B.R. 291

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

Nos. WD-83-54, WD-83-55.

Court of Appeals of Ohio, Sixth District, Wood County.

Feb. 10, 1984.

Syllabus by the Court

In a criminal prosecution for a violation of R.C. 4511.19 (driving while intoxicated), the physician-patient privilege, as expressed in R.C. 2317.02(B), does not preclude the receipt in evidence of hospital records containing the results of a blood-alcohol test administered to the defendant by a treating physician or other hospital employee. Nor does the privilege prevent the admission of properly qualified expert testimony necessary to provide foundational support for such evidence. (State v. Dress, 10 Ohio App.3d 258, 461 N.E.2d 1312, explained, approved and followed.)

William F. Hayes, City Prosecutor, for appellee.

John P. Duffin, County Public Defender, for appellant.

HANDWORK, Judge.

This case is before the court on appeal from a judgment of the Perrysburg Municipal Court.

The essential facts are not in dispute. On November 21, 1981, Hung Q. Tu, defendant-appellant herein, was involved in an accident while driving his vehicle north on Interstate 75 in Wood County. Appellant's vehicle collided with a tractor-trailer rig, causing it to crash through a guardrail and roll down an embankment. The driver of the rig was killed instantly. Trooper Stein, of the Ohio Highway Patrol, arrived on the accident scene shortly after the collision. When he learned that appellant and his passenger had been injured in the crash, Trooper Stein requested an ambulance. While the officer remained at the accident scene, appellant and his passenger were taken to St. Luke's Hospital, where they were examined in the emergency room by hospital personnel. As part of the examination, the treating physician ordered that a blood test be taken. The blood sample was apparently taken by a nurse. A subsequent analysis of appellant's blood sample revealed a blood-alcohol concentration (BAC) level of 0.16 percent. Trooper Stein did not arrive at St. Luke's Hospital until several hours after the accident. At no time did the officer order or request a blood-alcohol test. In addition to these facts, both appellant and the prosecution have entered into the following stipulations:

"1. Trooper Stein contacted an ambulance to transport the defendant [appellant] to the hospital (the defendant having been injured in the accident).

"2. The hospital personnel where the defendant was taken are qualified to administer and report a blood-alcohol test.

"3. The defendant was admitted as an in-patient under his voluntary consent for medical treatment by Dr. J. Sawka.

"4. Dr. Sawka, as part of the treatment of the defendant, requested that a blood sample be drawn from the defendant for medical diagnosis and treatment.

"5. The Director of the Laboratory, Armando Bautista, and any laboratory personnel who performed the blood-alcohol test of the defendant are not qualified by or licensed through the Ohio Department of Health.

"6. The blood-alcohol test was not conducted within the two (2) hour time limitation as provided in Section 4511.19 of the Ohio Revised Code."

Ultimately, appellant was charged with driving while intoxicated and vehicular homicide, the latter being a violation of R.C. 2903.07. After certain pretrial proceedings, appellant filed a motion in limine seeking to exclude from the prosecution's case-in-chief the hospital records containing appellant's blood test. Eventually, on May 18, 1982, the trial court granted appellant's motion. The prosecution then filed a notice of appeal pursuant to Crim.R. 12(J). (The state's appeal was later dismissed on procedural grounds, and a motion to certify the record to the Supreme Court of Ohio was overruled.) Sometime after the state's appeal was filed in this court, however, we released our opinion in State v. Dress (1982), 10 Ohio App.3d 258, 461 N.E.2d 1312. On January 19, 1983, the trial court reconsidered its previous ruling on appellant's motion in limine, in light of our opinion in State v. Dress, and denied the motion. Further proceedings were continued until May 5, 1983. Eventually, on May 25, the case proceeded to a trial before the court, which found appellant guilty of both charges. He was fined and sentenced to a term of imprisonment. This appeal followed.

Appellant's sole assignment of error is:

"The trial court erred when it admitted into evidence the results of a blood-alcohol test obtained by the defendant's physician during the course of medical treatment."

In support of this assignment of error, appellant argues that the trial court's admission in evidence of the hospital records containing his blood test contravened the physician-patient privilege afforded him by R.C. 2317.02(B). In so arguing, appellant essentially asks that we reconsider our earlier decision in State v. Dress, supra, in which we faced the identical question of whether Ohio's physician-patient privilege mandated the exclusion of otherwise relevant, admissible evidence in a prosecution under R.C. 4511.19 for driving while intoxicated. This is the only question presently before us. ¹

The facts in State v. Dress are sufficiently similar to those in the case sub judice that we will forego repeating here all but the most essential ones. In State v. Dress, the defendant lost control of his vehicle, which then crashed. The injured defendant was taken to St. Luke's Hospital for treatment. Although the investigating officer was present in the emergency room, he did not order or suggest that a blood test be given. The examining physician, on his own initiative, ordered and administered a blood test to determine the alcohol concentration in the defendant's bloodstream. The test result revealed a BAC level of 0.25 percent. The defendant was subsequently charged with, and convicted of, driving while intoxicated. The principal issue on appeal was whether R.C. 2317.02(B), the physician-patient privilege, prevented the admission of the defendant's hospital records and the foundational testimony of the technician who analyzed the blood sample. R.C. 2317.02 states, 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 * * *."

In the most pertinent portion of the Dress opinion, we stated, 10 Ohio App.3d at pages 261-262, 461 N.E.2d 1312:

" * * * [T]he [physician-patient] privilege is premised on an underlying calculation that the benefits to the relationship ostensibly gained by excluding the information generated during its existence outweigh the burdens thereby imposed on the truth-seeking process and the administration of justice. Assertion of the privilege serves to remove from the trier of fact otherwise relevant, reliable and competent evidence. Because the privilege operates to the detriment of the truth-seeking process, it has been viewed as a pernicious anomaly in our system of evidence. See 8 Wigmore, Evidence (McNaughton Rev.1961 Ed.), Sections 2380-2381. (' * * * [T]he privilege has come to mean little but the suppression of useful truth * * *.' Id. at 831.)

"Through statute or case law, an increasing number of jurisdictions are disallowing application of the physician-patient privilege in the context of criminal prosecutions, and, in particular, prosecutions for the offense of driving while intoxicated and related crimes. * * *

"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 manner, nor will we sanction such use. * * * [Emphasis sic. ]

" * * *

" * * * Driving while intoxicated, with its great potential for serious injury or death, undeniably represents a reckless and inexcusable disregard for the rights of other members of the travelling public. * * * The public interest in enforcing R.C. 4511.19, by prosecuting persons charged with having violated it, is indeed compelling. ' * * * [T]he patient-physician privilege must give way where it conflicts with the sensible administration of the law and policy relating to drunken driving * * *.' * * *

" * * * R.C. 2317.02(B), being in derogation of the common law, is to be given a strict construction. * * * 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, policy considerations militate in favor of the sensible and efficient administration of criminal justice. The incidental burdens imposed...