PEOPLE v KESKIMAKI
Docket No. 97060
Supreme Court of Michigan
August 23, 1994
446 MICH 240
Argued May 5, 1994 (Calendar No. 1).
In an opinion by Justice BRICKLEY, joined by Chief Justice CAVANAGH, and Justices LEVIN, RILEY, and MALLETT, the Supreme Court held:
The trial court and the Court of Appeals erred in characterizing the situation in this case as an accident within the meaning of the accident exception to the physician-patient privilege of the implied consent statute.
1. Whether an accident has occurred for purposes of applying the implied consent statute depends on an examination of all the circumstances surrounding an incident. Relevant to such a determination is whether there was a collision, whether per-
REFERENCES
Am Jur 2d, Automobile and Highway Traffic §§ 122-124; Searches and Seizures §§ 54, 83, 193.
See ALR Index under Chemical Sobriety Test; Driving While Intoxicated; Search and Seizure.
2. In this case, the absencе of a collision, personal injury, or property damage, and the seemingly expected and desired nature of defendant‘s actions in driving his car onto the side of the roadway, with lights on and engine running, compels the conclusion that the actions of the defendant cannot be construed as an accident within the meaning of the accident exception. Thus, the results of his blood test cannot be admitted into evidence on the basis of the accident exception.
Decision of the Court of Appeals vacated; results of the defendant‘s blood tests suppressed.
Justice BOYLE, joined by Justice GRIFFIN, dissenting, stated that to the extent that the physician-patient privilege might affect this case, it has been abrogated by
The purpose in enacting subsection 9 was to facilitate, not restrict, the admission of blood-alcohol test results in criminal prosecutions; it does not contain a physician-patient privilege. Rather, it is a reporting statute that abrogates the privilege where blood samples are requested by a prosecutor for use in a criminal prosecution and exculpates medical personnel from liability. The issue is not whether an accident occurred, but whether what occurred was the kind of event contemplated in the statute.
The trial court did not err in denying the defendant‘s motion to suppress the evidence because, even assuming that the requirements of subsection 9 are not satisfied, the privilege does not entitle the defendant to the remedy he is seeking. The privilege is limited to persons authorized to practice medicine or surgery, and applies only when not waived. On the basis of the record, it cannot be said that either of the conditions will be satisfied.
If the blood-test results can be admitted into evidence without the testimony of a physician, the privilege will not become an issue in this case. Even if the privilege prevented admission of the test results during the prosecutor‘s case in chief, the defendant might waive that privilege by testifying that he was not intoxicated.
200 Mich App 277; 503 NW2d 755 (1993) vacated.
Whether an accident has occurred for purposes of applying the implied consent statute depends on an examination of all the circumstances surrounding an incident; relevant to such a determination is whether there was a collision, whether personal injury or property damage resulted, and whether the incident either was undesirable for or unexpected by any of the parties directly involved (
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Scott K. Hanson and Terrence E. Dean, Assistant Prosecuting Attorneys, for the people.
Mark Peter Stevens for the defendant.
BRICKLEY, J. We granted leave in this case to determine whether the accident exception1 to the physician-patient privilege contained in subsection 9 of the implied consent statute encompasses the situation in which an occupied vehicle is lawfully “parked” on the shoulder of the roadwаy with headlights on and engine running. We conclude that both the trial court and the Court of Appeals erred in characterizing such a situation as an accident within the meaning of the statutory exception. Accordingly, we vacate the decisions of the trial court and the Court of Appeals and we
I
FACTS
Our review of the record supports the following facts. On February 2, 1991, at approximately 6:48 P.M., a Republic Township2 police officer observed the defendant‘s vehicle lawfully “parked”3 on the shoulder of the roadway, with headlights on and motor running. Tire tracks in the snow indicated that the vehicle had traveled in a straight line, following its departure from the roadway. Stopping his car to investigate further, the officer observed the defendant slumped over the steering wheel, apparently unconscious and breathing erratically. Using a “slim jim” to unlock the defendant‘s car, the officer attempted to rouse defendant by shaking him. When defendant failed to respond, the officer summoned emergency medical services (EMS) to transport defendant to Bell Memorial Hospital in Ishpeming, where a blood sample was drawn and analyzed, revealing a blood alcohol content greater than 0.1 percent.
Defendant was charged with operating a motor vehicle under the influence of intoxicating liquor per se4 and, alternatively, operating a motor vehicle while visibly impaired, second offense.5
Defendant challenged the district court‘s ruling in an interlocutory appeal in the circuit court, but the circuit court аffirmed the district court‘s order, and denied defendant‘s motion for reconsideration.
The Court of Appeals granted defendant‘s interlocutory application for leave to appeal, and affirmed the lower courts’ decisions in an opinion per curiam issued June 22, 1993.7 While recognizing that a lawfully parked car, without more, cannot logically be considered an accident, it nevertheless determined that the totality of the circumstances mandated the conclusion that an accident had occurred and that the results of the blood test were properly admitted under the accident exception.
[A]n “undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” [Tope, supra at 99, quoting Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich 12, 18-19; 123 NW2d 143 (1963).]
Applying this to the case at bar, the Court of Appeals concluded that a car parked alongside the highway with its engine running, its lights on, and its driver slumped over the passenger seat, unable to be easily aroused, when considered in its entirety, constituted
“an ‘undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.‘” [200 Mich App 277, 281; 503 NW2d 755 (1993).]
On this basis, the Court of Appeals denied defendant‘s motion to suppress.
On March 21, 1994, we granted defendant‘s application for interlocutory leave to appeal,9 and we now vacate the decisions of the lower courts and order that the results of the blood test be suppressed.
II
The sole issue before this Court on appeal is
the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a vehicle involved in the accident . . . .
A
Generally, information relating to medical treatment falls within the ambit of the physician-patient privilege, and remains confidential.12 Subsection 9 of the implied consent statute, however, carves out a limited exception. At the time of the alleged “accident,”
If after an accident the driver of a vehicle in the accident is transported to a medical facility and a sample of the driver‘s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol . . . in the person‘s blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. [Emphasis added.]
Pursuant to this section, results of a defendant‘s blood tests may be obtained irrespective of whether the physician-patient privilege has been waived or a valid search warrant has been obtained. The admission of such evidence at trial in accordance with this subsection violates neither the Fourth Amendment‘s prohibition of unreasonablе searches and seizures nor the physician-patient privilege.13
In People v Perlos, 436 Mich 305, 328; 462 NW2d 310 (1990), we examined the constitutionality of subsection 9 of the implied consent statute, and concluded:
We find subsection 9 to be a carefully tailored statute which only allows chemical test results to be turned over to the state under narrowly defined circumstances, if the state requests them. For the statute to apply there first must be an accident, a person must be taken to a medical facility, the person must have been the driver of a vehicle involved in the accident, and medical personnel must order a chemical analysis, on their own initiative, for medical treatment. This is not a sweeping abandonment of the physician-patient privilege. Prosecutors can only gain access to chemical test results. They cannot obtain all of a
It is this “minor exception” that we seek to interpret and apply in the instant case. We are constrained in this endeavor by the well-established canon of statutory construction that compels the judiciary to seek to effectuate the intent of the Legislature. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich 638; 513 NW2d 799 (1994). In doing so, we must employ the “ordinary and generally accepted meaning of the words used by the Legislature.” Lorencz v Ford Motor Co, 439 Mich 370, 376; 483 NW2d 844 (1992). Ever mindful of these guiding principles, we commence an examination of the purposes underlying the statute.
B
The legislative purposes underlying the accident exception were articulated in Perlos, supra, where we observed that subsection 9 was designed to promote the safety of both the public and the drunk driver. Perlos, supra at 333. Public safety is enhanced by simplifying the prosecution of drunk drivers; this “ease[] of prosecution” flows naturally from subsection 9‘s authorization of the admission into evidence of blood-alcohol content test results obtained without a warrant.14 The injured drunk driver‘s safety is facilitated by allowing police to acquire the test results without a war-
C
Initially, we note that neither our Court nor the Court of Appeals has had occasion to define “accident” under the accident exception. We are not without guidance in this endeavor, however, as both the Court of Appeals and courts of foreign jurisdictions have grappled with assigning meaning to the term “accident” under relevant criminal statutes.
1
In Tope, supra, the Court of Appeals was presented with the problem of defining “accident” under the provision for arrest without a warrant of the implied consent statute.15 The plaintiff was arrested for driving under the influence of intoxicating liquor after shе had driven her car over a lawn in the middle of a bright, autumn day, for no apparent reason.16 Upon dismissal of the criminal charge, the plaintiff filed a complaint against the arresting officers alleging, inter alia, false arrest and false imprisonment. The lawfulness of the arrest without a warrant hinged on whether the plaintiff‘s actions could be classified as an acci-
no reason to believe a different definition would prevail in the context of driving under the influence of intoxicating liquors or controlled substances. [Tope, supra at 99.]
Consequently, “accident” was defined as:
[A]n “undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.” [Tope, supra at 99, quoting Guerdon Industries, Inc v Fidelity & Casualty Co of New York, supra at 18-19.]
We decline to adopt such an expansive definition of “accident” within the context of the accident exception at issue. Although this definition contains many words often employed in describing an “accident,” it is both over inclusive and under inclusive. Its over inclusiveness is evident from the case at bar. Despite the seemingly calculated nature of the defendant‘s conduct in driving his car off the road, such action, when viewed from the perspective of an observer, may be characterized as being “out of the usual course of things,” and thus classified as an accident, contrary to our holding today. Its under inclusiveness is evident from the definition‘s ostensible exclusion of intentional conduct from the realm of “accident.” We
2
The problem of defining the parameters of an accident arose in People v Martinson, 161 Mich App 55; 409 NW2d 754 (1987). The defendant was convicted of assault with a dangerous weapon and leaving the scene of a personal injury accident, both of which stemmed from his actions in spraying the victim with a fire extinguisher and using his automobile to pin the victim between two cars before driving away. The defendant argued that he could not be convicted of both crimes on the same facts because the former was premised on an intentional act, while the latter, involving “accidents,” could apply only to unintentional conduct.
The Court of Appeals rejected this argument, concluding:
Where the term accident appears in criminal statutes which forbid leaving the scene of a personal injury accident, courts in other jurisdictions have interpreted accident to include intentional conduct, reasoning that such statutes are not concerned with the cause of an accident but are intended to include all automobile collisions. [Martinson, supra at 57. Citations omitted.]
We believe two points should be extracted from this case. First, that the intent of the actor, though relevant, is not controlling in detеrmining
3
Our Court of Appeals had the opportunity to apply the accident exception in People v Stoney, 157 Mich App 721; 403 NW2d 212 (1987). The determinative issue in that case, as in the case at bar, concerned the admissibility of blood-alcohol content test results. The defendant was bleeding and incoherent when discovered at the scene of an accident and two other passengers in his car were also injured. The Court of Appeals concluded that the test results were admissible because the tests had been performed by medical personnel after the defendant had been transported to a hospital for treatment following the accident.
This case is instructive for two reasons. Initially, we note the lack of analysis in the Court‘s determination that an accident had occurred. The obvious explanation is that it will often be readily apparent that an “accident” has occurred.20 In this
4
The dilemma of determining whether an accident had occurred was again before the Court of Appeals, though within a slightly different context,22 in People v Spencley, 197 Mich App 505, 506; 495 NW2d 824 (1992). The facts of that case are similar to the facts presented in the case at bar. The defendant‘s automobile was partially parked on the shoulder of US 31 and partially in a motel driveway. Its lights were on and the engine was running, with defendant crouched down behind the wheel, asleep. A strong odor of alcohol pеrmeated the vehicle.
The issue on appeal was whether the officers had the authority to arrest the defendant where the offense was committed outside the officers’ presence and the arrest was effectuated without a warrant. The validity of this misdemeanor arrest without a warrant hinged on whether it fit within an exception to the warrant requirement. One such exception exists when an accident has oc-
5
Finally, we survey the definition of accident found in both the American Heritage Dictionary and Black‘s Law Dictionary.23 Accident has been defined by the American Heritage Dictionary (new college ed), p 8, as “[a]n unexpected and undesirable event; a mishap.” Black‘s Law Dictionary offers the following as the most commonly accepted meaning of the word accident:
“[A] fortuitous circumstance, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens . . . .” [6th ed, p 15.]
The key point to be distilled from these definitions is that an accident often encompasses an event that is undesirable for and unexpected by at least
III
A
We do not attempt to propound a general definition of “accident” applicable to all criminal statutes, or even to only the accident exception. Rather, we believe that the determination whether an accident has occurred will depend on an examination of all the circumstances surrounding an incident.25 Although we are declining to formulate a precise definition of the term, we think the relevant factors used in making such a determination can and should be delineated. Accordingly, we believe consideration should be given to whether there has been a collision,26 whether personal in-
B
As stated above, defendant‘s vehicle was lawfully “parked” on the shoulder of the roadway, with its headlights on and its motor running. Tire tracks in the snow established that defendant‘s vehicle had traveled in a straight path upon leaving the roadway. Defendant was slumped over the steering wheel, breathing erratically and seemingly unconscious. There was no sign of a collision, no evidence of property damage, and no apparent personal injury, other than visible intoxication. Because the defendant was the only party involved in the incident, we need only examine whether such incident was undesirable for or unexpected by him. It seems clear that these circumstances were neither undesirable for nor unexpected by defendant. Rather, it appears as though he parked on the side of the road in order to sleep off the effects of alcohol, leaving his car running in an attempt to stay warm on this February night in Marquette County. Consequently, we conclude that the events that led the officer to believe that an accident had occurred were neither undesirable for nor unexpected by the defendant, but, instead, embodied a calculated effort on defendant‘s part to
Consideration of these factors compels the conclusion that defendant was not involved in an accident as required under the statutory exception. We believe this result is also supportable from a policy perspective. We noted earlier that one of the purposes of the accident exception was to facilitate the safety of both the public and the drunken driver. To conclude that an accident has occurred when a drunk driver has recognized his impairment and left the road in an attempt to recover his sobriety by sleeping is to discourage the one drop of sensible conduct in a sea of irresponsible action. We do not believe the Legislature intended these consequences, and we decline to interpret “accident” in a manner both inconsistent with and subversive to our perception of thе legislative intent underlying the accident exception.
IV
The absence of a collision, personal injury, or property damage, and the seemingly expected and desired nature of defendant‘s actions in driving his car onto the side of the roadway, with lights on and engine running, compels us to conclude that the actions of the defendant cannot be construed as an accident within the meaning of the accident exception. Consequently, the results of defendant‘s blood test cannot be admitted into evidence on the basis of the accident exception.27 Accordingly, we vacate the decision of the Court of Appeals and order that the results of defendant‘s blood tests be suppressed.
CAVANAGH, C.J., and LEVIN, RILEY, and MALLETT, JJ., concurred with BRICKLEY, J.
To the extent the physician-patient privilege might affect this case, it has been abrogated by
The majority‘s assumption that the statute is an “accident exception” to a broadly applicable physician-patient privilege “contained” in subsection 9, ante at 242, and that if the exception does not apply, the privilege requires suppression of the evidence, is incorrect.2 The Legislature‘s purpose in enacting subsection 9 was to facilitate, not
I
Subsections 9 and 10 cannot be understood without an examination of their history. These subsections were added by amendment in 1982 PA 310 in the aftermath of two decisions by this Court. See People v Keen, 396 Mich 573; 242 NW2d 405 (1976); McNitt v Citco Drilling Co, 397 Mich 384; 245 NW2d 18 (1976). In Keen, the Court held that a blood-alcohol test was not admissible in a criminal prosecution for manslaughter, but only in prosecutions for driving under the influence of liquor or driving impaired. In McNitt, a civil case, the Court held that a blood test taken in a hospital from an unconscious driver “who did not consent” was not admissible as evidence. The statute then in effect required that
a person under arrest “shall be advised of his right to refuse” a test and “if he refuses” the request “no test shall be given.” [397 Mich 393.]
Because McNitt‘s state of unconsciousness precluded a request in conformity with the statute, the Court concluded that the result was not admissible in evidence. Id. at 393-394.
In apparent response to Keen, subsection 1 of § 625a was amended in both 1978 and 1980 to
In apparent response to McNitt, the Legislature added subsections 9 and 10. See 1982 PA 310. Subsection 9 specifically responds to the rationale in McNitt, and squarely rejects it:
[T]he results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) . . . regardless of whether the person had been offered or had refused a chemical test.
In addition, and even more persuasive evidence of the legislative intention to facilitate admissibility,4 the Legislature also explicitly responded to another rationale advanced in McNitt. In McNitt, the Court rejected the argument that the results were admissible under common law. It instead concluded that statutory authority was necessary to authorize the administration of blood tests because hospital authorities had probably taken the blood at the request of a police officer, rather than for diagnostic purposes.5 In subsection 9, the Legis-
Although the statute provides that a “person disclosing information in compliance with this subsection shall not be civilly or criminally liable,” a final reference to McNitt establishes that compliance with this subsection does not, as the majority assumes, mean that medical personnel must verify that there has been an accident. As the Court observed in McNitt, 397 Mich 391, n 9,
The exculpation from liability is we think triggered by “the request of a police officer.” Absent disclaimer by the officer that he is acting under the statute, hospital personnel are protected in relying on such a request as authorization to proceed to administer a test under the statute without independent investigation and determination whether statutory requirements have been observed.
In like manner, the exculpation from liability granted by § 625a(9) is triggered by the prosecuting attorney‘s request for the information. A common-sense construction of the statute would suggest, as McNitt observed, that the Legislature did not intend that medical personnel be placed in the dilemma of refusing the request for blood re-
There is no suggestion that the hospitals would have allowed their personnel to draw blood for determination of alcohol content without a “request of a police officer” or that they would have allowed this to be done if they did not have the resulting statutory protection from civil and criminal liability. [397 Mich 391.]
II
In my view, the issue is not whether an “accident” occurred, but rather whether what occurred is the kind of event the Legislature contemplated when it authorized medical personnel to make diagnostic blood-alcohol tests obtainable by the prosecutor for use in evidence.7
I agree with the majority that the word accident is ambiguous. However, construing subsection 9 of § 625a in pari materiа with the remainder of § 625a and § 625b, I would conclude that the word “accident” in subsection 9 means an incident where, because of a medical emergency, an individual is transported to a medical facility,8 and is suspected of operating or being in actual physical control upon the public highway of a motor vehicle in violation of those laws specifically described in § 625a(1)(a), (b).
This construction harmonizes the language of the statute and advances the state‘s compelling interest in controlling the devastating human and financial toll caused by intoxicated drivers. It is also consistent with our conclusion in People v Perlos, 436 Mich 305, 326; 462 NW2d 310 (1990),
In fact, we observed in Perlos that while the Legislature had abrogated the statutory privilege, the Legislature had not abolished the longstanding common law and that the statutorily created physician-patient privilege was “subject to many exceptions in states where it exists by virtue of statute.” Id. at 327. It is more consistent with the balancing of public and private interests addressed in Perlos to conclude that subsection 9 does not abrogate a privilege for medical records generally, than it is to conclude that the privilege would surmount the common-law exceptions unless an “accident” had occurred.
This construction would also avoid creating a gap in the implied consent statute. The purpose of the statute is to force a driver suspected of being intoxicated either to consent to a blood-alcohol test or face consequences, including suspension of his operator‘s license and imposition of six points on his driver‘s record. See
The word “accident” does not restrict a hospi-
III
Nor can I agree that the majority‘s conclusion is supportable from a policy perspective. Under a variety of theories, many state courts have held that because the physician-patient privilege is not absolute, the results of blood-alcohol tests are subject to the common-law authority of the court. Irrespective of the particular rationale advanced for the result, the premise of these decisions is that the privilege must yield to the public interest in respect to blood tests taken in relation to criminal charges11 involving drunk driving.
In State v Robbins, 549 NE2d 1107 (Ind App, 1990), the defendant, who had been involved in a one-car accident, claimed that blood-alcohol results were inadmissible under an implied consent law
[T]he statute does not create any rights in a criminal defendant, but rather limits his right to invoke a privilege. [Id. at 1109-1110.]
Other сourts have addressed the privilege statutes (as opposed to the implied consent statutes). In State v Erickson, 241 NW2d 854, 864 (ND, 1976), the court held that blood samples taken pursuant to the state‘s implied consent laws were not “information” within the physician-patient privilege and therefore would not be excluded when the privilege was invoked. In State v Betts, 235 Or 127, 140-141; 384 P2d 198 (1963), on the other hand, the court held that physician-patient privilege statutes should be limited to criminal proceedings:
A physician attending a defendant is frequently the sole or most competent source of very relevant evidence. In the present case the physician was the person best qualified to testify to a relevant fact, — was the defendant intoxicated? In other cases the question could be, — was the defendant under the influence of narcotics or how recently did the defendant‘s wound appear to have been inflicted? It seems obvious that the testimony of the treating physician is highly important in many criminal cases.
We conclude that the dubious benefit provided by throwing the veil of privilege over the patient-physician relationship is outweighed in criminal proceedings by the advantage to the public secured
In State v Zielke, 137 Wis 2d 39, 41; 403 NW2d 427 (1987), the Wisconsin Supreme Court squarely addressed and rejected the argument that “the implied consent law is the exclusive means by which police may obtain chemical test evidence of driver intoxication, and therefore failure to comply with the procedures set forth in the implied consent law required suppression.”
Defendant Zielke was charged with homicide by intoxicated use of a motor vehicle as the result of his allegedly having struck from behind a motorcycle stopped at a red light. The impact caused the motorcycle to collidе with another vehicle after which it flew through the air, crashed, and caused extensive burns to the passenger and the motorcycle driver, who died from their injuries. Zielke, who appeared confused and had himself been burned, was taken to the hospital for treatment. A blood sample was taken that was not preceded by the statutory form of rights set out in the implied consent law.
The district court held that failure to advise the defendant as provided by the implied consent law required suppression of the evidence in the prosecution of the criminal offense. The supreme court reversed, concluding that, although the state‘s failure to advise the defendant as provided by law would forfeit the state‘s right to revoke a driver‘s license for refusal to submit to a test and deprive it of the evidentiary benefit of the refusal, id. at
[T]he intent of the legislature in passing the implied consent law was to facilitate the gathering of evidence against drunk drivers in order to remove them from the state‘s highway. . . .
[N]othing in the statute or its history permits the conclusion that failure to comply [with the statute] prevents the admissibility of legally obtained chemical test evidence in the separate and distinct criminal prosecution for offenses involving intoxicated use of a vehicle. Such a holding would lead to an absurd and unreasonable result. . . . In light of the clearly articulated intent of the legislature . . . and the absence of explicit legislative direction to suppress chemical test evidence for noncompliance . . . it would be absurd to infer that the legislature intended that critical evidence must be excluded. . . . To so hold would give greater rights to an alleged drunk driver under the fourth amendment than those afforded any other criminal defendant. [137 Wis 2d 46, 51-52.]
I likewise find no indication in subsection 9 of a legislative intention to undermine the substantive benefits to the public in effectively enforcing the law by requiring suрpression of vital evidence through the physician-patient privilege.
IV
In addition, the trial court did not err in denying defendant‘s motion to suppress the evidence because, even assuming for the sake of argument that the requirements of subsection 9 are not satisfied, the privilege does not entitle the defen-
First, it is far from clear that the testimony of a physician or surgeon will be necessary to introduce the blood-test results at trial. This statutory privilege, which did not exist at common law, is limited to persons “authorized to practice medicine or surgery.”
If the blood-test results can be admitted into evidence without the testimony of a physician, the privilege will not become an issue in this case.
In other circumstances, one could soundly argue
Second, even if the privilege did prevent admission of the test results during the prosecutor‘s case in chief, the defendant might waive that privilege through his conduct or otherwise. For example, when a patient makes his condition an issue by testifying at trial, he waives the physician-patient privilege as it relates to that fact. See People v Kayne, 268 Mich 186, 190; 255 NW 758 (1934); People v Hunter, 374 Mich 129, 133-137; 132 NW2d 95 (1965). If the defendant testifies at trial that he was not intoxicated at the time he drove, the privilege would be waived as it relates to that issue, and the blood-test result would be admissible.
V
For the foregoing reasons, I would affirm the decision of the trial court denying defendant‘s motion to suppress.
GRIFFIN, J., concurred with BOYLE, J.
Notes
These provisions are now found atIf after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver‘s blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol . . . in the person‘s blood at thе time alleged, regardless of whether the person had been offered or had refused a chemical test. [Emphasis added.]
Failure to fully comply with the [defendant‘s] request shall bar the admission of the results into evidence by the prosecution.
It is not necessary to decide here whether the word “accident” has a different meaning for purposes of arrest, see Tope v Howe, 179 Mich App 91; 445 NW2d 452 (1989), or to decide whether other authority would authorize or require police officers to transport an individual to a medical facility. See City of Troy v Ohlinger, 438 Mich 477; 475 NW2d 54 (1991).A peace officer may, without a warrant, arrest a person when
Courts recognizing their authority to narrowly construe the physician-patient privilege for purposes of enforcement of laws relating to drunk driving do not necessarily apply the same rationale to civil cases. See Dillenbeck v Hess, 73 NY2d 278; 536 NE2d 1126 (1989).Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon.
In addition, the privilege against self-incrimination “protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and . . . the withdrawal of blood and use of the analysis . . . [does] not involve compulsion to these ends.” Schmerber v California, 384 US 757, 761; 86 S Ct 1826; 16 L Ed 2d 908 (1966).
Furthermore, we note that an accident is often unexpected and undesired by at least one of the parties involved, but not necessarily all, because it may be that one or more of the parties involved in the “accident” intended such action, and we have determined that such intentional conduct may properly be characterized as an “accident.”