461 N.E.2d 1312 | Ohio Ct. App. | 1982
This case comes before the court on appeal from a judgment of the Maumee Municipal Court, wherein defendant-appellant, Emery A. Dress, was convicted and sentenced for violating R.C.
The undisputed facts precipitating this appeal are as follows. On December 26, 1981, appellant was driving his pick-up truck eastbound on U.S. Route 24, *259
near Bailey Road, when he lost control of the vehicle. Appellant's truck left the road, crashed and turned over. The accident occurred at approximately 6:30 p.m. State Highway Patrol officers arrived on the accident scene shortly thereafter and began their investigation. The record indicates that some of these officers noticed an odor of alcohol on appellant's person. Appellant sustained injuries from the accident and was taken by ambulance to St. Luke's Hospital. He was admitted to the emergency receiving room where the attending physician conducted a physical examination. Appellant's injuries consisted of several minor cuts, bruises and abrasions. Trooper Walker, who had come from the accident scene, was present in the emergency room during appellant's examination. The examining physician, on his own initiative, ordered and administered a blood-alcohol test to determine the alcohol concentration in appellant's bloodstream. At no time did Trooper Walker order a blood-alcohol test or suggest that one be given; however, he was present in the room when the blood sample was extracted. A hospital lab technician analyzed the blood sample, and it is undisputed that he did not possess the standard testing permit issued by the Director of the Ohio Department of Health under R.C.
On December 31, 1981, appellant filed a motion in limine seeking to prohibit the prosecution from using at trial the hospital records containing the results of his blood-alcohol test. The court held a hearing on said motion on February 10, 1982, at which time it directed both the prosecution and the defense to submit memoranda addressing the legal issues raised in appellant's motion. Both parties filed such memoranda. On March 31, 1982, the trial court rendered its judgment and written decision denying appellant's motion in limine. Appellant filed a motion for reconsideration which was considered and denied by the trial court. A jury trial commenced on June 29, 1982. On June 30, 1982, the jury returned a verdict finding appellant guilty of the offense charged, and the court imposed sentence thereon. Appellant has timely prosecuted this appeal in which he presents two assignments of error, the first of which is as follows:
"The Trial Court erred when it interpreted Section
The physician-patient privilege expressed in R.C.
R.C.
"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 Ohio, the general evidentiary rule favors the competency of witnesses, and *260
no witness may claim a privilege to obstruct the receipt of relevant evidence unless a statute or case law otherwise provides. In re Frye (1951),
At the outset, we note that appellant's first assignment of error appears to present this court with a heretofore unresolved legal question in this state. Neither party to this appeal has cited an Ohio case which squarely addresses the precise issue raised herein, and our independent research has disclosed none. In support of his first assignment, appellant vigorously argues that the physician-patient privilege rendered inadmissible in evidence the hospital records containing his blood-alcohol test results. He maintains that since the blood-alcohol test was administered by the physician as part of the treatment of appellant's injuries, the privilege precludes its admission at trial. He supplements his argument by reference to several Ohio cases which address the nature and extent of a privileged communication between a physician and his patient. Among these are Baker v. Indus. Comm. (1939),
R.C.
"(A) Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. * * *"
Appellee's contention that this section constitutes an implied waiver of appellant's right to assert his privilege is not without merit. However, the Ohio Supreme Court has clearly indicated that the privilege set forth in R.C.
The blood-alcohol test administered in connection with appellant's physical examination constitutes a "communication" as the word is used in R.C.
The parties have advanced interesting arguments as to why the communication of appellant's blood-alcohol concentration is or is not privileged. In weighing these conflicting arguments, we conclude that the public interest in the sensible and efficient administration of criminal justice outweighs the policy considerations which support the physician-patient privilege. InState v. Antill (1964),
"* * * The purpose of this privilege is to encourage patients to make a full disclosure of their symptoms and condition to their physicians without fear that such matters will later become public. Against the interest of the patient in having hiscondition remain confidential, must be balanced the interest tothe public in detecting crimes in order to protect society." (Emphasis added). Id. at 64-65.
The Antill opinion implicitly recognized that the 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. See State, In theInterest of M.P.C. (1979),
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.
In State v. Betts, supra, the oregon Supreme Court found that state's physician-patient privilege to be applicable only in civil proceedings. The court balanced the interests of both public and patient, and concluded as follows:
"* * * Assuming [that] * * * the privilege is responsible in some instances for a physician being better able to perform his mission, it is still necessary to examine the other side of the proposition. How is the public welfare, that part that is dependent upon the efficient administration of criminal justice, served by the privilege? Unquestionably, the administration of criminal justice is impeded by the privilege. 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 by the efficient administration of criminal justice which is obtained by permitting the introduction of competent and relevant evidence which the physician can give about his patient. * * *" State v. Betts, supra, at 140-141. See, also, State v.Bedel, supra, at 124.
We find the foregoing reasoning to be persuasive. 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.1
Cf. Focht v. Rabada (1970),
As we noted above, R.C.
Appellant's second assignment of error is as follows: *263
"For the results of a blood-alcohol test to be admissible at trial, the test must have been conducted by a person possessing a valid permit from the department of health, pursuant to section
In support of his second assignment of error, appellant argues that the blood-alcohol test result revealing a blood-alcohol concentration level of 0.25 percent was rendered inadmissible in evidence because the hospital lab technician who analyzed the sample did not possess a valid testing permit as mandated by R.C.
"In any criminal prosecution for a violation of this section, or ordinance of any municipality relating to driving a vehicle while under the influence of alcohol, the court may admitevidence on the concentration of alcohol in the defendant's blood at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of such alleged violation. When a person submits to a blood test at the requestof a police officer under section
R.C.
"Accordingly, the two-hour time limitation set forth in R.C.
Prior to the trial herein, appellant submitted a motion for reconsideration in which he relied in the case of Oregon v.Hilton (1980),
"* * * [T]he State of Ohio in this case *264
should be * * * denied the advantages of the presumptions provided for in section
We concur. Appellant maintains that Cincinnati v. Sand (1975),
In State v. Hernandez (1978),
"We * * * find that the test, as conducted, can be qualified under generally accepted rules of evidence as having a scientific basis in fact and generally recognized by courts of law; therefore, it was admissible in evidence, independent of healthdepartment regulations specifically dealing with driving while under the influence cases." (Emphasis added.) Id. at 68.
The test result herein was admissible if the prosecution could first establish by expert testimony (and other foundational proof) that the testing procedures used were reliable and that the person doing the testing had sufficient training and skill to qualify him in that regard.2 However, as the trial court correctly ruled, the prosecution was not entitled to the statutory presumption that would otherwise arise in a case where the test result was procured in conformity with R.C.
On consideration whereof, this court finds that defendant-appellant was not prejudiced or prevented from having a fair trial, and the judgment of the Maumee Municipal Court is hereby *265 affirmed. This case is remanded to said court for execution of sentence and assessment of costs. Costs assessed against appellant.
Judgment affirmed.
CONNORS, P.J., and BARBER, J., concur.
WILEY, J., retired, of the Sixth Appellate District, was assigned to active duty pursuant to Section 6(C), Article IV, Constitution.
"* * * It was * * * agreed that the prosecuting attorney would introduce an expert to testify as to the scientific correlation between the test results and the state of intoxication of the defendant at the time of the accident. It was further stipulated that the prosecution would not base its case upon any presumption set forth in R.C.
The record in this case is silent as to the precise manner in which evidence of appellant's blood-alcohol test was introduced at trial. Therefore, the presumption arises that such evidence was properly admitted. See Knapp v. Edwards Laboratories (1980),