STATE OF MONTANA, PLAINTIFF AND APPELLANT, v. ARTHUR LEROY MAGNUSON, DEFENDANT AND RESPONDENT.
No. 83-162.
SUPREME COURT OF MONTANA
June 12, 1984
682 P.2d 1365 | 183 Mont. 458
Decided June 12, 1984.
682 P.2d 1365.
MR. JUSTICE GULBRANDSON delivered the Opinion of the Court.
The State of Montana appeals from an order of the District Court, Fourteenth Judicial District, Musselshell County, dismissing a charge of operating a motor vehicle while under the influence of intoxicating liquor against the defendant, Arthur Leroy Magnuson. We reverse.
On the afternoon of July 29, 1982, Magnuson became intoxicated and drove away from the Kee Angus Ranch in Musselshell County in his blue Ford Bronco. Before he left he had bеen confronted by Mary Kee, a friend, who knew he had been drinking. Mary Kee had attempted to persuade Magnuson not to drive and had taken the keys to his Bronco. Magnuson found another set of keys and left the ranch.
Kee, concerned that Magnuson was driving while intoxicated, called the Sheriff‘s Office, hoping to speak with Sheriff Brian Neidhardt, a friend of Kee‘s. As Sheriff Neidhardt was not there Kee called the Alcoholics Anonymous number listed in the local newspaper. Kee spoke with Mac House, the director of the Musselshell County Drug and Alcohol Program. Kee did not know that Magnuson was in treatment with Mac House at that time and had never spoken with Mac House prior to the phone call. Kee told House about the problem and the two of them agreed to let matters take their course.
After receiving Kee‘s phone call, House discussed the situation with undersheriff Floyd Ray Fisher. House advised Undersheriff Fisher that Magnuson was intoxicated and was driving his Bronco. Undersheriff Fisher later testified that he had seen the vehicle around town at a few of the different bars, and that after House described the vehicle to him, he remembered the vehicle. House also advised Undersheriff Fisher that Magnuson‘s usual hangout was Tracy‘s
As Fisher drove toward Tracy‘s Bar, he and House saw Magnuson‘s vehicle coming in the opposite direction on Highway 87. Fisher later testified that Magnuson had “approximately a quarter to almost half of his vehicle in my lane of traffic.” As Fisher followed Magnuson, “he turned his right hand blinker on to make a right hand turn, and then made a left hand turn.” After Fisher stopped Magnuson he approached the vehicle and when Magnuson opened the door of his vehicle, Fisher “could smell alcohol, a very strong odor of alcohol.” When Fisher asked Magnuson to steр out of the vehicle Magnuson “had to take hold of the door to keep from falling to the ground.” When Fisher asked Magnuson to say the alphabet he could only make it as far as G. When Fisher asked Magnuson if he could walk a straight line, heel to toe, Magnuson “had to take several steps sideways to keep frоm falling down.” Fisher then arrested Magnuson and advised him of his Miranda rights.
Based upon the affidavit of the county attorney, the District Court granted a motion for leave to file an information against Magnuson charging him with violating
The issue to be resolved by this Court concerns the effect of federal statutes and regulations upon a state criminal prosecution for driving under the influence. The federal statutes and regulations requirе that patient records maintained in connection with the performance of any program or activity related to alcohol abuse treatment remain confidential. The State concedes that the Musselshell County Drug and Alcohol Program is federally funded and the record shows that Magnuson had beеn attending counseling
On motion of the defendant to dismiss, the District Court found “that the information provided by . . . Mac House to . . . Fisher . . . was tainted within the prohibition” of
The first issue is whether
The federal statutes involved in this case are as follows:
“Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) be confidential and be disсlosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section.
42 U.S.C.A. Section 4582 (a) .“Except as authorized by a court order granted under Subsection (b)(2)(c) of this section, no record referred to in Subsection (a) of this section may be used to initiate or substantiate any criminal сharges against a patient or to conduct any investigation of a patient.”
42 U.S.C.A. Section 4582(c) . (Emphasis added.)
The applicable federal regulations in this case are these:
“Records. The term ‘records’ includes any information, whether recorded or not, relating to a patient, received or acquired in connection with the performance of any alcohol abuse or drug abuse prevention function, whether such receipt or acquisition is by a program, a qualified service organization, or any other person.
42 C.F.R. Section 2.11(o) .(Emphasis added.) “Except as provided in paragraph (b) of this section, this part applies to records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any alcohol abuse or drug abuse prevention functions.
42 C.F.R. Section 2.12 .“. . .
“(3) Which is assisted by funds supplied by any department or agency of the United States, whether directly through a grant, contract or otherwise, or indirectly by funds supplied to a State or local government unit through thе medium of contracts, grants of any description, general or special revenue sharing, or otherwise. . .
42 C.F.R. Section 2.12(a)(3) .“The term ‘alcohol abuse or drug abuse prevention function’ means any program or activity relating to alcohol abuse or drug abuse education, training, treatment, rehabilitation, or researсh . . .”
42 C.F.R. Section 2.11(k) .
Resolution of the first issue in this case depends upon whether the information House communicated to Fisher was within the definition of “records” as that term is defined in
The information conveyed from House to Fisher was that Magnuson was intoxicated; that he was driving a Bronco; that House wanted Fisher to watch out for Magnuson; and Magnuson‘s usual hangout. Respondent asserts that part of the information conveyed from House to Fisher—information about the kind of car Magnuson would be driving, as well as his usual hangоut—came from the client-counselor relationship. However, Undersheriff Fisher testified that after House described Magnuson‘s vehicle he remembered it because he had observed it at some of the local bars on prior occasions.
If the information was within the prohibition of the fed-
In addition, the federal legislation does not apply in this case because the information received by Undersheriff Fisher from House was not used to “initiate or substantiate any criminal charges” against Magnuson. See
Next, the State argues that suppression of the evidence was an erroneous remedy for violating the federal statute because the proper remedy under
In making its decision, the District Court stated “. . . from the evidence presented that the information provided by alcohol and drug abuse counselor Mac House to Deputy Sheriff Floyd Fisher, leading to the arrest of the Defendant, was tainted within the prohibition of (the federal statutes).” However, when
Since the issues previously discussed are dispositive of the case we need not consider the other issue raised by the State.
Reversed and remanded for further рroceedings in accordance with this opinion.
MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, WEBER and MORRISON concur.
MR. JUSTICE SHEEHY, dissenting:
The facts recited in the majority opinion require further elaboration. After the telephone conversation with Mary Kee, Mac House went out and searched for Undersheriff Floyd Fisher, whom he found at the Cattlemen‘s Restaurant, having his dinner аt 8:30 p.m. House advised Undersheriff Fisher that he had information that Arthur Magnuson was intoxicated and was driving his Ford Bronco. In response to questions from Fisher, House described the vehicle that Magnuson was driving, and from the description Fisher remembered the vehicle as he had seen it parked outside of bars in the vicinity. House also advised the undersheriff that Magnuson‘s usual hangout was Tracy‘s Bar. When he had finished his dinner, the undersheriff asked House if he would “like to take a ride” and the two of them got into Fisher‘s vehicle. As they drove toward Tracy‘s Bar, they saw Magnuson‘s vehicle coming in the opposite direction on Highway 87. Fisher observed that Magnuson‘s vehiclе crossed the centerline several times and
The State concedes that the Musselshell County Drug and Alcohol Program is federally funded, and the record shows that Magnuson had been attending counseling sessions with Mac House for six weeks to two months before the driving charge occurred.
The State first contends that thе information received by House from Fisher was not the kind of patient information which Congress intended to protect. The State has pointed to
The term “record” is very broadly defined in the federal regulation. It is not limited to information received from the patient alone, but includes “any information” recorded or unrecorded, “relating to a patient.”
When Mary Kee used the telephone here looking for help, the number that she called wаs answered by Mac House, from the Musselshell Drug and Alcohol office. The information which she relayed to him about Magnuson “related to a patient.” That information, and the further information about Magnuson‘s usual hangout which apparently Mac House also knew, were relayed by him to Undersheriff Fisher. I determine that such information is included within the term “record” the relaying of which is prohibited by the federal regulation.
It is a close question whether the information conveyed by House to Fisher was used to initiate criminal charges against Magnuson. It does appear clear from the record that while Fisher was investigating Magnuson in the presence and with the cooperation of House that the criminal charges were initiated, based upon the observations that Fisher made during the investigation.
The State contended and the majority apparently agrees that Congress did not intend to create a “sanctuary” for a patient from prosecution for its criminal acts. Whatever
As to whether the prohibition against release of information under the federally-funded program should be balanced with state policy against drunk driving, the line of demarcation is obviously hard to draw. Certainly there will be instances where the severity of the crime or the danger to society will be of such gravity as to require a prosecution even though information from such a federally-funded program was obtained. What is overweighing in this case, however, is not only that Mac House supplied the information, but then he actively participated in the investigation by accompanying the deputy to a place where Magnuson could be found. In so doing, he abused all the principles of the confidеntial relationship in which he was a paid participant. Certainly Congress did not anticipate that kind of use of its statutorily-protected information.
Finally I disagree with the majority that the remedy provided in
The answer to that contention is found in reviewing the Congressional reasons for establishing the federally-funded project. The object is to attract patients, free from stigma and criminal prosecution from what may be revealed by them in the course of their treatment. A mere fine against the violator of such confidence does not protect the patient whose confidence has been abused. It is more by assuring
I would determine that the federal statute, with its obvious objectives, makes it imperative that we do not enforce criminal prosecutions based on information received from persons who seek help from alcoholism in federally-funded projects. I expressly dissent.
MR. JUSTICE SHEA dissents, and will file a written dissent later.