2009-315, State of New Hampshire v. Jacob Davis

Michael A. Delaney

No. 2009-315

New London District Court

State appeals the decision of the New London District Court (McSwiney BRODERICK, C.J., retired, specially assigned under RSA 490:3. The

Michael J. Cornelio

obtained by the police from the New London Hospital. We reverse and remand. granting a motion of the defendant, Jacob Davis, to suppress blood test results

defendant.

general, on the brief and orally), for the State.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as the motion to suppress. This appeal followed. p. 2 expectation of privacy in the results. After a hearing, the district court granted authority to obtain the test results, and that the defendant had no reasonable State objected, arguing that RSA 329:26 (Supp. 2010) gave the police the the federal Health Insurance Portability and Accountability Act (HIPAA). The Article 19 of the New Hampshire Constitution and his right to privacy under argued that seizure of his medical records without a warrant violated Part I, Prior to trial, the defendant filed a motion to suppress, in which he

265-A:3, III (Supp. 2010). subsequently charged the defendant with aggravated DWI pursuant to RSA that the defendant had a blood alcohol level of .295 percent. The police Thereafter, the hospital released a laboratory report to the police showing

of the blood test. blood samples.” At no time did the State seek a search warrant for the results that reveal the blood alcohol and/or controlled drug levels content of those about [September 26, 2008], and copies of the results of any laboratory tests requesting the release of any blood samples taken from [the defendant] on or drug, and that he was, “[p]ursuant to New Hampshire RSA 329:26 . . . motor vehicle while under the influence of an intoxicating liquor or controlled indicated that Sims was investigating the defendant for the crime of operating a release of blood alcohol results on a New London Hospital form. The form Sims of the Sutton Police Department submitted a second request for the while in the care of the New London Hospital.” The following day, Chief John copies of any laboratory tests for blood alcohol content taken from this subject RSA 329:26 . . . requesting the release of any blood and urine samples and controlled drug. The form stated that Peters was, “pursuant to New Hampshire operating a motor vehicle while under the influence of an intoxicating liquor or a Sutton police form indicating that she was investigating the defendant for On October 2, 2008, Peters filed a Request for Hospital Blood Records on

possession of alcohol and driving while intoxicated (DWI). released from the hospital, the defendant was charged with unlawful blood and tested it to determine his blood alcohol concentration. After being Meanwhile, as part of its treatment of the defendant, the hospital drew his under the Implied Consent statute, RSA 265-A:4 (Supp. 2010). He refused. she interviewed the defendant and asked him to submit to alcohol testing Peters proceeded to the New London Hospital Emergency Room, where

refused to allow the defendant to continue driving. with him had been so concerned about his apparent intoxication that he had driving he had backed into a tree. She also learned that the student who was automobile shortly before she was called to the high school, and that while at the school, Peters learned that the defendant had driven a teacher’s p. 3 Article 19. See acquisition of, the blood test results without a search warrant violated Part I, The question remains, however, whether the State’s request for, and

Goss, 150 N.H. at 48-49. We need not decide whether the defendant had a that expectation is one that society is prepared to recognize as reasonable. I, Article 19 of the New Hampshire Constitution. State v. Steimel a subjective expectation of privacy in the results of his blood test, and whether person’s body without a warrant or consent is a search and seizure under Part as the defendant argues, that the proper inquiry is whether the defendant had It is well settled that the government’s withdrawal of blood from a criminal trial. State v. Canelo State v. Summers, 142 N.H. 429, 432 (1997). We will assume, violation of Part I, Article 19 may be subject to exclusion from evidence in a his houses, his papers, and all his possessions.” Evidence that is obtained in a right to be secure from all unreasonable searches and seizures of his person, Part I, Article 19 of our State Constitution provides: “Every subject hath unreasonable searches and seizures apply only to state action). See State v. Nemser, 148 N.H. 453, 454 (2002) (protections against testing, the drawing of the defendant’s blood did not implicate Part I, Article 19. medical purposes. As there was no state involvement in its withdrawal or 141, 147 (2007). Here, however, the blood was drawn by the hospital for the State Constitution, we apply an expectation of privacy analysis. State v. To determine whether a warrantless search may give rise to a violation of, 155 N.H.

under Part I, Article 19. Robinson, 158 N.H. at 796. expectation of privacy, there has been no violation of the defendant’s rights “reasonable.” Id. at 49. Without an invasion of the defendant’s reasonable of privacy and that expectation is one that society is prepared to recognize as Article 19 only if the defendant has exhibited an actual (subjective) expectation Goss, 150 N.H. 46, 48-49 (2003). A warrantless search implicates Part I, We first address the defendant’s claim under the State Constitution, State v. Constitution and the Fourth Amendment to the United States Constitution. the defendant’s rights under Part I, Article 19 of the New Hampshire failure to obtain a search warrant for the defendant’s blood test results violated, 139 N.H. 376, 386-87 (1995). The State argues that the trial court erred when it ruled that the State’s

at 232-33. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only, id.

trial court’s legal conclusions de novo. Id. clearly erroneous. State v. Robinson, 158 N.H. 792, 795 (2009). We review the the trial court’s findings unless they are unsupported by the record or are When reviewing a trial court’s ruling on a motion to suppress, we accept treatment of injuries sustained in an automobile accident. See p. 4 the results of blood tests administered for the purpose of diagnosis and

defendant’s trial for negligent homicide. Id

unique circumstances presented when the government requests and acquires 4 us, we find persuasive the reasoning of those cases that focused upon the While the decisions of courts in other jurisdictions are not binding upon Here, the physician-patient privilege did not exist at common law. State statute delineating the physician-patient privilege states, in relevant part: automobile accident.” Hannoy v. State evidence at issue in Elwell. See Laws 1996, 267:2. The current version of the enforcement for law enforcement purposes only in the investigation of an legislature amended the statute to exempt from the privilege the type of consensual treatment of a patient, where those results are requested by law. at 606. In 1996, however, the “blood alcohol test results obtained and recorded by a hospital as part of its physician-patient privilege and could not be used as evidence in the recognize a reasonable expectation of privacy under the Fourth Amendment in staff at the request of a physician in the course of treatment fell within the reached different conclusions. Several courts have found that society does not an early version of the statute, we held that a blood sample taken by hospital been incorporated into the rules of evidence, N.H. R. Ev expectation of privacy exists in blood test results in the DWI context have. 503.” Id. Interpreting in our State by statutory enactment in 1969, Laws 1969, ch. 386, and has v. Elwell, 132 N.H. 599, 603 (1989) (decided under prior law). It “was created

may be some evidence of societal expectations, Hardy, 963 S.W.2d at 524. Legislature,” Perlos, 462 N.W.2d at 319, and that whether a privilege exists one source in analyzing the reasonableness of an expectation is to look to the Hardy, 963 S.W.2d at 523-27. We also agree that, “although not determinative, 2d at 1122-24; Hannoy, 789 N.E.2d at 990-92; Perlos, 462 N.W.2d at 315-21;

Courts in other jurisdictions addressing whether a reasonable

50 (Mont. 1997). State, 535 S.E.2d 492, 494-97 (Ga. 2000); State v. Nelson, 941 P.2d 441, 446constitutional provisions that guarantee a right to privacy, see, e.g., King v. seizures, see, e.g., Com. v. Shaw, 770 A.2d 295, 299 (Pa. 2001), or state under state constitutional provisions prohibiting unreasonable searches and circumstances similar to those in this case violates the defendant’s rights have held that the government’s acquisition of medical records under Crim. App. 1997); State v. Jenkins, 259 N.W.2d 109, 113 (Wis. 1977). Others A.2d 729, 733-34 (R.I. 1997); State v. Hardy, 963 S.W.2d 516, 523-27 (Tex. People v. Perlos, 462 N.W.2d 310, 319-21 (Mich. 1990); State v. Guido, 698 2003); see also Tims v. State, 711 So. 2d 1118, 1122-24 (Ala. Crim. App. 1997);

conclude that it is not one which society considers reasonable. subjective expectation of privacy in his blood alcohol test results because we diagnosis and treatment. See p. 5 drugs where the blood alcohol tests were administered for the purpose of investigated for driving under the influence of intoxicating liquor or controlled physician-patient privilege blood alcohol test results of a person being RSA 329:26. By its plain language, the statute now exempts from the

will be suspended. See physical tests or to a test of blood, urine or breath, the person’s license to drive Indeed, if a person refuses the request of a law enforcement officer to submit to

official criminal proceedings.

of the statutory limits . . . . controlled drugs or while having an alcohol concentration in excess a vehicle . . . while under the influence of intoxicating liquor or was . . . driving, attempting to drive, or in actual physical control of arising out of acts alleged to have been committed while the person person’s blood or alcohol concentration if arrested for any offense use and disclosure of such information shall be limited to the under the influence of intoxicating liquors or controlled drugs. The

the purpose of determining the controlled drug content of such all of any combination of the following: blood, urine, or breath, for molecular absorption, or gas chromatograph test or tests of any or investigation for driving a motor vehicle while such person was intoxicating liquor or controlled drugs, and to a chemical, infrared

treatment in connection with the incident giving rise to the determining whether such person is under the influence of alcohol content taken from a person for purposes of diagnosis and

consent to physical tests and examinations for the purpose of samples and the results of laboratory tests for drugs or blood This section shall also not apply to the release of blood or urine shall be required to disclose such privileged communications. . . .

upon the ways of this state . . . shall be deemed to have given

except as otherwise provided by law, no such physician or surgeon basis as those provided by law between attorney and client, and, Perlos that when people drive, they encounter a diminished expectation of privacy.” narrow set of circumstances, the legislature has reflected the societal “belief By carving out an exception to the physician-patient privilege under this

Any person who . . . drives or attempts to drive a vehicle

supports this conclusion. RSA 265-A:4 provides, in pertinent part: , 462 N.W.2d at 320. The existence of the Implied Consent law further the patient of such physician or surgeon are placed on the same

physician or surgeon licensed under provisions of this chapter and

The confidential relations and communications between a nonmedical personnel without her consent.” Id p. 6 tests in a hospital is that the results of those tests will not be shared with expectation of privacy enjoyed by the typical patient undergoing diagnostic In this context, the Supreme Court stated that “[t]he reasonable 6

patient had consented,” id. at 78 n. 13, and declined to address a case in might turn over evidence acquired in the course of treatment to which the requirement “might lead a patient to expect that members of the hospital staff Court also noted that the existence of a statutory mandatory reporting

Court’s decision in Ferguson v. Charleston We also disagree with the defendant that the United States Supreme under the Fourth Amendment. Id. at 84-86. criminal conduct for law enforcement purposes was an unreasonable search hospital’s performance of diagnostic tests to obtain evidence of a patient’s Supreme Court held that without the patient’s informed consent, a state urine samples of maternity patients suspected of drug use. Id. at 70-73. The Charleston, 532 U.S. at 69-71. Under the policy, the state hospital tested prosecute pregnant women who tested positive for drugs. Ferguson v. state hospital, and local officials to obtain evidence that could be used to different result. At issue in Ferguson was a policy implemented by the police, a

intoxicating liquors or controlled drugs. See RSA 329:26. incident giving rise to an investigation for driving while under the influence of by law enforcement for law enforcement purposes in connection with an part of its consensual treatment of a patient, where those results are requested privacy in blood alcohol test results obtained and recorded by a hospital as (2010), we conclude that society does not recognize a reasonable expectation of generally, see In Re Search Warrant (Med. Records of C.T.), 160 N.H. 214, 226 defendant may have a reasonable expectation of privacy in his medical records privacy, independent of the physician-patient privilege. To the extent that the contain any suggestion that the legislature intended to create a new right of Services, Hr’g on H.B. 511 (March 22, 1989). The legislative history does not medical records. Senate Comm. on Pub. Institutions, Health and Human of their medical records, and was intended to facilitate patients’ access to response to concerns that some patients were having difficulty obtaining copies history supplied by the State illustrates that RSA 332-I:1, I was enacted in reading would be at odds with RSA 329:26. Furthermore, the legislative which the defendant has a reasonable expectation of privacy. Indeed, such a the property of the patient, it does not necessarily follow that this is property in I. While the statute deems the information contained in medical records to be care provider shall be deemed to be the property of the patient.” RSA 332-I:1, information contained in the medical records in the possession of any health medical records. The statute states, in relevant part, that “[a]ll medical supports the conclusion that he had a reasonable expectation of privacy in his We reject the defendant’s argument that RSA 332-I:1, I (Supp. 2010) p. 7 Reversed and remanded

defendant’s motion to suppress. Accordingly, we conclude that the trial court erred when it granted the

results under the provisions of HIPAA. Therefore, we express no opinion on when it found that the State was prohibited from obtaining the blood tests Finally, we note that the defendant concedes that the trial court erred DALIANIS, C.J., and DUGGAN, HICKS and CONBOY, JJ., concurred.

Constitution, State v. MacElman protective of the right to be free from unreasonable searches as the Federal Constitution. Furthermore, because the State Constitution is at least as in this case does not implicate Part I, Article 19 of the New Hampshire blood test results without a search warrant under the circumstances presented Thus, we conclude that the State’s request for, and acquisition of, the

Constitution. conclusion under the Federal Constitution as we do under our State

case, Ferguson does not apply. involvement in the taking or testing of the defendant’s blood sample in this conjunction with, law enforcement. Because there was no law enforcement violation of the Fourth Amendment because the testing was done for, and in rights . . . .” Id. at 84-85. Thus, it is clear that the Supreme Court found a to make sure that the patients are fully informed about their constitutional specific purpose of incriminating those patients, they have a special obligation when they undertake to obtain such evidence from their patients for the conduct that they inadvertently acquire in the course of routine treatment, other citizens, may have a duty to provide the police with evidence of criminal 24. The Supreme Court also stated that “[w]hile state hospital employees, like which doctors independently complied with reporting requirements, id. at 85 n.