Opinion
I.D. 0010002000
Submitted: June 5, 2001
Decided: June 18, 2001
On Defendant's Motion to Suppress. Denied.
Sean P. Lugg, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Richard T. Wilson, Law Offices of Peter G. Angelos, P.C., Wilmington, Delaware, Attorney for the Defendant.
MEMORANDUM OPINION
Defendant, Rachel Onumonu, has moved this Court to suppress the results of blood alcohol content (BAC) tests administered to her after an automobile accident. Defendant argues that the release to police of the initial BAC test, obtained by a physician at the hospital, violated Defendant's constitutional rights and violated doctor-patient privilege. Defendant also argues that the second BAC test, ordered by police, is inadmissible because that test was tainted by the illegality of the first test. This is the Court's decision on Defendant's Motion to Suppress.
On May 29, 2000, at 10:00 p.m., a three vehicle accident occurred at the intersection of Walnut Street and A Street in Wilmington, Delaware. Defendant operated one of the vehicles involved and it was later determined that Defendant ran a red light. Wilmington Police officers, including Patrolman Fermin Lopez, responded to the scene of the accident shortly afterwards and arranged for emergency transport of those who were injured in the collision. Defendant was transported to Christiana Hospital for treatment. Defendant alleges, and the State does not dispute, that police had not interviewed Defendant at this time, nor had she talked to any police officer at the scene.
Officer Lopez responded to Christiana Hospital after Defendant had been taken away from the scene, where hospital personnel advised Lopez that a preliminary analysis of Defendant's revealed a blood alcohol content of .221 percent. Officer Lopez informed his supervisor of the rest results and was directed to secure an independent sample using a departmental blood kit. The second BAC test, conducted by the medical examiner, revealed a blood alcohol content of .138 percent. Both parties concede that police did not interview Defendant prior to the disclosure of the hospital's BAG test results. Defendant states that police first interviewed her on May 31, 2000. Police arrested Defendant on October 4, 2000, and she was subsequently indicted for Vehicular Assault, First Degree, two counts Vehicular Assault, Second Degree, Driving a Vehicle While Under the Influence of Alcohol, and Disregarding a Red Light.
Defendant has filed a motion to suppress the results of both the BAC test conducted by Christiana Hospital and later revealed to police and the second BAG test conducted by the medical examiner at the direction of Wilmington Police. Defendant also asks the Court to suppress the statements of any doctor, nurse, or healthcare provider concerning the results of the blood analysis conducted at Christiana Hospital.
Initially, Defendant argues that the results of the BAG test conducted by Christiana Hospital must be suppressed both because there was no probable cause to conduct the test and because disclosure of the results violates doctor-patient privilege. The Court agrees with the State that analysis of Defendant's motion requires a two-step analysis of Defendant's arguments, rather than considering them as one issue. Specifically, the Court must determine: 1) whether Defendant's constitutional protections under the Fourth Amendment were violated by Christiana Hospital's test of Defendant's blood and its subsequent disclosure to police; and 2) whether doctor-patient privilege precludes the disclosure of the test results to police by Christiana hospital personnel and their subsequent use at trial.
Defendant argues that there was no probable cause to suspect that Defendant was operating a motor vehicle under the influence of alcohol at the time Christiana Hospital conducted its blood alcohol analysis. Defendant points out that Officer Lopez had not spoken to Defendant prior to the disclosure of the test results, nor did he know that Defendant had run a red signal light prior to the accident. Defendant argues that the fact that Christiana Hospital is not a "government agent per se" does not excuse the requirement of probable cause to conduct the blood test.
Analysis of the admissibility of the Christiana Hospital BAC test results requires two separate determinations. First, the Court must decide whether the actual taking of Defendant's blood constituted a search or seizure under the Fourth Amendment. Next, the Court must determine whether the State's acquisition of the blood test results infringed on Defendant's Fourth Amendment privacy interests.
Both the Fourth Amendment to the United States Constitution and Article I, § 6 of the Delaware Constitution provide protection to the people from unreasonable searches and seizures. However, before constitutional protections from search and seizures can be triggered, state action must be involved in the alleged search. United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Fourth Amendment is not applicable "`to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.'" Id. at 113 — 114 (quoting Walter v. United States, 447 U.S. 649, 662 (1980)(Blackmun, J., dissenting)).
A blood test conducted under the direction of police falls within the ambit of protection under the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 766 (1966). However, in this case, Defendant does not argue that withdrawal of Defendant's blood was done for any other purpose than medical treatment or that the withdrawal was done at the direction of police, the prosecutor, or state agents. Defendant does not allege that Christiana Hospital is a government-owned hospital, or a governmental agent.
The Court finds that Defendant's reliance on Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602 (1989), United States. v. Attson, 9th Cir., 900 F.2d 1427 (1990), and Ferguson v. City of Charleston, ___ U.S. ___, 121 S.Ct. 1281 (2001) is misplaced. Skinner held that the Fourth Amendment was applicable to drug and alcohol testing by private railroads mandated by government regulations. Id. at 1411. Skinner stated, "The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search was a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct." Id. at 1412.
Ferguson held that a state hospital's performance of diagnostic tests to obtain evidence of a patient's drug use for law enforcement purposes was an unreasonable search where the patient had not consented and the search was not authorized by a valid warrant. Id. at 1291-1292. However, Ferguson pointed out that the hospital at issue was a state facility and its members, as governmental actors, were subject to the strictures of the Fourth Amendment. Id. at 1287. Also, the conduct of the hospital employees was undertaken pursuant to a policy developed by law enforcement officials. Id. Ferguson found that the tests conducted by hospital staff were "indisputably searches within the meaning of the Fourth Amendment" Id. Finally, Attson considered the issue of when "nonlaw enforcement governmental conduct" could be considered search or seizure under the Fourth Amendment. Attson, 900 F.2d at 1430.
The facts of this case are distinguishable from those of the case law cited by Defendant. Defendant does not allege that Christiana Hospital is a publicly owned facility There is no evidence to suggest that the police, or other governmental agents, compelled the hospital to analyze Defendant's blood or otherwise acted in more than a passive role in the hospital's performance of the BAG test. Thus, the Fourth Amendment was not implicated when the hospital drew Defendant's blood to conduct a BAG test.
Next, the Court must determine whether the police acquisition of the blood test results infringed on Defendant's Fourth Amendment privacy interests. It has been recognized that patients undergoing diagnostic tests in a hospital enjoy a reasonable expectation of privacy that the results of the tests will not be shared with nonmedical personnel without the patient's consent. Ferguson, 121 S.Ct.at 1288; In reSearch Warrant, 3rd Cir., 810 F.2d 67, 71 (1987) (Citations omitted.) However, the test to determine whether a person has a protected Fourth Amendment privacy right is whether that person has a reasonable expectation of privacy in the area invaded by government action. Katz v. United States, 389 U.S. 347, 349 (1967).
Again, Defendant has presented no evidence that the police played any role in hospital personnel's decision to turn over the test results to police. As a result, Defendant can claim no Fourth Amendment right to privacy as a result of hospital personnel's actions in providing the test results to police.
In summary, the Court finds that, because there was no State involvement in the withdrawal and testing of Defendant's blood or in its disclosure to police, there were no Fourth Amendment intrusions into Defendant's right to privacy. Also, there was no search and seizure within the meaning of the Fourth Amendment. Other jurisdictions have reached the same conclusion under similar circumstances. See St. Clair v. State, Tex. App., 26 S.W.3d 89, 102 (2000); Commonwealth v. Ellis, Pa. Super. Ct., 608 A.2d 1090, 1091 (1992); State v. Perlos, Mich., 472 N.W.2d 310, 316 (1990) (citing State v. Johnston, N.M. Ct. App., 779 P.2d 556 (1989); Nelson v. State, Alaska Ct. App., 650 P.2d 426, 427 (1982); State v. Jenkins, Wis., 259 N.W.2d 109 (1977); Turner v. State, Ark., 527 S.W.2d 580 (1975); State v. Enoch, Or. Ct. App., 536 P.2d 460 (1975); Commonwealth v. Gordon, Pa., 246 A.2d 325 (1968), cert. den., 394 U.S. 937, (1969)); Marks v. Commonwealth, Ky., 698 S.W.2d 533, 534 (1985); State v. Jenkins, Wis., 259 N.W.2d 109, 113 (1977)).
Defendant also argues that the results of the BAG test turned over to police by Christiana Hospital are not admissible because the results constitute a privileged communication between Defendant and the treating doctor. Defendant points out that there is no evidence that she acquiesced to the disclosure of the BAC test results to police. Defendant argues that 21 Del. C. § 2750(b), which creates an exception to doctor-patient privilege with regard to BAC test results, is unconstitutional.
Doctor-patient privilege is a statutorily created right that did not exist at common law. Hollenbacher v. Bryant, Del. Super., 30 A.2d 561, 562 (1943); Div. of Social Services v. Shipman v., Del. Fam., 442 A.2d 101, 104 (1981), aff'd, Del. Supr., 460 A.2d 528 (1983). Such privilege exists in the State of Delaware pursuant to Delaware Uniform Rule of Evidence 503(b), which protects certain communications between a patient and his or her physician or psychotherapist. However, Delaware has carved out certain statutorily created exceptions to doctor-patient privilege. Twenty-one Del. C. § 2750(b) creates the exception at issue here. The section provides:
Another such exception can be found in 16 Del. C. § 903, which requires that a physician report suspected child abuse.
The doctor-patient privilege shall not apply to the disclosure to law-enforcement personnel nor the admissibility into evidence in any criminal proceeding of the results of a chemical test of a person's blood, breath or urine for the purposes of determining the alcohol or drug content of that person's blood irrespective of whether such test was done at the request of a treating physician, medical personnel or a peace officer.
Under the plain language of § 2750(b), doctor-patient privilege does not apply to the BAC test results provided to police by Christiana Hospital.
However, Defendant argues that § 2750(b) must be read in conjunction with D.R.E. 503 and 21 Del. C. § 2740, which provides for blood alcohol testing where police have probable cause to believe a suspect was driving while intoxicated. Defendant argues that, when these sections are read together along with the remaining statutes making up Delaware's implied consent law ( 21 Del. C. § 2740 — 2750), probable cause must still be present for the BAC test results to be admissible pursuant to § 2750(b). Defendant states that otherwise, "any time a police officer had even the slightest suspicion (or even no suspicion) of a person driving under the influence of alcohol, the officer could demand and receive the results of a hospital blood screen which was drawn for the purpose of treatment."
The Court agrees that 21 Del. C. § 2750(b) must be read in conjunction with the remaining portions of the implied consent statutes. However, Defendant's argument confuses the issue of whether the test results are admissible under the rules of search and seizure law with the issue of privilege. The Court finds that the proper interpretation of § 2750(b) is that, when evidence of blood alcohol content is admissible under the relevant search and seizure law, as set forth in § 2750(a), doctor-patient privilege does not apply to the disclosure or admissibility at trial of those results.
Section 2750(a) provides, in pertinent part:
Upon the trial of any action or proceeding arising out of acts alleged to have been committed by any person while under the influence of alcohol, a drug or drugs, with respect to any chemical test taken by or at the request of the State, the court shall admit the results of a chemical test of the person's breath, blood or urine according to normal rules of search and seizure law . . . Nothing contained in this section shall be deemed to preclude the admissibility of such evidence when such evidence would otherwise be admissible under the law relative to search and seizure law such as when the evidence has been obtained by valid consent or other means making the obtaining of the evidence legal under the Fourth Amendment. (Emphasis added.)
To reiterate, Defendant presented no evidence that police requested the BAC test results, or that Christiana Hospital turned over the test results due to an agreement with law enforcement personnel. Nor is there evidence to suggest that Defendant's blood was drawn for any other purpose except medical treatment. As determined above, the hospital's actions do not constitute a search or seizure so as to implicate the Fourth Amendment. In contrast, any such evidence which is obtained at the request of, or with the involvement of, law enforcement officials is subject to Fourth Amendment constraints. Schmerber, 384 U.S. at 766. Therefore, the blood test taken by Christiana Hospital and given to police is admissible under § 2750(a). Doctor-patient privilege does not apply to the disclosure of those results or their admissibility at trial pursuant to § 2750(b). The Court cannot find that § 2750(b) allows police the unrestricted ability to obtain BAC test results at will absent probable cause, as Defendant contends.
Defendant also argues that 21 Del. C. § 2750(b) is "vague, overbroad and impinges on the constitutional right to privacy and the reasonable expectation of privacy concerning medical treatment." As set forth in detail above, § 2750(b) does not impinge on a defendant's constitutional right to privacy, as the admissibility of such evidence under § 2750(a) is subject to the constraints of search and seizure law under the Fourth Amendment, where applicable.
As set forth above, the right to doctor-client privilege is created by statute, and as such, the legislature is entitled to create exceptions to that privilege. The Court cannot find that § 2750(b) is vague or overbroad so as to prove unconstitutional. Rather, the statute is a specifically worded exception to doctor-client privilege as set forth in D.R.E. 503. Finally, the Court finds that testimony of a doctor, nurse, or healthcare provider at trial concerning the results of the blood analysis conducted at Christiana Hospital also are admissible under § 2750(b).
Defendant's final argument is that the second BAC test conducted on Defendant at the request of the police by the medical examiner's office must also be suppressed because police developed probable cause to perform the test due to their receipt of the results of the first test. Defendant argues that, because police obtained the results of the first test due to an illegal search and seizure, the second test was tainted. Because the Court finds that the results of the first BAC test are admissible for the reasons set forth above, the Court also finds that second test is not tainted. Therefore, Court determines that the results of the second test are admissible as evidence against Defendant, as well.
Defendant does not argue that the test results are not otherwise inadmissible.
Therefore, for the foregoing reasons, Defendant's Motion to Suppress is DENIED.
IT IS SO ORDERED.