Opinion
No. 05-05-00537-CR
Opinion issued June 27, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law, Kaufman County, Texas, Trial Court Cause No. 04CL-1429. Reversed and Remanded.
Before Justices MOSELEY, BRIDGES, and O'NEILL.
OPINION
The State of Texas appeals the trial court's order granting Cupp's motion to suppress evidence of a blood sample taken from him. In a single issue, the State argues the trial court erred in granting Cupp's motion to suppress. We reverse the trial court's judgment and remand for further proceedings. On February 12, 2004, Cupp was involved in a one-vehicle traffic accident at approximately 8:36 p.m. Terrell police officer J.L. Phillips was dispatched to the scene and found Cupp still in his vehicle. Phillips got Cupp out of the vehicle and noticed Cupp smelled of an alcoholic beverage and had slurred speech. Phillips suspected Cupp was intoxicated but was only able to perform the horizontal gaze nystagmus test on Cupp because Cupp was placed in an ambulance and taken to the hospital. Later that night, Phillips went to the hospital and requested a sample of Cupp's blood, but Cupp refused. Phillips subsequently contacted the Kaufman County district attorney's office and requested the issuance of a subpoena to obtain Cupp's medical records. By means of the subpoena, Phillips obtained Cupp's medical records, which indicated a blood alcohol level of .235. The trial court subsequently granted Cupp's motion to suppress the blood test, and the trial court granted the motion. This appeal followed. In a single issue, the State argues the trial court erred in granting Cupp's motion to suppress. Specifically, the State challenges the trial court's conclusions of law that Cupp's rights under the Fifth Amendment, sections 724.011 and 724.012 of the Texas Transportation Code, and the Health Insurance Portability and Accountability Act of 1996 were violated. We review a trial judge's ruling on a motion to suppress for abuse of discretion, giving almost total deference to the trial judge's determination of historical facts, but review search and seizure law de novo. Balentine v. State, 71 S.W.3d 763, 768 (Tex.Crim.App. 2002); Garcia v. State, 15 S.W.3d 533, 535 (Tex.Crim.App. 2000). Thus, if the issue involves the credibility of a witness, making the evaluation of that witness's demeanor important, we defer to the trial judge's determination of the facts. Joseph v. State, 3 S.W.3d 627, 633 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App. 1997)); see Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App. 2000); State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App. 1999). Absent an abuse of discretion, we may not disturb the trial judge's findings. See Guardiola v. State, 20 S.W.3d 216, 223 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd) (citing Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App. 1995)). In reviewing a trial judge's ruling on a suppression motion, we must view the record and all reasonable inferences therefrom in the light most favorable to the ruling, and sustain the ruling if it is reasonably supported by the record and is correct under any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App. 1996); Knisley v. State, 81 S.W.3d 478, 483 (Tex.App.-Dallas 2002, pet. ref'd). In a motion to suppress hearing, the trial judge is the sole trier of fact and judge of witness credibility and may believe or disbelieve all or part of a witness's testimony. State v. Ross, 32 S.W.3d 853, 855 (Tex.Crim.App. 2000). We review a trial court's ruling on a motion to suppress evidence for an abuse of discretion. Swain v. State, 181 S.W.3d 359, 365 (Tex.Crim.App. 2005). We first note that the trial court implicitly rejected Cupp's argument at the hearing on his motion to suppress that the State's actions violated his expectation of privacy, an argument relying on Cupp's rights under the Fourth Amendment. There is no Fourth Amendment reasonable expectation of privacy that protects blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after a traffic accident. State v. Hardy, 963 S.W.2d 516, 527 (Tex.Crim.App. 1997); Tapp v. State, 108 S.W.3d 459, 462 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Thus, the trial court correctly rejected Cupp's Fourth Amendment argument. As to the trial court's conclusion that Cupp's Fifth Amendment rights were violated when the State obtained his medical records after Cupp had refused to provide a blood sample, we disagree. While the Fifth Amendment protects a suspect from being compelled to provide evidence of a testimonial or communicative nature, it does not protect a suspect from being compelled to provide real or physical evidence. In re D.L.C., 124 S.W.3d 354, 374 (Tex.App.-Fort Worth 2003, no pet.) (citing Schmerber v. California, 384 U.S. 757, 763-64 (1966)). In Schmerber, the Supreme Court held that a compelled extraction of a blood sample and its chemical analysis for blood alcohol content does not amount to testimonial or communicative evidence and therefore is not prohibited by the Fifth Amendment. In re D.L.C., 124 S.W.3d at 374 (citing Schmerber, 384 U.S. at 765); Nottingham v. State, 908 S.W.2d 585, 590 (Tex.App.-Austin 1995, no writ). Thus, we cannot conclude that the State in this case was prohibited by the Fifth Amendment from obtaining a record of Cupp's blood test. See Schmerber, 384 U.S. at 763-65; In re D.L.C., 124 S.W.3d at 374; Nottingham, 908 S.W.2d at 590. Regarding the trial court's conclusion that Cupp's rights under sections 724.011 and 724.012 of the transportation code were violated, we again disagree. The implied consent law codified in sections 724.011 and 724.012 of the transportation code applies only to persons arrested for driving while intoxicated or another offense arising out of the operation of a motor vehicle while intoxicated. Aliff v. State, 627 S.W.2d 166, 168-69 (Tex.Crim.App. 1982); Nottingham, 908 S.W.2d at 589. The trial court specifically found Cupp was not placed under arrest at the hospital, and Officer Phillips was not present when Cupp's blood was drawn. The record indicates that Phillips secured a warrant for Cupp's arrest only after he obtained Cupp's medical records showing a blood alcohol level of .235. Thus, sections 724.011 and 724.012 of the transportation code were inapplicable. See Aliff, 627 S.W.2d at 168-69; Nottingham, 908 S.W.2d at 589. Finally, assuming without deciding that the issue of Phillips' compliance with the Health Insurance Portability and Accountability Act of 1996 was before the trial court, and a violation of the Act triggers article 38.23 of the code of criminal procedure, no violation of the Act occurred in this case. Under the Act, a covered entity may disclose protected health information for a law enforcement purpose in order to comply with a subpoena or summons issued by a judicial officer or a grand jury subpoena. 45 C.F.R. §§ 164.512(F)(1)(ii)(A), 164.512(F)(1)(ii)(B) 2005. Thus, even if applicable, the Act did not prohibit the disclosure of Cupp's records in compliance with a grand jury subpoena, as in this case. See id. Accordingly, the trial court erred in suppressing the records on this basis. Because none of the reasons argued by Cupp or relied on by the trial court supported the suppression of Cupp's medical records, we conclude the trial court abused its discretion in granting Cupp's motion to suppress. See Swain, 181 S.W.3d at 365. Accordingly, we sustain the State's single issue. We reverse the trial court's judgment and remand for further proceedings.