Opinion
No. MV-10-228695
October 22, 2010
Memorandum of Decision
The court finds the following facts:
Trooper Denis Keane testified that on November 5, 2009, he was on routine patrol when assigned to investigate a motor vehicle accident in Kent, Connecticut. Upon arrival at the scene, he observed a motor vehicle on its side. Based on his observations at the scene he determined that the vehicle had traveled off the road, hit a CLP pole causing the vehicle to roll onto its side. He described the crash as violent; there was debris spread about, wires were down and the power out. Some volunteer EMT personnel had arrived shortly before the trooper and had removed the operator from the vehicle and were providing medical assistance. The trooper identified the operator of the motor vehicle as the defendant. He had a brief conversation with the defendant at the scene before turning the defendant over to medical personnel. He noted the odor of alcohol about the defendant, bloodshot eyes and other indicia of alcohol. The defendant admitted to drinking two beers. The defendant also advised the trooper he was not injured in the accident. The trooper observed the defendant walking to the ambulance, being led or assisted by the defendant's wife. He did not observe any injuries to defendant. While the trooper secured the scene, the defendant was transported by ambulance to the hospital. Trooper Keane followed the defendant to the hospital and stationed himself just outside the treatment area where defendant was being attended to by hospital personnel. He was able to have a brief conversation with the defendant during which the defendant reiterated the same facts as above. The trooper placed himself outside the treatment area, but still within the Emergency Room. He could not see the defendant being treated by hospital personnel, but was able to observe medical personnel walking in and out of the treatment area. He did observe an individual he believed to be a lab technician enter the area and assumed that a blood test was taken. The trooper testified that he did not request a blood test to be performed by the hospital, nor did he suggest one be taken. He met with the defendant the following day and obtained a consent to release defendant's medical records regarding the blood test taken. Once obtained, those results were sent to the state laboratory. Test results indicated a blood alcohol content of greater than .08.
The state offered the Emergency Department Treatment record as an exhibit, which proved that a blood alcohol test was performed at 2120 hours with a result of 234.
Decision
The defendant moves under the Fourth Amendment to suppress the blood alcohol test as a product of an illegal search and seizure. To be a successful Fourth Amendment claim, the defendant must show that the government searched an area where the defendant had an expectation of privacy without a warrant.
In the present case, there is no question that the defendant had an expectation of privacy in his medical records. His argument fails however because the court cannot find any state action in the taking of the blood test. Here, the emergency room doctor, acting as a private individual, ordered the blood test to be taken from the defendant. Where there is no state or governmental action in the taking of evidence, there is no fourth amendment issue. State v. Eberl, 2000 Ct.Sup. 9791 (2000); State v. Petruzzelli, 45 Conn.App. 804, 808 (1997); Skinner v. Railway Laborer Executives Association, 489 U.S. 602, 619 (1989); State v. Szepanski, 57 Conn.App. 484 (2000).
The defendant further argues that the trooper placed himself where he could become privy to the medical treatment being provided to the defendant. The defendant claims it is this action that violated the federal HIPAA laws, providing all individuals with an expectation of privacy in their medical records, and resulted in a fourth amendment violation. While the trooper may have indeed violated certain privacy rights of the defendant; there is no evidence to suggest that the tests were taken as a result of that breach. Defendant alleges that the trooper requested that hospital take a blood alcohol test, or at least suggested that they do so. There was no evidence presented to support this claim; the trooper specifically denied the allegations and this court sees no reason to doubt his credibility.
The defendant further argues that the blood sample was not taken for a legitimate medical purpose. C.G.S. § 14-227a(k) provides that a blood alcohol test taken by a hospital "shall be competent evidence to establish probable cause for the arrest by warrant of such person for a violation of subsection (a) of this section and shall be admissible and competent in any subsequent prosecution thereof if: (1) the blood sample was taken for the diagnosis and treatment of such injury . . ." The defendant claims as he was not injured, nor did he claim to be injured, that the test was not taken for the purpose of the diagnosis or treatment of the defendant.
The test for admissibility of blood tests results under this subsection does not rest on whether the defendant actually suffered injuries in the accident. See Petruzzelli, above. It is sufficient for the state to show that the defendant was injured or allegedly injured in the incident and that the tests were performed for the treatment and. diagnosis of the person. In the present case, the trooper testified that the defendant was involved in a violent motor vehicle crash and was subsequently taken to the hospital. This testimony would satisfy the criteria that the defendant was injured or alleged injured during the accident.
However, the court must question why the blood alcohol test was ordered by the hospital. The sole evidence submitted regarding the purpose of the blood test was the Emergency Department Treatment Record, offered as an exhibit. The report itself did not indicate the reason the test was ordered; as a rule, hospital medical records do not indicate a reason why any action is taken. The medical report was replete with notations that the defendant indicated he was not injured in the accident. In fact, the defendant repeatedly stated to the Trooper, the EMTs, the doctor and triage nurse that he was not injured as a result of the accident. The medical report revealed a routine examination with normal findings. The only evidence of any injuries were abrasions on a finger and tibia. There was no indication of any head injury, nor of any medications taken by defendant; the defendant had complete recall of the incident. Out of 27 tests that could have been ordered on the Emergency Department triage face sheet, only one test, ETOH was checked.
Based on the evidence presented during the suppression hearing, the court cannot find that the blood test was taken for any medical purpose. In each of the cases cited above, medical testimony, either a doctor or nurse, was presented to explain the reason and purpose of the test. In the present case, no medical testimony has been offered to explain why a blood alcohol test was necessary. This court cannot find that simply because the medical report shows that the test was ordered, that it was done for the diagnosis and treatment of defendant's injury or alleged injury.
Based on the evidence presented, the court finds insufficient evidence to establish the statutory criteria the blood sample was taken for the purpose of the diagnosis and treatment of the defendant. The blood alcohol test is therefore suppressed. Should the State of Connecticut request permission to offer further medical testimony on this issue, the court will reconsider the decision.