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COURT OF APPEALS DECISION DATED AND RELEASED December
21, 1995 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 95-1794
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
COUNTY
OF ROCK,
Plaintiff-Respondent,
v.
ROBERT
D. HAYLOCK,
Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Rock County: J. RICHARD LONG, Judge. Affirmed.
GARTZKE,
P.J.[1] Robert D. Haylock appeals from a judgment
convicting him of operating a motor vehicle while under the influence of an
intoxicant, contrary to a Rock County ordinance adopting § 346.63(1)(a), Stats., and operating a motor vehicle
with a prohibited blood alcohol content, contrary to a Rock County ordinance
adopting § 346.63(1)(b). He seeks
review of an order denying his motions to suppress evidence. The issues are whether: (1) the arresting officer lacked probable
cause to arrest Haylock; (2) obtaining Haylock's blood test results violated
his "expectation of privacy" and his right to due process; (3) the
affidavit in support of a motion seeking issuance of a subpoena directed to the
hospital for release of the blood test results established probable cause. We affirm the judgment of conviction.
Deputy
Allen, the arresting officer, testified at the suppression hearing. Following that hearing, the trial court made
numerous findings which we summarize.
Allen has nine years of experience and has made numerous arrests for
driving under the influence. Allen was
dispatched to an injury accident about 3:30 a.m. on February 16, 1994. At the scene Allen saw a pickup truck in the
ditch and determined that a one-car accident had occurred. The roads were in usual winter driving
condition and not icy. The driver told
Allen he had lost control of the car, but did not tell him why. The driver said he had been drinking and
Allen smelled intoxicants. The driver
said he did not know how the accident happened. Allen determined that the driver had been injured. His leg was badly deformed above his boot
top. The paramedics took him from the
scene. Allen examined the vehicle and
smelled intoxicants. He found a cooler
containing twelve to twenty-four cans of unopened beer. Allen did not check to see whether the
vehicle was in proper operating condition.
Based
upon the totality of those circumstances, the trial court concluded that Allen
had probable cause to arrest Haylock for operating a motor vehicle while under
the influence of an intoxicant. The
court noted that the officer on several occasions had referred to the driver
being "possibly intoxicated" or "possibly he had been driving
under the influence," but the court attributed no particular significance
to those phrases. The court concluded
that the officer had ample information from which he reasonably could conclude
that Haylock had been operating while intoxicated. Haylock smelled of intoxicants, had slurred speech and bloodshot
eyes, and admitted without explanation that he had lost control of his car.
The
trial court also denied Haylock's motion to suppress the blood test
results. The County had earlier moved
the court for an ex parte order requiring the hospital which had treated
Haylock to release his blood test results pursuant to § 968.135, Stats.
That statute provides that upon request from the district attorney
"and upon a showing of probable cause under s. 968.12, a court shall issue
a subpoena requiring the production of documents, as specified in s.
968.13(2)." Section 968.12(2), Stats., provides in relevant part:
A search warrant may be based upon sworn complaint or
affidavit ... showing probable cause therefor.
The complaint, affidavit or testimony may be upon information and
belief.
Section 968.13(2) describes "documents" as
including, but not limited to, papers and records.
The
affidavit by the assistant district attorney for Rock County asserts that he
had reviewed the police reports of Deputy Allen and that Allen had reported
that he found a truck in the ditch and met with the driver who identified
himself as Haylock. The affidavit cited
facts similar to Allen's suppression hearing testimony. Haylock's speech was slightly slurred and
slow, his eyes were bloodshot and there was a slight odor of intoxicants from
his person. Haylock was unsure as to
how the accident happened and admitted to drinking before the accident. Haylock was then transported to Memorial
Community Hospital in Edgerton for injuries he sustained in the accident. Allen went to the hospital, contacted
Haylock and requested he submit to a chemical test of his blood but Haylock
refused. Based upon information and
belief, the affidavit continues, hospital personnel tested a sample of
Haylock's blood for diagnostic purposes.
The affidavit states the State sought medical records concerning any blood
test results to assist its prosecution of Haylock for operating a motor vehicle
while intoxicated and for operating a motor vehicle with a prohibited blood
alcohol concentration.
Based
upon the affidavit, the court issued the subpoena to the hospital. The hospital responded to the subpoena by
producing the records showing test results revealing Haylock's blood alcohol
level.
In
denying Haylock's motion to suppress medical records disclosing the blood
alcohol test results, the court said, referring to § 908.03(6m)(c)2, Stats., that a subpoena may be issued
on ex parte order "`for cause shown' ... it doesn't say upon probable
cause but simply: ... `for cause
shown.'" The court said that no
physician-patient privilege existed and therefore the testimony concerning
Haylock's blood alcohol test results were admissible at trial.
Haylock
first asserts we should suppress the evidence because the arresting officer
lacked probable cause to arrest.
Whether probable cause exists on the established facts is a
constitutional issue we resolve independently of the trial court's ruling. State v. Mitchell, 167 Wis.2d
672, 684, 482 N.W.2d 364, 368 (1992).
We will not disturb the trial court's finding of historical fact unless
it is clearly erroneous. Mitchell,
167 Wis.2d at 682, 482 N.W.2d at 368.
Haylock relies principally upon State
v. Swanson, 164 Wis.2d 437, 475 N.W.2d 148 (1991), to invalidate the
arrest. The Swanson court
said that probable cause requires more than bare suspicion. "Unexplained erratic driving, the odor
of alcohol, and the coincidental time of the incident form the basis for a
reasonable suspicion but should not, in the absence of a field sobriety test,
constitute probable cause to arrest someone for driving while under the
influence of intoxicants." Swanson,
164 Wis.2d at 454 n.6, 475 N.W.2d at 155.
"The unexplained erratic driving could very well have been
explained ... by a mechanical failure for the automobile. Without an investigation, the officer would
be only left with suspicion." Id.
We
think Swanson does not control the case before us. More than erratic driving occurred in this
case. The pickup had gone off the road,
the driver admitted he had lost control and could not explain why, and road
conditions were not unusual. Under
these circumstances, we think the officer had no obligation to examine the
truck to determine whether a mechanical condition could have caused the
accident. Indeed, an officer would
ordinarily have extreme difficulty examining a vehicle that is lying in a
ditch.
Nor
do we think that the Swanson decision required the officer to
administer field sobriety tests before arresting Haylock for operating while
under the influence. It would have been
grossly improper for the officer to request Haylock to walk a straight
line. A finger-to-nose test undoubtedly
was feasible but not necessary for the officer to conclude that he should
arrest Haylock for operating under the influence. Haylock slurred his speech.
He said he had lost control of his car but could not explain why the
accident had occurred. He admitted that
he had been drinking. That was enough
to establish probable cause.
The
next issue is whether the blood test results obtained from the hospital which
treated Haylock must be suppressed because they were obtained in violation of
his expectation of privacy and without due process of law.
The
parties do not dispute that the hospital's records showing the blood test
results are patient health care records.
Section 146.82(1), Stats.,
provides in relevant part,
(1) All patient health records shall remain
confidential. Patient health care
records may be released only to the persons designated in this section or other
persons with the informed consent of the patient or of a person authorized by
the patient....
(2)(a) Notwithstanding sub. (1), patient health
care records shall be released upon request without informed consent in the
following circumstances:
....
4. Under a
lawful order of the court.
Haylock
argues that § 146.82, Stats.,
creates "an expectation of privacy in a patient's medical records,"
and that expectation "becomes constitutionally protected under the Fourth
Amendment." Haylock further argues
that § 146.82 creates a statutory right which cannot be denied without due
process.
We
reject both arguments. Haylock's
expectation of privacy must be based on the entire statute which creates the
expectation. Section 146.82, Stats., creates a limited right of
confidentiality with defined exceptions including release of patient health
care records under a lawful order of a court or record. Section 146.82(2)(a)4. The statute does not create any rights
greater than its exceptions.
The
remaining issue is whether the court order commanding release of those records
was indeed lawful. Haylock asserts that
the affidavit seeking issuance of the subpoena failed to establish probable
cause to believe that any tests would indicate the presence of intoxication, or
to believe that the hospital even conducted a test for intoxication.
We
assume without deciding that the subpoena could only issue upon probable
cause. Probable cause exists when there
is a "fair probability," or it is "reasonable" to believe
that evidence or contraband is located at the place sought to be searched. State v. Friday, 147 Wis.2d
359, 376-77, 434 N.W.2d 85, 92 (1989), citing Illinois v. Gates,
462 U.S. 213, 238 (1983); State v. Tompkins, 144 Wis.2d 116, 125,
423 N.W.2d 823, 827 (1988).
The
affidavit cites Deputy Allen's report that (1) on February 16, 1994, at 3:44
a.m., he observed a truck in the ditch and that Haylock identified himself as
the driver; (2) Haylock's speech was slightly slurred and slow; (3) his eyes
were bloodshot; (4) there was slight odor of intoxicants from Haylock's person;
(5) Haylock was unsure how the accident happened; (6) Haylock admitted to
drinking beer before the accident; (7) Haylock was transported to Memorial
Community Hospital in Edgerton for the injuries he sustained as a result of the
accident; (8) Deputy Allen detected the odor of intoxicants in Haylock's car;
(9) Deputy Allen found a large cooler with between twelve and twenty-four
unopened cans of beer inside. These
facts create a fair probability that hospital tests would reveal that Haylock
was intoxicated.
We
also conclude that affidavit states sufficient facts to reasonably believe the
hospital had conducted blood tests showing Haylock's level of
intoxication. It is reasonable to infer
that a person injured in an automobile accident would be subjected to blood
tests at the hospital to which he had been admitted.
By
the Court.—Judgment affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)4, Stats.