State v. Mayl

Alice Robie Resnick, J.,

dissenting.

{¶ 63} I believe that the majority misinterprets the reach of R.C. 4511.19(D)(1). In my view, a fundamental distinction between tests for alcohol or drugs done at the request of a police officer and tests done for medical treatment is established when that statute and several other relevant statutes are interpreted together. In failing to recognize this distinction, the majority engages in an extensive discussion of issues that are beyond the scope of this case. I dissent.

{¶ 64} Initially, I agree with the majority that the state has not waived the opportunity to present its argument that the last sentence of R.C. 4511.19(D)(1) is inapplicable in the circumstances of this case. Due to the way this case has progressed on appeal, that issue remains a valid one for this court’s consideration. Unlike the majority, however, I would find the state’s argument persuasive. Furthermore, while the majority relegates discussion of that issue to a few paragraphs near the end of its opinion, I view the issue as completely dispositive of this case.

{¶ 65} The majority discusses the three unnumbered paragraphs of R.C. 4511.19(D)(1) and rejects the state’s argument that the third paragraph of the statute does not apply to medical tests performed for diagnosis or treatment. *219 The majority holds that even when a blood-alcohol test is not requested by a law-enforcement officer, the medical test must substantially comply with R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53 for the test results to be admissible.

{¶ 66} The first paragraph of R.C. 4511.19(D)(1) provides that in any criminal prosecution for a violation of R.C. 4511.19(A), a “court may admit evidence on the concentration of alcohol * * * in the defendant’s * * * blood * * * at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within two hours of the time of the alleged violation.”

{¶ 67} The second paragraph provides, “When a person submits to a blood test at the request of a law enforcement officer under section 4511.191 of the Revised Code” [the “implied consent” statute], only certain medical professionals, such as a physician or a registered nurse, shall withdraw the blood. The second paragraph specifies that this provision does not apply to the taking of breath or urine specimens.

{¶ 68} The third paragraph provides, “The bodily substance withdrawn shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.”

{¶ 69} The majority states, “R.C. 4511.19(D)(1) covers all prosecutions requiring proof of a violation of R.C. 4511.19(A) or (B). * * * it * * * does not matter who requests the test.”

{¶ 70} In my view, not only does the last paragraph of R.C. 4511.19(D)(1) not apply to this case, that entire statute has no application. That is due to the General Assembly’s 1994 enactment of R.C. 2317.02(B)(2), which, in apparent response to this court’s decision in State v. Smorgala (1990), 50 Ohio St.3d 222 , 553 N.E.2d 672 , provides that the physician-patient privilege does not apply in R.C. 4511.19 prosecutions if law-enforcement officers follow procedures spelled out in R.C. 2317.02(B)(2) to obtain medical test results from a health care provider. 7 See R.C. 2317.02(B)(2)(a). In addition, R.C. 2317.02(B)(2)(b) authorizes courts to admit into evidence in criminal prosecutions certified copies of those results.

{¶ 71} Furthermore, as relevant to this case, R.C. 2317.022(B) provides, “If an official criminal investigation has begun regarding a person * * *, any law enforcement officer who wishes to obtain from any health care provider a copy of any records the provider possesses that pertain to any test or the result of any test administered to the person to determine the presence or concentration of *220 alcohol * * * in the person’s blood * * * shall submit to the health care facility a written statement,” and supplies the text of a form for the officer to complete and submit. R.C. 2317.022(C) states, “A health care provider that receives a written statement of the type described in division (B) of this section shall comply” with R.C. 2317.02(B)(2).

{¶72} I essentially agree with the view of R.C. 4511.19(D)(1) expressed in State v. Brand, 157 Ohio App.3d 451 , 2004-Ohio-1490 , 811 N.E.2d 1156 , a case with very similar facts. In that case, the court’s opinion states:

{¶ 73} “At the hospital, Officer Beebe asked Brand to give a blood sample, and she refused. Hospital personnel later took a sample of Brand’s blood, presumably for medical purposes. Though it is not clear from the record, we assume that the state then obtained the blood-alcohol level of Brand’s blood through R.C. 2317.02(B)(2)(a). That statute specifically waives the doctor-patient privilege in DUI criminal investigations and allows law-enforcement officers to obtain the results of any test concerning alcohol or drug concentration that was administered by medical personnel.

{¶ 74} “Therefore, because Brand did not submit to a blood test at the request of a law enforcement officer, the results of her blood test were not subject to the regulations of R.C. 4511.19(D). The Fifth, Ninth, and Twelfth Appellate Districts have come to this same conclusion in similar cases. [See State v. Lloyd (Mar. 6, 2003), 5th Dist. No. 02-CA-33; State v. Quinones (Feb. 14, 1996), Lorain App. No. 95CA006084, 1996 WL 62578 ; Middletown v. Newton (1998), 125 Ohio App.3d 540, 545 , 708 N.E.2d 1086 .] The Fifth Appellate District has stated that while R.C. 4511.19(D) provides a specific procedure when a blood test is taken at the request of a law enforcement officer, R.C. 2317.02(B)(2)(a) omits any such procedure after a criminal investigation has begun. [See State v. Lloyd, supra.]

{¶ 75} “* * *

{¶ 76} “Therefore, we hold that because Brand’s blood sample was not taken at the request of a law enforcement officer, the state did not have the burden to prove substantial compliance with the testing procedures of R.C. 4511.19(D). Accordingly, we hold that Brand’s blood test was admissible and sustain the state’s first assignment of error.” (Footnotes omitted.) Brand at ¶ 26-27, 31.

{¶ 77} The majority rejects Brand and the cases cited therein, as well as State v. Slageter (Mar. 31, 2000), Hamilton App. No. C-990584, 2000 WL 331633 , and State v. Herrig (Apr. 16, 1999), Wood App. No. WD-98-047, 1999 WL 247095 , declaring the reasoning in the cases to be “mistaken” and “incorrect.”

{¶ 78} I believe that a close reading of Brand, particularly the paragraphs quoted above, supports a view that that court was not simply conducting a narrow textual consideration of the terms of R.C. 4511.19(D)(1) as contained within the *221 second and third paragraphs of that- statute. As I view Brand, the court was considering the multiple relevant statutes implicated by the issue and reached the correct result given the interplay of all those statutes. I believe that the provision of the second paragraph of R.C. 4511.19(D)(1) that states, “When a person submits to a blood test at the request of a law enforcement officer under section 4511.191 of the Revised Code,” is most appropriately read to limit the entirety of R.C. 4511.19(D)(1) to that situation. Therefore, R.C. 4511.19(D)(1) simply has no application to a blood-test result obtained pursuant to R.C. 2317.02(B)(2).

{¶ 79} R.C. 4511.19(D)(1) predates R.C. 2317.02(B) and 2317.022 8 and is superseded by those statutes when a blood test that was conducted for medical treatment is offered into evidence. See, in particular, R.C. 2317.02(B)(2)(b), which specifically authorizes a trial court to admit medical-test results into evidence, with no reference to the limitations of R.C. 4511.19(D)(1). In other words, R.C. 4511.19(D)(1) applies only when a test is requested by a law-enforcement officer pursuant to R.C. 4511.191, as the second paragraph of R.C. 4511.19(D)(1) makes clear.

{¶ 80} Applying the same reasoning that was applied in Brand, I would conclude that, because Mayl’s blood sample was not taken at the request of a law-enforcement officer, the test result should be admissible, with any objections to the tests going to the weight of the evidence. I view the majority’s application of State v. Burnside, 100 Ohio St.3d 152 , 2003-Ohio-5372 , 797 N.E.2d 71 , as flawed, as Burnside is distinguishable because it involved a blood test obtained under R.C. 4511.191’s implied-consent provisions. For the same reason, the majority’s discussions of the requirements of R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53, and of substantial compliance with those provisions, are irrelevant. Finally, since I believe that the test result is admissible, I conclude that this case does not present the issue of whether R.C. 4511.19(D)(1) requirements apply to R.C. 2903.06(A)(1) cases (the issue decided in State v. Davis, which was relied on by the trial court below, but which apparently has been abandoned by the state and so not specifically addressed by the majority).

{¶ 81} Not long after the Second Appellate District issued its decision reversing the judgment of the trial court in the instant case, that court decided State v. Wells, Greene App. No. 2003-CA-68, 2004-Ohio-1026 , 2004 WL 405809 . In Wells, the court declined to find that R.C. 4511.19(D)(1) applies only when a blood sample is withdrawn at the request of a law-enforcement officer, following the lead of other courts that “have addressed analyses by clinical laboratories in the *222 context of whether the laboratory has substantially complied with [Ohio Department of Health] regulations, not whether the regulations apply at all.” Id. at ¶ 53. However, the court speculated that holding the regulations inapplicable may actually be the result intended by the General Assembly when the totality of the relevant statutes and Ohio Administrative Code provisions is considered:

{¶ 82} “R.C. 4511.19 and the regulations, read together, could suggest that only blood analyses performed at the request of law enforcement officers are required to comply with ODH regulations. This interpretation would comport with the legislature’s actions in amending R.C. 2317.02(B)(1)(b) to provide that physician-patient privilege does not prevent the admission of alcohol and drug test results in any criminal prosecution.” Id.

{¶ 83} The Wells court went on to suggest that the General Assembly should revisit this area of the law:

{¶ 84} “Clearly, this issue is in need of legislative clarification. The unfortunate result of this apparent legislative oversight is that law enforcement may be unable to use the results of blood tests performed by certified clinical laboratories in many of those DUI cases where the defendant has done the greatest harm, i.e., aggravated vehicular homicide cases. Surely, this was not the goal of the legislature. As recognized in Quinones [supra, Lorain App. No. 95CA006084], by amending R.C. 2317.02(B)(1)(b), the Ohio legislature seemingly had expressed an intent to make clinical test results available in DUI prosecutions.” Wells at ¶ 54.

{¶ 85} I disagree with Wells to the extent that it rejects the conclusion of Brand, Quinones, and other appellate cases mentioned above that R.C. 4511.19(D)(1) has no application to blood samples drawn for medical treatment. However, I do agree with the sentiment expressed in Wells that the General Assembly should consider revising R.C. 4511.19(D)(1) or 2317.02(B)(2) to clarify whether R.C. 4511.19(D)(1) is intended to apply to R.C. 2317.02(B)(2) cases, especially given that the majority has definitively found R.C. 4511.19(D)(1) applicable even when the test is conducted for medical treatment.

{¶ 86} In conclusion, I would reverse the judgment of the court of appeals. I would find that the trial court reached the correct result in denying Mayl’s motion to suppress, even though the trial court’s reasoning was faulty, and so specifically disagree with the court of appeals regarding the admissibility of the blood-test results. However, because the court of appeals found two of Mayl’s assignments of error moot and declined to address them, and those assignments are unrelated to the admissibility of the test results, I would remand the cause to the court of appeals for further consideration. Because the majority decides this case differently, I dissent.

Lundberg Stratton and O’Connor, JJ., concur in the foregoing dissenting opinion.

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Carley J. Ingram, Assistant Prosecuting Attorney, for appellant.

Flanagan, Lieberman, Hoffman & Swaim and Richard Hempfling, for appellee.

Rittgers & Rittgers, Charles H. Rittgers, and James A. Dearie; and D. Timothy Huey, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers.

. See 1994 Am.Sub.H.B. No. 335,145 Ohio Laws, Part III, 5460, effective December 9,1994.

. The provisions now found in R.C. 4511.19(D)(1) were enacted in 1968. See Am.Sub.S.B. No. 380, 132 Ohio Laws, Part I, 1632. R.C. 2317.02(B)(2) and 2317.022 were enacted in 1994. See 1994 Am.Sub.H.B. No. 335, 145 Ohio Laws, Part III, 5460 and 5463, effective December 9, 1994.