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State v. Smith

January 27, 1997

STATE OF WASHINGTON, APPELLANT,
v.
WILBUR LAMAR SMITH, RESPONDENT.



Appeal from Superior Court of King County. Docket No: 95-1-00853-1. Date filed: 01/27/97. Judge signing: Hon. Linda Lau.

Order Denying Motion for Reconsideration April 8, 1997, Petition for Review Denied September 3, 1997,

WE Concur

The opinion of the court was delivered by: Ellington

ELLINGTON, J. -- The question we must resolve on discretionary review is whether evidence of blood alcohol is admissible in this prosecution for vehicular assault where the blood sample was taken at a hospital for purposes of treatment, rather than by police following an arrest. We hold the evidence is admissible.

Facts

Lamar Smith drank beer and whiskey with Chris Warren and Mike Frier at two different bars, then crashed his Oldsmobile Bravada into a utility pole. As a result of the accident, Frier is paralyzed. At the scene of the accident, Smith was unsteady, staggering, and smelled of alcohol. His speech was slurred and his eyes were bloodshot and watery. He later testified he had "blacked out" and was "dazed." He told the first police officer on the scene that he was the driver and the accident was all his fault.

Some witnesses to the accident thought that Warren had been the driver because Smith had exited by the passenger door. *fn1 When Smith learned that some officers thought Warren had been driving, Smith changed his story and gave a written statement to that effect. Warren was arrested and charged with vehicular assault. Smith was taken to Overlake Hospital and treated for his injuries.

Later, however, the police became convinced that Smith was the driver. The charges against Warren were dropped and Smith was arrested. Prosecutors then attempted to seize his medical records and a blood sample taken by the hospital. Smith claimed the evidence was protected by the physician-patient privilege, and the trial court agreed.

The court ruled that police had probable cause to arrest Smith when the accident occurred, and could have seized a blood sample under the implied consent statute, but the State could not now violate Smith's privilege to remedy its error. The court rejected the argument that public policy outweighed the defendant's privilege. Therefore, the court denied the State's motion to compel production of Smith's blood sample *fn2 and medical records, but indicated the ruling was subject to reconsideration if Smith waived the privilege or placed his medical condition at issue. The court held, though, that Smith would not waive the privilege simply by examining the State's witnesses about his injuries or state of sobriety.

At trial, Smith testified he drank two beers and nursed a third beer at the Sharks tavern. At TGI Fridays, he was served three drinks made with Crown Royal whiskey, but testified they were ordered for him by someone else, and because he did not like them, he only sipped them. Smith denied that the accident occurred because he had too much to drink. In closing, Smith's counsel talked about the evidence of how much Smith had to drink, and made detailed hypothetical calculations of his probable blood alcohol level depending on the quantity of alcohol he had consumed. The jury was unable to reach a verdict, and the court declared a mistrial.

The State filed a motion for discretionary review, arguing that its ability to effectively prosecute Smith for vehicular assault was substantially limited by the trial court's refusal to order Smith to produce his medical records and the blood sample. The State also argued the trial court erred in concluding Smith had not opened the door to cross- examination about the medical records and blood, and in concluding that Smith did not waive the physician-patient privilege.

Smith filed a cross-motion for discretionary review regarding the trial court's reckless driving instruction. We granted the State's motion, denied Smith's, and asked the parties to address "whether RCW 46.20.308(3) [the implied consent statute] entitled the State access to Smith's blood draw once he was arrested for this offense as well as the interaction of that statute with RCW 5.60.060(4) [the physician-patient privilege] and whether Smith's defense and/or testimony waived the physician-patient privilege."

The Implied Consent Statute Does Not Control

The State argues that the implied consent statute (RCW 46.20.308) and the physician-patient privilege (RCW 5.60.060(4)) are in conflict in this case, and that the implied consent statute supersedes the privilege. Smith argues that the implied consent statute simply does not apply, so ...


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