Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Atwood (Decided April 30, 2018, Minnesota Court of Appeals, Published) which stands for the proposition that a blood sample obtained by a doctor for purposes of medical treatment is not protected by the Minnesota Medical Privilege Statute.

In Atwood, the Defendant was in an ATV accident and was taken to the hospital for treatment.  When the deputy sheriff arrived at the scene, he found the Defendant lying on the street in a pool of blood.  The deputy smelled alcohol on the Defendant's breath.  An ambulance then took the Defendant to the hospital for treatment.

The deputy learned that the Defendant was being transferred to another hospital for further treatment and he also learned the first hospital was storing a vial of the Defendant's blood.

The deputy obtained a search warrant to seize the vial of the Defendant's blood and a subsequent lab analysis revealed the Defendant's BAC was 0.155.

The Defendant was charged with two counts of fourth-degree driving while impaired. Prior to trial, the Defendant moved to suppress the blood sample and the subsequent BAC test results, invoking the physician-patient privilege pursuant to Minn. Stat. § 595.02, subd. 1(d). The district court granted the motion, reasoning that defendant's blood sample constituted "information" subject to Minnesota's physician-patient privilege.

The state appealed the district court and the Minnesota Court of Appeals reversed the district court finding that the medical privilege statute does not encompass physical samples obtained for treatment.

In its decision the Minnesota Court of Appeals reasoned that:

"Minnesota's physician-patient privilege statute, in relevant part, provides that a "licensed physician . . . shall not, without the consent of the patient, be allowed to disclose any information or any opinion based thereon which the professional acquired in attending the patient in a professional capacity, and which was necessary to enable the professional to act in that capacity." Minn. Stat. § 595.02, subd. 1(d) (emphasis added). The state does not dispute that the physician acquired the blood sample to enable him to act in a professional capacity; rather, the state argues that the nature of a blood sample is outside this statute's scope because it is neither "information" nor "any opinion based thereon."

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"Whether a physical blood sample is protected by Minnesota's physician-patient privilege is a statutory-interpretation issue of first impression. The goal of statutory interpretation is to effectuate the legislature's intent..."The present issue centers on the unambiguous term "information."

"Information" has been defined as "Knowledge or facts learned, especially about a certain subject or event." The American Heritage Dictionary of the English Language 901 (5th ed. 2011). According to Webster's Dictionary, "information" is "something received or obtained through informing [such as:] knowledge communicated by others or obtained from investigation, study, or instruction^] knowledge of a particular event or situation [;] facts or figures ready for communication or use as distinguished from those incorporated in a formally organized branch of knowledge." Webster's Third New International Dictionary Unabridged 1160 (3d ed. 2002). Thus, information, by nature, is not physical and is about something. While information may be conveyed by way of a material object, such as a piece of paper, the medium by which information is communicated is not the information. On the other hand, a blood sample is material and does not, by itself, provide any information. That is, an individual cannot extract information about a patient solely by looking at a physical blood sample."

"The district court erred by applying Minn. Stat. § 595.02, subd. 1(d), to suppress respondent's blood sample as evidence. Because we conclude that a physical blood sample is not protected under Minnesota's physician-patient privilege statute, we reverse the district court's order granting respondent's motion to suppress that evidence."

The Court of Appeals did, however, note in a footnote that, "At oral argument, the state conceded that if the hospital had actually done a blood test, then those test results would be covered by the privilege because that would contain information communicating a blood-test result. We agree."

Moral Of The Story:  If you give blood at a hospital, get it back!

If you or a loved one have been arrested for a Minnesota DWI or are facing the DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI and forfeiture questions.

Minneapolis DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case of the Week is State v. Fawcett (Decided January 11, 2016, Published, Minnesota Court of Appeals) which stands for the proposition that if the police obtain a warrant to obtain a blood sample, they do not need to obtain a separate search warrant to have the blood sample analyzed for other drugs by the BCA Lab.

In Fawcett, the Defendant ran a red light and was hit by another vehicle.  When the police arrived, they noticed the Defendant smelled of alcohol and Ms. Fawcett admitted drinking at the local VFW.  Because the crash involved possible injuries to the occupants of the other vehicle, the police sought and obtained a search warrant which authorized a blood sample to be taken from Fawcett and be "forwarded to an approved lab for testing."

The Minnesota Bureau of Criminal Apprehension (BCA) subsequently issued a toxicology report stating that Fawcett's blood contained no alcohol and that an additional toxicology report would follow.  A second BCA report indicated the presence in Fawcett's blood of THC and Alprazolam, both of which are controlled substances.

The Defendant was charged with Criminal Vehicular Operation and Fawcett moved to suppress all evidence of the presence of drugs in the blood sample.  The district court granted Fawcett's motion to suppress the evidence finding that the blood sample was lawfully obtained under the search warrant and that testing the blood for alcohol was lawful but that testing the blood for the presence of drugs was unlawful.

On appeal by the State, the Minnesota Court of Appeals reversed the District Court, holding:

Once a blood sample has been lawfully removed from a person's body, a person loses an expectation of privacy in the blood sample, and a subsequent chemical analysis of the blood sample is, therefore, not a distinct Fourth Amendment event. The district court considered that such a rule necessarily means that a person's blood could 'thereafter be tested without a warrant for any purpose at any time, such as future drug testing or DNA comparisons.' Although such circumstances are not before us, we note that Schmerber dictates that a standard of reasonableness controls and that an unnecessary invasion of privacy interests would most certainly raise concerns of reasonableness. See Schmerber, 384 U.S. at 768, 86 S. Ct. at 1834;  We conclude that in this case the test for controlled substances does not raise concerns of reasonableness.

Because we conclude that the chemical analysis of a lawfully obtained blood sample is not a distinct Fourth Amendment event requiring a warrant, we need not consider whether the search warrant in this case was sufficiently particular or whether exigent circumstances justified a warrantless chemical analysis of Fawcett's blood. If the state lawfully obtains a blood sample for the purpose of chemical analysis, then a chemical analysis of the sample that does not offend standards of reasonableness is not a separate search requiring a warrant."

So even though there was no probable cause to search the Defendant's blood for drugs, the Court of Appeals in today's ruling, finds that probable cause to search for one drug equals probable cause to search for all drugs. 

Sigh.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Roehler (Decided October 6, 2014, Minnesota Court of Appeals, Unpublished), which stands for the proposition that the police must attempt to obtain a search warrant before obtaining a non-consensual blood draw.

In Roehler, the Defendant was involved in a head-on car accident on Highway 34, approximately five miles east of Park Rapids, Minnesota. The Defendant's car crossed over the centerline of the highway and collided with a van traveling in the opposite direction. The driver of the van was killed instantly, and the van's other two passengers, the driver's daughter-in-law and grandchild, were injured. The Defendant was also seriously injured.

While in the ambulance, a state trooper noticed an odor of alcohol coming from the Defendant and requested that the nurse draw a sample of the Defendant's blood.  The trooper did not have a warrant authorizing the blood draw.  The blood was withdrawn at 6:31 p.m. through an intravenous line that was also being used to treat the Defendant with fluids, and as a result, the sample was diluted.

Another blood draw was taken at approximately 8:58 p.m. at the direction of the trooper shortly before the Defendant went into surgery.  The trooper did not obtain a warrant for this blood draw.

The Defendant was charged with eleven criminal counts, including three counts of criminal vehicular homicide, six counts of criminal vehicular operation, and two counts of DWI. 

At trial, Donna Zittel, a forensic toxicology specialist at the Bureau of Criminal Apprehension (BCA) crime lab, testified that both the 6:31 p.m. blood draw and the 8:58 p.m. blood draw showed a BAC of .05., but she also testified that because the 6:31 p.m. blood draw may have been diluted, the sample was not valid for use in reverse extrapolation to determine appellant's BAC at the time of the accident. Zittel's report based on the 8:58 p.m. blood draw was admitted into evidence and indicated that appellant likely had a BAC of between .08 and .14 at the time of the accident. Zittel also testified that the rate at which alcohol diminishes in the blood is not affected by drugs or trauma.

The Defendant was convicted on all eleven counts and on appeal, argued that the blood extrapolation evidence should have been suppressed as the police made no effort to obtain a search warrant for the blood samples.  The Minnesota Court of Appeals agreed ruling:

"The blood draw at 6:31 p.m. may have been taken under exigent circumstances: given the uncertainty and chaos at the accident scene and the necessity of transporting appellant to an out-of-state hospital, the totality of the circumstances supports a finding of exigency. The 8:58 p.m. blood draw does not present the same exigencies. This test was taken without a warrant nearly one-and-a-half hours after the trooper arrived at the Fargo, North Dakota, hospital and nearly three hours after the accident. While the warrant process may be more complicated when it involves interstate law enforcement, it is not impossible in view of modern technology.

In McNeely, the Supreme Court stated that the

proposed per se rule [that dissipation of alcohol creates an exigent circumstance] . . . fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple.

Applying these principles, although the 6:31 p.m. draw may support a finding of exigent circumstances, the 8:58 p.m. draw does not. The state offered no explanation why it could not obtain a warrant before conducting the later blood draw.

We therefore conclude that the district court erred by refusing to suppress the results of the 8:58 p.m. blood draw because the state failed to show under the totality of the circumstances that exigent circumstances prevented the police from obtaining a warrant. Further, the record reflects that the 6:31 p.m. blood draw was tainted and was used at trial only to confirm the results of the expert's extrapolation from the 8:58 p.m. draw results. Thus, the evidence at trial is insufficient to sustain appellant's convictions based on having a BAC of more than .08.

Finally, we conclude that the erroneous admission of the 8:58 p.m. blood draw results was not harmless. "When an error implicates a constitutional right, we will award a new trial unless the error is harmless beyond a reasonable doubt. An error is harmless beyond a reasonable doubt if the jury's verdict was surely unattributable to the error." State v. Davis, 820 NW.2d 525, 533 (Minn. 2012) (citation and quotations omitted). The state's case rested heavily on the expert's extrapolation from the 8:58 p.m. blood draw and admission of that evidence was highly prejudicial to the Defendant. Further, the BAC evidence may have contributed to the jury's verdict on the charges based on gross negligence rather than on BAC; a jury could find that test results reflecting intoxication are persuasive evidence of gross negligence. Because of this, we cannot conclude that introduction of the BAC evidence was harmless beyond a reasonable doubt, and we must reverse and remand for a new trial."

Moral Of The Story: If the police want to draw your blood, tell them to get a warrant.

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer