The Minnesota DWI Case Of The Week is Murtha v. Commissioner of Public Safety, (Minnesota Court of Appeals, Unpublished, decided July 15, 2013), which stands for the proposition that if your DWI Attorney is going to present a medical defense, he should have at least a passing knowledge of the Minnesota Rules of Evidence.
In Murtha, the Petitioner claimed that his DWI breath test result was not accurate or reliable because he suffers from GERD (gastroesophageal reflux disease) and at the time he took the breath test, he was experiencing symptoms of his acid reflux disease.
The Petitioner then had a forensic toxicologist testify about the potential effect of mouth alcohol caused by GERD on breath test results. The expert testified that mouth alcohol consists of alcohol that is regurgitated into the mouth from one's stomach. And if mouth alcohol is present as a result of the GERD condition, the breath test results would show a higher alcohol concentration than would be present absent the mouth alcohol. (So far, so good).
The Petitioner's attorney then sought to introduce his client's medical records to show that his client suffers from GERD. The district court, however, excluded the diagnosis on the grounds that the doctor's diagnosis, contained in the medical records, was hearsay.
On appeal, the Minnesota Court of Appeals upheld the district court noting that Rule 803 (4) (The Medical Records Exception to the Hearsay Rule) only allows, "Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment".
In other words, statements the patient makes to the doctor are admissible under the rule because the theory is that someone seeking medical help will tell the truth to get accurate and helpful treatment for the medical condition. But the diagnosis of the doctor is not covered by the hearsay exception. The establish the diagnosis, you have to bring in the doctor!! Since the Petitioner in this case failed to have the doctor testify, the district court did not err in excluding the diagnosis contained in the medical records as hearsay.
Moral of the Story: You should always learn the rules before you try to play the game!!
F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer