State v. Henry

332 N.W.2d 88, 111 Wis. 2d 650, 1983 Wisc. App. LEXIS 3229
CourtCourt of Appeals of Wisconsin
DecidedFebruary 16, 1983
DocketNo. 82-1230-CR
StatusPublished
Cited by1 cases

This text of 332 N.W.2d 88 (State v. Henry) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Henry, 332 N.W.2d 88, 111 Wis. 2d 650, 1983 Wisc. App. LEXIS 3229 (Wis. Ct. App. 1983).

Opinion

VOSS, P.J.

The State of Wisconsin appeals from an order of the trial court that suppressed John Henry's blood alcohol test results. The state had attempted to use [651]*651these test results in order to prove that Henry had been operating a motor vehicle while intoxicated, contrary to sec. 346.63, Stats. (1979-80). The issue raised on appeal is whether the results of a blood alcohol test, taken in conformity with the implied consent law, sec. 343.305, Stats. (1979-80), are suppressible when a person orally consents but does not sign a medical informed consent disclosure form as discussed in secs. 146.81 and 146.82, Stats. (1979-80). We hold that under these circumstances, the blood alcohol test results should not be suppressed. Accordingly, we reverse and remand this case for further proceedings consistent with this decision.

John Henry was arrested for driving an automobile while intoxicated, in violation of sec. 346.63, Stats. (1979-80),1 on February 13, 1982. The arrest was made by Waukesha County Sheriff’s Deputy Richard Koleff at the scene of an automobile accident in Wales, Wisconsin. Henry had been involved in this accident. Henry was then taken to Waukesha Memorial Hospital for a blood alcohol test, pursuant to the implied consent statute, sec. 343.305(1), Stats. (1979-80).2 At the hospital, [652]*652the deputy reviewed the blood test consent form with Henry and, by reading from a standard state form,3 informed Henry of his statutory rights under sec. 843.305 (3) (a).4 After being advised of his rights, Henry orally [653]*653agreed to have a blood sample withdrawn; however, he would not sign the written consent form. The blood sample was drawn by a hospital technician using a kit provided by the state and was witnessed by the deputy. The technician gave the sample to the deputy, who then mailed it to the State Laboratory of Hygiene for analysis.

Subsequently, Henry filed a motion to suppress the blood test results on the ground that a patient-client medical release disclosure form was not signed, as defined in secs. 146.815 and 146.82(1),6 Stats. (1979-80). [654]*654The trial court suppressed the results of Henry’s blood test based on its interpretation that sec. 146.81(2) requires a written consent form to be signed first before the disclosure of these results.

The trial court concluded that the doctor-patient privilege covered a person suspected of driving while intoxicated and subjected to medical testing under sec. 343.305, Stats. (1979-80). This court, however, believes that the doctor-patient privilege expressed in secs. 146.81 and 146.82, Stats. (1979-80), cannot be correctly construed to apply in cases such as this one. Thus, we find that the trial court erroneously relied on the doctor-patient privilege in rendering its decision.

While we recognize that the “doctor-patient” privilege has in recent times been expanded to include other persons or businesses rendering health care, we also note that it still has certain boundaries. One such boundary is applicable here. When Henry was taken to the hospital, it was a police officer acting under statutory authority who requested that the hospital draw a sample of Henry’s blood. We feel that it is an important distinction that a “health care provider” did not order this medical procedure. Because a health care provider did not prescribe this test, we do not believe the doctor-patient privilege is applicable.

Another crucial factor which we think distinguishes and takes this case out of the realm of the doctor-patient [655]*655privilege is that Henry cannot be classified as a “patient” as defined by sec. 146.81(B), Stats. (1979-80). This section defines a “patient” as a person who receives health care services from a health care provider. The problem we have with this definition is with the words “health care services.” This court cannot logically say that the drawing of blood, to test whether he had been driving while intoxicated, comes under the heading of “health care services.” Specifically, we have trouble saying that drawing blood and testing it in order to determine only the alcohol content is really “health care,” as envisioned by the legislature. (Emphasis added.) The blood in this instance was not drawn from Henry for “health care” purposes; rather, it was ordered under the authority of the state of Wisconsin with an evidentiary purpose in mind. We get this impression for several reasons.

First, the Wisconsin legislature has enacted a stringent operating while intoxicated law which is designed to achieve the goal of maximum highway safety in this state. This law was to achieve maximum safety by first discouraging individuals from initially getting behind the wheel of a motor vehicle while under the influence of alcohol and, secondly, by facilitating the removal of the intoxicated drivers from Wisconsin highways if they do drive while intoxicated. Wisconsin appellate courts have historically construed these types of laws liberally so as to effectuate the legislative purpose which led to their passage. In State v. Neitzel, 95 Wis. 2d 191, 193-94, 289 N.W.2d 828, 830 (1980), our supreme court recognized that removing intoxicated drivers from the highways was one of the objectives of the implied consent law (sec. 343.305, Stats. (1979-80)) :

Because the clear policy of the statute is to facilitate the identification of drunken drivers and their removal [656]*656from the highways, the statute must be construed to further the legislative purpose.

In State v. Pawlow, 98 Wis. 2d 703, 704-05, 298 N.W.2d 220, 221 (Ct. App. 1980), this court stated:

Wisconsin’s implied consent statute must be construed as a whole in light of its policy, “to facilitate the taking of tests for intoxication and not to inhibit the ability of the state to remove drunken drivers from the highway.” Scales v. State, 64 Wis. 2d 485, 494, 219 N.W.2d 286, 292 (1974). [Emphasis in original.]

As can be seen, there is a strong legislative and judicial policy to combat the problem of having intoxicated drivers on our state’s highways.

Secondly, the time sequence of when both statutes were enacted is an influencing factor. Section 343.305, Stats. (1979-80), was created by ch. 383, Laws of 1969. Subsequently, secs. 146.81 through 146.83, Stats. (1979-80), were created by ch. 221, Laws of 1979. Under the law set out in Mack v. Joint School District No. 3, 92 Wis. 2d 476, 489-90, 285 N.W.2d 604, 610 (1979), the legislature was presumed to have enacted secs. 146.81 and 146.82 in ch. 221, Laws of 1979, with full knowledge of all existing laws, including sec. 343.305. There is nothing in secs. 146.81 or 146.82 which indicates that the legislature in any way restricted or even intended to restrict the implied consent contained in sec. 343.305. In the absence of any express provision repealing any portion of sec. 343.305, the implied consent law should remain as it existed prior to the enactment of secs. 146.81 and 146.82.

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Related

Opinion No. Oag 11-84, (1984)
73 Op. Att'y Gen. 45 (Wisconsin Attorney General Reports, 1984)

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Bluebook (online)
332 N.W.2d 88, 111 Wis. 2d 650, 1983 Wisc. App. LEXIS 3229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-henry-wisctapp-1983.