State v. Morales

824 P.2d 756, 170 Ariz. 360, 92 Ariz. Adv. Rep. 47, 1991 Ariz. App. LEXIS 180
CourtCourt of Appeals of Arizona
DecidedAugust 8, 1991
Docket2 CA-CR 88-0231, 2 CA-CR 89-0393-PR and 2 CA-CR 90-0780-PR
StatusPublished
Cited by27 cases

This text of 824 P.2d 756 (State v. Morales) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Morales, 824 P.2d 756, 170 Ariz. 360, 92 Ariz. Adv. Rep. 47, 1991 Ariz. App. LEXIS 180 (Ark. Ct. App. 1991).

Opinion

OPINION

FERNANDEZ, Judge.

In his appeal from his conviction on two counts of manslaughter and a misdemeanor count of driving under the influence of intoxicating liquor (DUI), appellant contends that the court erred in admitting the results of tests performed on his blood. In his petition for review of the denial of post-conviction relief, appellant contends that the court erred in rejecting his claim of ineffective assistance of counsel. We affirm the convictions and deny the petition for review.

On August 1, 1987 at about 7:30 p.m., a motorist heading east on Interstate Highway 10 saw appellant’s vehicle enter the highway on the off ramp at the Rita Road exit east of Tucson. Appellant continued westbound, driving in the fast lane against *362 the eastbound traffic past at least three vehicles that pulled over either into the slow lane or into the emergency lane to avoid him. About a mile and a half after he entered the highway, appellant crashed head on into a car that had moved into the fast lane to pass a tractor-trailer. Appellant was seriously injured. The occupants of the other car, a 17-year-old girl and an 18-year-old girl, were both killed. Two Department of Public Safety (DPS) officers testified that they smelled a strong odor of alcohol on appellant at the scene. An empty beer can was found in appellant’s car.

Appellant was transported by helicopter to Tucson Medical Center (TMC) for treatment. A Department of Public Safety officer was instructed to go to the hospital and obtain a sample of appellant’s blood. Emergency room personnel directed him to the hospital laboratory where he was given two vials of blood. The blood was later tested and found to have a blood alcohol concentration of .247. After he was convicted, appellant was sentenced to consecutive, aggravated terms of 12 years on each of the manslaughter counts and to 28 days in jail on the misdemeanor DUI conviction.

Appellant contends that the court erred in admitting evidence of his blood alcohol content, arguing that the state’s use of his hospital records violated his physician-patient privilege, that his identity was wrongfully obtained from the hospital and constituted double hearsay, and that an insufficient chain of custody for the blood was established to permit its admission into evidence. Appellant does not question the state’s right to obtain a blood sample from the hospital pursuant to A.R.S. § 28-692(J).

Because all of appellant’s contentions concern the propriety of the admission into evidence of the blood alcohol test result, we review the evidence in the light most favorable to sustaining the verdict, and we resolve conflicts in the evidence and reasonable inferences to be drawn therefrom against appellant. State v. Zmich, 160 Ariz. 108, 770 P.2d 776 (1989).

PHYSICIAN-PATIENT PRIVILEGE

Appellant contends that the court erred in allowing the state to use his hospital records to prove that the blood sample tested was his, arguing that the information was protected by the physician-patient privilege contained in A.R.S. § 13-4062(4).

Based on the fact that the two DPS officers had smelled a strong odor of alcohol on appellant and that an empty can of beer had been found in appellant’s car, the investigating officer sent an officer to TMC to obtain a sample of appellant’s blood. Officer Fimbres went to the emergency room at TMC and asked for a sample of appellant’s blood, giving appellant’s name, the location of the accident, the time of the accident, and the method by which appellant had been transported to the hospital. Fimbres also signed a written request for the blood, certifying that he had probable cause to believe that the patient had violated A.R.S. § 28-692. The time shown on the form was 9:26 p.m.

A hospital employee gave Fimbres the code name “Jacinto 698” as the trauma name under which appellant was being treated. An emergency room nurse testified that each trauma patient is assigned a unique code name that consists of a name drawn from an alphabetical series of names followed by a sequentially assigned number. He testified that the trauma names are preplaced on the forms and gummed labels (to be used on the blood sample test tubes) in the hospital records so that all will show the same code name when the record is compiled for a particular trauma patient. The nurse also testified that once the victim’s identity is ascertained, normally from relatives, police officers who were at the scene, ambulance attendants, or “pocket contents that may include a driver’s license or something like that,” the emergency room clerk enters it in the records. The records then reflect both names.

Because both the form requesting the blood sample and the test tubes provided by TMC were marked only with the name “Jacinto 698,” the state was required to prove that TMC had assigned that code name to appellant. The state subpoenaed appellant’s medical records from TMC, but *363 because appellant asserted his physician-patient privilege, the records were kept sealed in the superior court clerk’s office. On the second day of trial, the court permitted TMC personnel to examine the records in an in-camera hearing and to pull out the appropriate forms for the state to show both appellant’s code name and the chain of custody of the blood while it was in the hospital. The prosecutor was not permitted to examine the records personally.

As appellant contends, it is well established in Arizona that a person’s medical records and oral communications to physicians are protected by the physician-patient privilege. State v. Santeyan, 136 Ariz. 108, 664 P.2d 652 (1983); Tucson Medical Center v. Rowles, 21 Ariz.App. 424, 520 P.2d 518 (1974). Because there was no such privilege at common law, the statute must be strictly construed. Hospital Corp. of America v. Superior Court, 157 Ariz. 210, 755 P.2d 1198 (App.1988). “The purpose of the ... privilege is to insure that patients will receive the. best medical treatment by encouraging full and frank disclosure of their medical history and symptoms to their doctors.” State v. Beaty, 158 Ariz. 232, 239, 762 P.2d 519, 526 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3200, 105 L.Ed.2d 708 (1989). In order for the privilege to apply, four requirements must be met:

First, the patient must not consent to the testimony. Second, the witness must be a physician or surgeon. Third, the information was imparted to the physician while he was attending the defendant. Finally, the information must be necessary to enable the physician to prescribe or act for the treatment of the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
824 P.2d 756, 170 Ariz. 360, 92 Ariz. Adv. Rep. 47, 1991 Ariz. App. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morales-arizctapp-1991.