This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-1739

 

 

State of Minnesota,

Respondent,

 

vs.

 

David Arnal Haugen,

Appellant.

 

 

Filed June 27, 2000

Affirmed

Schumacher, Judge

 

Kandiyohi County District Court

File No. K76685

 

 

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

 

Boyd Beccue, Kandiyohi County Attorney, Daryl A. MacLean, Tracy L. Perzel, Assistant County Attorneys, 316 Southwest Fourth Street, Willmar, MN 56201 (for respondent)

 

John E. Mack, Mack & Daby P.A., 26 Main Street, Post Office Box 302, New London, MN 56273-0302 (for appellant)

 

Considered and decided by Schumacher, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N

SCHUMACHER, Judge

Appellant David Arnal Haugen challenges a pretrial ruling denying his motion to suppress the results of a blood test, arguing that because his test was protected by a medical privilege the police should have obtained it by way of a subpoena rather than a search warrant. We affirm.

FACTS

On September 26, 1998, Kandiyohi County deputies were dispatched to the intersection of U.S. Highway 12 and County Road 116 where they found Haugen in the driver's seat of an automobile, incoherent and smelling of alcohol. The deputies got Haugen out of the car and gave him a preliminary breath test, which he failed. By that time, Haugen's alertness and consciousness had decreased, and the deputies requested an ambulance. When paramedics arrived, they administered a sternum rub, but Haugen did not respond to the painful stimulus. The ambulance transported Haugen to the emergency room at Rice Memorial Hospital, while paramedics placed an airway in his throat to help his breathing. Ambulance personnel told a deputy that a blood sample drawn in the emergency room for diagnostic purposes revealed an alcohol concentration of .479.

On November 23, 1998, a deputy contacted Haugen by telephone and asked if he would sign a medical release form pertaining to the incident. Haugen stated that he did not want to release any medical records and that he would be contacting an attorney. Law enforcement thereafter obtained a search warrant. They executed the search warrant on November 23 at the Rice Memorial Hospital and obtained all of Haugen's records pertaining to the September 26, 1998, incident.

The state charged Haugen with a misdemeanor count of driving under the influence and a gross misdemeanor count of operation of a motor vehicle with an alcohol concentration of .20 or more. Haugen moved to suppress the evidence of the blood test. The court denied the motion, reasoning that implied consent waives the medical privilege that would otherwise apply. The matter came before the court for trial in the form of written arguments on a stipulated record pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The trial court found Haugen guilty of the gross misdemeanor.

D E C I S I O N

When reviewing a pretrial suppression order where the facts are not in dispute, we independently review the facts and determine, as a matter of law, whether the evidence must be suppressed. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). We will reverse the determination of the trial court only if the state demonstrates clearly and unequivocally that the trial court erred in its judgment and that the error will have a critical impact on the outcome of the trial unless reversed. State v. Kim, 398 N.W.2d 544, 547 (Minn. 1987).

Haugen argues his blood test was illegally obtained by the use of a search warrant. His argument is based on the privilege extended to all patients receiving medical care from physicians or nurses under Minn. Stat. 595.02, subds. 1(d), (g) (1998). Haugen relies on a case involving an attorney-client privilege, which held that a warrant authorizing the search of an attorney's office is unreasonable and, therefore, invalid when the attorney is not suspected of criminal wrongdoing and there is no threat the documents sought will be destroyed. See O'Connor v. Johnson, 287 N.W.2d 400, 405 (Minn. 1979). The trial court recognized that Haugen's claim of medical privilege was persuasive but concluded that, under the unique facts of this case, implied consent law waives the medical privilege that would otherwise apply. We agree.

Under the Minnesota implied-consent law, all drivers are deemed to consent to chemical testing of their blood to determine the presence of alcohol or controlled substances. Minn. Stat. 169.123, subd. 2 (1998). While this consent can be withdrawn where there is refusal of a test, an unconscious person is deemed not to have withdrawn consent and a test may be given. Minn. Stat. 169.123, subds. 2c, 4 (1998). Here, the indicia of intoxication were high, a preliminary breath test was administered and failed, and law enforcement called in emergency medical personnel when Haugen lost consciousness. The subsequent medical attention included a blood test. Under these circumstances, Haugen's implied consent to chemical testing waives the medical privilege that would otherwise protect the blood test. See State v. Fontana, 277 Minn. 286, 290, 152 N.W.2d 503, 506 (Minn. 1967) (implied waiver of medical privilege when suspect in custody consents to medical exam that suspect knows is meant to gather incriminatory evidence). It makes no difference whether the state obtained the results by a warrant or subpoena.

Haugen attacks the search warrant as unreasonable because it sought privileged material. The search warrant sought all medical records related to the September 26, 1998, incident. The implied consent waiver applies only to the blood test. Accordingly, we agree with Haugen that the search warrant was overbroad and impermissibly sought privileged material. But because the privilege did not protect the blood test, law enforcement would have readily obtained it without the overbroad warrant. Accordingly, we conclude the inevitable discovery exception to the exclusionary rule applies "'because the police would have obtained the evidence if no misconduct had taken place.'" In re Welfare of J.W.K., 583 N.W.2d 752, 756 (Minn. 1998) (quoting Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 2509 (1984)).

Affirmed.



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.