This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







State of Minnesota,


Herbert William Elfstrom,


Filed June 10, 2003


Wright, Judge


Hennepin County District Court

File No. 02025188



Gerald C. Magee, 24 Dell Place, Minneapolis, MN  55403 (for appellant)


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


Rolf A. Sponheim, Minnetonka Assistant City Attorney, 14600 Minnetonka Boulevard, Minnetonka, MN  55345 (for respondent)



            Considered and decided by Wright, Presiding Judge, Randall, Judge, and Shumaker, Judge.




U N P U B L I S H E D  O P I N I O N




On appeal from a conviction for first-degree driving while impaired, appellant Herbert Elfstrom argues that (1) his admissions to alcohol consumption, which the arresting officer obtained while treating his injuries, are protected by the medical privilege and, therefore, were inadmissible and (2) evidence of his intoxication is insufficient to support his conviction where some of the indicia of intoxication could have been attributable to appellant’s age and injuries.  We affirm.



On March 28, 2002, at approximately 5:00 p.m., 80-year-old Herbert Elfstrom was driving through a shopping center parking lot.  At the same time, Donald Hagel was backing out of a parking space.  Hagel stopped to avoid backing into Elfstrom’s car.  Elfstrom, who had also stopped, sat in his car looking forward.  When Elfstrom got out of his car, Hagel parked his car and walked over to speak to Elfstrom.  Elfstrom insisted that Hagel hit his car.  Hagel explained that the cars had not made contact.  To settle the disagreement, Hagel went inside a nearby business to have another person examine Elfstrom’s car.  When Hagel returned, he saw Elfstrom lying face down in the parking lot with broken glasses.  A witness called 911.

            Shortly thereafter, Officer Mark Stock, a uniformed police officer, responded to a 911 dispatch, reporting that a man was down in a parking lot.  Prior to becoming a police officer, Officer Stock worked as a paramedic for 19 years.  When Officer Stock arrived in his squad car, he observed a small group of people gathered around Elfstrom, who was still lying down.  Officer Stock approached Elfstrom and began conducting a medical assessment to determine the source and extent of Elfstrom’s injuries.

Officer Stock asked Elfstrom what happened.  Elfstrom told Officer Stock that he thought Hagel hit his car and that he fell over while he was checking for damage.  Officer Stock asked Elfstrom whether he was generally in good health and whether he had been ill or injured earlier in the day.  Elfstrom responded that he had been neither ill nor injured, and he was generally in good health.   

Officer Stock smelled alcohol on Elfstrom’s breath and noticed that his speech was slurred.  He also noticed that Elfstrom’s eyes were red and watery.  When Officer Stock asked Elfstrom where he had been that day, Elfstrom replied that he had been at the American Legion in Robbinsdale.  In response to further questioning by Officer Stock, Elfstrom stated that he had been drinking vodka and cranberry juice until about 2:30 or 3:00 p.m.  Elfstrom could not remember how many drinks he had consumed, but he stated that he “had enough.”  Officer Stock did not conduct a field sobriety test because Elfstrom’s injuries would interfere with a horizontal gaze nystagmus test, and Officer Stock had been trained that elderly people often have difficulty with field tests.  

An ambulance arrived at the scene shortly after Officer Stock.  The paramedics had to assist Elfstrom to the ambulance because he was extremely unsteady on his feet.  While the paramedics treated Elfstrom, Officer Stock asked witnesses what had occurred.  When questioned, Hagel told Officer Stock that he thought he smelled alcohol on Elfstrom’s breath.  Based on these statements and his own observations, Officer Stock went to the ambulance and placed Elfstrom under arrest for driving while impaired. 

The ambulance transported Elfstrom to the Methodist Hospital emergency room, where Officer Stock read Elfstrom the implied consent advisory.  Elfstrom agreed to undergo a blood test.  Because Elfstrom had two prior DWI convictions occurring within 10 years of March 28, 2002, the state charged Elfstrom in a two-count complaint with first-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(1)  (2000) (under the influence of alcohol), 169A.25 (2000), and first-degree driving while impaired, in violation of Minn. Stat. §§ 169A.20, subd. 1(5) (alcohol concentration over .10 with two or more aggravating factors), 169A.25. 

Because the phlebotomist, who drew Elfstrom’s blood, was not qualified under the statute to administer the alcohol-concentration test, the district court suppressed the results of the blood test.[1]  At the bench trial, the district court found Elfstrom not guilty of first-degree driving while impaired—over .10.  The district court found Elfstrom guilty of driving under the influence of alcohol.  This appeal followed. 




Elfstrom first argues that his statements to Officer Stock are protected by the medical privilege.  The burden of proving the existence of the medical privilege rests on the claimant.  State v. Staat, 291 Minn. 394, 398-99, 192 N.W.2d 192, 196-97 (1971).  Whether the claimant has proven the necessary foundational facts to establish that a particular communication is privileged is a question of fact.  Id. at 399, 192 N.W.2d at 197.  The district court’s findings of fact must be sustained if there is reasonable evidence to support them.  Id. at 400, 192 N.W.2d at 197.  The district court has broad discretion when deciding whether to admit or exclude evidence, “and its ruling will not be disturbed unless it is based on an erroneous view of the law or constitutes an abuse of discretion.”  State v. Stevens, 580 N.W.2d 75, 78 (Minn. App. 1998) (citation omitted), review denied (Minn. Aug. 18, 1998).

Elfstrom argues that, because he and Officer Stock shared a confidential physician-patient relationship, the district court erred in admitting Elfstrom’s statements and Officer Stock’s opinions as to whether Elfstrom was under the influence of alcohol.[2]  Elfstrom contends that, while Officer Stock, who has prior work experience as a paramedic, was assessing Elfstrom’s medical condition and treating his injuries, he asked Elfstrom questions that were necessary for medical diagnosis and treatment.  The answers to these questions, Elfstrom argues, are protected by the medical privilege.  We disagree. 

Minnesota’s medical-privilege statute provides that, without a patient’s consent, a “licensed physician or surgeon, dentist or chiropractor shall not” disclose any information that he or she acquired while caring for the patient “in a professional capacity,” and which was necessary in order to act within that professional capacity.  Minn. Stat. § 595.02, subd. 1(d) (2002).  To establish that information is protected by the medical privilege, one must prove

(1) a confidential physician-patient relationship existed between defendant and the hospital physicians and other persons participating in defendant’s examination and treatment, (2) during which they acquired “information” of the type contemplated by the statute, (3) while attending him, and (4) which was necessary for medical diagnosis and treatment.


Staat, 291 Minn. at 399, 192 N.W.2d at 197 (citations omitted).  The absence of any one of these factors “is fatal.”  Id. at 402-03, 192 N.W.2d at 198 (citations omitted).  

The medical privilege extends by implication to “other persons participating in [the] examination and treatment” who act under the direction of the treating physician.  Id. at 399, 192 N.W.2d at 197 (citation omitted) (holding that medical privilege did not apply to hospital orderly not acting at direction of treating physician).  But the disclosure of otherwise confidential information in the presence of a stranger to the physician-patient relationship destroys the confidentiality of the communication and constitutes a waiver of the medical privilege.  See State v. Kunz, 457 N.W.2d 265, 267 (Minn. App. 1990), review denied (Minn. Aug. 23, 1990) (holding that medical privilege did not apply when police officer in examining room while physician examined patient); see also State v. Gullekson, 383 N.W.2d 338, 340 (Minn. App. 1986)(holding that medical privilege did not protect patient’s statements made in presence of hospital administrators not involved in treatment), review denied (Minn. May 16, 1986).

Here, nothing in the record suggests that Officer Stock was acting under the direction of a physician.  Officer Stock responded to the scene as a uniformed police officer.  He neither received any medical information from the paramedics nor relayed any medical information to them.  Officer Stock had no contact directly or indirectly with Elfstrom’s treating physician.  The record is devoid of any relationship akin to a confidential physician-patient relationship involving Officer Stock that would protect Elfstrom’s communications with the officer.  When Officer Stock arrived, “a small group” of people had gathered around Elfstrom.  The record shows that some of these people remained at the scene while Officer Stock administered first aid.  Thus, even if a physician-patient relationship existed, the presence of these witnesses would destroy the confidentiality required to establish the medical privilege.  Accordingly, the district court did not abuse its discretion in admitting evidence of Elfstrom’s statements to Officer Stock during the administration of first aid. 



Elfstrom also challenges the sufficiency of the evidence to support his conviction.  A decision by a district court judge as a fact-finder is given the same weight as that of a jury.  State v. Waterston, 371 N.W.2d 650, 652 (Minn. App. 1985).  In considering a claim of insufficient evidence, our review is limited to a painstaking analysis of the record to determine whether the evidence, when viewed in the light most favorable to the verdict, is sufficient to allow the fact-finder to reach the verdict it did.  State v. Webb, 440 N.W.2d 426, 430 (Minn. 1989).  We must assume the district court believed the state’s witnesses and disbelieved any evidence to the contrary.  State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989).  If a fact-finder could reasonably find the defendant guilty in light of the presumption of innocence and the state’s burden of proof, the verdict will stand.  State v. Larson, 429 N.W.2d 674, 675 (Minn. App. 1988), review denied (Minn. Nov. 8, 1988).

Elfstrom concedes that he has been convicted of driving while impaired for incidents occurring on two prior occasions within ten years of this offense.  But he contends that there is insufficient evidence to establish beyond a reasonable doubt that he was driving while under the influence of alcohol on March 28, 2002.  The district court found Elfstrom guilty of first-degree driving while impaired under Minn. Stat. § 169A.20, subd. 1(1) (2000) (driving motor vehicle while under influence of alcohol),and Minn. Stat. § 169A.25 (2000) (driving while impaired with two or more aggravating factors present).  See also Minn. Stat. § 169A.03 (2000) (defining “aggravating factor” as “a qualified prior driving incident within the ten years immediately preceding the current offense”).   

Driving under the influence of alcohol includes “the act of driving a motor vehicle while ability or capacity is impaired by alcohol.”  State v. Stark, 363 N.W.2d 53, 56 (Minn. 1985) (quoting Anderson v. State, Dept. of Pub. Safety, 305 N.W.2d 786, 787 (Minn. 1981)).  The focus is on the driver’s impaired condition while driving.  See State v. Duemke, 352 N.W.2d 427, 431 (Minn. App. 1984); see also 10A Stephen E. Forestell Minnesota Practice, CRIMJIG 29.02 (1999) (stating that person is under influence of alcohol when so affected by alcoholic beverage that person “does not possess that clearness of intellect and control of [oneself] as [one] otherwise would have”).

Here, under the misapprehension that another vehicle collided with his, Elfstrom stopped in a parking lot and stared straight ahead for an unusual amount of time.  Elfstrom insisted that Hagel hit his car, but the evidence shows that the vehicles never touched.  While Elfstrom was looking for damage to his car, he fell, hit his face, and broke his glasses.  When Officer Stock arrived, he observed Elfstrom lying in the parking lot with a bloody face, exhibiting signs of intoxication that included slurred speech, red, watery eyes, and breath that smelled of alcohol.  Elfstrom admitted to Officer Stock that he had been drinking.  Elfstrom was very unsteady and needed assistance from the paramedics to get to the ambulance.  Based on Hagel’s interaction with Elfstrom, Hagel reported to Officer Stock that Elfstrom appeared to be drunk.  Given Elfstrom’s admissions, Officer Stock’s observations, and Hagel’s experience with Elfstrom, there is ample evidence that Elfstrom drove his car while under the influence of alcohol.

Relying on State v. Horner, Elfstrom argues that what may appear to be evidence of intoxication may have innocent explanations.  State v. Horner, 605 N.W.2d 405, 411 (Minn. App. 2000), aff’d in part, rev’d in part, and remanded on other grounds,617 N.W.2d 789 (Minn. 2000).  In Horner, the explanation for the boater’s red, watery eyes was that he was traveling 30 miles per hour in a speedboat without protective eyewear.  Id. at 410.  Here, the record evinces no explanation for Elfstrom’s red, watery eyes, alcohol-tinged breath, slurred speech, and unsteadiness other than intoxication.  Officer Stock ruled out possible innocent explanations after Elfstrom denied any illness or previous injury and confirmed he was generally in good health.  In the absence of innocent explanations for Elfstrom’s condition, the evidence is sufficient to establish beyond a reasonable doubt that Elfstrom was driving while under the influence of alcohol.






[1]  The state does not appeal from the trial court’s suppression of Elfstrom’s blood-test results.

[2] Because Elfstrom did not raise the issue of suppressing Officer Stock’s opinion testimony before the district court, our review is limited to whether Elfstrom’s statements to Officer Stock should have been suppressed as protected by the medical-privilege statute.  See Thiele v. Stich,425 N.W.2d 580, 582 (Minn. 1988) (appellate court will consider only issues presented to and considered by district court).