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State v. Miller

Court of Appeals of Oregon

April 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JACOB MATTHEW MILLER, Defendant-Appellant.

          Argued and submitted January 21, 2014.

         Coos County Circuit Court 11CR1154 Martin E. Stone, Judge.

          Kali Montague, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

          Rebecca M. Auten, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

          Before Duncan, Presiding Judge, and Hadlock, Chief Judge, and DeVore, Judge.[*]

         Case summary: As part of defendant's treatment for injuries sustained in a single vehicle accident, hospital staff drew and tested a sample of his blood that showed a blood alcohol content (BAC) of .333 percent. Acting pursuant to the requirements of ORS 676.260(1), hospital staff disclosed the BAC test result to a state trooper who was at the hospital to investigate the accident. Defendant was prosecuted for three driving related offenses, and he moved to exclude evidence of the hospital's disclosure of his BAC test result to the trooper, arguing, among other things, that the disclosure violated his state and federal constitutional rights to privacy of his medical records. The trial court denied the motion. Defendant entered a conditional guilty plea and appeals that denial. Held: Assuming, without deciding, that the hospital staff's disclosure of defendant's BAC test result pursuant to ORS 676.260(1) made the staff member an agent of the state with respect to that action, the Court of Appeals concludes, based on defendant's arguments, that the act of disclosing the test result did not implicate a protected privacy interest under either Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution. Accordingly, the trial court did not err in denying defendant's motion to suppress.

          DUNCAN, P. J.

         ORS 676.260(1) imposes a mandatory reporting duty on health care facilities under certain circumstances. A health care facility "shall notify" a law enforcement officer present at the facility investigating a motor vehicle accident if, immediately after the accident, the facility treats "a person reasonably believed to be the operator of a motor vehicle involved in the accident" and, in the course of treatment, tests the person's blood and discovers that the person's blood alcohol level exceeds .08 percent or that the blood contains a controlled substance.[1]

         As part of defendant's treatment for injuries sustained in a single-vehicle accident, hospital staff drew and tested a sample of his blood that showed a blood alcohol content (BAC) of .333 percent. Acting pursuant to the requirements of ORS 676.260(1), hospital staff disclosed the BAC test result to a state trooper who was at the hospital to investigate the accident. Defendant was prosecuted for three driving-related offenses, and he moved to exclude evidence of the hospital's disclosure of his BAC test result to the trooper, arguing, among other things, that the disclosure violated his state and federal constitutional rights to privacy of his medical records. The trial court denied the motion. Defendant entered a conditional guilty plea and now appeals that denial. In light of defendant's arguments, we conclude that, under the circumstances, defendant had no protected privacy interest in his BAC test result under the Oregon Constitution or the United States Constitution. Because there was no constitutional violation, defendant was not entitled to suppression of evidence of his BAC test result. Consequently, we affirm.

         I. FACTS

         In reviewing a trial court's denial of a motion to suppress, we review for legal error, deferring to the trial court's findings of fact when there is sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 74-75, 854 P.2d 421 (1993). We recite the pertinent facts, which are undisputed, in accordance with that standard. After a single-car accident, Trooper Dunlap responded to the scene. Defendant, the driver of the vehicle, had already been transported to the Bay Area Hospital for treatment of his injuries, and Dunlap went there. As he approached defendant's bed in the emergency room, Dunlap smelled alcohol and could hear defendant screaming profanities. Dunlap saw that defendant's eyes were bloodshot, glassy, and watery. Defendant's face was flushed and he had a dazed, "stuporous" expression. Dunlap suspected that defendant had been driving under the influence of intoxicants and requested defendant's consent to draw his blood to test for its alcohol content. Defendant refused.

         As part of defendant's medical treatment, hospital staff had drawn a sample of his blood and tested it, ascertaining that his BAC was .333 percent. After defendant refused to consent to a blood draw, Dunlap did not seek a warrant for a blood draw. Nor did he ask hospital staff for the results of the blood test. However, pursuant to their duty under ORS 676.260(1), hospital staff verbally disclosed to Dunlap that defendant's BAC was .333 percent and Dunlap included that information in his police report.

         Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, reckless driving, ORS 811.140, and criminal mischief, ORS 164.354. Before trial, he moved to exclude evidence of the BAC test result because it had been obtained without a warrant. Defendant argued, among other things, that the hospital staff's disclosure of his BAC test result to Dunlap was "suppressible, as state action, under search and seizure analysis." After a hearing, the trial court denied defendant's motion, concluding, as relevant here, that the hospital's disclosure of defendant's BAC test result to Dunlap did not violate defendant's constitutional rights because it did not constitute state action. Defendant entered a conditional guilty plea to DUII and reckless driving, and the trial court entered a judgment convicting him of those offenses. The criminal mischief charge was dismissed.

         II. ARGUMENTS ON APPEAL

         On appeal, defendant contends that the trial court erred in denying his motion to exclude evidence of the disclosure of the BAC test result to Dunlap, asserting that the hospital's disclosure of that information to Dunlap without a warrant pursuant to ORS 676.260(1) was state action that violated his rights under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution to privacy of his medical records.[2]Defendant challenges only the hospital's disclosure of information-the BAC test result-to Dunlap; he does not challenge the blood draw or testing. He also does not dispute that the requirements of ORS 676.260(1) were met.

         Thus, defendant contends that the hospital staff's disclosure of his BAC test result to Dunlap was a "search, " for purposes of Article I, section 9, and the Fourth Amendment, and that no exception to the warrant requirement applied. Although the privacy interests that the two constitutions protect are defined differently, under either constitution, a "search" requires state action that invades a protected privacy interest. State v. Newcomb, 359 Or 756, 764, 375 P.3d 434 (2016) ("For purposes of Article I, section 9, a search occurs only if governmental action invades 'a protected privacy interest.' State v. Wacker, 317 Or 419, 426, 856 P.2d 1029 (1993)."); State v. Campbell, 306 Or 157, 164, 759 P.2d 1040 (1988) ("[T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right." (Emphasis in original.)); see also United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (Fourth Amendment search occurs when governmental action infringes "an expectation of privacy that society is prepared to consider reasonable").

         Defendant contends that the disclosure was state action because the hospital staff disclosed the information to Dunlap pursuant to ORS 676.260(1), a legislative mandate. He further contends that, under both Article I, section 9, and the Fourth Amendment, he had a constitutionally protected privacy interest in his medical records, including his BAC.

         The state first responds that defendant failed to preserve the claim that he raises on appeal. We reject that argument without further discussion. On the merits, the state asserts, among other things, that defendant lacked a protected privacy interest in his BAC under either constitution. As explained below, given defendant's arguments, we agree. Accordingly, we need not, and do not, consider whether the fact that ORS 676.260(1) required ...


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