"Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement."
Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement. Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter. In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed. This practice has reached customary status among Judges and prosecutors across Rhode Island.
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.
Pursuant to Rhode Island Drunk Driving, DWI and DUI procedures, a driver is entitled to refuse to take a chemical test upon the request of law enforcement. Of course, this almost always gives rise to a “refusal” charge being levied against the suspect. In Rhode Island, a criminal defense attorney will often times utilize this refusal charge as leverage to obtain a dismissal in the criminal DUI matter. In light of the fact that a refusal charge is civil in nature as opposed to criminal, it is often a more favorable result to admit to the refusal charge in consideration of the criminal charge being dismissed. This practice has reached customary status among Judges and prosecutors across Rhode Island.
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.
Cases:
Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver's license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West's Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007); West's Key Number Digest, Automobiles 144.1(1.20).
Police dispatcher who observed driver's refusal to consent to breath alcohol test over a closed circuit television did not "witness" the refusal, as required to endorse police officer's report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007); West's Key Number Digest, Automobiles 144.2(1).
Defendant's proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply "preferred" to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002); West's Key Number Digest, Automobiles 144.1(1.20).
Testing after "accident": Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an "accident" for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004); West's Key Number Digest, Limitation of Actions 212.
"Confusion doctrine," under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.
Defendant's due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).
Motorist's fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).
Motorist's refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist's refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.
Motorist's fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.
Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI's, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she "was not trying to give him a proper breath." West's V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004); West's Key Number Digest, Limitation of Actions 415.
Chemical intoxication tests—Extraction of sample from unconscious person
If driver is comatose or otherwise incapacitated so that he cannot appreciate significance of arrest, chemical test to determine his blood alcohol content may be administered without formal arrest so long as police who ordered test possessed probable cause for driver's arrest. People v. Goodell (1990, 4th Dept) 164 App Div 2d 321, 565 NYS2d 929, app gr 77 NY2d 961, 570 NYS2d 494, 573 NE2d 582 and affd 79 NY2d 869.
In prosecution on charges of vehicular homicide and driving under the influence of alcohol, motion to suppress evidence obtained through blood test taken at hospital while charged driver was unconscious was improperly denied, where, at time blood was taken, officers who investigated accident did not observe any signs of alcohol consumption by driver, police did not have a warrant to conduct test, no charges had been filed against driver, nor had he been placed under arrest. Commonwealth v. Kohl (1992) 532 Pa 152, 615 A2d 308.
The initial taking of blood by hospital personnel during their treatment of injuries suffered by the defendant in an automobile accident did not implicate any Fourth Amendment rights since the blood was taken because of the serious nature of the accident and before any request by a state trooper; however, state action was involved when medical personnel gave the blood test results to the trooper without his having obtained a search warrant and, thus, the Fourth Amendment applied to the release of the test results. Commonwealth v. Franz (1993, Pa Super Ct) 634 A2d 662.
Chemical intoxication tests—Test of sample drawn for emergency medical purposes
The trial court did not err in a second degree murder prosecution arising from an automobile striking a pedestrian which resulted in an involuntary manslaughter conviction by denying defendant's motion to suppress the results of a chemical analysis of his blood. Defendant was extremely violent on the ride to the hospital and at the hospital; the doctors could not understand defendant's responses to their questions; defendant had a high "index of suspicion" of a head injury and the tests defendant needed could not be conducted while he was combative and thrashing around; the physicians determined that they had to sedate defendant to treat him; and defendant was already unconscious when the officer arrived to obtain the blood sample for chemical analysis so that the officer could not advise defendant of his right to refuse the test. Defendant had no constitutional right to refuse the blood test and could not have "willfully refused" to submit to the test under G.S. § 20-16.2(c) because he was unconscious and officers did not request that he submit to the test. Although defendant contends that his statutory rights were violated in that he was conscious until he was rendered unconscious and the officers did not give him the right to refuse the test, no evidence exists to show that anyone other than the attending physicians made the decision to render the defendant unconscious, no evidence exists to show that defendant was rendered unconscious for any reason other than to treat him medically, there is no evidence of bad faith on the part of the charging officer, and there was a need to obtain a blood sample before defendant's alcohol level dropped. State v. Garcia-Lorenzo (1993) 110 NC App 319, 430 SE2d 290.
The trial court abused its discretion in admitting in evidence the blood alcohol test of a motorist whose blood had been drawn at the hospital for purposes of diagnosing his condition where neither the motorist's medical records, the label on the blood sample, nor the attending nurses could identify who had drawn the sample and transported it to the lab. State v. Cribb (1992, SC) 426 SE2d 306.
HIPAA won't help: Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA for individual medical information did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained after an accident solely for medical purposes. U.S.C.A. Const.Amend. 4; Health Insurance Potability and Accountability Act of 1996, § 262(a), 42 U.S.C.A. § 1320d; 45 C.F.R. §§ 160.203, 164.104, 164.512(f)(1)(ii)(B) (2006)..Murray v. State, 245 S.W.3d 37 (Tex. App. Austin 2007), reh'g overruled, (Jan. 17, 2008) and petition for discretionary review refused, (June 11, 2008); West's Key Number Digest, Automobiles 411.
This blog entry also discusses the application of chemical tests to suspects that are unconscious or in such a medical state that the test is administered for purposes of medical treatment, rather than strictly for law enforcement purposes.
All fifty states and the District of Columbia have enacted statutes authorizing the admission in evidence of the results of chemical intoxication tests. These statutes are commonly referred to as "implied consent laws"; they generally declare that driving is a privilege subject to state licensing, with one of the conditions for obtaining a license that the driver submit to a test for intoxication on request. The police must have probable cause to request a chemical intoxication test. Because of differences in language among the state statutes, it is necessary for counsel to consult his state's statute and to refer to supportive case decisions to ascertain the full rights of his client respecting submission to these tests.
Differences in statutory provisions include such matters as sanction or the lack of sanction for refusal to submit to a test, admissibility as evidence of the fact of refusal to submit to test, the type or types of tests that can be made, whether the police or the defendant can choose the type of test to be administered, the qualifications of the persons who give or supervise the tests, the predicate that must be laid for the introduction of results of the tests, whether the defendant is entitled to his own independent test in addition to the one administered by the police, and whether a dead, unconscious, or disabled person may be tested without permission. Implied consent statutes ordinarily do permit the person tested to have a physician of his own choice administer a chemical intoxication test in addition to the one administered at the direction of the police.
The refusal of a motorist to submit to a chemical intoxication test generally constitutes grounds, under implied consent statutes, for the suspension or revocation of his driver's license. In most states, acquittal of the charge of driving while intoxicated does not preclude revocation or suspension of the motorist's license for refusal to submit to the test. However, the motorist generally has a right to a hearing on the question of the reasonableness of his refusal to submit to the test before his license may be revoked or suspended. Currently, the States of Texas, Wisconsin, Mississippi, and North Carolina do not penalize the driver for refusing to submit to the test if a driving while intoxicated case is dismissed or there was a finding of not guilty.
Cases:
Implied consent law applied broadly and generally to those who drive, and did not require proof of actual driving immediately prior to lawful arrest for driving while under the influence; thus, under statute providing for suspension or revocation of driver's license based on refusal to submit to chemical testing under implied consent law, proof that arrestee was driving immediately prior to the arrest was not required; abrogating Weber v. Orr,274 Cal.App.2d 288, 79 Cal.Rptr. 297; Medina v. Department of Motor Vehicles,188 Cal.App.3d 744, 233 Cal.Rptr. 557; Jackson v. Pierce,224 Cal.App.3d 964, 274 Cal.Rptr. 212. West's Ann.Cal.Vehicle Code §§ 13353, 23612. Troppman v. Valverde, 40 Cal. 4th 1121, 57 Cal. Rptr. 3d 306, 156 P.3d 328 (2007); West's Key Number Digest, Automobiles 144.1(1.20).
Police dispatcher who observed driver's refusal to consent to breath alcohol test over a closed circuit television did not "witness" the refusal, as required to endorse police officer's report of the refusal under the implied consent statute; when a person is observing via closed circuit television, she is completely reliant on the image, and perhaps sound, supplied by the camera in the other room, and as a consequence, there is no guarantee that she will be able to see and hear fully what is happening. C.G.S.A. § 14-227b(c). Winsor v. Commissioner of Motor Vehicles, 101 Conn. App. 674, 922 A.2d 330 (2007); West's Key Number Digest, Automobiles 144.2(1).
Defendant's proclaimed fear of needles was not sufficient cause for his refusal to submit to blood alcohol concentration (BAC) test, following his arrest for driving under influence of alcohol (DUI); defendant indicated to officers that he simply "preferred" to have a breath test rather than a blood withdrawal, while defendant expressed general fear of needles, and generally referenced risk of contracting Acquired Immune Deficiency Syndrome (AIDS), defendant admitted that he had received shots, he denied ever having seen a psychologist for his fear, and he never identified any mental or medical conditions that would be adversely affected by administration of blood withdrawal. Halen v. State, 136 Idaho 829, 41 P.3d 257 (2002); West's Key Number Digest, Automobiles 144.1(1.20).
Testing after "accident": Intoxicated motorist who had been driving vehicle in an out of control manner and who eventually came to a stop in vehicle with a tire missing and damage to vehicle rim, was in an "accident" for purposes of automobile exception to physician-patient privilege contained in implied consent statute, and thus results of blood test taken from motorist were admissible in prosecution for driving under the influence of intoxicating liquor. M.C.L.A. § 257.625a(6)(e). People v. Green, 260 Mich. App. 392, 677 N.W.2d 363 (2004), appeal denied, 471 Mich. 873, 685 N.W.2d 669 (2004); West's Key Number Digest, Limitation of Actions 212.
"Confusion doctrine," under which drunk-driving arrestee might assert confusion arising from proximate advice by arresting or booking officers as to both Miranda right to counsel and implied-consent law that does not allow counsel for decision whether to submit to chemical testing of blood alcohol level, would apply, if at all, only where Miranda warning precede implied-consent warnings. Blomeyer v. State (1994) 264 Mont 414, 871 P2d 1338.
Defendant's due process rights were violated, even though he consented to withdrawal of blood, when he was shackled to hospital bed and held down by six persons while another person withdrew his blood at direction of police officers while defendant was resisting. U.S.C.A. Const.Amend. 14; Const. Art. 1, § 10. State v. Sisler, 114 Ohio App. 3d 337, 683 N.E.2d 106 (2d Dist.Clark County 1995).
Motorist's fear of invasive medical procedures, including injections and tests using needles, and concern about risk of contracting HIV (human immunodeficiency virus) did not justify refusal to submit to blood alcohol test. Jacobs v. Com., Dept. of Transp., Bureau of Driver Licensing, 695 A.2d 956 (Pa. Commw. Ct. 1997), appeal denied (Pa. Aug. 13, 1997).
Motorist's refusal to sign waiver of hospital-liability form, because he had lost his eyeglasses and was unable to read it, did not constitute refusal to take blood test for purposes of license suspension under implied-consent law, where motorist testified that he did not refuse to take blood test but refused to release hospital from liability by signing form, and waiver of hospital liability was not same as hospital consent form, which did not constitute impermissible precondition to chemical testing so as to excuse motorist's refusal to submit to blood test. Stump v. Department of Transp., Bureau of Driver Licensing (1995, Pa Cmwlth) 664 A2d 1102.
Motorist's fear that needle to be used to obtain blood sample was not sterile was not valid justification vitiating his refusal to submit to blood-alcohol test. Stenhach v. Department of Transp., Bureau of Driver Licensing (1994, Pa Cmwlth) 651 A2d 218.
Defendant failed to establish that she was physically unable to provide an alcohol breath test sample, and thus the Commonwealth was under no duty to prove that it offered defendant a blood test, during prosecution for driving under the influence (DUI); defendant provided no medical records or witness testimony to substantiate her claim that she had a chronic lung condition, she had successfully completed breath tests on two prior occasions when she was convictions of two prior DUI's, and police officer testified that defendant provided an adequate breath sample when he stopped her vehicle, that she failed to provide an adequate breath sample after he brought her to the police station, and that he believed that she "was not trying to give him a proper breath." West's V.C.A. § 18.2-268.2, subds. A, B. Sawyer v. Com., 43 Va. App. 42, 596 S.E.2d 81 (2004); West's Key Number Digest, Limitation of Actions 415.
Chemical intoxication tests—Extraction of sample from unconscious person
If driver is comatose or otherwise incapacitated so that he cannot appreciate significance of arrest, chemical test to determine his blood alcohol content may be administered without formal arrest so long as police who ordered test possessed probable cause for driver's arrest. People v. Goodell (1990, 4th Dept) 164 App Div 2d 321, 565 NYS2d 929, app gr 77 NY2d 961, 570 NYS2d 494, 573 NE2d 582 and affd 79 NY2d 869.
In prosecution on charges of vehicular homicide and driving under the influence of alcohol, motion to suppress evidence obtained through blood test taken at hospital while charged driver was unconscious was improperly denied, where, at time blood was taken, officers who investigated accident did not observe any signs of alcohol consumption by driver, police did not have a warrant to conduct test, no charges had been filed against driver, nor had he been placed under arrest. Commonwealth v. Kohl (1992) 532 Pa 152, 615 A2d 308.
The initial taking of blood by hospital personnel during their treatment of injuries suffered by the defendant in an automobile accident did not implicate any Fourth Amendment rights since the blood was taken because of the serious nature of the accident and before any request by a state trooper; however, state action was involved when medical personnel gave the blood test results to the trooper without his having obtained a search warrant and, thus, the Fourth Amendment applied to the release of the test results. Commonwealth v. Franz (1993, Pa Super Ct) 634 A2d 662.
Chemical intoxication tests—Test of sample drawn for emergency medical purposes
The trial court did not err in a second degree murder prosecution arising from an automobile striking a pedestrian which resulted in an involuntary manslaughter conviction by denying defendant's motion to suppress the results of a chemical analysis of his blood. Defendant was extremely violent on the ride to the hospital and at the hospital; the doctors could not understand defendant's responses to their questions; defendant had a high "index of suspicion" of a head injury and the tests defendant needed could not be conducted while he was combative and thrashing around; the physicians determined that they had to sedate defendant to treat him; and defendant was already unconscious when the officer arrived to obtain the blood sample for chemical analysis so that the officer could not advise defendant of his right to refuse the test. Defendant had no constitutional right to refuse the blood test and could not have "willfully refused" to submit to the test under G.S. § 20-16.2(c) because he was unconscious and officers did not request that he submit to the test. Although defendant contends that his statutory rights were violated in that he was conscious until he was rendered unconscious and the officers did not give him the right to refuse the test, no evidence exists to show that anyone other than the attending physicians made the decision to render the defendant unconscious, no evidence exists to show that defendant was rendered unconscious for any reason other than to treat him medically, there is no evidence of bad faith on the part of the charging officer, and there was a need to obtain a blood sample before defendant's alcohol level dropped. State v. Garcia-Lorenzo (1993) 110 NC App 319, 430 SE2d 290.
The trial court abused its discretion in admitting in evidence the blood alcohol test of a motorist whose blood had been drawn at the hospital for purposes of diagnosing his condition where neither the motorist's medical records, the label on the blood sample, nor the attending nurses could identify who had drawn the sample and transported it to the lab. State v. Cribb (1992, SC) 426 SE2d 306.
HIPAA won't help: Health Insurance Portability and Accountability Act (HIPAA) and privacy rule promulgated pursuant to HIPAA for individual medical information did not overrule or preempt holding in State v. Hardy that a defendant did not have an expectation of privacy in blood-alcohol test results obtained after an accident solely for medical purposes. U.S.C.A. Const.Amend. 4; Health Insurance Potability and Accountability Act of 1996, § 262(a), 42 U.S.C.A. § 1320d; 45 C.F.R. §§ 160.203, 164.104, 164.512(f)(1)(ii)(B) (2006)..Murray v. State, 245 S.W.3d 37 (Tex. App. Austin 2007), reh'g overruled, (Jan. 17, 2008) and petition for discretionary review refused, (June 11, 2008); West's Key Number Digest, Automobiles 411.