NO. 83-162
IN THE SUPREME COURT OF THE STATE OF MONTANA
1984
STATE OF MONTANA,
Plaintiff and Appellant,
-vs-
ARTHUR LEROY IJIAGNUSON,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and for the County of Musselshell,
The Honorable Roy Rodeghiero, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Hon. Mike Greely, Attorney General, Helena, Montana
Mary Kay Wheeler, 3rd Yr. Law Student, introduced
by James McLean, Asst. Atty. General, argued for the
State
John L. Pratt, County Attorney, Roundup, Montana
For Respondent :
Kathryn R. Baylis argued, Roundup, Plontana
Submitted: March 2, 1984
Decided: June 12, 1984
Filed: AN 12 1984
--
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
The State of Montana appeals from an order of the
District Court, Fourteenth Judicial District, Musselshell
County, dismissing a charge of operating a motor vehicle
while under the in£luence of intoxicating liquor against the
defendant, Arthur Leroy Magnuson. We reverse.
On the afternoon of July 29, 1982, Magnuson became
intoxicated and drove away from the Kee Angus Ranch
in Musselshell County in his blue Ford Bronco. Before he
left he had been confronted by Mary Kee, a friend, who knew
he had been drinking. Mary Kee had attempted to persuade
Magnuson not to drive and had taken the keys to his Bronco.
Magnuson found another set of keys and left the ranch.
Kee, concerned that Magnuson was driving while
intoxicated, called the Sheriff's Office, hoping to speak
with Sheriff Brian Neidhardt, a friend of ~ e e g . As Sheriff
Neidhardt was not there Kee called the Alcoholics Anonymous
number listed in the local newspaper. Kee spoke with Mac
House, the director of the Musselshell County Drug and
Alcohol Program. Kee did not know that Magnuson was in
treatment with Mac House at that time and had never spoken
with Mac House prior to the phone call. Kee told House
about the problem and the two of them agreed to let matters
take their course.
After receiving Keels phone call, House discussed the
situation with Undersheriff Floyd Ray Fisher. House advised
Undersheriff Fisher that Magnuson was intoxicated and was
driving his Bronco. Undersheriff Fisher later testified
that he had seen the vehicle around town at a few of the
d i f f e r e n t bars, and t h a t a f t e r House d e s c r i b e d t h e v e h i c l e
to him, he remembered the vehicle. House also advised
Undersheriff Fisher t h a t Magnusons's u s u a l h a n g o u t was
T r a c y ' s Bar. U n d e r s h e r i f f F i s h e r a s k e d House i f h e w a n t e d
to accompany him and the two of them got into Fisher's
vehicle.
A s F i s h e r drove toward T r a c y ' s Bar, h e and House saw
Magnuson's vehicle coming in the opposite direction on
Highway 87. Fisher later testified that Magnuson had
" a p p r o x i m a t e l y a q u a r t e r t o a l m o s t h a l f o f h i s v e h i c l e i n my
l a n e of t r a f f i c . " As F i s h e r f o l l o w e d Magnuson, "he t u r n e d
his r i g h t hand blinker on t o make a r i g h t hand t u r n , and
t h e n made a l e f t hand t u r n . " A f t e r F i s h e r s t o p p e d Magnuson
h e a p p r o a c h e d t h e v e h i c l e and when Magnuson opened t h e d o o r
of h i s v e h i c l e , Fisher "could s m e l l a l c o h o l , a very s t r o n g
odor of a l c o h o l . " When F i s h e r a s k e d Magnuson t o s t e p o u t
of t h e v e h i c l e Magnuson "had t o t a k e h o l d of t h e door to
keep from falling to the ground." When Fisher asked
Magnuson t o s a y t h e a l p h a b e t h e c o u l d o n l y make i t a s f a r a s
G. When F i s h e r a s k e d Magnuson i f h e c o u l d walk a s t r a i g h t
line, heel to toe, Magnuson "had to take several steps
s i d e w a y s t o k e e p from f a l l i n g down." Fisher then arrested
Magnuson a n d a d v i s e d him o f h i s M i r a n d a r i g h t s .
Based upon t h e a f f i d a v i t o f the county attorney, the
District Court granted a motion for leave to file an
information against Magnuson charging him with violating
S e c t i o n 61-8-401, MCA, d r i v i n g w h i l e under t h e i n f l u e n c e of
intoxicating liquor. The county attorney's affidavit
indicated that a teletype r e p o r t o n Magnuson showed four
p r i o r c o n v i c t i o n s f o r d r i v i n g w h i l e under t h e i n f l u e n c e i n
Iowa between January 17, 1980 and May 26, 1981.
The issue to be resolved by this Court concerns the
effect of federal statutes and regulations upon a state
criminal prosecution for driving under the influence. The
federal statutes and regulations require that patient
records maintained in connection with the performance of any
program or activity related to alcohol abuse treatment
remain confidential. The State concedes that the
Musselshell County Drug and Alcohol Program is federally
funded and the record shows that Magnuson had been attending
counseling sessions with Mac House for approximately six
weeks before he was arrested.
On motion of the defendant to dismiss, the District
Court found "that the information provided by . . . Mac
House to . . . Fisher. . . was tainted within the
prohibition" of Title 42 U.S.C.A. Sections 4582(a) and (c)
and 42 C.F.R. Section 2.11(0). As a result, the District
Court dismissed the driving while intoxicated charge against
Magnuson and the State appealed.
The first issue is whether Title 42 U.S.C.A. Section
4582 applies to the information House provided Undersher if f
Fisher concerning the fact that Magnuson was driving while
intoxicated.
The federal statutes involved in this case are as
follows:
"Records of the identity, diagnosis,
prognosis, or treatment of any patient
which are maintained in connection with
the performance of any program or
activity relating to alcoholism or
alcohol abuse education, training,
treatment, rehabilitation, or research,
which is conducted, regulated, or
directly or indirectly assisted by any
department or agency of the United States
shall, except as provided in subsection
(e) be confidential and be disclosed only
for the purposes and under the
circumstances expressly authorized under
subsection (b) of this section. 42
U.S.C.A. Section 4582 (a).
"Except as authorized by a court order
granted under subsection (b)(2)(c) of
this section, no record referred to in
subsection (a) of this section may be
used to initiate or substantiate anv
criminal charges against a patient or to
conduct any investigation of a patient."
42 U.S.C.A. Section 4582(c) (Emphasis
added).
The applicable federal regulations in this case are
these:
"Records. The term records' includes
any information, whether recorded or not,
relating to a patient, received or
acquired in connection with the
...............................
performance of any alcohol abuse or drug
abuse prevention function, whether such
receipt or acquisition is by a program, a
qualified service organization, or any
other person. 42 C.F.R. Section 2.11(0).
(Emphasis added.)
"Except as provided in paragraph (b) of
this section, this part applies to
records of the identity, diagnosis,
prognosis, or treatment of any patient
which are maintained in connection with
the performance of any alcohol abuse or
drug abuse prevention functions. 42
C.F.R. Section 2.12
"(3) Which is assisted by funds supplied
by any department or agency of the United
States, whether directly through a grant,
contract or otherwise, or indirectly by
funds supplied to a State or local
government unit through the medium of
contracts, grants of any description,
general or special revenue sharing, or
otherwise . . . 42 C.F.R. Section
21.12(a)(3).
"The term 'alcohol abuse or drug abuse
prevention function' means any program or
activity relating to alcohol abuse or
drug abuse education, training,
treatment, rehabilitation, or research .
.. " 42 C.F.R. Section 211(k).
Resolution of the first issue in this case depends
upon whether the information House communicated to Fisher
was within the definition of "records" as that term is
defined in 42 C.F.R. Section 2.1(0). That determination
depends on whether House was performing an "alcohol abuse or
drug abuse prevention function" as defined in 42 C.F.R.
Section 2.11(k) at the time he received the information.
The information conveyed from House to Fisher was that
Magnuson was intoxicated;that he was driving a Bronco; that
House wanted Fisher to watch out for Magnuson; and
Magnuson's usual hangout. Respondent asserts that part of
the information conveyed from House to Fisher--information
about the kind of car Magnuson would be driving, as well as
his usual hangout--came from the client-counselor
relationship. However, Undersheriff Fisher testified that
after House described Magnuson's vehicle he remembered it
because he had observed it at some of the local bars on
prior occasions.
If the information was within the prohibition of the
federal legislation it must be ". . . received or acquired
in connection with the performance of any alcohol abuse or
drug abuse prevention function." Alcohol abuse prevention
function means ". . . any program or activity relating to
alcohol abuse . . . education, training, treatment,
rehabilitation, or research." The issue thus becomes: was
House involved in a program or activity related to alcohol
abuse education, training, treatment, rehabilitation or
research at the time he received the information from Mary
Ree? Clearly he was not, and the information does not fall
within the scope of the federal legislation.
I n addition, t h e federal l e g i s l a t i o n does not apply i n
t h i s case because the i n f o r m a t i o n r e c e i v e d by U n d e r s h e r i f f
F i s h e r f r o m House was n o t u s e d t o " i n i t i a t e o r s u b s t a n t i a t e
any criminal charges" against Magnuson. See 42 U.S.C.A.
Section 4582(c). The a r r e s t i n g o f f i c e r t e s t i f i e d t h a t t h e
b a s i s f o r Magnuson's a r r e s t was n o t t h e i n f o r m a t i o n r e c e i v e d
f r o m House b u t , r a t h e r , h i s o b s e r v a t i o n s o f Magnuson w e a v i n g
down t h e h i g h w a y , e x i t i n g the car with d i f f i c u l t y , smelling
o f a l c o h o l and f a i l i n g b a s i c s o b r i e t y t e s t s .
Next, the State argues that suppression of the
e v i d e n c e was a n e r r o n e o u s remedy f o r v i o l a t i n g t h e f e d e r a l
s t a t u t e because t h e proper remedy u n d e r T i t l e 42 U.S.C.A.
S e c t i o n 4582 i s a f i n e .
T i t l e 42 U.S.C.A. Section 4582(f), provides: " [alny
person who violates any p r o v i s i o n of this section or any
regulation issued pursuant to this s e c t i o n s h a l l be fined
n o t more t h a n $500 i n t h e c a s e o f a f i r s t o f f e n s e , and n o t
more t h a n $ 5 , 0 0 0 i n t h e c a s e o f e a c h s u b s e q u e n t o f f e n s e . "
I n making i t s d e c i s i o n , t h e D i s t r i c t C o u r t s t a t e d ". .
. from t h e e v i d e n c e p r e s e n t e d t h a t t h e i n f o r m a t i o n p r o v i d e d
by alcohol and drug abuse counselor Mac House t o Deputy
Sheriff Floyd Fisher, leading to the arrest of the
Defendant, was tainted within the prohibition of [the
federal statutes]." However, when 42 U.S.C.A. S e c t i o n 4582
is read a s a whole, it is c l e a r t h a t t h e remedy C o n g r e s s
intended for a violation of one of its confidentiality
provisions is a fine as provided in 42 U.S.C.A. Section
4582(f). Rules of statutory construction dictate that
l e g i s l a t i o n must be r e a d a s a whole i n order t o ascertain
legislative intent. Wynia v . C i t y of G r e a t F a l l s (1979),
183 Mont. 458, 600 P.2d 802. The fact that a remedy is
provided in the legislation indicates that Congress
considered the possibility of a violation and determined the
appropriate remedy for that violation. If Congress had
intended that suppression and dismissal were the appropriate
remedies for a violation of a confidentiality it would have
so provided.
Since the issues previously discussed are dispositive
of the case we need not consider the other issue raised by
the State.
Reversed and remanded for further proceedings in
accordance with this opinion.
We concur:
Chief Justice - .
Justices
Mr. Justice John C. Sheehy, dissenting:
The facts recited in the majority opinion require
further elaboration. After the telephone conversation with
Mary Kee, Mac House went out and searched for Undersheriff
Floyd Fisher, whom he found at the Cattlemen's Restaurant,
having his dinner at 8:30 p.m. House advised Undersheriff
Fisher that he had information that Arthur Magnuson was
intoxicated and was driving his Ford Bronco. In response to
questions from Fisher, House described the vehicle that
Magnuson was driving, and from the description Fisher
remembered the vehicle as he had seen it parked outside of
bars in the vicinity. House also advised the undersheriff
that Magnuson's usual hangout was Tracy's Bar. When he had
finished his dinner, the undersheriff asked House if he would
"like to take a ride" and the two of them got into Fisher's
vehicle. As they drove toward Tracy's Bar, they saw
Magnuson's vehicle coming in the opposite direction on
Highway 87. Fisher observed that Magnuson ' s vehicle crossed
the centerline several times and exhibited other signs of
erratic driving.
The State concedes that the Musselshell County Drug and
Alcohol Program is federally funded, and the record shows
that Magnuson had been attending counseling sessions with Mac
House for six weeks to two months before the driving charge
occurred.
The State first contends that the information received
by House from Fisher was not the kind of patient information
which Congress intended to protect. The State has pointed to
42 C.F. R. 5j 2.11 (0), which defines records as including
information "received or acquired in connection with the
performance of any alcohol or drug abuse prevention
function."
The term "record" is very broadly defined in the federal
regulation. It is not limited to information received from
the patient alone, but includes "any information" recorded or
unrecorded, "relating to a patient."
When Mary Kee used the telephone here looking for help,
the number that she called was answered by Mac House, from
the Musselshell Drug and Alcohol office. The information
which she relayed to him about Magnuson "related to a
patient. " That information, and the further information
about Magnuson's usual hangout which apparently Mac House
also knew, were relayed by him to Undersheriff Fisher. I
determine that such information is included within the term
"record" the relaying of which is prohibited by the federal
regulation.
It is a close question whether the information conveyed
by House to Fisher was used to initiate criminal charges
against Magnuson. It does appear clear from the record that
while Fisher was investigating Magnuson in the presence and
with the cooperation of House that the criminal charges were
initiated, based upon the observations that Fisher made
during the investigation.
The State contended and the majority apparently agrees
that Congress did not intend to create a "sanctuary" for a
patient from prosecution for its criminal acts. Whatever
that may mean, it is fully clear that Congress did intend
that no information regarding a patient should be imparted by
one who obtained the information in a federally-funded
program to initiate or substantiate any criminal charges
against the patient or to conduct any investigation of a
patient. Here Arthur Magnuson was a patient, and Mac House,
who was treating him under a federally-funded program used
confidential information gained through such program to cause
an investigation to be made of Magnuson.
As to whether the prohibition against release of
information under the federally-funded program should be
balanced with state policy against drunk driving, the line of
demarcation is obviously hard to draw. Certainly there will
be instances where the severity of the crime or the danger to
society will be of such gravity as to require a prosecution
even though information from such a federal-ly-funded program
was obtained. What is overweighing in this case, however, is
not only that Mac House supplied the informa-tion,but then he
actively participated in the investigation by accompanying
the deputy to a place where Magnuson could be found. In so
doing, he abused all the principles of the confidential
relationship in which he was a paid participant. Certainly
Congress did not anticipate that kind of use of its
statutorily-protected information.
Finally I disagree with the majority that the remedy
provided in Title 42 U.S.C.A. S 4582 is sufficient to enforce
the provisions of the confidentiality of information under
the federal provisions. The majority finds that the remedy
provided in the federal act is enough for the Congress
intended no more.
The answer to that contention is found in reviewing the
Congressional. reasons for establishj-ng the federally-funded
project. The object is to attract patients, free from stigma
and criminal prosecution from what may be revealed by them in
the course of their treatment. A mere fine against the
violator of such confidence does not protect the patient
whose confidence has been abused. It is more by assuring the
confidentiality of such information in this instance than in
fining Mac House, that these objectives will be achieved. In
fact the record is hare in this case that any retributive
action has been brought against Mac House for his obvious
violation of the confidential relationship.
I would determine that the federal statute, with its
obvious objectives, makes it imperative that we do not
enforce criminal prosecutions based on information received
from persons who seek help from alcoholism in
federally-funded projects. I expressly dissent.
Mr. Justice Daniel J. Shea dissents, and will file a written
dissent later.