NO. 93-083
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
STATE OF MONTANA,
Plaintiff and Respondent,
v.
GARY ERNEST HENNING,
Defendant and Appellant.
APPEAL FROM: District court of the Twenty-first Judicial
District, In and for the County of Ravalli,
The Honorable Jeffrey H. Langton, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Donald Spadone, Hamilton, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General; Paul D.
Johnson, Assistant Attorney General, Helena, Montana
George Corn, County Attorney: Gerald D. Williams,
Deputy County Attorney, Hamilton, Montana
Submitted on Briefs: April 22, 1993
Decided: May 27, 1993
STATE OF
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Gary Ernest Henning (Henning) appeals an order denying his
Motion in Limine to suppress the results of a blood alcohol test.
The order was entered on December 30, 1992, in the Fourth Judicial
District, Ravalli County. This appeal followed the entry of the
Amended Judgment on February 2, 1993, in Ravalli County, which
county was then in the newly-created Twenty-first Judicial
District. We affirm the District Court.
We consolidate and restate the issues raised by Henning as:
Did the District Court err in failing to suppress the results
of Henning's voluntary blood alcohol test?
On April 16, 1992, Henning was arrested and charged with
driving under the influence of alcohol (DUI), a misdemeanor in
violation of 5 61-8-401, MCA. After the arrest, the arresting
officer asked Henning to submit to a breath intoxilyzer test.
Henning refused. However, he asked the arresting officer to take
him to Marcus Daly Memorial Hospital in order that a blood alcohol
test could be administered at his expense. The arresting officer
complied with this request, and a blood sample was taken by a
registered nurse at the hospital.
Following a bench trial in Justice Court, Henning was
convicted of DUI. Henning appealed his conviction to the District
Court. Prior to trial, Henning filed a Motion in Limine in which
he asked the court to suppress the results of the blood alcohol
test received after he was arrested. Henning alleged the results
of the blood alcohol test were inadmissible. After considering the
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briefs and argument of Henning and the State, the District Court
denied the motion. The District Court ruled the blood alcohol test
was relevant and admissible, and that the State had demonstrated a
compelling interest outweighing Henning's privacy interest.
After his Motion in Limine was denied, Henning entered into a
plea bargain with the State. He agreed to plead guilty and be
sentenced for the DUI offense upon the condition that should this
Court hold that the results of the blood alcohol test were
inadmissible, he will be allowed to withdraw his plea. In
addition, Henning asked the District Court to stay any execution of
sentence pending this appeal. With the consent of the State, the
District Court approved the plea bargain, accepted Henning's guilty
plea, and imposed sentence. The District Court stayed the
execution of Henning's sentence pending appeal.
Did the District Court err in failing to suppress the results
of Henning's voluntary blood alcohol test?
In denying Henning's Motion in Limine, the District Court
ruled that the State had demonstrated a compelling interest which
outweighed Henning's privacy interests. Therefore, the blood
alcohol test was admissible under 5 50-16-535(1)(i), MCA. In
addition, the District Court ruled the blood alcohol test was
relevant and admissible in light of State v. Kirkaldie (1978), 179
Mont. 283, 587 P.2d 1298.
Henning argues that under § 50-16-535, MCA, the results of the
blood alcohol test are part of his private medical records and
3
privileged information. Therefore, under § 50-16-535(1)(i), MCA,
the State must show a compelling interest which outweighs the
privacy interests of the patient in order for the results to be
admissible. Henning contends the State failed to meet this burden.
While we agree with the District court ' s reliance on
Kirkaldie, we do not agree with the court, and Henning, that 5 50-
16-535, MCA, determines whether the blood alcohol test is
admissible into evidence.
Section 50-16-535(1)(i), MCA, provides:
(1) Health care information may not be disclosed by a
health care provider pursuant to compulsory legal process
OL- discovery in any judicial, legislative, or
administrative proceeding unless:
(i) a court has determined that particular health care
information is subject to compulsory legal process or
discovery because the party seeking the information has
demonstrated that there is a compelling state interest
that outweighs the patient's privacy interest[.]
When this Court reviews the District Court's conclusions of law
regarding the application of a statute, our standard of review is
"whether the tribunal's interpretation of the law is correct."
Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474,
803 P.2d 601, 603.
The exceptions listed in 5 50-16-535, MCA, apply to the
discoverv of health care information. As provided in 9 50-16-
536(6), MCA:
(6) Production of health care information under 50-16-
535 . . . does not in itself constitute a waiver of any
privilege, objection, or defense existing under other law
or rule of evidence or procedure.
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The Official Comments to § 50-16-535, MCA, provide:
It is important to note that this section in no way
supersedes or modifies the state's rules of evidence.
. . . [O]nce health-care information has been discovered
under this section, the normal rules of evidence govern
its use at trial.
Henning does not contend that the blood alcohol test was not
subject to discovery. Therefore, we limit our discussion to
whether the District Court erred in failing to suppress the blood
alcohol test results.
Although !$ 50-16-535, MCA, is inapplicable to the main issue
in this appeal, we hold, pursuant to Kirkaldie and 5 61-8-
404(l) (a), MCA, that the result reached by the District Court was
correct. Where the result reached by the District Court is
correct, it will be upheld on appeal regardless of the reasons
given for the conclusion. Jerome v. Pardis (1989), 240 Mont. 187,
192, 783 P.2d 919, 922.
Section 61-8-404(1)(a), MCA, provides:
(1) Upon the trial of any criminal action or other
proceeding arising out of acts alleged to have been
committed by any person in violation of 61-8-401 or 61-8-
406:
(a) evidence of any measured amount or detected presence
of alcohol in the person at the time of the act alleged,
as shown by an analysis of his blood, breath, or urine,
is admissible[.]
We note however, that when a blood alcohol test is based upon the
implied consent law, 5 61-8-402, MCA, the admissibility into
evidence of blood alcohol content is also subject to the procedural
safeguards of g 61-8-404(l)(b)(i) and (ii), MCA, and the
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Administrative Rules of Montana. See e.g., State v. McDonald
(1985) r 215 Mont. 340, 697 P.2d 1328.
In this case, the withdrawal of Henning's blood was not based
upon the implied consent law. It was the result of his own request
after he refused to take the breath test offered to him.
Therefore, Henning consented to the taking of a blood sample. 'I In
this state, evidence concerning the taking, analysis and result of
a blood sample taken from [a] defendant with his consent is
admissible in evidence." Kirkaldie, 587 P.2d at 1302.
We hold that the District Court did not err in failing to
suppress the results of Henning's voluntary blood alcohol test.
Once the evidence was discovered, it was no longer privileged
information and the State was entitled to move for its admission at
trial. The District Court is affirmed.
Chief Justice
We concur:
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Justice Terry N. Trieweiler specially concurring.
I concur with the result reached by the majority. However, I
would reach that result for different reasons.
It is correct that § 50-16-535, MCA, pertains to the discovery
of health care information, rather than its admissibility.
However, in his motion in limine, defendant relied on 5 50-16-535,
MCA, as his basis for arguing that his records were privileged, and
therefore, inadmissible.
If § 50-16-535, MCA, is the basis for the privilege that
defendant asserts, then I conclude that the records in this case
were an exception to the privilege by the terms of that same
statute, which provides in part that:
(1) Health care information may not be disclosed by a
health care provider pursuant to compulsory legal process
or discovery in any judicial, legislative, or
administrative proceeding unless:
. . . .
(j) the health care information is requested
pursuant to an investigative subpoena issued under
46-4-301.
In this case, the health care records that defendant sought to
suppress were obtained by the prosecuting attorney pursuant to an
investigative subpoena issued by the District Court after a hearing
which was held on May 23, 1992. Since the statute relied upon by
defendant contained, by its own terms, an exception to the
privilege thatit established, and since the results of blood tests
are otherwise relevant and admissible in the type of prosecution
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that this case involved, I would affirm the judgment of the
District Court.
May 21, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:
DONALD SPADONE
Attorney at Law
220 S. 3rd. Street
Hamilton, MT 59840
HON. JOSEPH P. MAZUREK, Attorney General
Paul D. Johnson, Assistant
Justice Bldg.
Helena, MT 59620
GEORGE CORN, County Attorney
Gerald D. Williams, Deputy
Ravalli County Courthouse Box 5008
Hamilton, MT 59840
ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA