Defendant was indicted for causing death by auto. He moves for suppression of blood alcohol test results on two theses: first, that the test arose out of a confidential physician-patient relationship, and second, that the results were the fruits of an unlawful seizure of his blood in violation of the Fourth Amendment.
I find the following facts: On August 13, 1973 defendant was involved as a driver in an automobile accident. A passenger in defendant's vehicle was killed and another was seriously injured. Police officers on the scene found defendant uncooperative, bellicose, unrestrained and abusive. His speech was slurred. He had a strong odor of alcoholic beverage on his breath. He was bleeding from head cuts. Although elements of his behavior may have been attributable to his recent experience and its tragic consequences, the investigating police officers certainly had probable cause to believe, and did believe, that defendant had been driving while intoxicated or impaired. N.J.S.A. 39:4-50. Defendant was transported to John F. Kennedy Hospital for the purpose of medical attention. He arrived there at about 11 P.M. He was seen in the emergency room, and X-rays were taken.
Because defendant was bleeding from his left ear, Dr. Friedman, a neurosurgeon, was called in. He saw defendant shortly after 2 A.M. Although skull X-rays were negative, Dr. Friedman felt unable to rule out serious injury.
Defendant was alert and cooperative, but his attention wandered and his physical coordination caused concern. Dr. Friedman smelled alcoholic beverage on defendant's breath and ascertained from him that he had been drinking. For diagnostic purposes, therefore, he ordered blood drawn for a blood alcohol test. He wished to determine if defendant's conduct arose from trauma or alcohol in order to establish a baseline from which to measure defendant's future medical course.
The doctor's order was transmitted by a nurse to the hospital laboratory technician who arrived some 15 minutes later and drew a sample of defendant's blood. The technician was trained and experienced in the procedure and went about it in a reasonable and regular way, without opposition by defendant. No real issue exists as to the medical acceptability of the means employed in the hospital. There is some question as to whether, how, when and by whom a written consent was obtained from defendant. The testimony on this subject was distressingly disparate. I pass the problem, however, because actual consent is unnecessary, State v. Macuk, 57 N.J. 1 (1970), and because the evidence, viewed in its best light, fails to show that defendant intelligently waived any existing right to confidentiality or any existing Fourth Amendment objection to the seizure of his blood.
At some time soon after Dr. Friedman ordered a blood alcohol test police officers appeared and requested him to perform the same test for law enforcement purposes. Dr. Friedman told them he already had ordered it. The credible evidence does not show whether, at that time, blood had already been drawn by the technician. Plainly, however, defendant was in Dr. Friedman's care and was still in the course of emergency room treatment. He was released at 4:15 A.M. into the custody of police officers who placed him under arrest for driving while intoxicated, disregarding a red traffic light, and causing death by auto.
Nothing occurred between 2 and 4:15 A.M. that generated the arrest. An Edison officer had been on duty near the emergency room continuously since 11 P.M. in the event defendant's difficult conduct again arose. The blood test results were not completed for some days, at which time they were released to the police under an ex parte order entered by the municipal court without notice or formal application. The authority for this order is not at all clear. The State and defendant agree it has no effect in these proceedings.
Regarding the Fourth Amendment argument, Schmerber v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. ed. 2d. 908 (1966), authorizes the warrantless seizure of a blood sample for testing for alcohol content if the seizure is pursuant to a lawful arrest, is based upon probable cause to believe the person was driving while intoxicated, and is done in a medically acceptable manner. The latter two elements of the Schmerber test were plainly present here. Defendant argues, however, that the taking of blood was not pursuant to a lawful arrest and therefore must be held unlawful. There are three answers.
First, the seizure of blood did not generate or underpin the arrest. It occurred about two hours before the arrest, which was delayed because defendant was undergoing emergency hospital treatment. The timing was totally fortuitous. In these circumstances the seizure was substantially contemporaneous with and pursuant to the arrest, which awaited only the end of needed medical attention.
Second, the lawfulness of the seizure does not depend on the fact of an arrest or upon its timing. It is sufficient that probable cause exists. The California courts have held that Schmerber condemns a warrantless blood seizure absent an arrest, despite the existence of probable cause. People v. Superior Court of Kern County, 100 Cal. Rptr. 281, 493 P. 2d 1145 (Sup. Ct. 1972). The New Jersey courts have not. State v. Gillespie, 100 N.J. Super. 71 ...