On certification to the Superior Court, Appellate Division.
For modification and affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Pollock, J.
The main issue on this appeal is whether the patient-physician privilege created by N.J.S.A. 2A:84A-22.2 precludes admission of results of a blood test into evidence in the prosecution of a death-by-auto case. A second issue is whether the prosecutor's reference during summation to a .10% blood alcohol reading as the "legal threshold" constitutes reversible error.
In this case, a hospital employee took a blood sample for medical diagnosis, not for police investigative purposes. The employee told the defendant, who had operated a motor vehicle involved in a tragic accident, that the purpose of the test was to determine his blood type in the event a transfusion was necessary. No police officer was present and the defendant, who had not been arrested and was not in custody, consented to the test. As the police subsequently learned, the results indicated that the defendant was under the influence of alcohol while operating the motor vehicle.
The trial court denied defendant's motion to suppress the results, which were admitted into evidence at trial, and the jury convicted the defendant of causing death-by-auto. In an unreported decision, the Appellate Division ruled that the blood test fell within the patient-physician privilege and that it should not have been admitted into evidence. The court also found that the prosecutor's reference to the legal threshold under the drunken driving statute was reversible error. Consequently, the Appellate Division reversed the conviction and remanded the matter for trial.
We granted certification, 95 N.J. 182 (1983). We now hold that to obtain the results of a blood test protected by the patient-physician privilege, the police should apply to a municipal court judge for a subpoena duces tecum. Upon a showing by the police that they have a reasonable basis to believe the defendant was operating a motor vehicle while under the influence, the judge may issue a subpoena. In establishing a reasonable basis, the police may rely on objective facts known by them at the time of the event or within a reasonable time thereafter. Consequently, we modify the judgment of the Appellate Division to the extent it ruled inadmissible the results of the blood test and remand the matter for trial. On remand, the police may renew their application to introduce the results of the blood test. We also hold that the prosecutor erred in referring on summation to the ".010 legal threshold," but that the error was harmless.
At approximately 7:15 p.m. on April 6, 1979, defendant, Peter Dyal, accompanied by Jan Kane, his close friend and only passenger, was driving his 1979 Porsche on Ridge Road, in South Brunswick. While negotiating a sharp curve in the road, Dyal lost control of his car, which flipped over and landed in an adjacent field.
Patrolman Ronald Horinko of the South Brunswick Township Police Department arrived on the scene at about 7:27 p.m. He observed Miss Kane, who was unconscious and lying face down in the field, as well as defendant, who was in an ambulance. Officer Horinko climbed into the ambulance and, from a distance of two feet, ascertained from defendant that he was the operator of the vehicle. The officer did not detect any odor of liquor or anything else that might indicate defendant was under the influence of alcohol. He left as Miss Kane was carried into the ambulance, which then took her and Dyal to Princeton Medical Center (PMC).
At the suppression hearing, the trial court found that "[b]ecause Dyal and Kane needed immediate hospital care, Horinko was unable to question Dyal as to the cause of the accident. The urgency also deprived Officer Horinko of an opportunity to observe Dyal for any meaningful period for evidence of drinking."
Officer Horinko returned to Ridge Road, placed flares along the curve, took some measurements, summoned a tow truck, and interviewed the driver of the car behind defendant's vehicle. Thereafter he returned to police headquarters and twice called PMC that evening to inquire about the condition of Miss Kane and defendant. Although he learned that they were still receiving treatment, Officer Horinko did not request that a blood test of defendant be taken for investigative purposes.
After being taken from the scene to PMC, defendant was treated for a cut over his right eye. In response to defendant's inquiry, a hospital employee explained to defendant that a blood test should be made in the event he needed a transfusion. Based on that explanation, defendant allowed a blood sample to be taken. Tests performed on the sample revealed, among other things, a serum alcohol reading of .161. After about two hours, defendant was released from the hospital early in the morning of April 7.
On April 8, Jan Kane died from the injuries sustained in the accident. At that time Officer Horinko had no suspicion that alcohol had played any part in the tragedy. Two days later, however, Penny DeMetro and Sandra Lee, two employees at Princeton Meadows Country Club, where Miss Kane had been the manager, voluntarily went to South Brunswick Police Headquarters to give statements about events preceding the accident. Both witnesses also testified at trial, where the following facts emerged.
Mrs. DeMetro was tending bar when defendant arrived at the club, where he was a member. She placed his time of arrival between 2:00 p.m. and 4:00 p.m., and he placed it closer to 5:00 p.m. Mrs. DeMetro did not serve defendant any alcoholic beverages, and she was talking to him when Miss Lee arrived to tend bar at 5:00 p.m.
According to Miss Lee, she served defendant three to four drinks, each consisting of approximately one to one-and-one-quarter ounces of "Seagrams VO" and water. Her testimony was roughly consistent with that of the defendant, who stated that he had ...