On appeal from Superior Court of New Jersey, Law Division, Hunterdon County.
Furman, Dreier and Stern. The opinion of the court was delivered by Dreier, J.A.D.
The State, by leave granted, has appealed from an order of the Law Division on an interlocutory appeal*fn1 sustaining the exclusion of certain testimony from medical personnel on the basis of the physician-patient privilege.
Defendant, the Police chief of Raritan Township, was injured December 10, 1985 in a one-car accident and later treated at Hunterdon Medical Center. Thereafter as a result of a subpoena duces tecum authorized by a municipal court judge, the Medical Center's records concerning defendant's blood test were secured employing the procedure established in State v. Dyal, 97 N.J. 229 (1984). Following the review of the blood test, defendant was charged with driving while under the influence of alcohol, N.J.S.A. 39:4-50. The Law Division in an earlier appeal denied defendant's motion to suppress the medical records and blood tests, and we denied leave to appeal.
The trial was commenced June 5, 1986 before the judge of the municipal court of an adjoining township. At an adjourned
hearing the State sought to introduce testimony from the medical personnel of the emergency room at Hunterdon Medical Center, two physicians and a nurse, that they detected an odor of alcohol on defendant's breath, observed instances of inappropriate behavior, and were of the opinion that he appeared intoxicated. After holding a hearing under Evid.R. 8, the municipal court judge ruled that the observations and opinions of the medical personnel were protected by the physician-patient privilege and were thus inadmissible. Nevertheless, he preserved the excluded testimony on the record pursuant to R. 1:7-3, pending further appeals.
The Law Division judge affirmed in a letter opinion, specifically noting that the testimony should not have been taken below*fn2 and that the record could have been supplemented pursuant to R. 3:23-8(a) if the testimony later was found to be unprivileged.*fn3 The Law Division judge in a written opinion further determined that as a matter of law State v. Dyal should not be extended to encompass the facts before him. We disagree. We determine that the matters sought to be introduced well may have not fallen within the physician-patient privilege, but even if they did, the circumstances of this case
justified the application of State v. Dyal and thus the admission of the testimony.
The first police officer to arrive at the accident scene testified that defendant told him that his accident was caused by his striking a deer, forcing his car to leave the road. As a result of his injuries he was immediately transported to the Hunterdon Medical Center without being administered either a breathalyzer test or psychomotor test at the accident site or at headquarters. He arrived at the emergency room at 8 p.m., was treated there by the two doctors and nurse on duty, and had a head wound stitched by a third doctor. He had a broken rib, a severe forehead laceration, and a possible concussion. The hospital personnel informed defendant that in order to treat his injuries they required a blood sample to be analyzed for blood alcohol content. Despite his serious injuries, defendant initially refused to give a blood sample and refused to be admitted to the hospital for treatment. It was not until 11:25 p.m., approximately four hours after the accident, that defendant agreed to be admitted to the hospital and to supply the blood sample. At 11:55 p.m. defendant's blood alcohol level was determined to be .131%. He attacked the reading in the municipal court through witnesses who testified that he did not appear to be intoxicated.
A prosecutor's investigator assembled facts concerning defendant's conduct prior to the accident. A bartender at a local tavern testified that defendant was there from 5:30 p.m. to 7:00 p.m. and consumed three one-and-one-half ounce drinks of vodka over ice and that defendant was not under the influence of alcohol when he left. A passerby who saw defendant immediately after the accident testified that he did not smell alcohol. None of the people interviewed by the investigator from the accident scene noticed an odor of alcohol on defendant or concluded that he was intoxicated, although one person described him as "dazed" and another described him as "combative." Two officers who saw defendant at the accident scene, one of whom accompanied defendant to the hospital, testified
that they did not smell alcohol on his breath and he did not appear ...