On appeal from the Superior Court, Law Division, Bergen County.
Petrella, O'Brien and Havey. The opinion of the Court was delivered by O'Brien, J.A.D.
In this driving while intoxicated (DWI) case, by leave granted, the State appeals from an order suppressing the results of a blood test performed on defendant and the hospital records relating thereto. We reverse and remand.
At approximately 5:50 p.m. on December 11, 1988, Patrolman George Hall was assigned to investigate a serious automobile accident on Kinderkamack Road, immediately north of Soldier Hill Road in Oradell. The three vehicles involved were heavily damaged and four persons were injured, two of whom, including defendant, were transported to Pascack Valley Hospital in Westwood. As a result of his investigation, Officer Hall ascertained that defendant was driving northbound on Kinderkamack Road when she drifted across the center line and sideswiped a southbound vehicle, after which she continued driving north in the southbound lane colliding head-on with a second southbound vehicle. Some time after her arrival at the hospital, defendant's blood was drawn and tested for alcoholic content.
On December 12, 1988, Officer Hall was instructed by Captain Spraengel to return a telephone call to Lois Dickey, the emergency room nursing supervisor at Pascack Valley Hospital. During the ensuing conversation at about 1:40 p.m., Nurse Dickey informed Officer Hall that a routine blood test had been performed on defendant on December 11, 1988, which revealed her blood alcohol content as .24%. According to Officer Hall, Nurse Dickey "further advised that upon admission for treatment in the Emergency Room, on December 11, 1988, Ms.
Bodtmann at first denied consuming any alcoholic beverages. However, when Ms. Bodtmann was advised of her blood alcohol reading, she admitted to having consumed Screwdrivers."
Upon receipt of this information, Officer Hall applied to the Westwood Municipal Court for a subpoena duces tecum, pursuant to the procedure recommended by the Supreme Court in State v. Dyal, 97 N.J. 229, 240, 478 A.2d 390 (1984). In support of his application, Officer Hall filed his affidavit setting forth his training and experience, the information obtained from Nurse Dickey, and the results of his investigation at the scene as to defendant's driving and concluded:
Concerning the aforementioned circumstances related to this accident, this writer believes that the consumption of alcohol by Ms. Bodtmann might have been a contributing factor in this accident, therefore I request the issuance of a subpoena by the Westwood Municipal Court to be served on Pascack Valley Hospital for the medical records of Marilyn M. Bodtmann. The subpoena is to include information pertaining to the taking of any blood and urine samples from Ms. Bodtmann upon her arrival at the hospital on December 11, 1988 some time after 5:50 p.m.
The Westwood Municipal Court judge issued the requested subpoena on December 13, 1988.
On January 24, 1989, defendant moved*fn1 to suppress the results of the blood test and all verbal or written statements made or furnished by defendant to doctors and staff at the hospital on the ground of a violation of the patient and physician privilege, N.J.S.A. 2A:84A-22.1 et seq. Defendant's motion was originally heard on March 14, 1989. At that time, the parties stipulated that the municipal court judge had issued the subpoena on the basis of Officer Hall's affidavit and that defendant had operated her vehicle which was involved in the accident on the night in question.
At the request of the motion judge, Nurse Dickey was called to testify. According to the nurse, she was not present in the emergency room when defendant arrived from the scene of the accident. Her first knowledge of defendant came from a report she received the following morning in the nursing office as the supervisor for emergency services.*fn2 Defendant had been released before Nurse Dickey received any information. Some time that morning, according to Nurse Dickey, she received a message that the Oradell police had called asking about a blood alcohol test. When she returned that call she asked to speak to the officer "who had been involved in the accident" since she had not been given a name. As a result, Officer Hall called her. She said she had asked him whether they had done a breathalyzer at the scene, and then confirmed to him that a blood alcohol had been done at the hospital. However, she pointed out that it had been done for medical diagnostic purposes and not for legal purposes. She said Officer Hall told her the police could subpoena the records.
Nurse Dickey conceded that she told the officer the result of the blood alcohol test, but, since it was done for diagnostic purposes, it had not been sent to the police laboratory. According to her testimony, Officer Hall seemed surprised that there had been a positive finding. In response to his suggestion that he would subpoena the results, she told him there was written on the blood slip "For medical purposes only not for legal purposes."
The matter was again heard on April 11, 1989 concerning the aspect of the motion seeking to suppress statements allegedly made by defendant about her drinking, which were reported to Officer Hall. Thereafter, the motion judge entered the order under review, which suppressed the results of the blood test and the hospital records relating thereto, but denied defendant's
motion to suppress any verbal or written statements made by her to the doctors and staff, without prejudice to defendant's right to object to the admission of those statements at the municipal court trial. On the State's motion, we granted leave to appeal on May 24, 1989, heard oral argument on October 30, 1989, and we now reverse and remand.
The order of the motion judge was based upon her written opinion of April 13, 1989, which was supplemented by letter of May 12, 1989, pursuant to R. 2:5-6(c). In her opinion, the motion judge recognized that in order to obtain the subpoena duces tecum for the hospital records containing blood alcohol test results, in spite of the patient's interest in confidentiality, the Dyal court required:
The motion judge stated the question to be:
Since she concluded that the affidavit of Officer Hall did not contain sufficient objective facts to establish probable cause as to defendant's intoxication, but was based upon the information obtained from Nurse Dickey in violation of the patient/physician privilege, the motion judge suppressed the results of the blood alcohol test and the hospital records relating thereto.
In reaching this result, it is evident that the motion judge read the Dyal requirement to mean that the police must have "probable cause" as required for the issuance of a search warrant under both the Federal and State Constitutions.*fn3 Citing State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987), the
motion judge said: "The necessity of finding probable cause for the issuance of a warrant is of constitutional dimension." She concluded:
If this court were to sanction police reliance on what are clearly privileged communications as the sole basis for establishing probable cause for the issuance of a Dyal subpoena, the result is easy to predict: a complete breakdown in police investigative procedures and effort in prosecuting drunk driving cases. If all that is required is a telephone call to or from the local treating hospital to obtain evidence of intoxication to support the issuance of a subpoena, what will be left of the cherished 'right of the people to be secure ...