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COMMONWEALTH PENNSYLVANIA v. BILLY ROBERT HIPP (12/05/88)

filed: December 5, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
BILLY ROBERT HIPP, APPELLANT



Appeal from the Judgment of Sentence of December 28, 1984 in the Court of Common Pleas of Chester County, Criminal, No. 297 of 1984.

COUNSEL

Jenny Steinen, Assistant Public Defender, Philadelphia, for appellant.

Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.

Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ.

Author: Mcewen

[ 380 Pa. Super. Page 349]

We here consider whether the results of a medical purposes blood alcohol test, voluntarily provided by hospital personnel to a police officer, are admissible at trial where the defendant subsequently exercised his statutory right to refuse to submit to a blood-alcohol test. We find no statutory or constitutional impediment to the introduction of such evidence and, therefore, affirm the judgment of sentence imposed after appellant was found guilty of driving while under the influence of alcohol.

Appellant was transported by ambulance to Chester County Hospital on December 16, 1983, for emergency treatment following a two-car collision. Blood was withdrawn from appellant by hospital personnel for medical purposes and was tested, pursuant to the routine hospital procedure, for alcohol content. A police officer charged with the investigation of the accident arrived at the hospital shortly thereafter and spoke with appellant in the emergency room. The officer, noting that appellant's eyes were bloodshot and his speech slurred and detecting a strong odor of alcohol on appellant's breath, requested that hospital personnel obtain a blood sample from appellant to be tested for alcohol content. A member of the emergency room staff advised the officer that a test would be unnecessary as one had already been performed, and then volunteered the results of that test to the officer. The officer subsequently placed appellant under arrest, issued Miranda

[ 380 Pa. Super. Page 350]

    warnings, and requested that he submit to a blood alcohol test. Appellant refused and the officer left the hospital. The Commonwealth subpoenaed the results of the medical purposes blood test and at trial, the laboratory technician testified as to the results of that test. Testimony concerning appellant's refusal to submit to the blood alcohol test requested by the officer was also admitted into evidence over objection. Appellant was found guilty of driving under the influence, in violation of 75 Pa.C.S. § 3731(a)(1) and (a)(4), and of overtaking a vehicle on the left, and thereafter sentenced to serve a term of imprisonment of from seven days to twenty-three and one-half months, and to pay a fine of $300.00. A divided panel of this Court found that the trial court had erred in admitting evidence of the medical purposes blood test since appellant had been denied the opportunity to exercise the statutory right of refusal to submit to such a test as provided by Section 1547(b) of the Vehicle Code, 75 Pa.C.S. § 1547(b).

Appellant first argues that the results of the medical purposes blood alcohol test should have been suppressed since the hospital personnel, when they volunteered the results of the blood alcohol test to the investigating officer, violated the regulations of the Pennsylvania Department of Health concerning the confidentiality of medical records. Appellant's argument is predicated upon the following two regulations promulgated by the Pennsylvania Department of Health:

Records and reports of examinations of all specimens shall be confidential.

28 Pa.Code § 5.53.*fn1

All records shall be treated as confidential. Only authorized personnel shall have access to the records. The written authorization of the patient shall be presented and then maintained in the original record as authority for release of medical information outside the hospital.

[ 380 Pa. Super. Page 35128]

Pa.Code § 115.27.*fn2

The Commonwealth argues, however, that the general provisions providing for confidentiality of all medical records are subject to the exceptions contained in Section 1547(j)*fn3 and Section 3755*fn4 of the Motor Vehicle Code,

[ 380 Pa. Super. Page 352]

    pertaining to the release by hospital personnel of results of blood ...


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