Summary
finding an emergency room physician's testimony concerning alcohol odor, slurred speech, and extreme intoxication of the patient not privileged information because the observations fell within the competence of a layperson
Summary of this case from People v. CovingtonOpinion
December 16, 1983
Appeal from the Livingston County Court, Houston, J.
Present — Dillon, P.J., Doerr, Denman, O'Donnell and Moule, JJ.
Judgment unanimously affirmed. Memorandum: At trial of the defendant for driving while intoxicated, the admission of the emergency room physician's testimony was not a violation of the physician-patient privilege. An exception to the physician-patient privilege has been carved out with respect to "facts which are `plain to the observation of anyone without expert or professional knowledge' * * * ( Klein v. Prudential Ins. Co. of Amer., 221 N.Y. 449, 453; Patten v. United Life Acc. Ins. Assn., 133 N.Y. 450, 453; Edington v. Aetna Life Ins. Co., 77 N.Y. 564, 570)" ( Matter of Grand Jury Investigation of Onondaga County, 59 N.Y.2d 130, 134; see, also, People v. Newman, 32 N.Y.2d 379, cert den 414 U.S. 1163). The burden of proving that evidence falls within the physician-patient privilege rests upon the party seeking to invoke the privilege ( People v. Decina, 2 N.Y.2d 133; Matter of Judicial Inquiry Pursuant to Order of Appellate Div., Second Dept. [ Anonymous "P" — Hurley], 8 A.D.2d 842). Defendant has not met that burden. The physician's observations that there was a strong odor of alcohol on defendant's breath, that the defendant's speech was slurred and disjointed and that the defendant was "extremely intoxicated" could have been made by a lay person and did not depend upon any confidential communication by the defendant. They thus were not privileged. Even if we were to find that the physician's testimony was improperly admitted, the testimony of the deputy sheriff and the ambulance driver, both of whom observed defendant at close range in a state of intoxication at the accident scene, was more than sufficient to support the conviction.