Opinion
DOCKET NO. A-5083-11T3
12-31-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. WILLIAM R. BILLINGHAM, Defendant-Respondent.
Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, on the brief). Steven Secare argued the cause for respondent (Secare, Ryan & Hensel, attorneys; Mr. Secare and Harold N. Hensel, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Alvarez, and Waugh.PER CURIAM
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-07-1345.
Steven A. Yomtov, Deputy Attorney General, argued the cause for appellant (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, on the brief).
Steven Secare argued the cause for respondent (Secare, Ryan & Hensel, attorneys; Mr. Secare and Harold N. Hensel, on the brief).
By leave granted, the State appeals the Law Division's April 27, 2012 order denying its application for a Dyal subpoena seeking the results of a blood test performed during defendant William R. Billingham's hospitalization following an automobile accident. The test results are sought for use in prosecuting Billingham on charges of fourth-degree assault by auto, contrary to N.J.S.A. 2C:12-1(c)(2). We reverse.
State v. Dyal, 97 N.J. 229 (1984).
I.
We discern the following facts and procedural history from the record on appeal.
At about 2:20 a.m. on March 22, 2009, Billingham rear-ended a motor vehicle on Interstate 295 in Camden County. Both vehicles were traveling in the center lane of the three-lane highway. The impact caused the vehicle in front of Billingham to overturn onto its roof. Billingham's vehicle was sufficiently damaged that the jaws-of-life were required to extract him. Billingham, who was a State Police detective driving an unmarked car, told one of the police officers on the scene that he "apparently fell asleep."
Emergency medical services (EMS) units from Bellmawr and Haddonfield responded to the scene. The driver of the other vehicle was taken by ambulance to a hospital in Camden, where he was treated for cuts and abrasions to his hand and released. Billingham was transported to Cooper University Hospital, where he was treated for six fractured ribs and cuts and abrasions to his arms and head. A blood test was performed for treatment purposes. The results were not disclosed to or requested by any law enforcement personnel at the time of the accident.
In early June, the Attorney General received an anonymous letter alleging, among other things, that alcohol had been a factor in Billingham's accident. It further alleged that there had been a cover up by other State troopers at the scene. The letter stated "if you were to test [Billingham's] blood at the hospital, it would cause the testing apparatus to explode." The Office of State Police Affairs (OSPA) in the Department of Law and Public Safety opened an investigation into those allegations the day the letter was received.
In August, the Superintendent of State Police issued an administrative subpoena duces tecum to the hospital, seeking records from Billingham's hospitalization following the accident. The hospital provided records that included his blood test results and notes on statements he made to hospital personnel. According to the subsequent OSPA report, Billingham's "blood alcohol level on admission to the hospital was 321, which was over the limit of 40 cited by the trauma treating physician in the emergency room as indicating alcohol intoxication." An expert report prepared for the State indicates that this blood alcohol level is the equivalent of a blood alcohol concentration of 0.276.
See N.J.S.A. 53:4-1.
In September, the OSPA investigator interviewed four paramedics and EMT responders who had treated Billingham at the scene and in the ambulance. The interviews were recorded, but were not taken under oath. The witnesses were told that their statements would be part of an official police report and could be used in official proceedings.
Paramedic Christopher Lamkin of the Virtua Mobile Intensive Care Unit (MICU) of Haddonfield assisted in removing Billingham from his vehicle, transferring him to the ambulance, and treating him in the ambulance on the way to the hospital. Lamkin stated that he did not detect any smell of alcohol when speaking to Billingham in his car at the scene. After Billingham was in the ambulance, "there was a slight odor of alcohol. But he wasn't the only one in the back of the ambulance at the time and there were a lot of other smells also — gasoline and diesel fumes." Lamkin stated the odor could have emanated from someone else in the ambulance, because "sometimes [with] volunteer ambulances, you can never rule that out." Lamkin indicated that if Billingham had "openly admit[ted] to using . . . alcohol," he would have noted this in the EMT chart.
Paramedic Jennifer Somers, also of the Haddonfield MICU crew, assessed Billingham for life-threatening injuries while he was still inside his vehicle, helped extricate him from the vehicle, and reassessed his injuries after he was loaded into the ambulance. She determined that he had a possible head injury as well as minor cuts and lacerations. She did not recall smelling alcohol either in Billingham's car or on his person.
EMT Joseph Lutz of the Bellmawr EMS unit assisted with preparing Billingham to be loaded into the ambulance after he had been removed from his car and placed on a stretcher. Lutz stated that he did not smell any alcohol, and that "[t]he scene was very heavy with other fumes." Asked if he smelled alcohol in the ambulance, Lutz, who drove the ambulance while Billingham was receiving care in the back, stated, "[n]one that I could pick up." He said Billingham made no statements about whether he had been drinking that night. Lutz stated,
There was no indication, based on what I knew about [Billingham] and from the very minimal contact that I had with him, that said that there was alcohol involved. But the circumstances involved in the accident, the time of the morning, based on where it was and how it appeared, the thought had certainly crossed my mind that it may have been alcohol related.
Amy Long, an EMT with the Bellmawr EMS unit, responded to the scene with Lutz and rode in the ambulance with Lamkin and Billingham. Asked whether she suspected that the accident was alcohol related, she replied:
Not really. There were no beer bottles falling out of his car or anything like that. There was a smell of alcohol once we got in the ambulance, but there had been several people in and out of the ambulance. So you can't even say it would be him directly or you or me or whoever. So no it was not blatantly obvious that that's what it was.Asked if there had been "any discussion at all about alcohol use as a cause of the accident" at the scene or during the ambulance ride, Long responded:
I don't think so. When we were able to calm [Billingham] down he was able to tell us that he had a medical history of seizures. So we were wondering if he had a head injury. That could cause you to be confused. . . . I mean it wasn't even an overwhelming smell so something like in the air.Long reported that Billingham did not volunteer any information as to whether he had been drinking.
According to Lamkin, Billingham "was very upset and concerned about the other vehicle and if he had hurt anybody," and was "repeatedly concerned about his job." He "was concerned that somebody was hurt and that he may have screwed up." Lamkin said he told Billingham "on several occasions that 'everything's going to be okay.' And he's like 'no it's not, this is my job.'" Lamkin thought Billingham's concern for his job might have been connected to the smell of alcohol, but said also "[m]aybe he made a careless move and that's what he was remorseful about. I don't know." At the hospital Lamkin observed that Billingham "was still very upset about the whole incident and he was still asking about the other people. He thought that I was lying to him when I told him the other people were okay."
According to Somers, Billingham "repeated a few times that his career was over. He repeated a few times 'what happened?' And then when we told him what happened he always asked the same question, 'was anybody hurt?'" She assumed his concerns about his career "had to do with the fact of getting in a multi-vehicle accident." She also thought his repetitive questions could be related to a possible head injury.
Lutz recounted that Billingham "appeared to be upset as to what had happened," asked several times about the other patient's injuries, said "he had apparently 'messed up,'" and "was concerned about his job." Lutz stated that, in the ambulance, Billingham "asked several times again about the patient from the other vehicle, and he made several other statements about his job being involved."
Long similarly observed that Billingham "was very upset. He was very repetitive. He kept saying things like 'I fucked up,' 'I messed up my job,' 'I'm screwed,' 'did I kill somebody,'" and "'I screwed up,' . . . 'oh, my God,' 'what a mess.'"
Lamkin stated that troopers at the scene asked Billingham about his weapon and confirmed with him that he was driving a state vehicle at the time of the accident. According to Lutz, they seemed primarily concerned with securing Billingham's firearm. He "also heard that the troopers on scene sounded to be upset, angry even, at [Billingham] for the crash itself and what it had entailed." Asked if he "recall[ed] why they were angry," Lutz replied "that they were angry that the accident had occurred and that he had been involved. . . . [I]t was about the circumstances of the accident."
According to Lutz, one to three days after he prepared the EMT chart for the accident, he was approached by his supervisor, Daniel Walker, who "conveyed thanks that we did not include anything in the chart about alcohol being detected at the scene or during our assessment and treatment of the patient." Walker told Lutz that, on the evening of the accident, he and Billingham had been at the Masonic Lodge in Cherry Hill, where alcohol was served. Lutz recounted that his
response [to Walker] was that the reason it hadn't been included in the chart is because we had no physical evidence . . . [to] suspect that there may have been alcohol involved and that's why it had been left out. It wasn't because of being a matter of favor to anyone.
When interviewed, Walker acknowledged that he and Billingham had both attended a function at the Masonic Lodge where alcohol was served on the evening of the accident. He also agreed that he had had a conversation with Lutz to the effect of thanking him for not mentioning alcohol in his report. Additionally, he agreed that he "connected the dots together."
[OSPA]: There was alcohol at the lodge?Walker did not state that he had seen Billingham drinking or knew him to have been intoxicated that night.
Walker: Yes, sir.
[OSPA]: There was drinking going on?
Walker: Yes, sir.
[OSPA]: So when you found out that [Billingham] was involved in the accident, you connected the two together? You were with him the night before at the lodge, there was drinking going on, now he's involved in the accident?
Walker: Yes, sir. That's fair to say. Yes, sir.
The OSPA investigation was terminated in October 2009, and the matter was referred to the Camden County Prosecutor, who subsequently transferred it to the Ocean County Prosecutor. For reasons not clear from the record, there was no investigation concerning a cover up by State Police personnel, including those at the accident scene, who were apparently not interviewed by OSPA.
In August 2010, the Camden County Prosecutor's Office, acting on behalf of the Ocean County Prosecutor, issued a grand jury subpoena duces tecum to the hospital for records pertaining to Billingham's hospitalization after the accident. The record does not indicate what the assistant prosecutor presented to the grand jury in support of her request for the subpoena. The hospital provided the requested records.
On March 1, 2011, the Ocean County Prosecutor issued a complaint charging Billingham with operation of a motor vehicle resulting in bodily injury, and on July 28, 2011, a grand jury indicted him on one count of fourth-degree assault by auto, contrary to N.J.S.A. 2C:12-1(c)(2).
In September, Billingham filed a motion to suppress the results of the hospital blood test and to dismiss the indictment. The State opposed the motion, which was argued on December 16. The judge delivered an oral decision, in which he explained his reasons for granting the motion to suppress, but denying the motion to dismiss. His decision was based on his conclusion
that the blood results were required to be suppressed because the Superintendent of the State Police did not have the authority to secure blood evidence pursuant to a criminal matter but only for an internal affairs investigation. An application to the municipal court judge should have been made within a reasonable time after the accident for a subpoena duces tecum. State v. Dyal, 97 N.J. 229 (1984).An implementing order was filed on December 19.
In March 2012, the State filed a motion for a Dyal subpoena. Billingham opposed the motion. Ruling on the papers, the motion judge denied the State's motion in an order dated April 27, 2012, which was accompanied by a letter opinion. The judge found that the State had failed to establish, pursuant to Dyal, supra, 97 N.J. at 232, "a reasonable basis to believe that [Billingham] was intoxicated by objective facts known at the time of the incident or discovered within a reasonable time thereafter."
The judge disagreed with the State's contention that it had presented facts known to it "within a reasonable time" after the accident, observing that
the exhibits submitted in support of the subpoena issuance are dated September 2009, and thereafter — a full six months after the incident in question. . . . Clearly, in the application for the subpoena, the State relies upon facts that were unknown to them for six months after the event — an unreasonable amount of time to pass before evidence comes to light in such an investigation.
As to the requirement that the application be supported by objective facts, the judge found that
the catalyst to interview the various individuals was an anonymous undated letter received by the Attorney General in June 2009, alleging that [Billingham] was intoxicated on the night in question. The resulting interviews were taken several months later in September 2009, pursuant to an internal affairs investigation, not pursuant to this criminal matter. Therefore the Court finds that the statements could not properly be used in this criminal matter. . . . [I]t is clear that [the State] had no basis other than the internal affairs investigation through which to learn about [Billingham]'s intoxication.The judge concluded that
[f]rom the interviews gathered pursuant to the internal affairs investigation, it is not objectively clear that a reasonable basis exists to believe that [Billingham] was intoxicated on the night of the incident. The objective facts known at the time of the incident or within six months thereafter were that an accident had occurred and that an anonymous undated letter was submitted to the Attorney General alleging that alcohol was involved. Otherwise, there are no objective facts submitted to the Court to support the State's claim that alcohol was involved. Indeed, no physical evidence or indicia of alcohol has been presented.
Rejecting the State's arguments based on the inevitable discovery doctrine and the independent source doctrine, the judge concluded that "[t]he only proper mechanism through which the State could have secured the blood evidence is a Dyal subpoena," and that
The judge observed that the State's arguments based on the inevitable discovery and independent source doctrines were "improperly raised upon an application for a Dyal subpoena," but should have been raised in response to Billingham's earlier motion to suppress the evidence. Nevertheless, he proceeded to consider and reject those arguments on their merits.
the State would not have been able to secure a Dyal subpoena previously, or now. . . . [W]ithout any other documentation, exhibits or evidence to show that the State had actual independent knowledge of [Billingham]'s intoxication on the night of the incident, its sole source of information is derived from the administrative subpoena power, which cannot be used as the basis of evidence in this criminal matter.
We granted the State's motion for leave to appeal.
II.
The State raises the following issues on appeal.
POINT I: THERE WAS A REASONABLE BASIS TO BELIEVE [BILLINGHAM] WAS INTOXICATED BY OBJECTIVE FACTS KNOWN AT THE TIME OF THE INCIDENT OR DISCOVERED WITHIN A REASONABLE TIME; ALTERNATIVELY, THE STATE HAD OBTAINED [BILLINGHAM]'S BLOOD ALCOHOL READING THROUGH A VALID GRAND JURY SUBPOENA
A. There was a reasonable basis to believe [Billingham] was
intoxicated for the trial court to issue a Dyal subpoena.
B. The application for the Dyal subpoena was timely.
C. The State obtained [Billingham]'s blood-alcohol record via a valid grand jury subpoena.
Our review of the motion judge's legal conclusions, which were based solely upon the papers before him without an evidentiary hearing, is plenary. State v. Harris, 181 N.J. 391, 420-21 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); State v. Goodman, 415 N.J. Super. 210, 225 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).
A.
Because the disposition of this appeal is governed by Dyal, we explore the holding of that decision at some length before applying it to the facts of this case.
Peter Dyal was involved in a fatal automobile accident. Dyal, supra, 97 N.J. at 232-34. The investigating officer observed Dyal in an ambulance, at which time he "did not detect any odor of liquor or anything else that might indicate [Dyal] was under the influence of alcohol." Id. at 233. The officer did not have the opportunity to ask Dyal about the circumstances of the accident or observe him in any meaningful way. Ibid. When Dyal was taken to the hospital for treatment, his blood was tested for diagnostic purposes. No police officer was present at that time. Id. at 231.
Dyal's passenger died two days after the accident. Id. at 234. Two days after her death, two of her co-workers went to the police. One of them disclosed that she had served Dyal three or four drinks prior to the accident. Ibid. The investigating officer then obtained a subpoena from the municipal court and served it on the hospital, which produced the results of Dyal's blood test showing a blood alcohol level of 0.12. Ibid.
Dyal was charged with driving under the influence, N.J.S.A. 39:4-50, and then indicted for death by auto, N.J.S.A. 2A:113-9. Id. at 234-35. After the trial judge denied Dyal's motion to suppress the test results, he was convicted at trial. Ibid. We reversed in an unreported opinion, finding that the test results were protected by the patient-physician privilege pursuant to N.J.S.A. 2A:84A-22.2. Ibid. The Supreme Court granted certification.
Now also contained in N.J.R.E. 506.
The State conceded before the Court that the test results fell within "the literal requirements" of the privilege, but argued that the privilege should "yield to the public interest for the disclosure of relevant facts in the prosecution of drunken driving cases." Id. at 237. The Court framed the issue as requiring it to balance the State's "clear public policy . . . to rid the highways of drunken drivers" with "the statutory privilege protecting communications between patient and physician," the purpose of which "is to permit patients to disclose facts necessary for diagnosis and treatment." Ibid.
In a later case, State v. Schreiber, 122 N.J. 579, 582-85 (1991), the Supreme Court held that the patient-physician privilege is not applicable in cases involving violations of a statute governing driving while under the influence of alcohol, N.J.S.A. 39:4-50, because a DWI offense is neither a crime nor a disorderly persons offense.
The Court noted that "[t]he inevitable effect of allowing the privilege . . . is the withholding of evidence, often of the most reliable and probative kind, from the trier of fact." Ibid. The Court also expressed concern that a breach of the privilege could cause drivers involved in alcohol-related accidents to refuse blood tests, even at a risk to their own health. Id. at 238. It concluded that there needed to be "a sensible accommodation of the privilege and the interests of justice." Ibid.
The Court observed that a driver arrested based on probable cause to believe that the driver was intoxicated had "no federal constitutional right to prevent the involuntary taking of a blood sample," even without a warrant due to exigent circumstances, id. at 238-39, that no purpose would be served by the taking of two blood samples, one for diagnosis and one for forensic purposes, id. at 239, and that the body eliminates alcohol at a rapid rate, ibid. The Court noted that, by the time the police learned four days after the accident that Dyal had been served alcohol, it would have been impossible to conduct a second test in any event. Ibid.
The Court articulated its "sensible accommodation of the privilege and the interests of justice," as follows:
In a matter so deeply imbued with the public interest as a case involving a suspected drunken driver, the investigating police should not be deprived of blood test results merely because they were not present when the blood sample was taken. Those results are not only relevant, but may be highly persuasive in determining whether the driver was drunk.
Nor should a patient's interest in the confidentiality of hospital records preclude all access to records of blood alcohol test results. That interest can be protected adequately by requiring investigating police to establish a reasonable basis to believe that the operator was intoxicated, a showing that may be established by objective facts known at the time of the event or discovered within a reasonable time thereafter.
Such a showing should be presented in an application for a subpoena before a judicial officer, generally a municipal court judge having jurisdiction in the municipality where the records are located. Cf. R. 3:5-1 ("[a] search warrant may be issued by a judge of a court having
jurisdiction in the municipality where the property sought is located."). If no case is pending against the operator, the subpoena may be captioned "In the Matter" under investigation. Here, for example, the subpoena could have been captioned "In the Matter of the Investigation of a Motor Vehicle Accident on April 6, 1979."
Records obtained pursuant to the subpoena will be subject to a motion to suppress made within thirty days of the initial plea to any resulting charge unless the court for good cause shown enlarges the time. Cf. R. 3:5-7(a) (motion to suppress evidence obtained by allegedly unlawful search and seizure should be filed within thirty days of initial plea). Given the protection accorded blood test results by the statutory privilege, we believe that a subpoena for records of those tests should be treated as the functional equivalent of a search warrant. Cf. State v. Hall, 93 N.J. 552, 557-59, cert. denied, [464 U.S. 1008], 104 S. Ct. 526, 78 L. Ed. 2d 709 (1983) (approving investigative detention upon showing of "a reasonable and well-grounded basis to believe" that subject may have committed a crime). Although the prescribed procedure follows that applicable for the issuance of such a warrant, we conclude that a subpoena, which is commonly used to obtain hospital records, is the more appropriate vehicle.
In the present case, the trial court found that the police acted diligently in conducting the investigation, but the court did not determine whether they had a reasonable basis to believe that the defendant was intoxicated at the time of the event. Given the serious nature of the charge, we believe the appropriate decision is to remand the matter to the trial court.
[Id. at 240-41.]
We note the following from our review of Dyal. First, the question was not analyzed as a constitutional issue, but rather as the balancing of the competing public policy interests. Second, although the resulting process is treated like a search-warrant application procedurally, the issuance of a Dyal subpoena is based on a showing of "a reasonable basis to believe that the operator was intoxicated," as opposed to the normal probable-cause requirement for a search warrant. State v. Bodtmann, 239 N.J. Super. 33, 38-40 (App. Div. 1990) (quoting Dyal, supra, 97 N.J. at 240). Third, although the required showing "may be established by objective facts known at the time of the event or discovered within a reasonable time thereafter," it is implicit in the Court's opinion that the showing can be based upon information learned by the police after it would no longer be feasible to order a new blood test. Fourth, it appears implicit in the Court's ruling that the test results would not be obtainable through a grand jury subpoena, inasmuch as the records would still be subject to the patient-physician privilege absent a Dyal subpoena. Although the Dyal Court did not specifically discuss that issue, we note that the Court has found the attorney-client privilege to be generally applicable in the context of a grand jury subpoena. See, e.g., In re Nackson, 114 N.J. 527, 539-40 (1989). We see no reason why a different rule would apply to similar statutory privileges.
The witnesses in Dyal did not come forward until four days after the accident.
B.
We now turn to the merits of the State's appeal.
In its application for the Dyal subpoena, the State submitted an affidavit from a prosecutor's detective attaching, among other things, witness statements taken by OSPA's chief investigator. Three of the statements were taken in the presence of a deputy attorney general. Four of the statements were taken from first responders who were at the scene of the accident. The fifth was taken from an EMT supervisor who was not at the scene, but who was at an event with Billingham at which alcohol was served on the evening of the accident.
The information in the attachments reveals the following: (1) Billingham rear-ended a vehicle in his lane of traffic on an interstate highway; (2) Billingham was driving at a speed sufficient to cause the vehicle he hit to turn over, and to require the use of the jaws-of-life to extract him from his own vehicle; (3) Billingham told the investigating officers at the scene that he must have fallen asleep; (4) two of the first responders (Lamkin and Long) perceived an odor of alcohol in the ambulance, but did not know whether it came from Billingham or some other source; (5) four of the responders observed that Billingham was worried that the accident would ruin his career; (6) Lutz observed that other state troopers at the scene appeared upset and angry with Billingham about the accident and what it "entailed"; (7) Lutz related that, one to three days after the accident, Walker "conveyed thanks that we did not include anything in the chart about alcohol being detected at the scene or during our assessment and treatment of the patient"; and (8) Lutz also related that Walker told him that he and Billingham had been at an event where alcohol was served on the evening of the accident.
The question is whether those facts provide "a reasonable basis to believe that the operator was intoxicated." Dyal, supra, 97 N.J. at 240. We conclude that they do. Perhaps the most telling fact was that Billingham had attended an evening event at which alcohol was served, and was involved in an accident some hours later. That fact demonstrates that he had access to alcohol prior to the accident. Two of the early responders detected the smell of alcohol when they were in the ambulance with Billingham. Although they did not specifically detect it as coming from him and did not investigate the source of the smell because they were primarily concerned with Billingham's injuries, their detection of that odor is consistent with Billingham having consumed alcohol prior to the accident. The fact that Billingham was driving at a relatively high rate of speed and his assertion that he fell asleep while doing so are also consistent with the accident having been caused by his overconsumption of alcohol, as are his significant concern that he would lose his job and the concern expressed by the other troopers at the scene with respect to the circumstances of the accident. Finally, Walker's assumption that the EMTs, whom he supervised, had chosen not to disclose the involvement of alcohol in their reports is indicative of Walker's apparent belief, based on "connecting the dots," that the accident was alcohol related.
We are satisfied that those are "objective facts" in the sense required by Dyal. They are based primarily on personal observations. Investigatory stops and drunk-driving arrests are frequently based on observations of conduct or the detection of odors. See State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990). We agree with the motion judge, however, that the anonymous letter should be given no weight in the reasonable-basis aspect of the Dyal analysis.
The next issue is whether those facts were "known at the time of the event or discovered within a reasonable time thereafter." Dyal, supra, 97 N.J. at 240. Each of the facts we have listed above were known to at least some of those at the accident scene on the night of the accident, except for the information conveyed by Walker to Lutz several days later. Lutz chose not to disclose that information until the accident was reinvestigated approximately six months later, after receipt of the anonymous letter, and the Dyal subpoena was not requested for a considerable time after that. The motion judge determined that the delay was fatal to the State's request for a Dyal subpoena.
We disagree. The reach of the patient-physician privilege is to be narrowly construed, as the Court held in Dyal. Id. at 237. Once the State learned that there might have been alcohol involved in the accident and that it might not have been investigated thoroughly, the matter was investigated by OSPA. Once the involvement of alcohol was confirmed, it was transferred to the prosecutor for further investigation. We see no unreasonable delay in that process. The Dyal subpoena was not requested until after the motion judge suppressed the blood alcohol report previously obtained by the State through the administrative subpoena and, by implication, through the grand jury subpoena. Again, we see no unreasonable delay. The State did not seek the Dyal subpoena earlier based upon its not unreasonable expectation that the reports obtained through the administrative subpoena and the grand jury subpoena would be admissible at trial.
The State did not appeal the issue of the administrative subpoena, which is consequently not before us and has not been briefed. However, we note that there is no suggestion in the record that the subpoena was misused, inasmuch as there was an investigation consistent with N.J.S.A. 53:4-1 ongoing at the time it was served. In addition, it is not clear that evidence resulting from a breach of the patient-physician privilege is subject to an exclusionary rule, as is the case with evidence obtained through a constitutional violation. See Schreiber, supra, 122 N.J. at 588 (citing Bodtmann, supra, 239 N.J. Super. at 43 ("It is questionable that the violation of the patient/physician privilege is a poisonous tree in a constitutional sense so as to bar the admission of evidence obtained by the investigating police as a result of receiving the blood alcohol results in violation of the patient/physician privilege.")); State v. Smith, 307 N.J. Super. 1, 14-15 (App. Div. 1997), certif. denied, 153 N.J. 216 (1998). Consequently, we do not necessarily share the motion judge's views on that issue.
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For all of these reasons, we reverse the order on appeal and remand to the trial court for issuance of a Dyal subpoena.
Reversed and remanded.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELLATE DIVISION