NO. 93-083

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GARY ERNEST HENNING,

Defendant and Appellant.

APPEAL FROM: District court of the Twenty-first Judicial

District, In and for the County of Ravalli,

The Honorable Jeffrey H. Langton, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Donald Spadone, Hamilton, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Paul D.

Johnson, Assistant Attorney General, Helena, Montana

George Corn, County Attorney: Gerald D. Williams,

Deputy County Attorney, Hamilton, Montana

Submitted on Briefs: April 22, 1993

Decided: May 27, 1993

STATE OF
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Gary Ernest Henning (Henning) appeals an order denying his

Motion in Limine to suppress the results of a blood alcohol test.

The order was entered on December 30, 1992, in the Fourth Judicial

District, Ravalli County. This appeal followed the entry of the

Amended Judgment on February 2, 1993, in Ravalli County, which

county was then in the newly-created Twenty-first Judicial

District. We affirm the District Court.

We consolidate and restate the issues raised by Henning as:

Did the District Court err in failing to suppress the results

of Henning's voluntary blood alcohol test?

On April 16, 1992, Henning was arrested and charged with

driving under the influence of alcohol (DUI), a misdemeanor in

violation of 5 61-8-401, MCA. After the arrest, the arresting

officer asked Henning to submit to a breath intoxilyzer test.

Henning refused. However, he asked the arresting officer to take

him to Marcus Daly Memorial Hospital in order that a blood alcohol

test could be administered at his expense. The arresting officer

complied with this request, and a blood sample was taken by a

registered nurse at the hospital.

Following a bench trial in Justice Court, Henning was

convicted of DUI. Henning appealed his conviction to the District

Court. Prior to trial, Henning filed a Motion in Limine in which

he asked the court to suppress the results of the blood alcohol

test received after he was arrested. Henning alleged the results

of the blood alcohol test were inadmissible. After considering the

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briefs and argument of Henning and the State, the District Court

denied the motion. The District Court ruled the blood alcohol test

was relevant and admissible, and that the State had demonstrated a

compelling interest outweighing Henning's privacy interest.

After his Motion in Limine was denied, Henning entered into a

plea bargain with the State. He agreed to plead guilty and be

sentenced for the DUI offense upon the condition that should this

Court hold that the results of the blood alcohol test were

inadmissible, he will be allowed to withdraw his plea. In

addition, Henning asked the District Court to stay any execution of

sentence pending this appeal. With the consent of the State, the

District Court approved the plea bargain, accepted Henning's guilty

plea, and imposed sentence. The District Court stayed the

execution of Henning's sentence pending appeal.

Did the District Court err in failing to suppress the results

of Henning's voluntary blood alcohol test?

In denying Henning's Motion in Limine, the District Court

ruled that the State had demonstrated a compelling interest which

outweighed Henning's privacy interests. Therefore, the blood

alcohol test was admissible under 5 50-16-535(1)(i), MCA. In

addition, the District Court ruled the blood alcohol test was

relevant and admissible in light of State v. Kirkaldie (1978), 179

Mont. 283, 587 P.2d 1298.

Henning argues that under § 50-16-535, MCA, the results of the

blood alcohol test are part of his private medical records and

3
privileged information. Therefore, under § 50-16-535(1)(i), MCA,

the State must show a compelling interest which outweighs the

privacy interests of the patient in order for the results to be

admissible. Henning contends the State failed to meet this burden.

While we agree with the District court ' s reliance on

Kirkaldie, we do not agree with the court, and Henning, that 5 50-

16-535, MCA, determines whether the blood alcohol test is

admissible into evidence.

Section 50-16-535(1)(i), MCA, provides:

(1) Health care information may not be disclosed by a

health care provider pursuant to compulsory legal process

OL- discovery in any judicial, legislative, or

administrative proceeding unless:

(i) a court has determined that particular health care

information is subject to compulsory legal process or

discovery because the party seeking the information has

demonstrated that there is a compelling state interest

that outweighs the patient's privacy interest[.]

When this Court reviews the District Court's conclusions of law

regarding the application of a statute, our standard of review is

"whether the tribunal's interpretation of the law is correct."

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474,

803 P.2d 601, 603.

The exceptions listed in 5 50-16-535, MCA, apply to the

discoverv of health care information. As provided in 9 50-16-

536(6), MCA:

(6) Production of health care information under 50-16-

535 . . . does not in itself constitute a waiver of any

privilege, objection, or defense existing under other law

or rule of evidence or procedure.

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The Official Comments to § 50-16-535, MCA, provide:

It is important to note that this section in no way

supersedes or modifies the state's rules of evidence.

. . . [O]nce health-care information has been discovered

under this section, the normal rules of evidence govern

its use at trial.

Henning does not contend that the blood alcohol test was not

subject to discovery. Therefore, we limit our discussion to

whether the District Court erred in failing to suppress the blood

alcohol test results.

Although !$ 50-16-535, MCA, is inapplicable to the main issue

in this appeal, we hold, pursuant to Kirkaldie and 5 61-8-

404(l) (a), MCA, that the result reached by the District Court was

correct. Where the result reached by the District Court is

correct, it will be upheld on appeal regardless of the reasons

given for the conclusion. Jerome v. Pardis (1989), 240 Mont. 187,

192, 783 P.2d 919, 922.

Section 61-8-404(1)(a), MCA, provides:

(1) Upon the trial of any criminal action or other

proceeding arising out of acts alleged to have been

committed by any person in violation of 61-8-401 or 61-8-

406:

(a) evidence of any measured amount or detected presence

of alcohol in the person at the time of the act alleged,

as shown by an analysis of his blood, breath, or urine,

is admissible[.]

We note however, that when a blood alcohol test is based upon the

implied consent law, 5 61-8-402, MCA, the admissibility into

evidence of blood alcohol content is also subject to the procedural

safeguards of g 61-8-404(l)(b)(i) and (ii), MCA, and the

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Administrative Rules of Montana. See e.g., State v. McDonald

(1985) r 215 Mont. 340, 697 P.2d 1328.

In this case, the withdrawal of Henning's blood was not based

upon the implied consent law. It was the result of his own request

after he refused to take the breath test offered to him.

Therefore, Henning consented to the taking of a blood sample. 'I In

this state, evidence concerning the taking, analysis and result of

a blood sample taken from [a] defendant with his consent is

admissible in evidence." Kirkaldie, 587 P.2d at 1302.

We hold that the District Court did not err in failing to

suppress the results of Henning's voluntary blood alcohol test.

Once the evidence was discovered, it was no longer privileged

information and the State was entitled to move for its admission at

trial. The District Court is affirmed.

We concur:

Chief Justice

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Justice Terry N. Trieweiler specially concurring.

I concur with the result reached by the majority. However, I

would reach that result for different reasons.

It is correct that § 50-16-535, MCA, pertains to the discovery

of health care information, rather than its admissibility.

However, in his motion in limine, defendant relied on 5 50-16-535,

MCA, as his basis for arguing that his records were privileged, and

therefore, inadmissible.

If § 50-16-535, MCA, is the basis for the privilege that

defendant asserts, then I conclude that the records in this case

were an exception to the privilege by the terms of that same

statute, which provides in part that:

(1) Health care information may not be disclosed by a

health care provider pursuant to compulsory legal process

o r discovery in any judicial, legislative, or

administrative proceeding unless:

. . . .

(j) the health care information is requested

pursuant to an investigative subpoena issued under

46-4-301.

In this case, the health care records that defendant sought to

suppress were obtained by the prosecuting attorney pursuant to an

investigative subpoena issued by the District Court after a hearing

which was held on May 23, 1992. Since the statute relied upon by

defendant contained, by its own terms, an exception to the

privilege thatit established, and since the results of blood tests

are otherwise relevant and admissible in the type of prosecution

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that this case involved, I would affirm the judgment of the

District Court.
May 21, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

DONALD SPADONE

Attorney at Law

220 S. 3rd. Street

Hamilton, MT 59840

HON. JOSEPH P. MAZUREK, Attorney General

Paul D. Johnson, Assistant

Justice Bldg.

Helena, MT 59620

GEORGE CORN, County Attorney

Gerald D. Williams, Deputy

Ravalli County Courthouse Box 5008

Hamilton, MT 59840

ED SMITH

CLERK OF THE SUPREME COURT

STATE OF MONTANA