### IN THE COURTOFAPPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. VONDAVALISA PRITCHARD, Appellant. 

# No.69862-1-1 ^ ^ DIVISIONONE N> Ti^C %£} -t^-o •;••'. 

### UNPUBLISHED OPINION ^ W". FILED: April 29, 2013 Appelwick, J. — This appeal arises from Pritchard's conviction for vehicular 

### assault. She challenges the sufficiency of her charging document and the admissibility ofevidence relating to herintoxication while driving. We affirm. FACTS Around 7:30 p.m. on July 5, 2010, Vonda Pritchard was driving her dark green Land Roversportutility vehicle eastbound on Highway 101 justoutside of Port Angeles, Washington. She attempted to make a left turn at a high speed, knocked over a yield sign, hit a ditch, became airborne, and then collided with another car heading the opposite direction. One witness observed Pritchard weaving in her lane before the crash, and began calling 911 before Pritchard even collided with the othercar, "because itdidn't look good." The same witness testified that Pritchard was moving "way too fast" to make the turn. Shirley Holman, the passenger in the other car, suffered a fractured rib and a dislocated wrist. Washington State Patrol Trooper John Ryan responded to the scene of the accident moments later. He found Pritchard slumped from the driver's seat over on to the passenger side of her car. He thought she appeared "highly intoxicated," because her eyes were bloodshot and watery, he smelled alcohol on her, and he noticed anNo. 69862-1-1/2


### open container of alcohol in her driver side door. But, at that point, Trooper Ryan did
not arrest Pritchard. From the scene, Pritchard was transported by ambulance to Olympic Memorial Hospital. She was brought into the emergency room strapped to a full c-spine backboard with her head immobilized. While she was still strapped to the backboard, Trooper Ryan entered Pritchard's hospital room and told her that he was investigating the collision. Pritchard asked him what happened. After explaining the accident, Trooper Ryan asked Pritchard where she had been. She responded that she was driving from Traylor's, a restaurant and bar on the outskirts of Port Angeles. He then asked her ifshe had been drinking. Pritchard admitted that she had three drinks at Traylor's and one earlier in the day. When she declined to perform voluntary sobriety tests, Trooper Ryan placed her under arrest for driving under the influence (DUI) and 

### read herMiranda1 rightstoher. Afterarresting Pritchard, Trooper Ryan went backto his office to begin writing a report and filling out a DUI ticket. A few hours later he returned to the hospital and read Pritchard a special evidence warning thatherblood would betested without herconsent to determine the concentration ofalcohol or drugs. Around 11:30 p.m., a phlebotomist drew two vials of blood from Pritchard. The vials were then sent to the Washington 

### State Toxicology Laboratory (WSTL) for testing. Test results showed that Pritchard's blood alcohol content was .14 four hours after the collision. 

### The State charged Pritchard by criminal information with allthree alternatives to vehicular assault under RCW 46.61.522(1). The trial court instructed the jury that it 

### 1Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L Ed. 2d 694 (1966).No. 69862-1-1/3


### could convict Pritchard under the three alternative means: (1) driving under the influence of alcohol, (2) driving in a reckless manner, or (3) driving withdisregard for the safety ofothers. Thejury returned unanimous special verdicts finding Pritchard guilty of both driving under the influence and driving with disregard for the safety of others. Pritchard timely appealed. DISCUSSION Pritchard makes four arguments on appeal. First, she challenges the sufficiency of her charging document. Second, she argues that her statements to Trooper Ryan should have been suppressed, because they were involuntary and she was incustody. Third, she contends that her blood test results should have been excluded because the 

### State failed to show that they contained the required chemicals to preserve the blood 

### sample. Fourth, she argues thattestimonyfrom heremergency room nurseviolated her 

### nurse-patient privilege and the Health Information Portability and Accountability Act of 1996 (HIPAA),42 U.S.C. §§ 1320dto 1320d-8. Vehicular assault is an alternative means crime. RCW 46.61.522(1); State v. Roggenkamp. 153 Wn.2d 614, 626, 106 P.3d 196 (2005). Thejury returned unanimous 

### special verdicts finding Pritchard guilty of both driving with disregard for the safety of others and driving under the influence. The Washington Supreme Court defines 

### disregard for the safety ofothers as "an aggravated kind ofnegligence orcarelessness, falling short of recklessness but constituting a more serious dereliction than the hundreds of minor oversights and inadvertences encompassed within the term 

### 'negligence.'"2 Statev. Eike. 72Wn.2d 760, 765-66, 435 P.2d 680 (1967). Proofof The jury instruction at Pritchard's trialtracked this language closely.No. 69862-1-1/4 

### intoxication isnot required toconvictfor driving with disregard forthe safety ofothers.3 See, e.g.. jd. at 766 (defendant rounded a sweeping curve at45 to 50 miles perhour on the wrong side ofthe road and struckon oncoming car head-on). The sufficiency ofthe charging document challenge attacks both special verdicts. Pritchard does not challenge the sufficiency of evidence supporting the unanimous verdict of driving with disregard for the safety of others. Pritchard's remaining three arguments go to her intoxication while driving. They attack both the conviction on the DUI special verdict and the sentence, which was based on her level on intoxication while driving. I. Sufficiency ofCharging Document For the first time on appeal, Pritchard argues that the information charging her with vehicular assault omitted an essential nonstatutory element of the offense. She 

### asserts that this violates her constitutional right to adequate notice underthe Sixth and FourteenthAmendments, as well as article I, section 22 oftheWashington Constitution. We review challenges to the sufficiency of a charging document de novo. State v. Williams, 162 Wn.2d 177, 182, 170 P.3d 30 (2007). To be constitutionally adequate,


### a charging document must include all essential elements of the crime, both statutory and nonstatutory. State v. Kiorsvik, 117 Wn.2d 93, 101-02, 812 P.2d 86 (1991). The 

### primarypurpose of this rule is to givedefendants sufficient notice of the charges so they
can prepare an adequate defense, jd. at 101.



### 3Thejury instructions explicitly delineated between the three alternative means to convict. And, the prosecution did notargue that intoxication was evidence ofdriving withdisregard forthe safety ofothers.No. 69862-1-1/5
The vehicular assault statute provides, in part: A person is guilty of vehicular assault ifhe or she operates or drives any vehicle: (a) In a reckless manner and causes substantial bodily harm to another; or (b) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502, and causes substantial bodily harm to another; or (c) With disregard for the safety of others and causes substantial bodily harm to another. 

### RCW46.61.522(1). Pritchard argues that an additional nonstatutoryelementis proof of proximate cause between the accident and the defendant's intoxication, recklessness, 

### ordisregardforthesafetyofothers.4 The case Pritchard cites for this contention addresses the former version ofthe vehicular homicide statute. State v. Sanchez, 62 Wn. App. 329, 331 & n.3, 814 P.2d 

### 675 (1991) (citing former RCW 46.61.520(1) (1983)). The Sanchez court relied on State v. MacMaster. 113 Wn.2d 226, 778 P.2d 1037 (1989), which engrafted on the 

### former vehicular homicide statute a proximate cause requirement between the defendant's intoxication and the victim's death to avoid a strict liabilityresult. Sanchez, 

### 62 Wn. App. at 331. However, a 1991 amendment to the vehicular homicide statute overturned the MacMaster proximate cause requirement. State v. Rivas, 126 Wn.2d 443, 451, 896 P.2d 57 (1995). The court confirmed that the legislature has authority to



### 4 At Pritchard's trial, jury instruction 10 read: "To constitute VEHICULAR ASSAULT, there must be a causal connection between the substantial bodily harm to a 

### person and thedriving of a defendant so that the act done was aproximatecauseofthe 

### resulting substantial bodily harm." Juryinstructions notobjected to become the law of the case. State v. Salas, 127 Wn.2d 173, 182, 897 P.2d 1246 (1995). But, the law of 

### the case doctrineonly applies tojury instructions, not charging documents. See State v. Tvedt. 153 Wn.2d 705, 718, 107 P.3d 728 (2005). Charging documents need only 

### statethe essential statutory and nonstatutoryelements of the crimescharged, jdNo. 69862-1-1/6

create strict liabilitycrimes, jd. at452. The vehicular homicide statute now requires the State to prove only a causal connection between the act of driving and the accident, jd. at 451-52. Consequently, Sanchez is no longer the law and does not support Pritchard's argument. The vehicular assault statute requires only that the defendant cause substantial bodily injury to anotherwhile driving underthe influence, recklessly, or withdisregard for 

### the safety of others. RCW 46.61.522(1); see also State v. Pappas, 176 Wn.2d 188, 194, 289 P.3d 634 (2012) (noting that the legislature amended the vehicular assault statute in 2001 to eliminate the proximate cause requirement). The information was not 

### defective forfailing to include a nonstatutory proximate cause element. We therefore affirm Pritchard's conviction on the alternative means of driving with disregard for the safety ofothers.

II. Admission ofStatements Made atthe Hospital 

### Pritchard asserts two reasons why her statements to Trooper Ryan at the 

### hospital should have been suppressed, which we address in turn below. A. Seizure and Custodial Interrogation 

### Pritchard argues that the trial court erred in admitting her statements to Trooper Ryan at the hospital, because they were the product of custodialinterrogation without the benefit of Miranda. Essentially, Pritchard contends that she was in custody when 

### Trooper Ryan questioned her, because she was immobilized on a backboard and 

### physically unable to leave. She argues that a reasonable personin thatsituationwould
not have felt free to terminate the encounterNo. 69862-1-1/7
Pritchard couches her argument in terms of Miranda and the Fifth Amendment. The State responds, citing both Fourth and FifthAmendment cases. For the purposes of our analysis, what constitutes a "seizure" under the Fourth Amendment and what constitutes "custody" under the Fifth Amendment are analogous inquiries. Whether police conduct amounts to a seizure is a mixed question of law and fact. State v. Harrington, 167 Wn.2d 656, 662, 222 P.3d 92 (2009). We give the trial court great 

### deference in resolving the facts. State v. Thorn, 129 Wn.2d 347, 351, 917 P.2d 108 

### (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d 564, 62 P.3d 489 

### (2003). But, the ultimate determination ofwhether those facts constitute a seizure is
one of lawthatwe review de novo. Jd. We reviewwhethera defendantis incustodyfor 

### Mirandapurposes de novo. Statev. Lorenz, 152Wn.2d 22, 36, 93 P.3d 133 (2004). 

### A person is "seized"if, viewing all the circumstances surrounding the incident, a 

### reasonable personwould havebelieved he orshewas not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980). Examples 

### of such circumstances include the threatening presence of several police officers, 

### display of a weapon, some physical touching of the person, or use of language or tone of voiceindicatingthat compliancewiththe officer's request mightbecompelled. Id The "free to leave" test is not automatically satisfied when a person is not 

### physicallyfree toleave. See Floridav. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991). Rather, the crucialtest is whether a reasonable personwouldfeel free to decline the officer's requests or otherwise terminate the encounter. Id. For instance, in Bostick, the defendant was waiting on a bus when police boarded for 

### random drug interdiction, jd. at 431. They asked to inspect Bostick's ticket andNo. 69862-1-1/8 identification, and they requested to search his luggage, jd. at 431-32. The Court explained thatthe mere fact that Bostick did not feel free to leave the bus did not mean that the police seized him. ]d_. at 436. His freedom of movement was restricted by a factor independent of police conduct, because the bus was about to depart. Id. 

### Therefore, though Bostick's movements were confined, that said nothing aboutwhether
ornotthe police conductwas coercive, jd. 

### Similarly, not all physical restraints on freedom ofmovement amount to custody for Fifth Amendment Miranda purposes. Howes v. Fields, U.S. , 132 S. Ct. 1181, 1189, 182 L. Ed. 2d 17 (2012). Instead we look to whether the environment presents 

### inherently coercivepressures like those ofpolice-dominated stationhouse interrogation, jd. at 1189-90. For instance, imprisonment, without more, is not enough to constitute 

### Miranda custody. \± at 1191. Being detained and questioned during a traffic stop is also not considered custody under Miranda, even though it significantly curtails the driver's freedom of action and few motorists would feel free to drive away without 

### permission. Berkemerv. McCartv. 468U.S. 420,436-37, 104 S. Ct. 3138, 82L. Ed. 2d 317(1984). This is so because atraffic stop istemporary andbrief, unlike aprolonged stationhouse interrogation, jd at 437-38. And, the circumstances of a typical traffic stop are not such that the motorist feels completely at the mercy of the police. \± at
438. 

### Here, we must consider whether a reasonable person would have felt free to terminate the encounter at the hospital and decline Trooper Ryan's requests. At the 

### CrR 3.5hearing, defense counselintroduced another trooper'sreportthat saidPritchard
was arrested at the scene. But, Trooper Ryandisagreed with the report and reiterated

8No. 69862-1-1/9
that Pritchard was not arrested at the scene. The other trooper never testified. Law enforcementdid nottransfer Pritchard to the hospital. Trooper Ryan did not accompany her there either, but rather arrived around 8:30 p.m., after he had cleared the scene of the accident. Based on this record, we agree with the trial court's finding that Pritchard
was not under arrestwhen she was transported to the hospital. Pritchard nevertheless contends that being physically immobilized and confined 

### in the hospital room constituted custody. There is no dispute that she was not 

### physically free to leave. But, like Bostick, Pritchard's confinement was unrelated to 

### police conduct. She would not have been free to leave even absent Trooper Ryan's presence. Trooper Ryan entered the emergency room area wearing his uniform, 

### badge, and sidearm. Though his weapon was visible, there is no evidence that he displayed ittoPritchard. Noris there any evidence that he touched her or came in any physical contactwith her thatmightbe considered threatening. His questions were very 

### basic andstraightforward. Moreover, aftertelling Pritchardthat he was investigatingthe collision, Pritchard herself asked him what happened. And, perhaps most importantly, Pritchard declined to take the voluntary sobriety test. This strongly indicates that she feltfree to decline TrooperRyan's requests and terminatethe encounter. 

### Under the Fourth Amendment, a police officer who suspects that a particular 

### person hascommitted acrime mayconducta"Terrystop" anddetainthatperson briefly to investigate the circumstances provoking suspicion. Berkemer468 U.S. at 439; see Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "Withoutsuch 

### investigation, thosewho wereinnocentmightbefalsely accused, thosewho wereguilty 

### might wholly escape prosecution, and many crimes would go unsolved. In short, theNo. 69862-1-1/10 security of all would be diminished." Schneckloth v. Bustamonte. 412 U.S. 218, 225, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). TrooperRyan's encounterwith Pritchard is similar to a Terry stop. He had reasonable suspicion that Pritchard had been drinking and driving, and was entitled to investigate the circumstances provoking his suspicion. Though he suspected a DUI, he wanted to verify thatthere was not some otherinnocent
causefor the accident, like a medical condition, before arresting Pritchard. We hold that Pritchard was neither seized nor in custody when Trooper Ryan asked her questions at the hospital before formally arresting her. Though she was not free to leave due to her physical condition, a reasonable person would not have feltthat he or she was not free to decline to answer the questions asked. Therefore, the trial 

### court did not err in refusing to suppress Pritchard's pre-Miranda statements on this
basis. B. Voluntariness 

### Pritchard argues that even ifshe was not in custody for Miranda purposes, her confession was involuntary and should have been suppressed, because shewas highly intoxicated and probably inshock. Similarly, she argues that the trialcourt's finding of voluntariness did not rest on any specificfacts and was improperly based on its finding
that she was not under arrest. 

### Dueprocess requires that a confession be voluntary and not the product of police coercion. State v. Reuben, 62 Wn. App. 620, 624, 814 P.2d 1177 (1991). A coerced 

### confession may not be introduced against a defendant for any purpose. Mincev v. Arizona, 437 U.S. 385, 398, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978). A confession is 

### coerced if, based on the totality of the circumstances, the defendant's will was

10No. 69862-1-1/11
overborne. Id. at 402. We may consider factors such as the defendant's physical condition, age, mental abilities, physical experience, as well as police conduct. State v. Burkins, 94 Wn. App. 677, 694, 973 P.2d 15 (1999). Intoxication alone does not make a defendant's statements involuntary. State v. Saunders, 120 Wn. App. 800, 810, 86 P.3d 232 (2004). Rather, the intoxication must rise to a level of mania where the defendant could not comprehend was she was saying or doing. State v. Cuzzetto, 76 Wn.2d 378, 386, 457 P.2d 204 (1969). We will not disturb a trial court's determination 

### that statements were voluntary ifthere is substantial evidence inthe record from which the trial court could have found voluntariness by a preponderance of the evidence. State v. Broadawav. 133Wn.2d 118, 129, 942 P.2d 363(1997). Pritchard was intoxicated when she told Trooper Ryan at the hospital that she 

### had been drinking. But, Pritchard was able to comprehend Trooper Ryan's questions, follow the conversation, and give clear answers. There is no evidence that Trooper 

### Ryan coerced orpressured Pritchard totalk. Noris there evidence that he touched her
orused a threatening tone. Pritchardrememberedthat she had three drinks at Traylor's and one earlier in the day, and she expressed that clearly. She did not stammer and 

### Trooper Ryan could understand her. When asked if she had any medical conditions, she responded coherently that she was "pre-diabetic." She declined to take a voluntary 

### sobriety test, indicating that she understood her ability to decline Trooper Ryan's requests. Though Pritchard was immobilized on a backboard, there is no evidence in the record that shewas in pain or receiving medicaltreatment. Butcf. Mincev, 437 U.S. 

### at 398-99 (defendant was seriously wounded, suffering from nearly "unbearable" leg 

### pain, showing confusion, and police conduct was coercive). Based on all these facts,

11No. 69862-1-1/12


### we hold thatthere issubstantialevidence in the record to supportthe trial court'sfinding ofvoluntariness. Pritchard is correct that the trial court did not enter written findings and conclusions at the CrR 3.5 hearing, but issued only an oral ruling on voluntariness. A trial court's failure to submit written findings and conclusions pursuant to CrR 3.5 is
error. State v. Riley, 69 Wn. App. 349, 352-53, 848 P.2d 1288 (1993). But, such error is harmless where the trial court's oral findings are sufficient to permit appellate review. Id. Afterfinding that Pritchard was not underarrest, the courtcontinued: And so Iwill find her statements for at least purposes of [CrR] 3.5 were voluntary. There's testimony she did understand the rights and additionally that her responses were appropriate as opposed to being incoherent and under all those circumstances then I'm going to find that they're voluntaryfor purposes of [CrR] 3.5. The courtalso noted earlierthatstatements are voluntary ifthey are notthe productof a coercive situation. While not an extensive finding, the court's reasoning includes key 

### considerations indetermining whether Pritchard's statements were voluntary. Any error

was harmless.

III. Blood Test Evidence 

### Pritchard argues that her conviction was based inpart on blood test results that 

### were notdemonstrably reliable. Specifically, she contends thatthe prosecutionfailed to establish that her blood sample was properly preserved with an anticoagulant and an 

### enzyme poison. She requests that we reverse and remand her case for trial with instructions to exclude the blood test evidence. Before blood alcohol test results can be admitted into evidence, the State must 

### present prima facie evidence that the test chemicals and blood sample are free from

12No. 69862-1-1/13


### any adulteration that could conceivably introduce error into the test results. State v. 

### Wilbur-Bobb. 134 Wn. App. 627, 630, 141 P.3d 665 (2006). Therefore, to be valid, a blood test must be performed in compliance with Washington Administrative Code 

### (WAC) regulations promulgated by the state toxicologist. RCW 46.61.506(3). WAC 448-14-020(3)(b) requires: 

### Blood samples for alcohol analysis must be preserved with an anticoagulant and an enzyme poison sufficient in amount to prevent clotting and stabilize the alcohol concentration. Suitable preservatives and anticoagulants include the combination of sodium fluoride and potassium oxalate. In deciding whether to suppress blood alcohol test results, a trial court assumes the 

### truth of the State's evidence and draws all reasonable inferences from it in the light most favorable to the State. RCW 46.61.506(4)(b). Once the State makes a prima 

### facie showing of WACcompliance, thejurydetermines the weight to give the bloodtest result. RCW46.61.506(4)(c). In State v. Bosio. there was sufficient evidence of an anticoagulant, because a
nurse and state trooper saw anticoagulant powder in the vials and the blood did not coagulate. 107 Wn. App. 462, 468, 27 P.3d 636 (2001). But, while there was evidence thatfederally regulated gray-topped vials were used, there was no evidence that those vials contained an enzyme poison, jd. at 467-68. Thus, the State failed to make a primafacie showing of WAC compliance, jd. at468. Conversely, in State v. Brown, the State presented evidence that labels on the vials showed the two necessary chemicals. 145 Wn. App. 62, 76, 184 P.3d 1284 (2008). And, a toxicologist testified that the samples would have been clotted and would contain no alcohol in the absence of the two required chemicals. jcL Likewise, in State v. Steinbrunn, the State met its prima

13No. 69862-1-1/14
facie burden where a nursetestified thatthe hospital supplied the vial, and a toxicologist 

### testified that the vial manufacturer always put anticoagulants inthe vials itsent to the hospital. 54 Wn. App. 506, 513, 774 P.2d 55 (1989). 

### InPritchard's case, vials with gray stoppers were used. Such gray-topped tubes


### are federally regulated to contain an anticoagulant and an enzyme poison. TheWSTL 

### prepares the vials accordingly and distributes them to the Washington State Patrol 

### (WSP). Usuallythe contents of aparticulartube areverified bycomparingthe tube'slot numberwith a certificate of compliance kept by the WSP. Here, the tubes' lot number 

### was covered by an evidencelabel. As a result, the State was unable to produce the tubes' certificate ofcomplianceestablishingthat theybelongedto a batchmanufactured and tested to meettheWAC requirements. 

### However, the State forensic toxicologist who tested Pritchard's blood samples 

### explained that ifthevials did not contain ananticoagulant, theblood would beclotted and appear almost solid. Pritchard's blood samples were liquid when tested. As in Brown, this is sufficient evidence to show that the anticoagulant was properly in the blood sample. 

### The State also introduced chain of custody evidence to show that the vials 

### contained an enzymepoison. Thetoxicologist testified that theWSTL prepares gray

### topped vials in accordance with theWAC and then sendsthem to theWSP. Trooper 

### Ryan testifiedthatthetwo gray-topped vials heused werefrom his office and supplied bytheWSP's evidence technician. The vials appeared to beclean, dry, and vacuum sealed. Hegavethetwo vials to thephlebotomistwho conductedthelegal blood draw 

## in Trooper Ryan's presence. He then took the vials and put them in the WSP's

14No. 69862-1-1/15


### evidence system to be sentto the WSTL for analysis. The toxicologist testified that the vials arrived inthe mail, sealed and unadulterated. And, the State introduced photos of the vials at trial with Trooper Ryan's and the phlebotomist's initials on them. Given all 

### this evidence, we holdthatthe State met is prima facie burden ofdemonstrating thatthe 

### vialscontained an enzymepoison as required bytheWAC.5 Once the State met its prima facie burden, the defense was entitled to challenge the accuracy ofthe test results, and did so. State v. Straka, 116 Wn.2d 859, 875, 810 P.2d 888 (1991). On cross-examination, the toxicologist admitted that once blood was in the vials, there was no way to verify that an enzyme poison was present without the lotnumberfor comparison. But, she reiterated that it is routine practiceforthe WSTL to provide the WSP with gray-topped tubes with the appropriate amount of anticoagulant and enzyme poison. The jury was then entitled to determine the weight to give the evidence. RCW46.61.506(4)(c).

IV. Nurse-Patient Privilege and HIPAA 

### Pritchard argues that testimony from Registered Nurse Tim Peterson, who attended her at the emergency room, violated her nurse-patient privilege. Pritchard challenges two aspects of Nurse Peterson's testimony. First, he testified that Pritchard
was admitted to the emergency room around 8:00 p.m. and discharged at 12:10 a.m. Second, he testified that Pritchard did not receive any fluids or medication prior to the legal blood draw.



### 5 And, the fact that alcohol was detected in Pritchard's blood sample further indicates that an enzyme poison was present to preserve and stabilize the alcohol contentofthe samples. See Brown, 145Wn. App. at76.
15No. 69862-1-1/16 Interpretation of a privilege statute is a question of law that we review de novo. 

### Drewett v. Rainier Sch.. 60 Wn. App. 728, 731, 806 P.2d 1260 (1991). RCW 5.62.020 provides that, unless the patientconsents to disclosure, No registered nurse providing primary care or practicing under protocols..
. may be examined in a civil or criminal action as to any information acquired in attending a patient in the registered nurse's professional capacity, if the information was necessary to enable the 

### registered nurse to actinthatcapacityforthepatient.161 However, ifany violation ofPritchard's nurse-patient privilege occurred, itwas harmless. Pritchard contends that the testimony helped clarify the timeline of her blood draw and
was relevant to the toxicologist's retrograde extrapolation analysis. But, separate testimony established the time ofthe accident and the time of Pritchard's legal blood draw, which is the relevant time frame to calculate intoxication under RCW 46.61.502. 

### The State toxicologist also testified that the blood test procedure separates drinking alcohol (ethanol) from other alcohols and compounds found inthe blood. Essentially, 

### the testing process eliminates any substances that would interfere with detection of ethanol. The testimony that no fluids or medications had been administered was not 

### necessary to establish the validity of the blood alcohol test. Therefore, none of the challenged testimonywas necessaryto sustain Pritchard's conviction.


### 6 But, the State points out that RCW 5.62.020 appears to conflict with RCW 70.02.050(1)(k), which permits disclosure: 

### To fire, police, sheriff, or another public authority, that brought, or caused 

### to be brought, the patientto the health care facility or health care provider if the disclosure is limited to the patient's name, residence, sex, age, 

### occupation, condition, diagnosis, estimated or actual discharge date, or extent and location of injuries as determined by a physician, and whether the patientwas conscious when admitted. 

### Pritchard does not respond to the State's argument or discuss RCW 70.02.050(1 )(k) 

### anywhere in herbriefing. We need not resolve any alleged conflict.

16No. 69862-1-1/17


### Pritchard also argues that Nurse Peterson's testimony violated her rights under HIPAA. HIPAA restricts health care entities from disclosing protected health information. Llovd v. Valley Forge Life Ins. Co.. No. C06-5325 FDB, 2007 WL 906150, 

### at *3 (W.D. Wash. Mar. 23, 2007). But, HIPPA permits disclosure in judicial 

### proceedings in response to a court order orsubpoena, ifnotice is given and the parties 

### agree to a qualified protective order. 45 C.F.R. § 164.512(e)-(f). Without anyfurther explanation or argument, Pritchard contends that the State failed to follow the correct HIPAA procedures in securing Peterson's testimony. However, the record shows that Nurse Peterson was subpoenaedtotestify. And, the court entered a protective order to 

### preventdisclosureofPritchard's medical records. Wefind noHIPAAviolation. Wefind no erroraffecting thespecialverdictfordriving undertheinfluenceor her
sentence based on her intoxication level. We affirm.

WE CONCUR:



# ^ *JJ<^ 

# Acl. 

# %eck^\SL T

17