NO. 83-162 INTHE SUPREMECOURTOF THE STATEOF MONTANA 1984

STATEOF MONTANA, Plaintiff andAppellant,

-vsARTHUR LEROY IJIAGNUSON, Defendantand Respondent.

APPEAL FROM: DistrictCourt of the Fourteenth Judicial District, Inand for the County of Musselshell, TheHonorable Roy Rodeghiero,Judgepresiding.

COUNSEL OF RECORD:

ForAppellant: Hon. Mike Greely,Attorney General, Helena, Montana Mary KayWheeler, 3rd Yr. Law Student, introduced by JamesMcLean,Asst. Atty. General,argued for the State JohnL. Pratt,CountyAttorney, Roundup,Montana

For Respondent: Kathryn R. Baylis argued, Roundup,Plontana

Submitted: March 2, 1984 Decided: June 12,1984

Filed: 

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-- ClerkMr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

The State of Montana appeals from an order of the District Court, Fourteenth Judicial District, Musselshell County, dismissing a charge of operating a motor vehicle while under the in£luence of intoxicating liquor against the defendant,Arthur LeroyMagnuson. We reverse. On the afternoon of July 29, 1982, Magnuson became intoxicated and drove away from the Kee Angus Ranch in Musselshell County in his blue Ford Bronco. Before he left he had been confronted by Mary Kee, a friend, who knew he had been drinking. Mary Kee had attempted to persuade Magnuson not to drive and had taken the keys to his Bronco. Magnuson found another set of keys and left the ranch. Kee, concerned that Magnuson was driving while intoxicated, called the Sheriff's Office, hoping to speak with Sheriff Brian Neidhardt, a friend of ~eeg.As Sheriff Neidhardt was not there Kee called the Alcoholics Anonymous number listed in the local newspaper. Kee spoke with Mac House, the director of the Musselshell County Drug and Alcohol Program. Kee did not know that Magnuson was in treatment with Mac House at that time and had never spoken with Mac House prior to the phone call. Kee told House about the problem and the two of them agreed to let matters take their course. After receiving Keels phone call, House discussed the situation with Undersheriff Floyd Ray Fisher. House advised Undersheriff Fisher that Magnuson was intoxicated and was driving his Bronco. Undersheriff Fisher later testified that he had seen the vehicle around town at a few of thedifferent bars, and that after House described the vehicle to him, he remembered the vehicle. House also advised Undersheriff Fisher that Magnusons's usual hangout was Tracy's Bar. Undersheriff Fisher asked House if he wanted to accompany him and the two of them got into Fisher's vehicle. As Fisher drove toward Tracy's Bar, he and House saw Magnuson's vehicle coming in the opposite direction on Highway 87. Fisher later testified that Magnuson had "approximatelya quarter toalmosthalf of hisvehicle inmy lane of traffic." As Fisher followed Magnuson, "he turned his right hand blinker on tomake a right hand turn, and thenmade a lefthand turn." After Fisher stopped Magnuson he approached the vehicle and when Magnuson opened the door of his vehicle, Fisher "could smell alcohol, a very strong odor of alcohol." When Fisher asked Magnuson to stepout of the vehicle Magnuson "had to take hold of the door to keep from falling to the ground." When Fisher asked Magnuson tosaythealphabet hecouldonlymake it as faras G. When Fisher asked Magnuson if he could walk a straight line, heel to toe, Magnuson "had to take several steps sideways to keep from falling down." Fisher then arrested Magnuson and advisedhim of hisMiranda rights. Based upon the affidavit of the county attorney, the District Court granted a motion for leave to file an information against Magnuson charging him with violating Section 61-8-401, MCA, drivingwhile under the influence of intoxicating liquor. The county attorney's affidavit indicated that a teletype report on Magnuson showed four prior convictions for driving while under the influence inIowa between January 17, 1980 and May 26, 1981. The issue to be resolved by this Court concerns the effect of federal statutes and regulations upon a state criminal prosecution for driving under the influence. The federal statutes and regulations require that patient records maintained in connection with theperformance of any program or activity related to alcohol abuse treatment remain confidential. The State concedes that the Musselshell County Drug and Alcohol Program is federally funded and the record shows thatMagnuson had been attending counseling sessions with Mac House for approximately six weeks before he was arrested. On motion of the defendant to dismiss, the District Court found "that the information provided 

### by 

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# . . Mac House to 

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# . . Fisher. 

# . . was tainted within the prohibition" of Title 42 U.S.C.A. Sections 4582(a) and (c) and 42 C.F.R. Section 2.11(0). As a result, the District Court dismissed the driving while intoxicated charge against Magnuson and the State appealed. The first issue is whether Title 42 U.S.C.A. Section 4582 applies to the information House provided Undersheriff Fisher concerning the fact that Magnuson was driving while intoxicated. The federal statutes involved in this case are as follows: "Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United Statesshall, except as provided in subsection (e)be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. 4 2 U.S.C.A. Section 4582 (a). "Except as authorized by a court order granted under subsection (b)(2)(c) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate anv criminal charges against a patient or to conduct any investigation of a patient." 42 U.S.C.A. Section 4582(c) (Emphasis added). The applicable federal regulations in this case are these: "Records. The term records' includes any information,whether recorded or not, relating to a patient, received or acquired in connection with the



### ............................... performance of any alcohol abuse or drug abuse prevention function, whether such receipt or acquisition isby a program, a qualified service organization, or any other person. 42 C.F.R. Section 2.11(0). (Emphasisadded.) "Except as provided in paragraph (b)of this section, this part applies to records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any alcohol abuse or drug abuse prevention functions. 42 C.F.R. Section 2.12

"(3) Which is assisted by funds supplied by any department or agency of theUnited States,whether directly through a grant, contract or otherwise, or indirectly by funds supplied to a State or local government unit through the medium of contracts, grants of any description, general or special revenue sharing, or otherwise 

# . 

# . . 42 C.F.R. Section 21.12(a)(3). "The term 'alcohol abuse or drug abuse prevention function'means any program or activity relating to alcohol abuse or drug abuse education, training, treatment, rehabilitation, or research

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# .." 42C.F.R. Section 211(k).Resolution of the first issue in this case depends upon whether the information House communicated to Fisher

was within the definition of "records" as that term is defined in 42 C.F.R. Section 2.1(0). That determination depends onwhether House wasperforming an "alcoholabuseor drug abuse prevention function" as defined in 42 C.F.R. Section 2.11(k) at the time he received the information. The information conveyed from House to Fisherwas that Magnuson was intoxicated;that he was driving a Bronco; that House wanted Fisher to watch out for Magnuson; and Magnuson's usual hangout. Respondent asserts that part of the information conveyed from House to Fisher--information about the kind of car Magnuson would be driving, aswell as his usual hangout--came from the client-counselor relationship. However, Undersheriff Fisher testified that after House described Magnuson's vehicle he remembered it because he had observed it at some of the local bars on prior occasions. If the information was within the prohibition of the federal legislation it must be

# ".

.

# . received or acquired in connection with the performance of any alcohol abuse or drug abuse prevention function." Alcohol abuse prevention function means

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.. any program or activity relating to alcohol abuse 

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# . education, training, treatment, rehabilitation, or research." The issue thus becomes: was House involved in a program or activity related to alcohol abuse education, training, treatment, rehabilitation or research at the time he received the information from Mary Ree? Clearly he was not, and the informationdoes not fall within the scope of the federal legislation.Inaddition, the federal legislationdoesnot applyin this case because the information received by Undersheriff Fisher from House was not used to "initiate or substantiate any criminal charges" against Magnuson. See 42 U.S.C.A. Section 4582(c). The arresting officer testified that the basis for Magnuson's arrestwas not the information received from House but, rather, hisobservationsof Magnuson weaving down the highway, exiting the car with difficulty, smelling of alcohol and failingbasic sobrietytests. Next, the State argues that suppression of the evidence was an erroneous remedy for violating the federal statute because the proper remedy under Title 42 U.S.C.A. Section4582 isa fine. Title 42 U.S.C.A. Section 4582(f), provides: 

### "[alny person who violates any provision of this section or any regulation issued pursuant to this section shall be fined not more than $500 in the case of a firstoffense, and not

more than $5,000 inthecaseof each subsequent offense." Inmaking itsdecision, theDistrictCourt stated

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. from the evidence presented that the information provided by alcohol and drug abuse counselor Mac House to Deputy Sheriff Floyd Fisher, leading to the arrest of the Defendant, was tainted within the prohibition of [the federal statutes]." However, when 42 U.S.C.A. Section 4582 is read as a whole, it is clear that the remedy Congress intended for a violation of one of its confidentiality provisions is a fine as provided in 42 U.S.C.A. Section 4582(f). Rules of statutory construction dictate that legislation must be read as a whole in order to ascertain legislative intent. Wynia v. City of Great Falls (1979),183 Mont. 458, 600 P.2d 802. The fact that a remedy is provided in the legislation indicates that Congress considered thepossibility of a violation and determined the appropriate remedy for that violation. If Congress had intended that suppression and dismissal were the appropriate remedies for a violation of a confidentiality it would have

soprovided. Since the issues previously discussed are dispositive of the case we need not consider the other issue raised by the State. Reversed and remanded for further proceedings in accordance with this opinion.

We concur:

Chief Justice 

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JusticesMr. Justice JohnC. Sheehy,dissenting:

The facts recited in the majority opinion require further elaboration. After the telephone conversation with Mary Kee, Mac House went out and searched for Undersheriff Floyd Fisher, whom he found at the Cattlemen's Restaurant, having his dinner at 8:30 p.m. House advised Undersheriff Fisher that he had information that Arthur Magnuson was intoxicated and was drivinghis Ford Bronco. In response to questions from Fisher, House described the vehicle that Magnuson was driving, and from the description Fisher remembered the vehicle as he had seen it parked outside of bars in the vicinity. House also advised the undersheriff that Magnuson's usual hangout was Tracy's Bar. When he had finishedhis dinner,the undersheriffasked House ifhewould "liketo take a ride" and the two of them got into Fisher's vehicle. As they drove toward Tracy's Bar, they saw Magnuson's vehicle coming in the opposite direction on Highway 87. Fisher observed thatMagnuson

### 'svehicle crossed the centerline several times and exhibited other signs of erratic driving. The State concedes that theMusselshell County Drug and Alcohol Program is federally funded, and the record shows thatMagnusonhad been attending counseling sessions withMac House for six weeks to twomonths before the driving charge occurred. The State first contends that the information received by House from Fisherwas not the kind of patient information which Congress intended toprotect. The Statehaspointed to 42 C.F.R. 5j 2.11 (0)

## , which defines records as including information "received or acquired in connection with theperformance of any alcohol or drug abuse prevention function." The term "record" isvery broadly defined in the federal regulation. It is not limited to information received from thepatient alone, but includes "any information" recorded or unrecorded, "relatingto apatient." When Mary Kee used the telephone here looking forhelp, the number that she called was answered by Mac House, from the Musselshell Drug and Alcohol office. The information which she relayed to him about Magnuson "related to a patient.

### " That information, and the further information about Magnuson's usual hangout which apparently Mac House also knew, were relayed by him to Undersheriff Fisher. I determine that such information is included within the term "record" the relaying of which is prohibited by the federal regulation. It is a close question whether the information conveyed by House to Fisher was used to initiate criminal charges againstMagnuson. Itdoes appear clear from the record that while Fisher was investigatingMagnuson in the presence and with the cooperation of House that the criminal chargeswere initiated, based upon the observations that Fisher made during the investigation. The State contended and the majority apparently agrees that Congress did not intend to create a "sanctuary" for a patient from prosecution for its criminal acts. Whatever that may mean, it is fully clear that Congress did intend that no informationregardingapatient shouldbe impartedby one who obtained the information in a federally-funded program to initiate or substantiate any criminal charges against the patient or to conduct any investigation of apatient. Here Arthur Magnusonwas a patient,and Mac House, who was treating him under a federally-funded program used confidential information gained through suchprogram to cause

an investigation tobemade ofMagnuson. As to whether the prohibition against release of information under the federally-funded program should be balancedwith statepolicy againstdrunk driving,the line of demarcation is obviously hard to draw. Certainly therewill be instances where the severityof the crimeor the danger to society will be of such gravity as to require a prosecution

even though information from such a federal-ly-fundedprogram

was obtained. What is overweighing in this case,however, is not only thatMac House supplied the informa-tion, but thenhe actively participated in the investigation by accompanying the deputy to a place where Magnuson could be found. In so doing, he abused all the principles of the confidential relationship in which he was a paid participant. Certainly Congress did not anticipate that kind of use of its statutorily-protected information. Finally I disagree with the majority that the remedy provided in Title 42U.S.C.A. S 4582 is sufficientto enforce the provisions of the confidentiality of information under the federal provisions. The majority finds that the remedy provided in the federal act is enough for the Congress intendednomore. The answer to that contention is found in reviewing the Congressional. reasons for establishj-ngthe federally-funded project. The object is to attractpatients, free from stigma and criminalprosecution fromwhatmay be revealedby them in the course of their treatment. A mere fine against the violator of such confidence does not protect the patientwhose confidencehasbeen abused. It is moreby assuring the confidentialityof such information in this instance than in fining Mac House,that these objectiveswillbe achieved. In fact the record is hare in this case that any retributive action has been brought against Mac House for his obvious violation of the confidentialrelationship. I would determine that the federal statute, with its obvious objectives, makes it imperative that we do not enforce criminal prosecutions based on information received from persons who seek help from alcoholism in federally-fundedprojects. Iexpressly dissent.

Mr. Justice Daniel J. Shea dissents,andwill file awritten dissent later.