People v. Keskimaki , 446 Mich. 240 ( 1994 )

446 Mich. 240 (1994) 521 N.W.2d 241

PEOPLE
v.
KESKIMAKI

Docket No. 97060, (Calendar No. 1).

Supreme Court of Michigan.

Argued May 5, 1994. Decided August 23, 1994.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Scott K. Hanson and Terrence E. Dean, Assistant Prosecuting Attorneys, for the people.

Mark Peter Stevens for the defendant.

BRICKLEY, J.

We granted leave in this case to determine whether the accident exception^[1] to the physician-patient privilege contained in subsection 9 of the implied consent statute encompasses the situation in which an occupied vehicle is lawfully "parked" on the shoulder of the roadway with headlights on and engine running. We conclude that both the trial court and the Court of Appeals erred in characterizing such a situation as an accident within the meaning of the statutory exception. Accordingly, we vacate the decisions of the trial court and the Court of Appeals and we order that the results of defendant's blood test that were previously admitted under the accident exception be suppressed.

I

FACTS

Our review of the record supports the following facts. On February 2, 1991, at approximately 6:48 P.M., a Republic Township^[2] police officer observed the defendant's vehicle lawfully "parked"^[3] on the shoulder of the roadway, with headlights on and motor running. Tire tracks in the snow indicated that the vehicle had traveled in a straight line, following its departure from the roadway. Stopping his car to investigate further, the officer observed the defendant slumped over the steering wheel, apparently unconscious and breathing erratically. Using a "slim jim" to unlock the defendant's car, the officer attempted to rouse defendant by shaking him. When defendant failed to respond, the officer summoned emergency medical services (EMS) to transport defendant to Bell Memorial Hospital in Ishpeming, where a blood sample was drawn and analyzed, revealing a blood alcohol content greater than 0.1 percent.

Defendant was charged with operating a motor vehicle under the influence of intoxicating liquor per se^[4] and, alternatively, operating a motor vehicle while visibly impaired, second offense.^[5]

Defendant filed a motion to suppress the results of the blood tests, arguing that he had not been involved in an accident as required under the accident exception, and that, consequently, the results were not admissible under MCL 257.625a(9); MSA 9.2325(1)(9).^[6] The district court denied defendant's suppression motion, ruling that an accident had occurred within the meaning of the statute, rendering the results of the blood test admissible.

Defendant challenged the district court's ruling in an interlocutory appeal in the circuit court, but the circuit court affirmed the district court's order, and denied defendant's motion for reconsideration.

The Court of Appeals granted defendant's interlocutory application for leave to appeal, and affirmed the lower courts' decisions in an opinion per curiam issued June 22, 1993.^[7] While recognizing that a lawfully parked car, without more, cannot logically be considered an accident, it nevertheless determined that the totality of the circumstances mandated the conclusion that an accident had occurred and that the results of the blood test were properly admitted under the accident exception. MCL 257.625a(9); MSA 9.2325(1)(9). In support of its conclusion, the Court of Appeals cited Tope v Howe, 179 Mich. App. 91; 445 NW2d 452 (1989), a case in which the Court of Appeals had struggled with the problem of determining what constituted an "accident" for purposes of the provision for arrest without a warrant embodied in the implied consent statute.^[8] The Tope Court adopted the following definition of "accident," which had been promulgated twenty-six years earlier in an insurance dispute:

[A]n "undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected." [Tope, supra at 99, quoting Guerdon Industries, Inc v Fidelity & Casualty Co of New York, 371 Mich. 12, 18-19; 123 NW2d 143 (1963).]

Applying this to the case at bar, the Court of Appeals concluded that a car parked alongside the highway with its engine running, its lights on, and its driver slumped over the passenger seat, unable to be easily aroused, when considered in its entirety, constituted

"an ``undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected.'" [200 Mich. App. 277, 281; 503 NW2d 755 (1993).]

On this basis, the Court of Appeals denied defendant's motion to suppress.

On March 21, 1994, we granted defendant's application for interlocutory leave to appeal,^[9] and we now vacate the decisions of the lower courts and order that the results of the blood test be suppressed.

II

The sole issue before this Court on appeal is whether defendant was involved in an "accident" within the meaning of the accident exception^[10] to the physician-patient privilege.^[11] Perhaps partly because of its belief that the meaning of the word "accident" was intuitively apparent, the Legislature neglected to define this term when it enacted this legislation. Despite this apparent omission, we have never before endeavored to provide a functional definition of "accident" applicable to subsection 9 of the implied consent statute. Although we have ascribed meaning to this term in the insurance setting, we conclude today that the expansive definition of "accident" adopted by this Court within the insurance context cannot be blindly transported into the criminal arena. Accordingly, we turn our attention to the statute and the case law in an effort to determine the appropriate meaning of "accident" under the accident exception.

A

Generally, information relating to medical treatment falls within the ambit of the physician-patient privilege, and remains confidential.^[12] Subsection 9 of the implied consent statute, however, carves out a limited exception. At the time of the alleged "accident," MCL 257.625a(9); MSA 9.2325(1)(9) stated in pertinent part:

If after an accident the driver of a vehicle in the accident is transported to a medical facility and a sample of the driver's blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol ... in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. [Emphasis added.]

Pursuant to this section, results of a defendant's blood tests may be obtained irrespective of whether the physician-patient privilege has been waived or a valid search warrant has been obtained. The admission of such evidence at trial in accordance with this subsection violates neither the Fourth Amendment's prohibition of unreasonable searches and seizures nor the physician-patient privilege.^[13]

In People v Perlos, 436 Mich. 305, 328; 462 NW2d 310 (1990), we examined the constitutionality of subsection 9 of the implied consent statute, and concluded:

We find subsection 9 to be a carefully tailored statute which only allows chemical test results to be turned over to the state under narrowly defined circumstances, if the state requests them. For the statute to apply there first must be an accident, a person must be taken to a medical facility, the person must have been the driver of a vehicle involved in the accident, and medical personnel must order a chemical analysis, on their own initiative, for medical treatment. This is not a sweeping abandonment of the physician-patient privilege. Prosecutors can only gain access to chemical test results. They cannot obtain all of a person's medical records, nor can they obtain a blood sample for their own discretionary testing. Consequently, within narrow parameters, the Legislature has created a minor exception to the physician-patient privilege.

It is this "minor exception" that we seek to interpret and apply in the instant case. We are constrained in this endeavor by the well-established canon of statutory construction that compels the judiciary to seek to effectuate the intent of the Legislature. Marquis v Hartford Accident & Indemnity (After Remand), 444 Mich. 638; 513 NW2d 799 (1994). In doing so, we must employ the "ordinary and generally accepted meaning of the words used by the Legislature." Lorencz v Ford Motor Co, 439 Mich. 370, 376; 483 NW2d 844 (1992). Ever mindful of these guiding principles, we commence an examination of the purposes underlying the statute.

B

The legislative purposes underlying the accident exception were articulated in Perlos, supra, where we observed that subsection 9 was designed to promote the safety of both the public and the drunk driver. Perlos, supra at 333. Public safety is enhanced by simplifying the prosecution of drunk drivers; this "ease[] of prosecution" flows naturally from subsection 9's authorization of the admission into evidence of blood-alcohol content test results obtained without a warrant.^[14] The injured drunk driver's safety is facilitated by allowing police to acquire the test results without a warrant, thereby eliminating any potential delay in securing prompt medical attention resulting from the police officer's need to effectuate a lawful arrest; arresting the driver before the administration of the blood-alcohol test is not a prerequisite for admission of the test results. Cognizant of the recognized purposes underlying the provision, we turn now to the relevant case law.

C

Initially, we note that neither our Court nor the Court of Appeals has had occasion to define "accident" under the accident exception. We are not without guidance in this endeavor, however, as both the Court of Appeals and courts of foreign jurisdictions have grappled with assigning meaning to the term "accident" under relevant criminal statutes.

1

In Tope, supra, the Court of Appeals was presented with the problem of defining "accident" under the provision for arrest without a warrant of the implied consent statute.^[15] The plaintiff was arrested for driving under the influence of intoxicating liquor after she had driven her car over a lawn in the middle of a bright, autumn day, for no apparent reason.^[16] Upon dismissal of the criminal charge, the plaintiff filed a complaint against the arresting officers alleging, inter alia, false arrest and false imprisonment. The lawfulness of the arrest without a warrant hinged on whether the plaintiff's actions could be classified as an accident.^[17] After acknowledging the absence of a definition of "accident" within the criminal context, the Court of Appeals proceeded to embrace a definition of "accident" advanced in the insurance setting, concluding that there was

no reason to believe a different definition would prevail in the context of driving under the influence of intoxicating liquors or controlled substances. [Tope, supra at 99.]

Consequently, "accident" was defined as:

[A]n "undesigned contingency, a casualty, a happening by chance, something out of the usual course of things, unusual, fortuitous, not anticipated, and not naturally to be expected." [Tope, supra at 99, quoting Guerdon Industries, Inc v Fidelity & Casualty Co of New York, supra at 18-19.]

We decline to adopt such an expansive definition of "accident" within the context of the accident exception at issue. Although this definition contains many words often employed in describing an "accident," it is both over inclusive and under inclusive. Its over inclusiveness is evident from the case at bar. Despite the seemingly calculated nature of the defendant's conduct in driving his car off the road, such action, when viewed from the perspective of an observer, may be characterized as being "out of the usual course of things," and thus classified as an accident, contrary to our holding today. Its under inclusiveness is evident from the definition's ostensible exclusion of intentional conduct from the realm of "accident." We conclude below that both intended and unintended conduct may properly be classified as an "accident" within the meaning of the accident exception. Accordingly, we reject this definition of accident and commence an examination of the interpretation of "accident."

2

The problem of defining the parameters of an accident arose in People v Martinson, 161 Mich. App. 55; 409 NW2d 754 (1987). The defendant was convicted of assault with a dangerous weapon and leaving the scene of a personal injury accident, both of which stemmed from his actions in spraying the victim with a fire extinguisher and using his automobile to pin the victim between two cars before driving away. The defendant argued that he could not be convicted of both crimes on the same facts because the former was premised on an intentional act, while the latter, involving "accidents," could apply only to unintentional conduct.

The Court of Appeals rejected this argument, concluding:

Where the term accident appears in criminal statutes which forbid leaving the scene of a personal injury accident, courts in other jurisdictions have interpreted accident to include intentional conduct, reasoning that such statutes are not concerned with the cause of an accident but are intended to include all automobile collisions. [Martinson, supra at 57. Citations omitted.]

We believe two points should be extracted from this case. First, that the intent of the actor, though relevant, is not controlling in determining whether an accident has occurred,^[18] and secondly, that the term "accident," when modified by "automobile," generally refers to a collision.^[19]

3

Our Court of Appeals had the opportunity to apply the accident exception in People v Stoney, 157 Mich. App. 721; 403 NW2d 212 (1987). The determinative issue in that case, as in the case at bar, concerned the admissibility of blood-alcohol content test results. The defendant was bleeding and incoherent when discovered at the scene of an accident and two other passengers in his car were also injured. The Court of Appeals concluded that the test results were admissible because the tests had been performed by medical personnel after the defendant had been transported to a hospital for treatment following the accident.

This case is instructive for two reasons. Initially, we note the lack of analysis in the Court's determination that an accident had occurred. The obvious explanation is that it will often be readily apparent that an "accident" has occurred.^[20] In this case, the serious injury sustained by both the driver and the passengers dispels any doubt that they were involved in an accident. The second point meriting consideration is a natural corollary to the first. While not dispositive, it is often the case that an accident will spawn either personal injury or property damage.^[21] Although the absence of injuries or property damage cannot conclusively prove the nonoccurrence of an accident, the existence of either of these following a collision compels the conclusion that an accident has occurred.

4

The dilemma of determining whether an accident had occurred was again before the Court of Appeals, though within a slightly different context,^[22] in People v Spencley, 197 Mich. App. 505, 506; 495 NW2d 824 (1992). The facts of that case are similar to the facts presented in the case at bar. The defendant's automobile was partially parked on the shoulder of US 31 and partially in a motel driveway. Its lights were on and the engine was running, with defendant crouched down behind the wheel, asleep. A strong odor of alcohol permeated the vehicle.

The issue on appeal was whether the officers had the authority to arrest the defendant where the offense was committed outside the officers' presence and the arrest was effectuated without a warrant. The validity of this misdemeanor arrest without a warrant hinged on whether it fit within an exception to the warrant requirement. One such exception exists when an accident has occurred. See MCL 764.15(1)(h); MSA 28.874(1)(h). Consequently, the validity of the arrest was necessarily contingent on whether an accident had occurred. Without engaging in any analysis, the Court proceeded to state in conclusory fashion that the defendant had not been involved in an accident and that the arrest was illegal. Spencley, supra at 505. The importance of this case lies in its illustration that the unusual nature of an event is not necessarily sufficient to render it an "accident."

5

Finally, we survey the definition of accident found in both the American Heritage Dictionary and Black's Law Dictionary.^[23] Accident has been defined by the American Heritage Dictionary (new college ed), p 8, as "[a]n unexpected and undesirable event; a mishap." Black's Law Dictionary offers the following as the most commonly accepted meaning of the word accident:

"[A] fortuitous circumstance, event, or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens...." [6th ed, p 15.]

The key point to be distilled from these definitions is that an accident often encompasses an event that is undesirable for and unexpected by at least one of the parties involved.^[24] This factor, however, is not dispositive. Despite the Court of Appeals apparent ruling to the contrary, the unexpectedness or undesirability of an event viewed from the perspective of a policeman coming on the scene is not necessarily sufficient to classify the incident as an "accident." Rather, it is only one of many factors to be considered. With this in mind, we turn now to the rule to be derived.

III

A

We do not attempt to propound a general definition of "accident" applicable to all criminal statutes, or even to only the accident exception. Rather, we believe that the determination whether an accident has occurred will depend on an examination of all the circumstances surrounding an incident.^[25] Although we are declining to formulate a precise definition of the term, we think the relevant factors used in making such a determination can and should be delineated. Accordingly, we believe consideration should be given to whether there has been a collision,^[26] whether personal injury or property damage has resulted from the occurrence, and whether the incident either was undesirable for or unexpected by any of the parties directly involved. While we do not intend this to be an exhaustive list of factors to be considered, included are those that we believe will appear with frequency in true "accidents"; such factors may be regarded as the distinguishing characteristics of an accident. With these considerations in mind, we turn now to their application in the case at bar.

B

As stated above, defendant's vehicle was lawfully "parked" on the shoulder of the roadway, with its headlights on and its motor running. Tire tracks in the snow established that defendant's vehicle had traveled in a straight path upon leaving the roadway. Defendant was slumped over the steering wheel, breathing erratically and seemingly unconscious. There was no sign of a collision, no evidence of property damage, and no apparent personal injury, other than visible intoxication. Because the defendant was the only party involved in the incident, we need only examine whether such incident was undesirable for or unexpected by him. It seems clear that these circumstances were neither undesirable for nor unexpected by defendant. Rather, it appears as though he parked on the side of the road in order to sleep off the effects of alcohol, leaving his car running in an attempt to stay warm on this February night in Marquette County. Consequently, we conclude that the events that led the officer to believe that an accident had occurred were neither undesirable for nor unexpected by the defendant, but, instead, embodied a calculated effort on defendant's part to mitigate the potential harm stemming from his intoxication.

Consideration of these factors compels the conclusion that defendant was not involved in an accident as required under the statutory exception. We believe this result is also supportable from a policy perspective. We noted earlier that one of the purposes of the accident exception was to facilitate the safety of both the public and the drunken driver. To conclude that an accident has occurred when a drunk driver has recognized his impairment and left the road in an attempt to recover his sobriety by sleeping is to discourage the one drop of sensible conduct in a sea of irresponsible action. We do not believe the Legislature intended these consequences, and we decline to interpret "accident" in a manner both inconsistent with and subversive to our perception of the legislative intent underlying the accident exception.

IV

The absence of a collision, personal injury, or property damage, and the seemingly expected and desired nature of defendant's actions in driving his car onto the side of the roadway, with lights on and engine running, compels us to conclude that the actions of the defendant cannot be construed as an accident within the meaning of the accident exception. Consequently, the results of defendant's blood test cannot be admitted into evidence on the basis of the accident exception.^[27] Accordingly, we vacate the decision of the Court of Appeals and order that the results of defendant's blood tests be suppressed.

CAVANAGH, C.J., and LEVIN, RILEY, and MALLETT, JJ., concurred with BRICKLEY, J.

BOYLE, J. (dissenting.)

The defendant argues that the trial court erred in denying his motion to suppress the results of a blood-alcohol test because this information is inadmissible under the physician-patient privilege found in MCL 600.2157; MSA 27A.2157. I disagree.

To the extent the physician-patient privilege might affect this case, it has been abrogated by MCL 257.625a(9); MSA 9.2325(1)(9). I read subsections 9 and 10 of the statute^[1] as an expansion of the implied consent statute to cover the situation in which an individual suspected of violating the laws precluding driving while intoxicated is transported to a medical facility because of a medical emergency and given a blood-alcohol test for the purpose of medical treatment.

The majority's assumption that the statute is an "accident exception" to a broadly applicable^[2] physician-patient privilege "contained" in subsection 9, ante at 242, and that if the exception does not apply, the privilege requires suppression of the evidence, is incorrect.^[3] The Legislature's purpose in enacting subsection 9 was to facilitate, not restrict, the admission of blood-alcohol test results in criminal prosecutions. The language, historical context, and common-sense construction of the statute confirms that subsection 9 does not "contain" the physician-patient privilege. Rather, it is a reporting statute that abrogates the privilege for blood samples requested by the prosecutor "for use in a criminal prosecution as provided in this subsection."

I

Subsections 9 and 10 cannot be understood without an examination of their history. These subsections were added by amendment in 1982 PA 310 in the aftermath of two decisions by this Court. See People v Keen, 396 Mich. 573; 242 NW2d 405 (1976); McNitt v Citco Drilling Co, 397 Mich. 384; 245 NW2d 18 (1976). In Keen, the Court held that a blood-alcohol test was not admissible in a criminal prosecution for manslaughter, but only in prosecutions for driving under the influence of liquor or driving impaired. In McNitt, a civil case, the Court held that a blood test taken in a hospital from an unconscious driver "who did not consent" was not admissible as evidence. The statute then in effect required that

a person under arrest "shall be advised of his right to refuse" a test and "if he refuses" the request "no test shall be given." [397 Mich. 393.]

Because McNitt's state of unconsciousness precluded a request in conformity with the statute, the Court concluded that the result was not admissible in evidence. Id. at 393-394.

In apparent response to Keen, subsection 1 of § 625a was amended in both 1978 and 1980 to expand the types of criminal prosecutions in which implied consent would be applied. See 1978 PA 572; 1980 PA 515. The amendments added operating while visibly impaired, negligent homicide, and manslaughter to a list that had previously included only driving under the influence of intoxicating liquor.

In apparent response to McNitt, the Legislature added subsections 9 and 10. See 1982 PA 310. Subsection 9 specifically responds to the rationale in McNitt, and squarely rejects it:

[T]he results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) ... regardless of whether the person had been offered or had refused a chemical test.

In addition, and even more persuasive evidence of the legislative intention to facilitate admissibility,^[4] the Legislature also explicitly responded to another rationale advanced in McNitt. In McNitt, the Court rejected the argument that the results were admissible under common law. It instead concluded that statutory authority was necessary to authorize the administration of blood tests because hospital authorities had probably taken the blood at the request of a police officer, rather than for diagnostic purposes.^[5] In subsection 9, the Legislature specifically addressed this distinction between law enforcement and diagnostic purposes by providing for admissibility of a sample withdrawn "for the purpose of medical treatment."^[6]

Although the statute provides that a "person disclosing information in compliance with this subsection shall not be civilly or criminally liable," a final reference to McNitt establishes that compliance with this subsection does not, as the majority assumes, mean that medical personnel must verify that there has been an accident. As the Court observed in McNitt, 397 Mich. 391, n 9,

The exculpation from liability is we think triggered by "the request of a police officer." Absent disclaimer by the officer that he is acting under the statute, hospital personnel are protected in relying on such a request as authorization to proceed to administer a test under the statute without independent investigation and determination whether statutory requirements have been observed.

In like manner, the exculpation from liability granted by § 625a(9) is triggered by the prosecuting attorney's request for the information. A common-sense construction of the statute would suggest, as McNitt observed, that the Legislature did not intend that medical personnel be placed in the dilemma of refusing the request for blood results until they had independently determined that the patient had been involved in an "accident."

II

In my view, the issue is not whether an "accident" occurred, but rather whether what occurred is the kind of event the Legislature contemplated when it authorized medical personnel to make diagnostic blood-alcohol tests obtainable by the prosecutor for use in evidence.^[7]

I agree with the majority that the word accident is ambiguous. However, construing subsection 9 of § 625a in pari materia with the remainder of § 625a and § 625b, I would conclude that the word "accident" in subsection 9 means an incident where, because of a medical emergency, an individual is transported to a medical facility,^[8] and is suspected of operating or being in actual physical control upon the public highway of a motor vehicle in violation of those laws specifically described in § 625a(1)(a), (b).

This construction harmonizes the language of the statute and advances the state's compelling interest in controlling the devastating human and financial toll caused by intoxicated drivers. It is also consistent with our conclusion in People v Perlos, 436 Mich. 305, 326; 462 NW2d 310 (1990), that an expectation of privacy in blood-alcohol results under subsection 9 is not an expectation the Legislature considers "reasonable." The majority correctly observes that in Perlos we recognized that the Legislature had not created a generally applicable exception to the physician-patient privilege. However, the actual holding of Perlos is that the physician-patient privilege did not preclude obtaining the blood-alcohol results.

In fact, we observed in Perlos that while the Legislature had abrogated the statutory privilege, the Legislature had not abolished the longstanding common law and that the statutorily created physician-patient privilege was "subject to many exceptions in states where it exists by virtue of statute." Id. at 327. It is more consistent with the balancing of public and private interests addressed in Perlos to conclude that subsection 9 does not abrogate a privilege for medical records generally, than it is to conclude that the privilege would surmount the common-law exceptions unless an "accident" had occurred.

This construction would also avoid creating a gap in the implied consent statute. The purpose of the statute is to force a driver suspected of being intoxicated either to consent to a blood-alcohol test or face consequences, including suspension of his operator's license and imposition of six points on his driver's record. See MCL 257.625a(6)(b)(iii); MSA 9.2325(1)(6)(b)(iii). The majority carves out an exception for defendants who are incapable either of consenting to or refusing a blood-alcohol test at the time they are found by police. It allows them to subsequently refuse to submit the only test results available — those obtained at the hospital — without facing any consequences.

The word "accident" does not restrict a hospital's duty to release the results of blood tests that were taken for medical purposes, any more than the word "driver" does.^[9] Given that one justification of physician-patient privilege is to facilitate private communications, it would be anomalous to conclude that society recognizes no privacy interest in blood-test results where an "accident" occurred, but would recognize a privacy interest in such results where a medical emergency necessitated hospital transport and similar suspicion obtained.^[10]

III

Nor can I agree that the majority's conclusion is supportable from a policy perspective. Under a variety of theories, many state courts have held that because the physician-patient privilege is not absolute, the results of blood-alcohol tests are subject to the common-law authority of the court. Irrespective of the particular rationale advanced for the result, the premise of these decisions is that the privilege must yield to the public interest in respect to blood tests taken in relation to criminal charges^[11] involving drunk driving.

In State v Robbins, 549 NE2d 1107 (Ind App, 1990), the defendant, who had been involved in a one-car accident, claimed that blood-alcohol results were inadmissible under an implied consent law that allowed testing of a person involved in "a motor vehicle accident" that involved serious bodily injury or the death of another. The court rejected the claim, noting that the section had been added to fill a gap in the statute, and that to read the section as a limitation on implied consent "would be at odds with the rest of the chapter":

[T]he statute does not create any rights in a criminal defendant, but rather limits his right to invoke a privilege. [Id. at 1109-1110.]

Other courts have addressed the privilege statutes (as opposed to the implied consent statutes). In State v Erickson, 241 NW2d 854, 864 (ND, 1976), the court held that blood samples taken pursuant to the state's implied consent laws were not "information" within the physician-patient privilege and therefore would not be excluded when the privilege was invoked. In State v Betts, 235 Or 127, 140-141; 384 P2d 198 (1963), on the other hand, the court held that physician-patient privilege statutes should be limited to criminal proceedings:

A physician attending a defendant is frequently the sole or most competent source of very relevant evidence. In the present case the physician was the person best qualified to testify to a relevant fact, — was the defendant intoxicated? In other cases the question could be, — was the defendant under the influence of narcotics or how recently did the defendant's wound appear to have been inflicted? It seems obvious that the testimony of the treating physician is highly important in many criminal cases.

We conclude that the dubious benefit provided by throwing the veil of privilege over the patient-physician relationship is outweighed in criminal proceedings by the advantage to the public secured by the efficient administration of criminal justice which is obtained by permitting the introduction of competent and relevant evidence which the physician can give about his patient. Upon the basis of this belief the Oregon statutes are interpreted as limiting the physician-patient privilege to civil proceedings.

In State v Zielke, 137 Wis 2d 39, 41; 403 NW2d 427 (1987), the Wisconsin Supreme Court squarely addressed and rejected the argument that "the implied consent law is the exclusive means by which police may obtain chemical test evidence of driver intoxication, and therefore failure to comply with the procedures set forth in the implied consent law required suppression."

Defendant Zielke was charged with homicide by intoxicated use of a motor vehicle as the result of his allegedly having struck from behind a motorcycle stopped at a red light. The impact caused the motorcycle to collide with another vehicle after which it flew through the air, crashed, and caused extensive burns to the passenger and the motorcycle driver, who died from their injuries. Zielke, who appeared confused and had himself been burned, was taken to the hospital for treatment. A blood sample was taken that was not preceded by the statutory form of rights set out in the implied consent law.

The district court held that failure to advise the defendant as provided by the implied consent law required suppression of the evidence in the prosecution of the criminal offense. The supreme court reversed, concluding that, although the state's failure to advise the defendant as provided by law would forfeit the state's right to revoke a driver's license for refusal to submit to a test and deprive it of the evidentiary benefit of the refusal, id. at 51, it did not preclude admission of other legally obtained evidence in a prosecution of offenses related to the operation of a vehicle while intoxicated:

[T]he intent of the legislature in passing the implied consent law was to facilitate the gathering of evidence against drunk drivers in order to remove them from the state's highway....

[N]othing in the statute or its history permits the conclusion that failure to comply [with the statute] prevents the admissibility of legally obtained chemical test evidence in the separate and distinct criminal prosecution for offenses involving intoxicated use of a vehicle. Such a holding would lead to an absurd and unreasonable result.... In light of the clearly articulated intent of the legislature ... and the absence of explicit legislative direction to suppress chemical test evidence for noncompliance ... it would be absurd to infer that the legislature intended that critical evidence ... must be excluded.... To so hold would give greater rights to an alleged drunk driver under the fourth amendment than those afforded any other criminal defendant. [137 Wis 2d 46, 51-52.]

I likewise find no indication in subsection 9 of a legislative intention to undermine the substantive benefits to the public in effectively enforcing the law by requiring suppression of vital evidence through the physician-patient privilege.

IV

In addition, the trial court did not err in denying defendant's motion to suppress the evidence because, even assuming for the sake of argument that the requirements of subsection 9 are not satisfied, the privilege does not entitle the defendant to the remedy he is seeking.^[12] The privilege, which the defendant may certainly continue to assert, is limited to "person[s] duly authorized to practice medicine or surgery," and applies only when not waived. On the record before me, I cannot say that either of the conditions will be satisfied, let alone both (which would be necessary if the evidence is to be excluded by way of the privilege).

First, it is far from clear that the testimony of a physician or surgeon will be necessary to introduce the blood-test results at trial. This statutory privilege, which did not exist at common law, is limited to persons "authorized to practice medicine or surgery." MCL 600.2157; MSA 27A.2157. Compare People v Baker, 94 Mich. App. 365, 368; 288 NW2d 430 (1979) (the privilege does not cover optometrists), with Saur v Probes, 190 Mich. App. 636, 638, n 1; 476 NW2d 496 (1991) (the privilege does cover psychiatrists, who are physicians). In Gilcrist v Mystic Workers, 188 Mich. 466, 477; 154 N.W. 575 (1915), this Court held that although a physician could not testify regarding an insured's admission, "[t]he statute does not exclude the testimony of the nurse." Id.

If the blood-test results can be admitted into evidence without the testimony of a physician, the privilege will not become an issue in this case.

In other circumstances, one could soundly argue that the Legislature also intended that other hospital staff would be covered by the privilege when disclosure to them "is reasonably necessary for the accomplishment of the purpose for which the physician is consulted." Rudnick v Superior Court of Kern Co, 11 Cal 3d 924, 932; 114 Cal Rptr 603; 523 P2d 643 (1974). Such an expansion would be unwarranted, however, in cases in which the people are seeking the only solid evidence whether or not a driver was intoxicated. The Legislature's intention in this area is exceedingly clear, as seen through its repeated elimination of obstacles to prosecutors for obtaining blood-test results. See above, pp 262-264. Under these circumstances, the privilege (if it applied) would serve no legitimate purpose and would simply allow a driver to conceal whether or not he had been intoxicated.

Second, even if the privilege did prevent admission of the test results during the prosecutor's case in chief, the defendant might waive that privilege through his conduct or otherwise. For example, when a patient makes his condition an issue by testifying at trial, he waives the physician-patient privilege as it relates to that fact. See People v Kayne, 268 Mich. 186, 190; 255 N.W. 758 (1934); People v Hunter, 374 Mich. 129, 133-137; 132 NW2d 95 (1965). If the defendant testifies at trial that he was not intoxicated at the time he drove, the privilege would be waived as it relates to that issue, and the blood-test result would be admissible.

V

For the foregoing reasons, I would affirm the decision of the trial court denying defendant's motion to suppress.

GRIFFIN, J., concurred with BOYLE, J.

NOTES

[1] At the relevant time, MCL 257.625a(9); MSA 9.2325(1)(9) provided, in pertinent part:

If after an accident the driver of a vehicle involved in the accident is transported to a medical facility and a sample of the driver's blood is withdrawn at that time for the purpose of medical treatment, the results of a chemical analysis of that sample shall be admissible in a criminal prosecution for a crime described in subsection (1) to show the amount of alcohol ... in the person's blood at the time alleged, regardless of whether the person had been offered or had refused a chemical test. [Emphasis added.]

[2] Republic Township is located in Marquette County, Michigan.

[3] Although the police officer initially testified that the vehicle was lawfully parked, on redirect examination, the officer explained that the vehicle was just "[p]ulled off to the side of the road. The vehicle has a standard transmission; it was in neutral." For purposes of this appeal, we need only note that the vehicle was not in motion and out of harm's way.

[4] MCL 257.625; MSA 9.2325.

[5] MCL 257.625b; MSA 9.2325(2).

[6] See n 1.

[7] 200 Mich. App. 277; 503 NW2d 755.

[8] See MCL 257.625(1); MSA 9.2325(1), which provided in pertinent part:

A peace officer may, without a warrant, arrest a person when the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a vehicle involved in the accident....

[9] 444 Mich. 973.

[10] MCL 257.625a(9); MSA 9.2325(1)(9). See n 1.

[11] MCL 600.2157; MSA 27A.2157, which provides in part:

Except as otherwise provided by law, a person duly authorized to practice medicine or surgery shall not disclose any information that the person has acquired in attending a patient in a professional character, if the information was necessary to enable the person to prescribe for the patient as a physician, or to do any act for the patient as a surgeon.

[12] See n 11.

[13] See People v Perlos, 436 Mich. 305; 462 NW2d 310 (1990).

[14] Our Court of Appeals acknowledged this same purpose in People v Stoney, 157 Mich. App. 721, 726; 403 NW2d 212 (1987), when it noted that this provision was designed to simplify the prosecution of drunk drivers by allowing prosecutors access to blood-alcohol test results performed by hospitals, without having to obtain a search warrant.

[15] MCL 257.625(1); MSA 9.2325(1). See n 8.

[16] The plaintiff's actions in driving over the lawn were observed by the homeowner and evidenced by the three ruts remaining in the lawn.

[17] See MCL 257.625(1); MSA 9.2325(1) and n 8.

[18] The intentional nature of a person's conduct does not preclude characterizing such conduct as an "accident" under subsection 9 of the implied consent statute, though it may weigh against such a classification.

[19] See State v Parker, 299 Or 534, 542; 704 P2d 1144 (1985) ("The word ``accident,' therefore, is used in a generic sense, to mean any occasion in which a driver's vehicle ``collides with' or, in other words, strikes against another object").

[20] See People v Dexter, 49 AD2d 981; 374 NYS2d 727 (1975), where the Supreme Court of New York, Appellate Division, held that an accident had occurred within the meaning of the applicable statute when the defendant's vehicle was discovered after following skid marks leading across both sides of the road, into a field, and finally ending at the defendant's vehicle, twenty-five to thirty feet off the public highway. The existence of skid marks on both sides of the road and the car's exodus into the field enabled the court to infer that the car was out of control, and thereby conclude, without analysis, that an accident had occurred.

[21] See State v DuBray, 298 NW2d 811 (SD, 1980) (Where there was noticeable damage to the headlight, headlight bezel, and the bumper guard, it was evident there had been a traffic accident).

[22] Namely, under the statute pertaining to the operation of a motor vehicle while impaired, MCL 257.625b; MSA 9.2325(2).

[23] We note that our consideration of dictionary definitions comports with our mandate to employ the "ordinary and generally accepted meaning of the words used by the Legislature." Lorencz v Ford Motor Co, supra at 376.

[24] Although we note that it is often unexpected and undesired by one of the parties, we are not holding that that must be the case. We can envision a scenario in which a car intentionally may be driven on to a person's own property, yet it could be classified as an "accident" within the meaning of the accident exception.

Furthermore, we note that an accident is often unexpected and undesired by at least one of the parties involved, but not necessarily all, because it may be that one or more of the parties involved in the "accident" intended such action, and we have determined that such intentional conduct may properly be characterized as an "accident."

[25] See State v Smyth, 121 RI 188, 191; 397 A2d 497 (1979), where the Rhode Island Supreme Court determined that an accident "is a generic concept requiring examination of its environs in order to define it."

[26] Collision is defined as "[a] direct, violent striking together; crash," in the American Heritage Dictionary (new college ed), p 262.

[27] See n 1.

[1] These provisions are now found at MCL 257.625a(6)(e); MSA 9.2325(1)(6)(e). We will assume that the previous version of the statute applies because the parties appear to agree that it does and, more importantly, the differences between that version and the current version, which would be in effect at the time of a trial, are so slight that they do not affect the result.

[2] The privilege did not exist at common law. Developments in the law: Privileged communications, 98 Harv L R 1450, 1530, n 1 (1985) (citing 8 Wigmore, Evidence [McNaughton rev], § 2380, p 819).

[3] In attempting to harmonize the legislative expression of intent in the physician-patient privilege with that expressed in MCL 257.625a(9); MSA 9.2325(1)(9), in People v Perlos, 436 Mich. 305; 462 NW2d 310 (1990), we referred to subsection 9 as a minor exception to the privilege. However, we did not endorse the proposition that, if § 625a(9) does not apply, the physician-patient privilege requires exclusion of blood-alcohol test results. Indeed, in McNitt v Citco Drilling Co, 397 Mich. 384, 392; 245 NW2d 18 (1976), the Court, in an opinion by Justice LEVIN, expressly reserved the question whether the implied consent statute had supplanted the common law.

[4] Further evidence of the legislative intent to broaden admissibility to permit effective prosecution is found in the fact that the amendment, 1982 PA 310, also struck the sentence in the 1980 statute that had provided:

Failure to fully comply with the [defendant's] request shall bar the admission of the results into evidence by the prosecution.

[5] The Court stated the following:

There is no suggestion that the hospitals would have allowed their personnel to draw blood for determination of alcohol content without a "request of a police officer" or that they would have allowed this to be done if they did not have the resulting statutory protection from civil and criminal liability. [397 Mich. 391.]

[6] The section of the statute interpreted in McNitt as requiring an offer of tests and blood analysis at the request of a police official was reenacted, and presently appears as MCL 257.625a(6)(c); MSA 9.2325(1)(6)(c).

[7] The majority assumes that the word "accident" modifies the phrase "for use in a criminal prosecution as provided in this subsection." Such a construction, however, fails to explain why the Legislature might have intended to modify the explicit directive in subsection 9 that the tests "shall be admissible ... for a crime described in subsection (1)." Subsection 1 expressly includes driving under the influence and impaired driving, neither of which necessarily or even commonly involve an accident.

[8] It is not necessary to decide here whether the word "accident" has a different meaning for purposes of arrest, see Tope v Howe, 179 Mich. App. 91; 445 NW2d 452 (1989), or to decide whether other authority would authorize or require police officers to transport an individual to a medical facility. See City of Troy v Ohlinger, 438 Mich. 477; 475 NW2d 54 (1991).

[9] That is, it could not be seriously suggested that a court must exclude blood-test results simply because a defendant disputes the state's allegation that he was operating a vehicle.

[10] In my view, it is much more likely that the Legislature intended to encourage medical treatment for unconscious persons suspected of violating drunk-driving laws than that they created policy on the basis of the dubious proposition that those intoxicated to the point of stupor might be encouraged to pull off the road.

[11] Courts recognizing their authority to narrowly construe the physician-patient privilege for purposes of enforcement of laws relating to drunk driving do not necessarily apply the same rationale to civil cases. See Dillenbeck v Hess, 73 NY2d 278; 536 NE2d 1126 (1989).

[12] The defendant has not raised other possible grounds for suppression for obvious reasons. The blood-test results cannot be suppressed by means of the Fourth Amendment exclusionary rule because, once the blood is legally drawn, the defendant does not have a reasonable expectation of privacy in test results revealing the blood-alcohol content. See People v Perlos, supra, 436 Mich. 326.

In addition, the privilege against self-incrimination "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and ... the withdrawal of blood and use of the analysis ... [does] not involve compulsion to these ends." Schmerber v California, 384 U.S. 757, 761; 86 S. Ct. 1826; 16 L. Ed. 2d 908 (1966).