State Of Washington v. Vonda Valisa Pritchard ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 69862-1-1 ^ ^
Respondent,
DIVISION ONE N> Ti^C
%£} -t^-o •;••'.
v.
UNPUBLISHED OPINION ^ W".
VONDA VALISA PRITCHARD,
Appellant. 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
of evidence relating to her intoxication while driving. We affirm.
FACTS
Around 7:30 p.m. on July 5, 2010, Vonda Pritchard was driving her dark green
Land Rover sport utility vehicle eastbound on Highway 101 just outside 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 other car, "because
it didn'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 an
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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 if she 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 her Miranda1 rights to her.
After arresting Pritchard, Trooper Ryan went back to 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 that her blood would be tested without her consent
to determine the concentration of alcohol 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 all three alternatives to
vehicular assault under RCW 46.61.522(1). The trial court instructed the jury that it
1 Miranda 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 with disregard for the
safety of others. The jury 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 in custody.
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 that testimony from her emergency room nurse violated her
nurse-patient privilege and the Health Information Portability and Accountability Act of
1996 (HIPAA), 42 U.S.C. §§ 1320d to 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). The jury 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 of others as "an aggravated kind of negligence or carelessness,
falling short of recklessness but constituting a more serious dereliction than the
hundreds of minor oversights and inadvertences encompassed within the term
'negligence.'"2 State v. Eike. 72 Wn.2d 760, 765-66, 435 P.2d 680 (1967). Proof of
The jury instruction at Pritchard's trial tracked this language closely.
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intoxication is not required to convict for driving with disregard for the safety of others.3
See, e.g.. jd. at 766 (defendant rounded a sweeping curve at 45 to 50 miles per hour on
the wrong side of the road and struck on oncoming car head-on). The sufficiency of the
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 of Charging 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 under the Sixth and
Fourteenth Amendments, as well as article I, section 22 of the Washington 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
primary purpose of this rule is to give defendants sufficient notice of the charges so they
can prepare an adequate defense, jd. at 101.
3 The jury instructions explicitly delineated between the three alternative means
to convict. And, the prosecution did not argue that intoxication was evidence of driving
with disregard for the safety of others.
No. 69862-1-1/5
The vehicular assault statute provides, in part:
A person is guilty of vehicular assault if he 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.
RCW 46.61.522(1). Pritchard argues that an additional nonstatutory element is proof of
proximate cause between the accident and the defendant's intoxication, recklessness,
or disregard for the safety of others.4
The case Pritchard cites for this contention addresses the former version of the
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 liability result. 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 the driving of a defendant so that the act done was a proximate cause of the
resulting substantial bodily harm." Jury instructions not objected 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 doctrine only applies to jury instructions, not charging documents. See State
v. Tvedt. 153 Wn.2d 705, 718, 107 P.3d 728 (2005). Charging documents need only
state the essential statutory and nonstatutory elements of the crimes charged, jd
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create strict liability crimes, jd. at 452. 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 another while driving under the influence, recklessly, or with disregard 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 for failing to include a nonstatutory proximate cause element. We therefore
affirm Pritchard's conviction on the alternative means of driving with disregard for the
safety of others.
II. Admission of Statements Made at the 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 custodial interrogation 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 person in that situation would
not have felt free to terminate the encounter
No. 69862-1-1/7
Pritchard couches her argument in terms of Miranda and the Fifth Amendment.
The State responds, citing both Fourth and Fifth Amendment 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 of whether those facts constitute a seizure is
one of law that we review de novo. Jd. We review whether a defendant is in custody for
Miranda purposes de novo. State v. Lorenz, 152 Wn.2d 22, 36, 93 P.3d 133 (2004).
A person is "seized" if, viewing all the circumstances surrounding the incident, a
reasonable person would have believed he or she was 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 voice indicating that compliance with the officer's request might be compelled. Id
The "free to leave" test is not automatically satisfied when a person is not
physically free to leave. See Florida v. Bostick, 501 U.S. 429, 436, 111 S. Ct. 2382, 115
L. Ed. 2d 389 (1991). Rather, the crucial test is whether a reasonable person would feel
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 and
No. 69862-1-1/8
identification, and they requested to search his luggage, jd. at 431-32. The Court
explained that the 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 about whether
or not the police conduct was coercive, jd.
Similarly, not all physical restraints on freedom of movement 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 coercive pressures like those of police-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. Berkemer v. McCartv. 468 U.S. 420, 436-37, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984). This is so because a traffic stop is temporary and brief, unlike a prolonged
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 3.5 hearing, defense counsel introduced another trooper's report that said Pritchard
was arrested at the scene. But, Trooper Ryan disagreed with the report and reiterated
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No. 69862-1-1/9
that Pritchard was not arrested at the scene. The other trooper never testified. Law
enforcement did not transfer 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 arrest when 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 it to Pritchard. Nor is there any evidence that he touched her or came in any
physical contact with her that might be considered threatening. His questions were very
basic and straightforward. Moreover, after telling Pritchard that he was investigating the
collision, Pritchard herself asked him what happened. And, perhaps most importantly,
Pritchard declined to take the voluntary sobriety test. This strongly indicates that she
felt free to decline Trooper Ryan's requests and terminate the encounter.
Under the Fourth Amendment, a police officer who suspects that a particular
person has committed a crime may conduct a "Terry stop" and detain that person briefly
to investigate the circumstances provoking suspicion. Berkemer 468 U.S. at 439; see
Terry v. Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). "Without such
investigation, those who were innocent might be falsely accused, those who were guilty
might wholly escape prosecution, and many crimes would go unsolved. In short, the
No. 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). Trooper Ryan's encounter with 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 that there was not some other innocent
cause for 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 felt that
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 if she was not in custody for Miranda purposes, her
confession was involuntary and should have been suppressed, because she was highly
intoxicated and probably in shock. Similarly, she argues that the trial court's finding of
voluntariness did not rest on any specific facts and was improperly based on its finding
that she was not under arrest.
Due process 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
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No. 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 if there is substantial evidence in the 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 or pressured Pritchard to talk. Nor is there evidence that he touched her
or used a threatening tone. Pritchard remembered that 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 she was in pain or receiving medical treatment. But cf. 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,
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No. 69862-1-1/12
we hold that there is substantial evidence in the record to support the trial court's finding
of voluntariness.
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. After finding that Pritchard was not under arrest, the court continued:
And so I will 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 voluntary for purposes of [CrR] 3.5.
The court also noted earlier that statements are voluntary if they are not the product of a
coercive situation. While not an extensive finding, the court's reasoning includes key
considerations in determining whether Pritchard's statements were voluntary. Any error
was harmless.
III. Blood Test Evidence
Pritchard argues that her conviction was based in part on blood test results that
were not demonstrably reliable. Specifically, she contends that the prosecution failed 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
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No. 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 WAC compliance, the jury determines the weight to give the blood test
result. RCW 46.61.506(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
that federally 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
prima facie showing of WAC compliance, jd. at 468. 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
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No. 69862-1-1/14
facie burden where a nurse testified that the hospital supplied the vial, and a toxicologist
testified that the vial manufacturer always put anticoagulants in the vials it sent to the
hospital. 54 Wn. App. 506, 513, 774 P.2d 55 (1989).
In Pritchard's case, vials with gray stoppers were used. Such gray-topped tubes
are federally regulated to contain an anticoagulant and an enzyme poison. The WSTL
prepares the vials accordingly and distributes them to the Washington State Patrol
(WSP). Usually the contents of a particular tube are verified by comparing the tube's lot
number with a certificate of compliance kept by the WSP. Here, the tubes' lot number
was covered by an evidence label. As a result, the State was unable to produce the
tubes' certificate of compliance establishing that they belonged to a batch manufactured
and tested to meet the WAC requirements.
However, the State forensic toxicologist who tested Pritchard's blood samples
explained that if the vials did not contain an anticoagulant, the blood would be clotted
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 enzyme poison. The toxicologist testified that the WSTL prepares gray-
topped vials in accordance with the WAC and then sends them to the WSP. Trooper
Ryan testified that the two gray-topped vials he used were from his office and supplied
by the WSP's evidence technician. The vials appeared to be clean, dry, and vacuum
sealed. He gave the two vials to the phlebotomist who conducted the legal blood draw
in Trooper Ryan's presence. He then took the vials and put them in the WSP's
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No. 69862-1-1/15
evidence system to be sent to the WSTL for analysis. The toxicologist testified that the
vials arrived in the 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 hold that the State met is prima facie burden of demonstrating that the
vials contained an enzyme poison as required by the WAC.5
Once the State met its prima facie burden, the defense was entitled to challenge
the accuracy of the 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
lot number for comparison. But, she reiterated that it is routine practice for the 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. RCW 46.61.506(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
content of the samples. See Brown, 145 Wn. App. at 76.
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No. 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 patient consents 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 act in that capacity for the patient.161
However, if any violation of Pritchard's nurse-patient privilege occurred, it was 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 of the 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 in the 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 testimony was necessary to 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 patient to 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 patient was conscious when admitted.
Pritchard does not respond to the State's argument or discuss RCW 70.02.050(1 )(k)
anywhere in her briefing. We need not resolve any alleged conflict.
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No. 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 or subpoena, if notice is given and the parties
agree to a qualified protective order. 45 C.F.R. § 164.512(e)-(f). Without any further
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 subpoenaed to testify. And, the court entered a protective order to
prevent disclosure of Pritchard's medical records. We find no HIPAA violation.
We find no error affecting the special verdict for driving under the influence or her
sentence based on her intoxication level.
We affirm.
WE CONCUR:
Acl. %eck^\SL
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