State v. Kavlich

While I agree that we should affirm the defendant's conviction, I reach that conclusion for significantly different reasons. In my view, the trial judge did not decide that the statutory physician-patient privilege is inapplicable here. Further, we should not review such a pretrial advisory ruling even if the trial court had made that decision. Finally, I believe that this court should not follow the Sixth District cases by allowing judicial policy preferences to override a valid legislative enactment.

Defendant's counsel moved to suppress evidence about the blood sample which the defendant's physician obtained while treating the defendant's injuries. He premised that motion on two independent theories: (a) an alleged federal constitutional violation by extracting blood, and (b) a claimed state statutory privilege for physician-patient communications. If the former reason had merit, it would justify an order to suppress that evidence. If the latter reason had apparent merit, it could justify an advisory ruling in limine, until the prosecutor demonstrated admissibility during the trial.

The claimed privilege would not justify a pretrial suppression order. Cf. Columbus v. Sullivan (1982), 4 Ohio App.3d 7, 9-10, 4 OBR 27, 29-30, 446 N.E.2d 485, 488; State v. Bowen (Mar. 31, 1983), Cuyahoga App. No. 45113, unreported. The court could not finally determine whether the statutory privilege precludes this evidence until it knew the precise circumstances for its offer during the trial. Cf. State v. Maurer (1984), 15 Ohio St.3d 239,259, 15 OBR 379, 395-396, 473 N.E.2d 768, 787; State v. White (1982), 6 Ohio App.3d 1, 4-5, 6 OBR 23, 28, 451 N.E.2d 533,538; Hammond v. Moon (1982), 8 Ohio App.3d 66, 70, 8 OBR 97, 102, 455 N.E.2d 1301, 1306.

The trial court did not expressly rule whether the statutory privilege would apply here. Instead, the court denied the motion to suppress, saying:

"The court is prepared to rule on the question of blood alcohol. I find that it's perfectly proper for the doctor to draw a blood sample from Mr. Kavlich [the defendant]. I do not find a constitutional violation.

"There is a substantial difference between civil law and criminal law and simply stated, the public policy demands this answer: public policy as it relates to criminal cases."

If the court denied the motion for lack of any constitutional reason to suppress the blood evidence, the ruling was clearly proper. Cf. Schmerber v. California (1966), 384 U.S. 757. If the court denied a motion in limine, we should not review that ruling when the issue never arose at a trial. Cf. Caserta v. AllstateIns. Co. (1983), 14 Ohio App.3d 167, 170, 14 OBR 185, 188,470 N.E.2d 430, 434; Krosky v. Ohio Edison Co. (1984), 20 Ohio App.3d 10,14-15, 20 OBR 10, 15, 484 N.E.2d 704, 709; State v.White, supra.

A plea bargain which conditions the plea on appellate review of a liminal decision may conceivably justify appellate review of that ruling. Columbus v. Sullivan, supra. Otherwise, a no contest plea precludes appellate review for the denial of a motion inlimine. Id. There was no plea bargain here. Since a pretrial ruling in limine makes no final decision about admissibility, Crim. R. 12(H) does not permit its review after a no contest plea. Id.

However, if the trial court had rejected the statutory privilege and if we could review that ruling, I would reverse. The prosecutor relies on two Sixth District decisions that public policy favors reliable evidence in drunken driving cases and overrides the statutory physician-patient privilege. State v.Dress, supra; State v. Tu, supra.

Those decisions suggest that courts can decide which statutes must yield to judicially perceived public policy. However, the legislature is the final arbiter of public policy, unless its acts contravene the state or federal Constitutions. The Ohio Constitution vests the legislative power to resolve policy issues in the General Assembly. Section 1, Article II, Ohio Constitution. If courts could decide that the public policy which favors convictions in meritorious drunken driving cases overrides this statutory privilege, it could effectively repeal the statute.

Certainly, the public policy favoring convictions for even graver crimes would equally justify a decision to disregard this privilege. If the statutory physician-patient privilege is subject to judicial policy preferences, the statutory attorney-client privilege may be similarly vulnerable. If judicial policy preferences override this statute in criminal cases, there is no assurance that they cannot override it in civil cases. In other words, courts should not forget that the legislature's valid laws control policy preferences.

In my view, the Sixth District cases misread and mistakenly relied on the Supreme Court's decision in State v. Antill (1964),176 Ohio St. 61, 26 O.O. 2d 366, 197 N.E.2d 548. While that decision balances conflicting policies to deny a physician-patient privilege, it balances two legislative policies rather than legislative and judicial policy preferences. InAntill, the court considered conflicting statutes that preclude a physician from testifying about a patient's condition while compelling that physician to report gunshot wounds. Compare R.C.2317.02 with former R.C. 2917.44.

The Antill decision concluded that the legislature intended to require disclosure and testimony about gunshot wounds, despite the otherwise applicable physician-patient privilege. It did not conclude that the physician-patient privilege is inapplicable to evidence about serious crimes. Nor did it conclude that courts can discard that statutory privilege when they feel compelled to do so. There is no legislative policy that the statutory physician-patient privilege is inapplicable in drunken driving cases, if it is otherwise applicable.

Hence, I would affirm the defendant's conviction for the reasons stated earlier, rather than the reasons provided in the majority opinion.