State v. Kavlich12/12/1986
PRYATEL, J.
James Kavlich, defendant-appellant, was indicted for the following crimes: (1) two counts of aggravated vehicular homicide (of Laura Donnell and Frances Telekese) with driving under the influence of alcohol and violence specifications; and (2) driving under the influence of alcohol. (There was a nolle prosequi as to the driving under the influence count.)
Defense counsel filed a motion to suppress the results of a blood-alcohol test administered by defendant's treating physician on the ground that it violated the physician-patient privilege pursuant to R.C. 2317.02. The trial court overruled the motion to suppress.
Defendant pled no contest to the crimes charged. The prosecutor stated that the evidence would show that on October 19, 1984, at approximately 3:40 a.m., defendant was driving north on Warren Road. Defendant veered his car over the center line and struck an automobile head-on that was proceeding south, killing Laura Donnell, the passenger in the car, who was pronounced dead at 4:39 a.m. Frances Telekese, the driver, suffered injuries and ultimately died on November 15, 1984. The coroner testified that the deaths were the result of the automobile collision.
Defendant was transported to the hospital for treatment of injuries he sustained. Defendant's physician ordered a blood analysis. The results of this test revealed that defendant's blood-alcohol content level was .152.
The court found defendant guilty as charged. Defendant filed the instant appeal, raising three assignments of error.
"The trial court erred in denying defendant's motion to suppress all evidence relating to his blood-alcohol content in contravention of the privilege as established by Section 2317.02, Ohio Revised Code."
R.C. 2317.02 provides, in relevant part:
"The following persons shall not testify in certain respects:
"* * *
"(B) A physician concerning a communication made to him by his patient in that relation or his advice to his patient but the physician may testify by express consent of the patient * * *."
Appellant contends that pursuant to R.C. 2317.02, the court erred in allowing the results of his blood-alcohol tests to be used against him. Appellant recognizes that blood-alcohol test results were held admissible in State v. Dress (1982), 10 Ohio App.3d 258, 10 OBR 372, 461 N.E.2d 1312, and State v. Tu (1984), 17 Ohio App.3d 159, 17 OBR 291, 478 N.E.2d 830. Nevertheless, appellant argues that these decisions were made with "tortured reasoning" and should be ignored. To support his position, appellant points to several civil cases which discuss the physician-patient privilege. See, e.g., Baker v. Indus. Comm. (1939), 135 Ohio St. 491, 14 O.O. 392, 21 N.E.2d 593; Weis v. Weis (1947), 147 Ohio St. 416, 34 O.O. 350, 72 N.E.2d 245; In re Roberto (1958), 106 Ohio App. 303, 7 O.O. 2d 63, 151 N.E.2d 37.
In Dress, supra, at 261, 10 OBR at 375-376, 461 N.E.2d at 1317, the court noted that an increasing number of jurisdictions are disallowing application of the physician-patient privilege in criminal prosecutions. See State, In the Interest of M.P.C. (1979), 165 N.J. Super. 131, 397 A. 2d 1092; State vsErickson (N.D. 1976), 241 N.W. 2d 854; State v. District Court of Iowa (Iowa 1974), 218 N.W. 2d 641; State v. Bedel (Iowa 1971), 193 N.W. 2d 121; State v. Betts (1963), 235 Ore. 127, 384 P. 2d 198; State v. Bounds (1953), 74 Idaho 136, 258 P. 2d 751. Cf. State v. Kuljis (1967), 70 Wash. 2d 168, 171-172, 422 P. 2d 480, 492. In holding that the court did not err in admitting the results of a blood-alcohol test in a driving
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