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State v. Morales8/8/1991
In his appeal from his conviction on two counts of manslaughter and a misdemeanor count of driving under the influence of intoxicating liquor (DUI), appellant contends that the court erred in admitting the results of tests performed on his blood. In his petition for review of the denial of post-conviction relief, appellant contends that the court erred in rejecting his claim of ineffective assistance of counsel. We affirm the convictions and deny the petition for review.
On August 1, 1987 at about 7:30 p.m., a motorist heading east on Interstate Highway 10 saw appellant's vehicle enter the highway on the off ramp at the Rita Road exit east of Tucson. Appellant continued westbound, driving in the fast lane against
the eastbound traffic past at least three vehicles that pulled over either into the slow lane or into the emergency lane to avoid him. About a mile and a half after he entered the highway, appellant crashed head on into a car that had moved into the fast lane to pass a tractor-trailer. Appellant was seriously injured. The occupants of the other car, a 17-year-old girl and an 18-year-old girl, were both killed. Two Department of Public Safety (DPS) officers testified that they smelled a strong odor of alcohol on appellant at the scene. An empty beer can was found in appellant's car.
Appellant was transported by helicopter to Tucson Medical Center (TMC) for treatment. A Department of Public Safety officer was instructed to go to the hospital and obtain a sample of appellant's blood. Emergency room personnel directed him to the hospital laboratory where he was given two vials of blood. The blood was later tested and found to have a blood alcohol concentration of .247. After he was convicted, appellant was sentenced to consecutive, aggravated terms of 12 years on each of the manslaughter counts and to 28 days in jail on the misdemeanor DUI conviction.
Appellant contends that the court erred in admitting evidence of his blood alcohol content, arguing that the state's use of his hospital records violated his physician-patient privilege, that his identity was wrongfully obtained from the hospital and constituted double hearsay, and that an insufficient chain of custody for the blood was established to permit its admission into evidence. Appellant does not question the state's right to obtain a blood sample from the hospital pursuant to A.R.S. § 28-692(J).
Because all of appellant's contentions concern the propriety of the admission into evidence of the blood alcohol test result, we review the evidence in the light most favorable to sustaining the verdict, and we resolve conflicts in the evidence and reasonable inferences to be drawn therefrom against appellant. State v. Zmich, 160 Ariz. 108, 770 P.2d 776 (1989).
PHYSICIAN-PATIENT PRIVILEGE
Appellant contends that the court erred in allowing the state to use his hospital records to prove that the blood sample tested was his, arguing that the information was protected by the physician-patient privilege contained in A.R.S. § 13-4062(4).
Based on the fact that the two DPS officers had smelled a strong odor of alcohol on appellant and that an empty can of beer had been found in appellant's car, the investigating officer sent an officer to TMC to obtain a sample of appellant's blood. Officer Fimbres went to the emergency room at TMC and asked for a sample of appellant's blood, giving appellant's name, the location of the accident, the time of the accident, and the method by which appellant had been transported to the hospital.
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