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Akron v. Springston5/16/1990
ston contended that the medical records were not admissible pursuant to the Evidence Rules in that the physician-patient privilege applied to the communication and that the evidence lacked a sufficient foundation. Springston objected to the admission of this evidence during the course of trial and therefore preserved the alleged errors for review.
This court has reviewed the record, which includes the transcript of the motion hearing, and finds that the trial court had before it sufficient facts from which to determine that the police officer had probable cause to arrest Springston and to seek a blood-alcohol test pursuant to R.C. 4511.191. Also, the record discloses sufficient facts introduced at trial from which the trial court could find that Springston's blood test, despite being drawn for medical purposes, substantially complied with the administrative regulations as R.C. 4511.19 requires.
However, the trial court erred in denying Springston's motion in limine, and ultimately erred in admitting Springston's medical record into evidence at trial. The trial court considered but rejected this court's determination of the physician-patient privilege issue as it relates to blood samples drawn fosmedical purposes. This court's determination was very recently affirmed in State v. Smorgala (1990), 50 Ohio St.3d 222, 553 N.E.2d 672.
A suspected drunk driver has a right to refuse a chemical test for purposes of prosecution, pursuant to R.C. 4511.191(D). The driver who withdraws consent is subject to suspension of driving privileges. See id. at 225, 553 N.E.2d at 675. The driver holds the privilege provided in R.C. 2317.02(B) and only the driver, not the state, may waive that privilege as to the communication contained in the laboratory test and results. R.C. 2317.02(B)(3).
The first assignment of error is sustained.
The judgment is reversed and this cause remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
CIRIGLIANO and HAYES, JJ., concur.
JERRY L. HAYES, J., of the Domestic Relations Court of Portage County, sitting by assignment.
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