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State v. Kutik11/4/2005
t denied the motion to suppress, finding that the State later complied with the notice requirement of section 395.3025(4)(d) and that Thomas had reasonable time to object, but failed to do so. Therefore, the information contained in the medical records was admissible. Id.
The Second District also concluded that the officer would have been allowed to request a legal blood draw pursuant to section 316.1933(1) and that the officer's request for the nurse to tell him the blood results did not constitute the type of governmental misconduct that would warrant exclusion of the medical records subsequently obtained through the State's subpoena issued after proper notice. We disagree with the Second District's reading of this statute. A plain reading of this section shows that medical personnel may notify law enforcement of a patient's blood alcohol level when a patient was involved in a motor vehicle accident, the patient's blood alcohol level exceeded that allowed by law, and the patient's information was given to law enforcement a reasonable time after the results became known to the medical personnel. The purpose of the statute is to provide law enforcement probable cause to request a legal blood draw.
In this case, Demeulenaere should have requested a blood draw when he arrived at ORMC. See § 316.1933(1). He had probable cause based upon his examination of the physical evidence at the scene of the accident and the testimony of both an accident eyewitness and an injured passenger in Kutik's car. More important, having failed to obtain a blood draw, Demeulenaere should have contacted the state attorney to obtain a subpoena for Kutik's medical records after notice to Kutik's attorney. However, because we find no good faith effort to comply with statutory requirements, we AFFIRM.
PLEUS, C.J., and PALMER, J., concur.
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