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State v. McClain6/13/2005
rte subpoena failed to comply with the statutory requirements of Tennessee Code Annotated [section] 40-17-123.
[(3)] Whether the trial court erred in denying the [appellant's] motion to suppress the results of the blood test, taken for medical purposes only, on the grounds that allowing the State to obtain such evidence offends the notions of fundamental fairness and substantial justice in that those who are seriously injured in automobile accidents are afforded less protection than those who are not injured.
The appellant, the State, and the trial court agreed that the foregoing questions were dispositive, and all parties signed the order containing the certified questions.
II. Analysis
Initially, we note that Rule 37(b)(2)(i) of the Tennessee Rules of Criminal Procedure provides that an appellant may appeal from any judgment of conviction occurring as a result of a guilty plea if the following requirements are met:
(A) The judgment of conviction, or other document to which such judgment refers that is filed before the notice of appeal, must contain a statement of the certified question of law reserved by defendant for appellate review;
(B) The question of law must be stated in the judgment or document so as to identify clearly the scope and limits of the legal issue reserved;
(C) The judgment or document must reflect that the certified question was expressly reserved with the consent of the state and the trial judge; and
(D) The judgment or document must reflect that the defendant, the state, and the trial judge are of the opinion that the certified question is dispositive of the case.
Tenn. R. Crim. P. 37(b)(2)(i); see also State v. Armstrong, 126 S.W.3d 908, 912 (Tenn. 2003); State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). Therefore, we conclude that the certified questions are properly before this court.
On appeal, the State contends that the appellant's certified questions are not dispositive of the case. We disagree. Our review of the record reveals that the appellant pled guilty to DUI with a blood alcohol content greater than .20. Although there is other proof in the record that the appellant drove while under the influence, the sole proof that the appellant drove with a certain blood alcohol content is contained in the results of the blood test taken from the hospital. See State v. Terry A. Hawkins, No. M2002-01819-CCA-R3-CD, 2004 WL 735028, at *3 n.1 (Tenn. Crim. App. at Nashville, Apr. 6, 2004), perm. to appeal denied, (Tenn. 2004).
Turning to the substance of the appellant's certified questions, we note that the appellant first complains that the State's subpoena of his medical records violated his right to privacy. Recently, this court concluded that "a patient's right to privacy in the contents of his or her medical records in a licensed health care facility is statutorily recognized." State v. Craig S. Cook, No. M2002-02460-CCA-R3-CD, 2004 WL 2827007, at *3 (Tenn. Crim. App. at Nashville, Dec. 9, 2004); see also Tenn. Code Ann. § 68-11-1502 (2001). Moreover, Tennessee Code Annotated section 68-11-304(a)(1) (2001) provides that " ospital records are and shall remain the property of the various hospitals, subject, however, to court order to produce the same." Regardless, "it is clear that hospital records may be subpoenaed for use in a criminal proceeding." Cook, No. M2002-02460-CCA-R3-CD, 2004 WL 2827007, at *3; see also Tenn. Code Ann. § 68-11-404(a)(3). Accordingly, "a patient's right to privacy in his or her medical records is superceded by a properly executed subpoena to the hospital holding the medical records." State v. Tammy Hart, No. E2003-00
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