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State v. Bilant12/6/2001
APPEAL FROM: District Court of the Fourteenth Judicial District, In and for the County of Musselshell, Honorable Roy C. Rodeghiero, Judge Presiding
Submitted on Briefs: April 12, 2001
Robert Dean Bilant appeals the denial by the Fourteenth Judicial District Court, Musselshell County, Montana, of his motion to suppress medical record evidence obtained by law enforcement from his health care provider by telephone inquiry and pursuant to an investigative subpoena duces tecum. We affirm.
Facts and Procedural History
In the early evening of January 3, 2000, Bilant was involved in a three-car accident on Highway 87 south of Roundup, Montana. The first person to encounter the accident, a registered nurse, noticed a strong smell of alcohol and shared her observations with Montana Highway Patrol Officer Virginia Kinsey when she arrived at the scene minutes later. Kinsey conferred separately with Bilant, confirmed the odor of alcohol on his breath and noted his blood-shot eyes. Kinsey then asked Bilant to perform a variety of field sobriety tests. She read Bilant the implied consent form for a preliminary breath test, but Bilant refused to take the test and said, "I don't know if I'd pass or not." Kinsey brought Bilant to the police station for processing, where she conducted additional sobriety tests and Bilant again refused to take the breath test.
Bilant was charged with failure to wear a seatbelt, § 61-13-103, MCA (1999), and with his fourth violation of driving under the influence of alcohol (DUI), § 61-8-401(d), MCA. He received verbal Miranda warnings and requested to see an attorney before proceeding with an interview. Minutes later, however, Bilant decided to talk with Officer Kinsey without an attorney present. Kinsey proceeded to pose the standard DUI in-take questions. When asked if he was taking any medications, Bilant informed Kinsey he had taken a pain reliever called "propoxy" at about 3:30 p.m. that afternoon. Bilant stated he was not certain of the name of the medication, but it had been prescribed by a Dr. Teal in Billings, Montana.
Officer Kinsey called Dr. Teal's office the next day to confirm the information provided by Bilant. Although Dr. Teal had retired some years earlier, his Billings practice had been subsumed by Orthopedic Surgeons, P.F.C. The person who answered the office telephone checked Bilant's medical records and told Kinsey that Bilant's only prescription from Dr. Teal was for propoxyphene napsylate acetaminophen, also known as Darvocet N100. Kinsey then called a pharmacist in Roundup to check on the medication's side effects and learned that Darvocet N100 can cause drowsiness and decreased reaction times, particularly when consumed in conjunction with alcohol.
On January 9, 2000, Officer Kinsey again interviewed Bilant. When asked about the medication he had taken prior to the accident, Bilant denied his earlier statement about the "propoxy." He stated he had taken only Tylenol for a headache in the morning on the day of the accident.
The District Court issued an investigative subpoena duces tecum to Orthopedic Surgeons, P.F.C., on May 10, 2000, that sought the following information:
Certified copies of any and all documentation concerning medications prescribed for Robert D. Bilant a/k/a Robert Dean Bilant for the period commencing January 1, 1996 to present, including, but not limited to, written and/or oral prescriptions, physicians notes, advisory warnings, etc. regarding any prescriptive medications.
The doctor's office responded to the subpoena by sending the County Attorney Bilant's entire medical file dating from 1991.
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