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No. 102,917 IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS, Appellant, v. PAUL F. WEILERT, Appellee.

SYLLABUS BY THE COURT

When a driver refuses consent for law-enforcement testing of breath or blood for alcohol but independently obtains a test for medical purposes, the State may introduce the independently obtained test into evidence in a prosecution for driving under the influence of alcohol.

Appeal from Rooks District Court; THOMAS L. TOEPFER, judge. Opinion filed March 5, 2010. Reversed and remanded.

Edward C. Hageman, county attorney, and Steve Six, attorney general, for appellant.

Michael S. Holland II, of Holland and Holland, of Russell, for appellee.
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Before LEBEN, P.J., CAPLINGER and BUSER, JJ.

LEBEN, J.: After Paul Weilert was charged with felony driving under the influence of alcohol, the district court ruled inadmissible two key items of the evidence against him--blood-test results obtained at a hospital treating him for medical purposes and Weilert's statement to the medical personnel about his alcohol consumption. The district court held (1) that after a driver refuses consent to law enforcement for a blood or breath test, the State can't get other test results; (2) that disclosure of a patient's medical information was prohibited under federal law; and (3) that a Kansas statute limiting the application of the physician-patient privilege was unconstitutional.

The State has appealed, and we have jurisdiction over its interlocutory appeal. See K.S.A. 22-3601(a). We find no support for the district court's rulings that disclosure of Weilert's blood-test results would violate federal law or that the Kansas Legislature may not limit the application of the statutorily created physician-patient privilege in felony and DUI cases. Nor does the State's implied-consent law forbid the admission of independent test results of a driver's blood or breath. Having cleared those hurdles, the admissibility of this evidence is relatively straightforward. The evidence is clearly relevant: the State asserts that the blood-test results showed that Weilert was above legal limits and Weilert admitted to medical personnel that he had drunk six hard-liquor drinks
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before he crashed his motorcycle. Under Kansas law, all relevant evidence is admissible unless some statute precludes its admission. K.S.A. 60-407(f). The Kansas physicianpatient privilege doesn't apply in felony and DUI cases, K.S.A. 60-427, so there's no statutory basis to exclude this evidence. It is therefore admissible.

Factual Background

Weilert crashed and totaled his motorcycle on U.S. 24 highway in Rooks County. Kansas Highway Patrol troopers responding to the scene noted that the highway at the crash location was straight and level. One trooper interviewed Weilert, who was standing in the roadway covered in dirt and grass. Weilert's hands were scraped, but he said he didn't want any medical treatment.

The trooper thought Weilert appeared intoxicated based on his facial expression, particularly his eyes. Weilert initially said he had struck a deer with his motorcycle, but officers didn't find any evidence to suggest the presence of a deer. Weilert only said he wasn't sure he'd hit the deer after the officer pointed out that no evidence suggested he'd hit a deer. As their conversation continued, the trooper smelled a strong odor of alcoholic beverages coming from Weilert.

A second trooper on the scene testified that Weilert had slurred speech and a strong odor of alcohol. Weilert initially told that trooper that he hadn't been drinking but
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changed his response after the trooper said he would give Weilert a preliminary breath test. The results of that test showed a result over the legal limit; the trooper arrested Weilert and took him to the courthouse.

On arrival there, Weilert asked that medical personnel look at his injured hands. A trooper took him to the local hospital, and the trooper read required legal notices for the purposes of obtaining a blood test for law-enforcement purposes. Weilert refused to consent to such a test. The trooper then turned Weilert over to medical personnel for treatment while the trooper filled out paperwork in the hallway. The trooper overheard Weilert give permission to medical personnel to obtain a blood sample for medical purposes only, and the trooper also overheard Weilert say that he'd consumed six hardalcohol drinks before the accident. Weilert told medical personnel that they could have a sample of his blood but that he didn't want to provide one to the trooper. The State ultimately obtained the blood-test result under a court order.

District Court Ruling and Standard of Review

The district court held that both the test results and Weilert's statement to medical personnel were inadmissible. The court found that since Weilert had refused to give his blood to law enforcement for testing the State couldn't use the test results obtained during medical treatment:

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"As to the blood test, I agree with [Weilert's attorney that] he refused. That ends it. He--the evidence I heard was that he said if the doctor needs the blood, I'll give it to the doctor to treat me, but not to give [it] to the trooper. So that's tantamount to a refusal. I don't think the law contemplates using blood in that manner."

The court separately ruled that the State could not present evidence of the statement that Weilert made to medical personnel about his liquor consumption. The court recognized that the Kansas Legislature had statutorily provided that the physician-patient privilege would not be available in felony DUI cases. K.S.A. 60-427(b). But the court concluded that Weilert had an expectation of privacy for medical information he provided for treatment purposes and that the limitation in K.S.A. 60-427(b) that makes the physicianpatient privilege inapplicable to felony DUI cases was unconstitutional:

"As to overhearing the conversation about the drinks, that was totally innocuous. The officer was out in the hall, writing up his report. Mr. Weilert apparently was speaking loud enough to be heard. On the other hand, he had an expectation of privacy. . . . .... "... I don't think matters related to the doctors and nurses verbally by the defendant with an expectation of privacy are [admissible]. . . . [L]ogically the patient has a right to a physician/patient privilege. I don't

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think the legislature can do what it did. . . . [W]hen it comes down to medical consultation, if the doctor needed to know how much you've had to drink in order for him to properly treat [the patient], that would not be admissible."

Asked by the State to clarify the ruling, the district court said it was finding that K.S.A. 60-427(b)'s limitation of the physician-patient privilege was unconstitutional. The judge also said that this limitation of privilege "conflicts with the HIPAA laws. They won't even talk to my wife unless I in a writing allow her to speak to them. It's gotten very restrictive."

On review of a district court's ruling on a motion to suppress evidence, we review the factual basis of the ruling to determine whether substantial evidence supports it. We then review the district court's legal conclusions independently, without any required deference to the district court. State v. Morlock, 289 Kan. ___, Syl.

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