Discovery, Hospital Blood test, Stubblefield v. State, A09A2225 (February 10, 2010). The Court of Appeals affirmed the Coweta County State Court’s denial of a motion to suppress the hospital blood test taken in treating the defendant’s diabetic condition on the night of the DUI arrest.

A Newnan Jury found E.J. Stubblefield guilty of DUI alcohol less safe and failure to maintain lane.  A Coweta County Sheriff’s Deputy saw Stubblefield driving erratically on Interstate 85.  He activated his blue lights and Stubblefield slowed almost to a stop and then sped away. The Deputy stopped Stubblefield and observed a strong odor of alcohol, unsteadiness, glassy eyes, slurred speech, and was unable to conduct field sobriety tests.  Stubblefield indicated that he was a diabetic and was transported to the hospital where he was treated for his diabetes. He refused a state-administered blood test but had blood as a part of his medical treatment. The State obtained his hospital blood by the search warrant.  The blood test showed elevated glucose levels, elevated alcohol levels, and cocaine metabolites.  The Defense attorney argued that a written return on the warrant was never filed pursuant to O.C.G.A. 17-5-29.  The State had the initial hearing continued and filed the return after the initial hearing.  The Court of Appeals saw no harm in this action.

The defense argued that the subpoena of the blood test violated the “private papers” provisions of the Georgia Constitution.  The Court of Appeals reasoned that this issue had already been resolved in Brogdon v. State.  in Brogdon, the Georgia Court of Appeals rejected the Gwinnett County DUI Lawyer’s arguments that the warrant should be suppressed because it violated the “private papers” protections from search warrants contained in O.C.G.A. 17-5-21 and seemingly ignores Sears v. State, 262 Ga. 126 (1993) holding that King v. State, 272 Ga. 788 (2000) implicitly overruled Sears even though the private papers objection was not made in King. Another problem with the Brogdon Court relying on the King decision is that the King Court stated, “We do not address the constitutionality of OCGA § 24-9-40(a) in other circumstances or in accordance with other possible constructions which are not before us.”  The medical records are covered by the Doctor-Patient Privilege and the exception of the private paper to the warrant statute was designed for just this type of personal paper.

Should doctors be required to give DUI Medical Miranda rights? “You have the right to remain silent and refuse treatment.  Anything you say or any medical treatment you receive may be used against you in a court of law?”  What about the doctor’s Hippocratic oath which states, “…All that may come to my knowledge in the exercise of my profession or daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.”  How will doctors feel about becoming agents of the police and being implicitly required to violate their Hippocratic Oath?  Finally, the Court rejected the defense attorney’s arguments that the doctor who administered the blood test needed to be qualified as an expert to translate the blood tests to a DUI blood test result.  What the court ignores is hospital blood test is based on serum blood with the red blood cells removed as a Crime Lab blood test and Georgia State Law describes DUI blood level restrictions in terms of whole blood. So they are different.