         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                                                     FILED
                                 AT KNOXVILLE                       October 8, 1999

                                                                   Cecil Crowson, Jr.
                               JULY SESSION, 1999                 Appellate Court Clerk




STATE OF TENNESSEE,              )    C.C.A. NO. 03C01-9811-CC-00388
                                 )
      Appellee,                  )
                                 )
                                 )    BRADLEY COUNTY
VS.                              )
                                 )    HON. CARROLL L. ROSS,
ROBERT GOLDSTON,                 )    JUDGE
                                 )
      Appe llant.                )    (DUI)


                ON APPEAL FROM THE JUDGMENT OF THE
                 CRIMINAL COURT OF BRADLEY COUNTY


FOR THE APPELLANT:                    FOR THE APPELLEE:

CHARLES P. DUPREE                     PAUL G. SUMMERS
Suite 104, Franklin Building          Attorney General and Reporter
Chattanooga, TN 37411
                                      MARVIN S. BLAIR, JR.
                                      Assistant Attorney General
                                      425 Fifth Avenu e North
                                      Nashville, TN 37243

                                      JERRY N. ESTES
                                      District Attorney General

                                      SANDRA CONAGHY
                                      Assistant District Attorney General
                                      P.O. Box 1351
                                      Cleveland, TN 37364



OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
                                      OPINION
       The Defendant, Robert Goldston, was indicted by the Bradley Co unty

Grand Jury for driving under th e influenc e following his involvem ent in an

autom obile accident which occurred on November 9, 1996. Prior to trial, he filed

a motion to suppress the results of blood tests conducted at two different

hosp itals shortly after the acciden t. The trial court denie d his motio n. On April

9, 1998, the Defendant was tried by jury and found guilty of DUI. The trial court

sentenced him to eleven months and twenty-nine days incarceration, with the

balance suspended after ten days in jail, and fined him $600.00. He now a ppea ls

his conviction as of right, pursuant to Rule 3 of the Tenn essee Rules o f Appella te

Procedure.



       The Defendant presents four issues on appeal, which w e have

consolidated into one issue: whether the trial cou rt erred by allowing introduction

of the results of his blood a lcoho l tests.1 Although the Defendant in his brief

enunciates four separate issues, he fails to argue each separately, instead

condensing the four into one single argument. We therefore will address the four

questions raised, although not separately argued, by the Defe ndan t as on e sole

issue, the resolution of which w ill encom pass a nalysis of a ll four ques tions.




       1
           The issues presented in the Defendant’s brief are: (1) the trial court erred by failing
to grant the Defendant’s motion for judgment of acquittal at the end of the State’s proof and at
the end of all proof; (2) the trial court erred by overruling the Defendant’s motion to suppress
the results of his blood alcohol tests; (3) the trial court erred by allowing introduction of blood
test evidence without proof of chain of custody of the blood samples; and (4) the trial court
erred by allowing introduction of blood test evidence without the consent of the Defendant, as
required by Tennessee Code Annotated § 55-10-406(b). Tenn. Code Ann. § 55-10-406(b).
Apparently, the Defendant’s first issue also relates to the alleged error in admitting the blood
test results.

                                               -2-
       On November 9, 1996 , the Defe ndant, a police officer with the Cleveland

Police Department, and his friend, Marcus Enos, were returning home from a

night club in the Defendant’s car. Shortly after 1:00 a.m., the Defendant lost

control of his ve hicle, which slid into an embankment across the street from an

intersection. Law enforcement and medical personnel were dispatched to the

site of the a ccident to admin ister aid.



       Depu ty Shaund a Efaw of the B radley Coun ty Sheriff’s Department was

among the first to arrive. She recognized the Defendant, with whom she had

worked, as the drive r of the veh icle. Efaw testified at trial that although both the

Defendant and his passenger had suffered serious injuries, both were conscious

when she arrived. She also stated that when she questioned him, the Defendant

responde d that he was “okay.”



       Lieutenant Mike Boggess of the Bradley County Sheriff’s Department was

dispatched to the scene of the accident and arrived soon after Deputy Efaw. He

explained that the interse ction whe re the ac cident oc curred h ad bee n the site of

several accidents, enough that a fire hydrant which previously set at the

intersection had be en reloca ted to a po sition further down the road. Boggess

testified that upon approaching the Defendant’s car, he smelled an odor of

alcohol eman ating from the vehicle . He also recognized the Defendant, whom

he knew from work. He stated that the Defendant, who was conscious and

“realized [he’d] been in an acc ident,” wa s “thrash ing abo ut like he w as going to

try to climb out” of th e vehic le, so h e enc ourag ed the Defe ndan t to stay s till until

an ambulance arrived.




                                            -3-
      Trooper Charles D. McVey of the Tennessee Highway Patrol also

responded to the call concerning the Defendant’s accident. He stated that he

noted a “strong odor of alcoholic beverage about the vehicle” and skid marks

appro ximate ly 168 fee t in length, w hich cros sed into the wrong side of the road,

leading to the point o f impact. He also testified that approximately an hour and

a half after responding to the accident, he visited the Defendant at Bradley

Memorial Hospital, where the Defendant had been transported by medical

personnel after the ac cident, and a sked the De fenda nt whe ther he would subm it

to a blood a lcohol tes t. McVey stated that the Defendant responded by shaking

his head , thereby d eclining the test.



      Howeve r, despite the Defendant’s refusal of the test, a blood alcohol test

was administered on blood drawn from the Defendant at the request of Dr.

Dewayne Knight, the physician who treated the Defendant at Bradley Memorial

Hosp ital. Dr. Knight testified at trial that when the Defendant was brought to the

hosp ital, he had major inju ries to his head and face, in addition to other extensive

injuries susta ined in the accide nt, including two brok en legs. Acco rding to Dr.

Knight, the Defendant was “conscious, though som ewhat con fused” and “[t]here

was a possibly [sic] history of loss of consciousness.” In addition, Dr. Knight

testified that the Defen dant “had an odor of alcohol that was obvious” and

described the Defendant as “combative and disoriented.” He stated that because

of the odor of alcohol, the Defendant’s head injury, and the confusion exhibited

by the Defendant, he ordered a blood alcohol test an d a urin e drug scree n. W hile

the results of the drug screen were negative, the blood alcohol tests indicated

that the Defendant had a blood alcohol content of .25 p ercen t at app roxim ately

2:30 a.m., when the tests were administered.

                                          -4-
         Following his emergency treatment at Bradley Memorial Hospital, the

Defendant was tra nspo rted by helico pter to E rlange r Med ical Ce nter in

Chattanooga, an acute ca re and trau ma ce nter, for furthe r treatme nt. A second

blood test was conducted at Erlanger Medical Center. Over objection by the

defense, the trial court allowed testimony by Sue Robinson, an employee in the

medical records department of the hospital, regarding routine reports prepared

by physicians at the hospital for purposes of the Defendant’s diagnosis.

Robinson testified that the reports indicated the Defendant had a blood alcohol

level of .179 percent at approximately 5:00 a.m. and that the Defendant suffered

“E.T.O.H. intoxication.” Dr. Knight explained that he understood this term to

mean an “alcoh ol overdo se.”



         The Defendant testified on his own b ehalf. He reported that he had invited

friends to his home on the afternoon of November 9, 1996. He stated that they

had sn acks an d alcoho lic beverag es, which he beg an to consume around 4:30

or 5:00 p.m. The Defendant admitted to drinking two beers and three or four shot

glasses of brandy mixed with Coca-Cola. He claimed that he stopped drinking

around 10:00 p.m. and recalled that he and Enos left his house to go to a club

around midnight. He also recalled that it was raining and foggy when they left the

club. He attributed the accident to the weather conditions that night, explaining

that he was speeding somewhat and when he hit his brakes, his car

“hydrop laned.” He maintained that he did not believe his driving sk ills were

impaired when h e left the club . In addition, he testified that he did not remember

refusing consent for blood alcoho l testing at Bra dley M emo rial Ho spital a nd in

fact, stated that he did not remember conversing with Trooper McVey at all that

night.

                                         -5-
       The Defendant contends that records concerning the results of his blood

alcohol tests should not have been admitted at trial.               He insists that blood

samples were taken from him while he was unconscious and w ithout h is

permission. Moreover, he com plains tha t the State did not establish a chain of

custody for the blood samples at trial.             He argues that Tennessee Code

Annotated § 55-10-40 6 should ha ve preve nted th e introd uction of his blood test

results. This s ection prohib its the in troduc tion of b lood a lcoho l eviden ce in

driving under the influence cases where the person from whom the blood was

drawn was unconscious or “otherwise in a condition rendering that person

incap able of refusal.” Tenn. Code Ann. § 55-10-406(b). The exception to th is

rule is set forth in subsection (e), wh ich sta tes, “N othing in this section shall affect

the adm issibility in eviden ce, in cr imina l prose cution s for ag grava ted as sault or

homicide by the use of a motor vehicle only, of any chemical analysis of the

alcoh olic or drug content of the defendant’s blood which has been obtained by

any means lawful witho ut regard to the provisions of this section.” Tenn. Code

Ann. § 55-1 0-406(e). 2



       Despite the Defendant’s contentions, we conclude that Tennessee Code

Annotated § 55-1 0-406 does not ap ply in this case . In State v. Ridge, this Court

held that § 55-10-406 has no applicab ility to proced ures pe rformed “pursua nt to

a medical rather than a law enforcement request.” 667 S.W.2d 502, 505 (Tenn.

Crim. App. 19 82); see also State v. William Roy Hopper, No. 02C01-9612-CC-



       2
            The Defendant also cites a portion of the United States Code which pertains to the
“[c]onfidentiality of records.” 42 U.S.C.A. § 290dd-2 (Supp. 1999). However, this section
concerns records maintained in connection with “substance abuse education, prevention,
training, treatment, rehabilitation, or research which is conducted, regulated, or directly or
indirectly assisted by any department or agency of the United States” and as such, clearly does
not apply in this case. Id.

                                             -6-
00485, 1998 WL 17635, at *3 (Tenn. Crim. App., Jackson, Jan. 20, 1998) (stating

that “Ridge clearly holds that blood drawn pursuant to a medical request and

analyzed for blood alcoho l content may b e properly adm itted into evidence”).

The Defendant, however, argues that this case is distinguishable from Ridge in

that Ridge involved a charg e of vehicular homicide, while the Defendant was

convicted of the crime of driving under the influence. Nonetheless, we are

satisfied from a review of other cases applying the rule stated in Ridge that this

rule is applic able in other ty pes o f case s as w ell. For example, in State v. Robe rt

J. Kellet, No. 03C01-9401-CR-00002, 1995 WL 33903 (Tenn. Crim. App,

Knox ville, Jan. 27, 1995), the defendant was convicted of driving under the

influence. On a ppea l, the de fenda nt argu ed, as does the De fenda nt in this case,

that “the trial court erred by allowing the state to circumvent the spirit of

Tenn.Code [sic] An n. § 55 -10-4 06 by a dmittin g the re sults o f the ap pellan t’s

blood alcohol test, which was administered in the course of his medical

treatme nt.” Id. at *1. However, in Kellet, this Court relied upon Ridge in rejecting

the defendant’s argument, holding that § 55-10-406 does not apply to testing

perform ed purs uant to a m edical req uest. Id.



       Having concluded that Tennessee Code Annotated § 55-10-406 does not

bar the introduction of the blood test results in this case, we will now procee d to

address the question of whether the records at issue were properly admitted

under the business records exception to the hearsay rule.             Rule 803 of the

Tennessee Rules of Evidence establishes this exception:

       A mem orandum , report, record, or data compilation in any form of
       acts, events, conditions, opinions, or diagnoses made at or near the
       time by or from informa tion transm itted by a pe rson with knowledge
       and a business duty to reco rd or trans mit if kept in th e cours e of a
       regularly conducted business activity and if it was the regular

                                          -7-
      practice of that business activity to make the memorandum, report,
      record, or data co mpilation, all as shown by the testimony of the
      custodian or other qualified witness, unless the source of
      information or the m ethod o r circum stance s of prep aration ind icate
      lack of trustworthine ss. Th e term “busin ess” a s use d on th is
      paragraph includes every kind of business, institution, association,
      profession, occup ation, and calling, wh ether or n ot cond ucted for
      profit.

Tenn. R . Evid. 803(6).



       W e begin w ith analysis of the records from Bradley Memorial Hospital, the

first hospital a t which the Defendant received treatment. With regard to these

records, the State presented the testimony of several hospital employees. Nancy

Dees, the director of medical records at Bradley Memorial Hospital and the

authorized custodian of the hospital’s record s, testified that the hospital maintains

records on eve ry patie nt visit to th e hos pital. Sh e said that the records presented

in this case were prepa red by “perso nnel fro m Br adley M emo rial Ho spital, staff

physicians, persons acting under their control, all in the ordinary course of

business” and that they w ere “prepared near the time of the act, condition, or

event recorded therein.” She stated that the emergency room records were

signed by the attending physician, Dr. Dewayne Knight. She explained that as

an attending physician, Dr. Knight is not technically a hospital employee but

reports to one and must complete his medical reports at or near the time of

treatment of the patient before submitting the re ports to the me dical record

departm ent.



       Dr. Fenton Scruggs, a pathologist and director of the h ospital laboratory,

also testified concerning the records from Bradle y Memo rial Hospital.             Dr.

Scruggs stated that according to the hospital reports, Debbie Crumley, a



                                          -8-
laboratory assista nt at the hosp ital, drew the Defendant’s blood at 2:37 a.m. He

stated that Debbie Talley, a laboratory technician, processed the blood at 2:52

a.m. He further testified that hospital employees must comply with a very strict

procedure to identify and note the name of each patient whose blood is drawn.



       Dr. Knight, who treated the Defendant for his injuries at Bradley Memorial

Hosp ital, testified that the blood tests p erformed o n the Defen dant there we re

ordered as part of “the initial examination” and explained that he received the

results of the test at approximately 3:00 a.m., almost immediately after the test

was perform ed. He stated tha t such tests are rou tinely ordered in cas es where

incoming patien ts exhib it “altered men tal statu s” and explain ed that each day

hundreds of patients in the hospital have their blood drawn. He maintained that

blood tes ts are ge nerally “very tru stworthy” a nd “acc urate.”



       With regard to the blood alcohol test conducted at Erlanger Medical

Center, the State presented testimony by Sue Robinson, a medical records

librarian at the hospital. She testified that the re cords had been certified by a

“custodian of medical records” and that although she had not actually certified the

records at issue, she was a “duly authorized custodian of the records.” When

asked whether the records had been “prepared by the personnel of the hosp ital,

staff physicians, or pe rsons acting u nder their control in the o rdinary course of the

hospital business, and prepared at or near the time of the act, condition, or event

reported,” she responded yes.



       Having reviewed the rec ord in th is case, we are satisfied that the medical

records introduced here were properly admitted under the business records

                                          -9-
exception to the hea rsay rule. The records from both Bradley Memorial Hospital

and Erlanger Medical Center were medical reports compiled by medical

personnel with knowledge who we re unde r a busine ss duty to record the blood

testing procedures and the results of the tests. T he pra ctice o f both h ospita ls is

to regularly compile such reports of hospital activities, and the Defendant’s blood

tests were conducted in the course of regularly conducted hospital activities. In

addition, the State demonstrated that each of the reports concerning the

Defe ndan t’s blood alc ohol tests were made at or near the time of the testing, and

the State presented the reports through testimony of the proper custodians of the

records.     Finally, we note that the spirit of this exception, to ensure the

trustworthiness of evidence introduced as an exception the hearsay rule, has not

been violated by in troduction of these re cords. Hospital records kept daily for

medical purposes and not prepare d for the purpo se of litig ation a re typica lly

deemed reliable.3



       Accord ingly, the jud gmen t of the trial cou rt is affirmed .




                                       ____________________________________
                                       DAVID H. WELLES, JUDGE




       3
            The Defendant does not specifically argue that admission of the medical records
violated the Confrontation Clause of the Sixth Amendment of the United States Constitution or
Article I, Section 9 of the Tennessee Constitution. In a recent case factually similar to this one,
this Court analyzed this issue and concluded that introduction of such medical records did not
violate the defendant’s confrontation rights. State v. Richard A. Green, No. 03C01-9812-CC-
00422, 1999 WL 592229, (Tenn. Crim. App., Knoxville, Aug. 9, 1999).

                                              -10-
CONCUR:



___________________________________
GARY R. WADE, PRESIDING JUDGE


___________________________________
JOE G. RILEY, JUDGE




                             -11-
