                         IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2000-CT-00407-SCT

PATRICK JONES

v.

STATE OF MISSISSIPPI

                                   ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                                 12/14/1999
TRIAL JUDGE:                                      HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                        BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           RAYMOND L. WONG
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL BY:
                                                  DEWITT T. ALLRED, III
DISTRICT ATTORNEY:                                LAURENCE Y. MELLEN
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      AFFIRMED - 10/30/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


        EN BANC.

        SMITH, PRESIDING JUSTICE, FOR THE COURT:

¶1.     Patrick Jones was indicted on one count of vehicular homicide in Bolivar County Circuit Court.

Jones was accused of causing an automobile accident while under the influence of cocaine which resulted

in the death of Emma Powell. Jones was convicted and received a sentence of twenty years with five years

suspended. Jones appealed, and the appeal was assigned to the Court of Appeals which affirmed. Jones

v. State, 2003 WL 21005836 (Miss. Ct. App. 2003). This Court granted certiorari to consider the

application of the physician-patient privilege in criminal cases and the possible evidentiary implication of
standards for hospitals and medical personnel involved in drug testing of patients. 852 So. 2d 577 (Miss.

2003). After due consideration, we find no error in the judgment of the Court of Appeals and affirm.

                                                 FACTS

¶2.     This statement of facts is taken from the opinion of the Court of Appeals:

        While driving his loaded tractor trailer rig along Highway 61 North, just south of Shaw,
        Jones collided with Emma Powell's automobile. More specifically, Jones struck Powell's
        vehicle from the rear as they were both proceeding north in the outside lane of Highway
        61 North which, at the point of impact, is a four-lane highway. At the time of the collision,
        the weather was clear. There were no obstructions blocking the view of northbound
        motorists. There were no skid marks indicating that Jones had applied his brakes prior to
        impact. However, there were skid marks from Powell's vehicle, apparently caused by the
        weight of Jones truck resting on the rear of her car while, at the same time, pushing her car
        down the road. Powell and Jones were both injured and transported to the Bolivar
        Medical Center. Powell later died as a result of the injuries she received.

        Sergeant Bob McFadden with the Mississippi Highway Patrol's Traffic Enforcement
        Division investigated the accident. After Powell was pronounced dead, McFadden
        administered a breath test to Jones. This test was negative for alcohol, and McFadden did
        not request that a urine analysis be performed on Jones.

        Although McFadden did not request that a urine analysis be administered to Jones, one
        was administered by hospital personnel as a part of the diagnostic treatment administered
        to Jones. Clint Robinson, an emergency room registered nurse, retrieved the urine sample
        from Jones, and Betty Cooper, a medical technologist with Bolivar Medical Center,
        following hospital procedures, performed the analysis on Jones's urine. This analysis
        determined that Jones had cocaine in his system. The results of Cooper's cocaine analysis
        were confirmed, pursuant to standard hospital policy, by Memphis Pathology Laboratories
        (MPL). However, no one from MPL testified. Over persistent objection from Jones, the
        trial court admitted the results of the urine analysis, performed by Cooper, and the
        confirmation report performed by MPL.

Jones v. State, 2003 WL 21005836, at * 1 (footnote omitted).

¶3.     Jones was convicted of vehicular homicide and was sentenced to twenty years, with five years

suspended. Jones appealed his conviction and sentence, arguing that the circuit court had admitted the

results of his urinalysis in violation of the physician-patient privilege and without meeting the statutory



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requirements for admission contained in Miss. Code Ann. § 63-11-19 (Supp. 2003). The Court of

Appeals rejected this argument, stating: (1) the results of Jones's urinalysis were not protected by the

physician-patient privilege; (2) the requirements of § 63-11-19 did not per se exclude the evidence in

question; (3) admission of the evidence should be based on a standard of reasonableness; and (4) while

the admission of the report from Memphis Pathology Lab was improper based on hearsay and violation

of the right of confrontation, but this error was harmless.

                                             DISCUSSION

        I.      WHETHER THE PHYSICIAN-PATIENT PRIVILEGE WAS
                APPLICABLE.

¶4.     Jones argues first that the Court of Appeals erred in finding that the results of his urinalysis were

not protected from disclosure by the physician-patient privilege. The privilege may be found at Miss. Code

Ann. § 13-1-21(1) (Rev. 2002) and Mississippi Rule of Evidence 503. None of the exceptions found in

Rule 503 are applicable here.

¶5.     This Court has stated that the physician-patient privilege applies in criminal cases. Hopkins v.

State, 799 So.2d 874 (Miss. 2001); State v. Baptist Mem’l Hosp.-Golden Triangle, 726 So.2d

554 (Miss. 1999); Cotton v. State, 675 So.2d 308 (Miss. 1996); Ashley v. State, 423 So.2d 1311

(Miss. 1982). However, these cases are distinguishable on their facts from Jones's situation. In Ashley,

the privilege was waived when Ashley failed to timely object. In Cotton, the privilege in question was not

Cotton's, but a witness's. In Baptist Mem’l, there was a statutory exception to the privilege, and in

Hopkins, the defendant waived the privilege. In this case the evidence in question came under the

physician-patient privilege, and there was no waiver and no statutory exception. The Court of Appeals

noted that without the urinalysis results there was no evidence of cocaine in Jones's system. Citing Baptist


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Mem’l, the Court of Appeals found that "to ensure the proper administration of justice, the medical

records regarding the analysis of Jones's urine specimen must be removed from the protection of the

physician-patient privilege." Jones, 2003 WL 21005836, at *4 (¶ 20). A defendant in a criminal case

may not rely on this privilege to exclude incriminating evidence. This Court, citing cases from other

jurisdictions, made this same point numerous times in Baptist Mem’l, 726 So.2d at 559, 560, stating that

"[w]here there is an investigation into a serious and/or dangerous felony, public policy must override the

rights of an individual," and that the physician-patient privilege would not be used as a "cloak for a crime."

This issue is without merit.

        II.      WHETHER MISS. CODE ANN. § 63-11-19 IS AN EXCLUSIONARY
                 RULE.

¶6.     Miss. Code Ann. § 63-11-19 states in part:

        A chemical analysis of the person's breath, blood or urine, to be considered valid under
        the provisions of this section, shall have been performed according to methods approved
        by the State Crime Laboratory created pursuant to Section 45-1-17 and the
        Commissioner of Public Safety and performed by an individual possessing a valid permit
        issued by the State Crime Laboratory for making such analysis. The State Crime
        Laboratory and the Commissioner of Public Safety are authorized to approve satisfactory
        techniques or methods, to ascertain the qualifications and competence of individuals to
        conduct such analyses, and to issue permits which shall be subject to termination or
        revocation at the discretion of the State Crime Laboratory. . . The State Crime Laboratory
        shall make periodic, but not less frequently than quarterly, tests of the methods, machines
        or devices used in making chemical analysis of a person's breath as shall be necessary to
        ensure the accuracy thereof, and shall issue its certificate to verify the accuracy of same.

¶7.     Jones argues that the chemical analysis of his urine specimen was not performed according to

methods approved by the State Crime Laboratory and the Commissioner of Public Safety, and that Betty

Cooper did not possess a permit issued by the State Crime Laboratory. Jones seeks to have § 63-11-19

used as a rule of evidence, where noncompliance results in exclusion of the evidence.




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¶8.     The Court of Appeals noted Johnston v. State, 567 So.2d 237 (Miss. 1990), where we

reversed a conviction for DUI because there was no evidence in the record to establish that the intoxilyzer

machine had been calibrated within the time period required by § 63-11-19. The Court of Appeals

correctly distinguished Johnston because it dealt with accuracy of intoxilyzer machines, and also stated

that

        we do not read Johnston to say that the result of a chemical analysis of a person's blood
        inadmissible if it is not done by a permittee of the State Crime Laboratory in accordance
        with methods approved by the State Crime Laboratory. For sure, such an analysis would
        not be deemed as valid as one performed by a permittee in accordance with methods
        approved by the State Crime Laboratory. In such cases, the procedures used in the
        analysis must pass a test of reasonableness.

Jones v. State, 2003 WL 21005836, at *6 (¶ 25).

¶9.     The Court of Appeals then cited Cutchens v. State, 310 So.2d 273 (Miss. 1975), language from

Miss. Code Ann. § 63-11-39(2), which was repealed in 1991, andSchmerber v. California, 384 U.S.

757, 86 S.Ct. 1826, 16 L. Ed.2d 908 (1966), to find that admission of the evidence in question should be

viewed under a reasonableness standard. Finding that the standard was met, the Court of Appeals affirmed

the admission of the urinalysis results.

¶10.    We conclude that § 63-11-19 is not a rule of evidence and evidence otherwise admissible will not

be excluded because of failure to comply with its requirements. Johnston v. State is distinguishable as

it dealt with an intoxilyzer, which must be tested at least quarterly by the State Crime Lab under § 63-11-

19, and not hospital procedures and personnel, as in this case. This issue is without merit.

                                           CONCLUSION

¶11.    We find that the physician-patient privilege may not be used to exclude incriminating drug analysis

results discovered as a result of diagnostic treatment. We find that Miss. Code Ann. § 63-11-19 is not a


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rule of evidence and will not exclude otherwise admissible evidence because of a failure to comply with the

statute’s requirements. Accordingly, we affirm the judgment of the Court of Appeals which affirmed the

circuit court’s judgment.

¶12.    AFFIRMED.

     PITTMAN, C.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR.
GRAVES, J., CONCURS IN RESULT ONLY. McRAE, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




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