             IN THE COURT OF APPEALS OF NORTH CAROLINA

                                No. COA 15-1364

                               Filed: 2 August 2016

Wayne County, No. 13-CRS-54280

STATE OF NORTH CAROLINA

            v.

ROBERT MORGAN SMITH


      Appeal by Defendant from order and judgment dated 27 August 2014 by Judge

Joseph N. Crosswhite in Superior Court, Wayne County. Heard in the Court of

Appeals 25 April 2016.


      Attorney General Roy Cooper, by Assistant Attorney General Whitney Hendrix
      Belich, for the State.

      Strickland, Agner & Associates, by Dustin B. Pittman, for Defendant.


      McGEE, Chief Judge.


      Robert Morgan Smith (“Defendant”) appeals from order of the trial court

 summarily denying his motion to suppress his medical records pursuant to a search

 warrant after he was charged with driving while impaired. Defendant contends the

 trial court erred in denying his motion to suppress as untimely under N.C. Gen.

 Stat. § 15A-971 et seq.    Defendant further argues the trial court erroneously

 admitted the medical records in violation of the physician-patient privilege, N.C.
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                                 Opinion of the Court



Gen. Stat. § 8-53, and certain health information disclosure provisions in N.C. Gen.

Stat. § 90-21.20B. We find no error.

                                  I. Background

    Sergeant Karl Rabun (“Sgt. Rabun”) of the Goldsboro Police Department

responded to an early morning call on 5 September 2013 reporting a motorcycle

crash at a traffic circle in downtown Goldsboro, North Carolina. Upon arriving at

the scene, Sgt. Rabun found Defendant lying on the ground on the east side of the

intersection, with one arm pinned beneath a “badly damaged” motorcycle. Sgt.

Rabun recognized Defendant as a local attorney who had previously worked in

Wayne County law enforcement. As Sgt. Rabun approached Defendant, he noticed

“the strong odor of alcoholic beverage . . . emanating from [Defendant’s] breath as

he was trying to speak and breathe.” Defendant was “complaining of pain . . . from

obviously being involved in [an] impact.” Sgt. Rabun directed Defendant to lie still

until emergency medical responders arrived. Rescue personnel and additional law

enforcement officers arrived and helped lift the motorcycle off Defendant.

    Officer Matthew Marino (“Officer Marino”) of the Goldsboro Police Department

assumed responsibility as lead investigator of the crash.          Officer Marino

immediately noticed the “very strong” odor of alcohol on Defendant’s breath. He

observed that the engine of Defendant’s motorcycle was still hot. Defendant was

transported by medical responders to the Emergency Room at Wayne Memorial

Hospital (“the hospital”), where he was treated for injuries.

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    Approximately forty-five minutes after Defendant arrived at the hospital,

Officer Marino spoke with Defendant again. Officer Marino continued to detect a

strong odor of alcohol on Defendant’s breath and observed that Defendant had

bloodshot eyes and slurred speech.       Officer Marino formed the opinion that

Defendant’s faculties were “appreciably impaired” and that “it was more probable

rather than not that [Defendant] [had been] driving under the influence of alcohol.”

After advising Defendant of his implied-consent rights, Officer Marino asked

Defendant to submit to a blood test. Defendant refused a blood test, telling Officer

Marino to “go get a warrant.”       Later that morning, Officer Marino charged

Defendant with driving while impaired.

    Officer Marino applied for a search warrant on 9 September 2013 to obtain

Defendant’s medical records from Wayne Memorial Hospital related to the

motorcycle crash, which was granted. Officer Marino received a total of twenty

pages of medical records. Defendant’s medical records noted that Defendant had

an elevated blood alcohol level at the time of treatment on 5 September 2013. The

State filed a notice of intent to use evidence on 6 March 2014, pursuant to N.C. Gen.

Stat. § 15A-975(b), including “any . . . oral, written, recorded, and otherwise

memorialized statements of the defendant” and “[a]ny and all laboratory analyses

provided to the Defendant.”




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     Defendant filed a motion to suppress his medical records on 22 August 2014,

alleging that the search warrant had “illegally authorized the seizure of

[Defendant’s] hospital records pertaining to [his] . . . medical treatment beginning

5 September 2013.” In a memorandum of law filed with Defendant’s motion to

suppress, Defendant alleged that the search warrant violated North Carolina’s

physician-patient privilege, certain health information disclosure provisions in N.C.

Gen. Stat. § 90-21.20B, and the federal Health Insurance Portability and

Accountability Act (HIPAA). Defendant also alleged that the warrant was not

supported by probable cause as required by N.C. Gen. Stat. § 15A-244.

     The State moved to summarily dismiss Defendant’s motion to suppress,

alleging that Defendant’s motion was untimely and accompanied by an insufficient

affidavit. Prior to trial, the trial court heard and summarily denied Defendant’s

motion to suppress, finding that Defendant’s motion was untimely under N.C. Gen.

Stat. § 15A-976, and that Defendant had not offered any newly discovered facts or

extraordinary circumstances that would justify a late filing. In denying Defendant’s

motion to suppress, the trial court noted it “[did] not address the merits of

[Defendant’s] motion, and . . . intentionally preserve[d] the right of the Defendant

to raise any objections during the course of th[e] trial at the appropriate time.”

     The trial court then heard pre-trial arguments regarding the admissibility of

Defendant’s medical records. After considering the text of N.C.G.S. § 90-21.20B,



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 relevant HIPAA provisions, and case law cited by the State, the trial court held it

 would

              allow [Defendant’s] records to be introduced for the limited
              purposes indicated; specifically to establish [Defendant’s]
              blood alcohol level, and any statements made by . . .
              Defendant concerning the motor vehicle accident. Again,
              this is all subject to the proper identifications and
              authentications of these [medical] records at the
              appropriate time [during trial].

The State was instructed to redact “all remaining information” based on the trial

court’s conclusion that it would have no probative value and that such redaction was

necessary to protect Defendant’s privacy.          Defendant’s medical records were

subsequently admitted into evidence and published to the jury. The jury found

Defendant guilty on 27 August 2014 of driving while impaired. Defendant was

sentenced to a level two impaired driving sentence of twelve months, suspended for

a probationary term of twenty-four months. Defendant gave notice of appeal in open

court.

         The State filed a motion to dismiss the appeal on 21 July 2015, based on

 Defendant’s failure to timely serve the record on appeal. The motion was heard and

 allowed by Judge Arnold O. Jones, II on 10 September 2015. Defendant petitioned

 this Court on 15 September 2015 to issue a writ of certiorari to review the decision

 of the trial court. The petition for writ of certiorari was allowed on 1 October 2015.




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                                   Opinion of the Court



 Defendant appeals the trial court order summarily denying his motion to suppress

 and the admission of his medical records into evidence.

                               II. Standard of Review

      A trial court’s conclusions of law in ruling on a motion to suppress evidence are

reviewable de novo. See State v. Barnhill, 166 N.C. App. 228, 230, 601 S.E.2d 215,

217 (2004). “Under a de novo review, the court considers the matter anew and freely

substitutes its own judgment” for that of the trial court. State v. Williams, 362 N.C.

628,632-33, 669 S.E.2d 290, 294 (2008) (quoting In re Appeal of The Greens of Pine

Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)). We review de novo

the trial court’s conclusion that Defendant’s motion to suppress was untimely filed

under N.C. Gen. Stat. § 15A-976.

      Defendant also argues that his medical records were improperly admitted

because they were obtained in violation of the physician-patient privilege, N.C. Gen.

Stat. § 8-53, as well as certain health information disclosure provisions in N.C. Gen.

Stat. § 90-21.20B. “Resolution of issues involving statutory construction is ultimately

a question of law for the courts. Where an appeal presents a question of statutory

interpretation, full review is appropriate, and we review a trial court’s conclusions of

law de novo[.]” In re Hamilton, 220 N.C. App. 350, 352, 725 S.E.2d 393, 395 (2012)

(citation omitted).

                                    III. Analysis

                      A. Timeliness of Defendant’s Motion to Suppress

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      Defendant first argues the trial court erred by summarily dismissing his

motion to suppress as untimely, pursuant to N.C. Gen. Stat. § 15A-976. Defendant

contends that, because the motion to suppress was not based on any of the grounds

specified in N.C. Gen. Stat. § 15A-974, it was not subject to the time constraints set

forth in N.C.G.S. § 15A-976. Under § 15A-974, evidence must be suppressed if “(1)

[i]ts exclusion is required by the Constitution of the United States or the Constitution

of the State of North Carolina; or (2) [i]t [was] obtained as a result of a substantial

violation of the provisions of this Chapter.” N.C. Gen. Stat. §§ 15A-974(a)(1)-(2)

(2015). See State v. Simpson, 320 N.C. 313, 322, 357 S.E.2d 332, 337 (1987) (“In

determining whether [N.C.G.S. § 15A-974(a)(2)] requires suppression, the reviewing

court must consider the importance of the interest violated, the extent of the deviation

from lawful conduct and whether the violation was willful, as well as the extent to

which suppression will deter future violations.”); State v. Wilson, 293 N.C. 47, 50, 235

S.E.2d 219, 221 (1977) (“G.S. 15A-974[(a)](1) . . . mandates the suppression of

evidence only when the evidence sought to be suppressed is obtained in violation of

defendant's constitutional rights.” (emphasis in original)). Defendant explicitly cited

the North Carolina and United States constitutions, as well as N.C.G.S. § 15A-971 et

seq., in support of his motion to suppress. As our Supreme Court has noted,

             [a] defendant who seeks to suppress evidence upon a
             ground specified in G.S. 15A-974 must comply with the
             procedural requirements outlined in G.S. 15A-971, et
             seq.   Moreover, such defendant has the burden of


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              establishing that his motion to suppress is timely and
              proper in form.

State v. Satterfield, 300 N.C. 621, 624-25, 268 S.E.2d 510, 513-14 (1980) (internal

citation omitted)).

      N.C. Gen. Stat. § 15A-976(b) provides that

              [i]f the State gives notice not later than 20 working days
              before trial of its intention to use evidence and if the
              evidence is of a type listed in G.S. 15A-975(b), the
              defendant may move to suppress the evidence only if [the]
              motion is made not later than 10 working days following
              receipt of the notice from the State.

N.C. Gen. Stat. § 15A-976(b) (2015). In turn, the “type[s] of evidence listed in G.S. §

975(b)” are

              (1) [e]vidence of a statement made by a defendant;
              (2) [e]vidence obtained by virtue of a search without a
              search warrant; or
              (3) [e]vidence obtained as a result of [a] search with a
              search warrant when the defendant was not present at the
              time of the execution of the search warrant.

N.C. Gen. Stat. §§ 15A-975(b)(1)-(3) (2015). Defendant concedes that his medical

records were obtained “with a search warrant when [he] was not present at the time

of the execution of the search warrant.” N.C.G.S. § 15A-976(b)(3). Accordingly,

Defendant’s motion to suppress fell squarely within the language of N.C.G.S. § 15A-

975(b)(3), and thus was subject to N.C.G.S. § 15A-976(b).




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                                         Opinion of the Court



       The State filed its notice of intent to use certain evidence1 on 6 March 2014.

Defendant filed his motion to suppress all evidence obtained by search warrant on 22

August 2014, a few business hours before his trial was scheduled to begin. As

Defendant sought to suppress evidence obtained as a result of a search warrant

executed outside his presence, and because Defendant failed to file the motion to

suppress “not later than 10 working days following receipt of the notice from the

State,” N.C.G.S. § 15A-976(b) applies and his motion to suppress was untimely filed.

The trial court acted within its “statutorily vested [authority] . . . to deny summarily

[a] motion to suppress when the defendant fails to comply with the procedural

requirements of Article 53.” State v. Holloway, 311 N.C. 573, 578, 319 S.E.2d 261,

264 (1984).2

       We note that even if a trial court erroneously summarily denies a motion to

suppress, the defendant must show the error was prejudicial. See, e.g., State v.

Speight, 166 N.C. App. 106, 115, 602 S.E.2d 4, 11 (2004) (concluding that although

the trial court erroneously denied defendant’s motion to suppress for untimeliness,

the error was not prejudicial); State v. Chance, 130 N.C. App. 107, 112, 502 S.E.2d


       1  The State’s notice of intent identified two specific types of evidence potentially obtainable
from Defendant’s medical records: statements made by Defendant, and “[a]ny and all laboratory
analyses provided to [] Defendant.” Additional evidence listed in the notice of intent—“[a]ny and all
photographs, physical evidence, and video tapes collected from the Defendant, the Defendant’s home
or vehicle, the crime scene, and any other location”—was unrelated to Defendant’s medical records
and is not at issue in this appeal.
        2 The General Assembly has indicated that procedural requirements found in Article 53 are

intended “to produce in as many cases as possible a summary granting or denial of the motion to
suppress.” See N.C. Gen. Stat. § 15A-977 official cmt. (2015).

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22, 25 (1998) (upholding trial court’s erroneous denial of motion to suppress where

defendant “failed to show a reasonable possibility that a different result would have

been reached at trial had such error[] not been committed.”). In this case, despite

denying Defendant’s motion to suppress on procedural grounds, the trial court

stressed that it “[did] not address the merits of [the] motion” and “intentionally

preserve[d] the right of the Defendant to raise any objections during the course of

th[e] trial at the appropriate time.” The trial court did, in fact, permit defense counsel

to argue at length regarding the admissibility of Defendant’s medical records,

including discussion of the substantive statutory arguments raised in Defendant’s

motion to suppress.     Even assuming arguendo that the trial court erroneously

concluded Defendant’s motion to suppress was untimely, Defendant has not shown

“a reasonable possibility that, had the error in question not been committed, a

different result would have been reached at the trial.” See also N.C. Gen. Stat. § 15A-

1443(a) (2015).

                      B. Admissibility of Defendant’s Medical Records

      Defendant also contends the trial court erred in admitting his medical records

into evidence “without regard for” the physician-patient privilege set forth in N.C.

Gen. Stat. § 8-53, and contrary to several health information disclosure provisions in

N.C. Gen. Stat. § 90-21.20B. We disagree and address each in turn.

                               (1) Physician-Patient Privilege



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         Defendant maintains that, by the plain language of the physician-patient

privilege statute, N.C. Gen. Stat. § 8-53, disclosure of a patient’s medical records may

be compelled only by judicial order after determination that such disclosure is

“necessary to a proper administration of justice.” See N.C. Gen. Stat. § 8-53 (2015).

Defendant cites no authority, other than N.C.G.S. § 8-53 itself, to support his

argument that this statute provides the exclusive means of obtaining patient medical

records. The State asserts that another statute, N.C. Gen. Stat. § 90-21.20B, allows

law enforcement to obtain medical records through a search warrant for criminal

investigative purposes. It notes that the latter explicitly permits the disclosure of

certain protected patient health information to law enforcement “[n]otwithstanding

G.S. 8-53 or any other provision of law . . . .” See N.C. Gen. Stat. §§ 90-21.20B(a), (a1)

(2015). According to the State, this demonstrates that N.C.G.S. § 8-53 is not the only

statute under which patient medical records may be requested and released. We

agree.

                          (2) Disclosure pursuant to search warrant

         We next consider Defendant’s argument that N.C.G.S. § 90-21.20B “[did not]

permit[] the disclosure to law enforcement and use at trial of the medical records in

this case.” (Def. br. at 15) We disagree.

         N.C. Gen. Stat. § 90-21.20B provides in pertinent part:

               (a)   Notwithstanding G.S. 8-53 or any other provision of
               law, a health care provider may disclose to a law


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             enforcement officer protected health information only to
             the extent that the information may be disclosed under the
             federal Standards for Privacy of Individually Identifiable
             Health Information, 45 C.F.R. § 164.512(f) and is not
             specifically prohibited from disclosure by other state or
             federal law.

             (a1) Notwithstanding any other provision of law, if a person
             is involved in a vehicle crash:

                      (1) Any health care provider who is providing
                      medical treatment to the person shall, upon request,
                      disclose to any law enforcement officer investigating
                      the crash the following information about the
                      person: name, current location, and whether the
                      person appears to be impaired by alcohol, drugs, or
                      another substance.

                      (2) Law enforcement officers shall be provided
                      access to visit and interview the person upon
                      request, except when the health care provider
                      requests temporary privacy for medical reasons.

                      (3) A health care provider shall disclose a certified
                      copy of all identifiable health information related to
                      that person as specified in a search warrant or an
                      order issued by a judicial official.

In interpreting N.C.G.S. § 90-21.20B, we look to the federal regulations referenced in

N.C.G.S. §90-21.20B(a), which govern disclosure of “protected health information for

a law enforcement purpose[.]” See 45 C.F.R. § 164.512(f) (2016). Those regulations

define   “protected    health   information”    as    “individually   identifiable   health

information,” which in turn is defined as:

             [I]nformation that is a subset of health information,
             including demographic information collected from an


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                                         Opinion of the Court



               individual, and:

                       (1) Is created or received by a health care provider,
                       health plan, employer, or health care clearinghouse;
                       and

                       (2) Relates to the past, present, or future physical
                       or mental health or condition of an individual; the
                       provision of health care to an individual; or the past,
                       present, or future payment for the provision of
                       health care to an individual; and

                            (i) That identifies the individual; or

                            (ii) With respect to which there is a reasonable basis to
                                 believe the information can be used to identify the
                                 individual.

45 C.F.R. § 160.103 (2016).3 The regulations further provide that a health care

provider may disclose protected health information (i.e., “individually identifiable

health information”) for a law enforcement purpose to a law enforcement official “[i]n

compliance with . . . [a] court order or court-ordered warrant” as long as “(1) [t]he

information sought is relevant and material to a legitimate law enforcement inquiry;

(2) [t]he request is specific and limited in scope to the extent reasonably practicable




       3   “Protected health information” explicitly excludes four specific types of “individually
identifiable health information,” none of which are at issue in this case: (1) education records covered
by the federal Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g; (2) FERPA
records described in 20 U.S.C. § 1232g(a)(4)(B)(iv); (3) employment records held by a covered entity in
its role as employer; and (4) records “[r]egarding a person who has been deceased for more than 50
years.” See 45 C.F.R. § 160.103.



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in light of the purpose for which the information is sought; and (3) [d]e-identified

information4 could not reasonably be used.” 45 C.F.R. § 164.512(f)(1)(ii) (2016).

        Defendant argues that “protected health information” obtainable by law

enforcement under 45 C.F.R. § 164.512(f) (and thus N.C.G.S. § 90-21.20B(a)) is

limited to “demographic information which identifies an individual or upon which

there is a reasonable basis to believe that an individual may be identified,” and that

N.C.G.S. § 90-21.20B(a) does not permit law enforcement to obtain any further

information. As an initial matter, we note that Defendant did not contend at trial

that certain “demographic information” in his medical records was obtainable by

search warrant; he contended that the records were improperly released because the

information in the records was “not obtained for a law enforcement purpose or a law

enforcement use.”5

        Defendant overlooks the fact that “protected health information” (used

synonymously with “individually identifiable health information”), as defined in 45

C.F.R. § 160.103, “includ[es],” rather than is limited to, demographic information



        4 “De-identified information” is “[h]ealth information that does not identify an individual and
with respect to which there is no reasonable basis to believe that the information can be used to identify
an individual . . . .” 45 C.F.R. § 164.514(a) (2016). HIPAA permits covered entities (i.e., health care
providers) to disclose limited de-identified health information “for the purposes of research, public
health, or health care operations.” 45 C.F.R. § 164.514(e)(3)(i) (2016).
        5 Defendant argued instead that a different standard altogether, 45 C.F.R. § 164.512(e),

applied in this case. That provision governs disclosures of protected health information for judicial
and administrative proceedings (as opposed to disclosures for law enforcement purposes, see 45 C.F.R.
§ 164.512(f)), and contains notice and hearing requirements. In his brief before this Court, Defendant
does not refer to 45 C.F.R. § 164.512(e).

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about an individual patient. Defendant also reads the phrase out of context: the

regulations refer specifically to “demographic information collected from an

individual” (emphasis added).     In our view, this merely recognizes that “health

information” encompasses information received directly from the patient, in addition

to information created by the provider or received from some other source.

      By its plain language, 45 C.F.R. § 164.512(f) permits disclosure of health

information to law enforcement as required by search warrant, if certain conditions

are met. Defendant has not alleged that the search warrant in this case sought

information that was not “relevant and material to a legitimate law enforcement

inquiry” or was insufficiently “specific and limited in scope,” or that de-identified

information could have reasonably been used instead. See 45 C.F.R. § 164.512(f)(1)(ii)

(2016). Accordingly, Defendant has not demonstrated that his medical records were

obtained in violation of 45 C.F.R. § 164.512(f) or N.C.G.S. § 90-21.20B(a).

                         (3) Disclosures Related to a Vehicle Crash

      Finally, N.C. Gen. Stat. § 90-21.20B(a1)(1) specifically addresses disclosure of

medical information about a person involved in a vehicle crash. It provides that

             [n]otwithstanding any other provision of law, . . . [a]ny
             health care provider who is providing medical treatment to
             the person [involved in a vehicle crash] shall, upon request,
             disclose to any law enforcement officer investigating the
             crash the following information about the person: name,
             current location, and whether the person appears to be
             impaired by alcohol, drugs, or another substance.



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N.C. Gen. Stat. § 90-21.20B(a1)(1) (2015). Defendant argues that this “more narrow

provision” permits law enforcement officers investigating a vehicle crash, with or

without a search warrant, “to be provided information which informs them of the

identity of an individual and whether that person appears to be impaired—nothing

more.” We disagree.

      In N.C.G.S. § 90-21.20B(a1)(1), the General Assembly authorized disclosure

“upon request” to law enforcement of the three types of information listed, in the

context of a vehicular accident. By contrast, N.C. Gen. Stat. § 90-21.20B(a1)(3)

permits disclosure of “identifiable health information related to th[e] person [involved

in the vehicle crash] as specified in a search warrant or other judicial order.” N.C.

Gen. Stat. § 90-21.20B(a1)(3) (2015) (emphases added).        “The rules of statutory

construction require presumptions that the legislature inserted every part of a

provision for a purpose and that no part is redundant.” Hall v. Simmons, 329 N.C.

779, 784, 407 S.E.2d 816, 818 (1991) (citing State v. Williams, 286 N.C. 422, 432, 212

S.E.2d 113, 120 (1975)). This principle leads us to conclude that the information

listed in N.C.G.S. § 90-21.20B(a1)(1) may be disclosed, without a warrant, at the

request of law enforcement officials investigating a vehicle crash, while disclosure of

additional “identifiable health information” in the same context is possible, but

requires a search warrant or judicial order that “specifie[s]” the information sought.

As discussed above, under federal law, “identifiable health information” includes



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information created by a health provider that “[r]elates to the past, present, or future

physical or mental health or condition of an individual.” 45 C.F.R. § 160.103. Thus,

we conclude that under N.C.G.S.                § 90-21.20B(a1)(3), “identifiable health

information” obtainable by search warrant is not strictly limited to an individual’s

name, current location, and perceived state of impairment.

      On appeal, Defendant argues his medical records were inadmissible based

upon N.C.G.S. § 8-53 and N.C.G.S. § 90-21.20B only. He does not reassert the

additional argument raised before the trial court in his motion to suppress, that the

search warrant was not supported by sufficient probable cause in violation of N.C.

Gen. Stat. § 15A-244, and we do not reach that issue. Defendant also does not allege

the records were otherwise inadmissible due to some defect in evidentiary procedure.

See, e.g., State v. Drdak, 330 N.C. 587, 592-93, 411 S.E.2d 604, 607-08 (1992) (holding

that the State was required to lay a proper foundation for the admission of blood

alcohol test results not controlled by implied-consent statutory procedures). Because

Defendant has not shown that his medical records were obtained in violation of either

statute he cites, we find no error.

      NO ERROR.

      Judges STEPHENS and DAVIS concur.




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