         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  September 21, 2004 Session

                     STATE OF TENNESSEE v. CRAIG S. COOK

                       Appeal from the Criminal Court for Wilson County
                          No. 01-1618 John D. Wootten, Jr., Judge



                    No. M2002-02460-CCA-R3-CD - Filed December 9, 2004


The Appellant, Craig S. Cook, presents for review a certified question of law. See Tenn. R. Crim.
P. 37(b)(2)(i). Cook pled guilty to Driving Under the Influence (DUI), first offense, and was
sentenced to eleven months, twenty-nine days jail confinement, to be suspended after service of ten
days. As a condition of his guilty plea, Cook explicitly reserved a certified question of law
challenging the denial of his motion to suppress the results of a blood alcohol test administered by
a private hospital in the course of medical treatment. Cook argues that the procedures utilized to
obtain the results of the test violated both his constitutional right to privacy and due process. On
appeal, the State asserts that the question presented is not dispositive and, thus, this court is without
jurisdiction to hear this appeal. After review, we agree that the certified question is not dispositive.
Accordingly, the appeal is dismissed.

                              Tenn. R. App. P. 3; Appeal Dismissed

DAVID G. HAYES, J., delivered the opinion of the court, in which JERRY L. SMITH and THOMAS T.
WOODALL, JJ., joined.

Frank Lannom, Lebanon, Tennessee, for the Appellant, Craig S. Cook.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Helen Walton
Yarbrough, Assistant Attorney General; Jerry Hunt, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                              OPINION

                                        Factual Background

        At approximately 7:00 p.m. on August 24, 2001, the Appellant was involved in a single
vehicle accident. Upon arriving at the scene, Trooper Steve Chapman observed the Appellant “and
a motorcycle in the front lawn of a residence off of Canoe Branch Road[.]” At this time, emergency
medical personnel were administering first aid to the Appellant, who was lying on the ground.
Trooper Chapman’s questions to the Appellant were necessarily limited due to the Appellant’s
serious injuries. However, according to Chapman, the Appellant “did say he was driving the
motorcycle, and when talking to [the Appellant], I noted an obvious odor of alcoholic beverage on
him and asked him about that. [The Appellant] said he had drank three beers.” The Appellant was
transported to a nearby hospital for medical treatment. Chapman was unable to speak with the
Appellant at the hospital because he was being treated for “wounds, lacerations, a fracture to his
shoulder or collar bone[.]” He was advised, however, that medical personnel had performed
hematology tests for drugs and alcohol.

        After leaving the hospital, Trooper Chapman delivered a memorandum report to the district
attorney general’s office, requesting that the assistant district attorney obtain the hospital records of
the Appellant’s blood alcohol content. Based upon this request, a subpoena was issued by the
Wilson County Circuit Court Clerk to the Custodian of Records for the University Medical Center.
The subpoena requested “any lab tests for alcohol or drugs . . . pertaining to treatment rendered for
injuries incurred in an automobile crash that occurred on 8-24-2001.” The subpoena further stated
that compliance could be accomplished by delivering the records to the grand jury or the district
attorney general’s office. The State acknowledged that in addition to the lab tests for alcohol or
drugs, the hospital provided all of the Appellant’s medical records related to treatment on the day
of the accident. The Appellant did not receive any notice of this subpoena.

        The medical records were opened and reviewed by the district attorney’s office without the
consent of the Appellant or the prior judicial approval of a court of competent jurisdiction. The
documents were then submitted to a Wilson County grand jury as evidence of the Appellant’s
intoxication.1 A two-count indictment was subsequently returned by the grand jury for driving under
the influence, in violation of Tennessee Code Annotated section 55-10-401, and driving with a blood
alcohol level of .10 percent or more, in violation of Tennessee Code Annotated section 55-10-
401(a)(2).

        The Appellant moved to suppress the results of the blood alcohol test, contending that the
State violated his constitutional right to privacy by issuing the subpoena to the hospital for his
personal medical records taken in the course of treatment for injuries received in the collision. The
trial court denied the Appellant’s motion.

       On June 17, 2002, the Appellant pled guilty to DUI, first offense. As part of the plea
agreement, the remaining count of driving with a blood alcohol content over the legal limit was
dismissed. As a condition of his guilty plea, the Appellant reserved a certified question of law,
which is now before this court on appeal.




        1
            The medical records indicated that the Appellant’s blood alcohol concentration was 204 mg/dL.

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                                             ANALYSIS

       In this appeal, the Appellant seeks review of the following certified question of law:

       Whether the subpoena of the [Appellant’s] private medical records by the Grand Jury
       violate the constitutional and statutory protections of the [Appellant] when the
       records were delivered to the Office of the District Attorney General and opened by
       a member of the District Attorney’s Staff without consent of the [Appellant] or prior
       judicial approval and then presented to the grand jury violating the following rights:

               A) The [Appellant’s] Federal and State Constitutional Rights of
               Privacy protected by the 14th Amendment and Article 1 Section 8 of
               the Tennessee Constitution.

               B) Due Process Rights protected by the 14th Amendment and Article 1
               Section 8 of the Tennessee Constitution.

               C) Rights against Unreasonable Search and Seizure protected by the 4th
               Amendment and Article 1 Section 7 of the Tennessee Constitution.

               D) Rights granted under T.C.A. § 68-11-404, § 68-11-402, and § 68-11-304.

Rule 37(b)(2)(i), Tennessee Rules of Criminal Procedure, allows an appeal from a guilty plea in
certain cases under very narrow circumstances. An appeal lies from a guilty plea, pursuant to Rule
37(b)(2)(i), if the final order of judgment contains a statement of the dispositive certified question
of law reserved by the Appellant, wherein the question is so clearly stated as to identify the scope
and the limit of the legal issues reserved. State v. Preston, 759 S.W.2d 647, 650 (Tenn. 1988). The
order must also state that the certified question was expressly reserved as part of the plea agreement,
the State and the trial judge consented to the reservation, and the State and the trial judge are of the
opinion that the question is dispositive of the case. Id. If these circumstances are not met, this court
is without jurisdiction to hear the appeal. See State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn.
1996). The burden is on the Appellant to see that these prerequisites are in the final order and that
the record brought to the appellate court contains all of the proceedings below that bear upon
whether the certified question of law is dispositive and the merits of the question certified. Id. The
issue of whether the question of law, as presented, is dispositive is critical to appellate review as
generally an appeal does not lie from a guilty plea conviction. Patterson v. State, 684 S.W.2d 110,
111 (Tenn. Crim. App. 1984). This court is not permitted to assume jurisdiction of a case based
upon “agreement of litigants and the trial court.” State v. Wilkes, 684 S.W.2d 663, 667 (Tenn. Crim.
App. 1984); see also Preston, 759 S.W.2d at 651; State v. Oliver, 30 S.W.3d 363, 364 (Tenn. Crim.
App. 2000). In sum, the parties to the litigation may not by agreement confer jurisdiction when none
exists otherwise. An issue is dispositive when this court must either affirm the judgment or reverse
and dismiss. Wilkes, 684 S.W.2d at 667.



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        While the State at the trial level agreed that the certified question is dispositive, on appeal,
the State argues that the question is not dispositive of the case. We agree that the question is not
dispositive because other evidence of the Appellant’s guilt was available to support the conviction.
It is well established that the denial of a motion to suppress a blood alcohol test is not necessarily
dispositive of the case when sufficient evidence exists that is “independent of the test result,” such
as the testimony from an officer or other witness that the motorist drove in a manner or otherwise
exhibited behavior that suggested impairment of the ability to drive. State v. Gregory W. Gurley,
No. W2001-02253-CCA- R3-CD (Tenn. Crim. App. at Jackson, Aug. 6, 2002).2 In the case before
us, the proof demonstrates that the Appellant was involved in single vehicle collision and the
motorcycle he was driving was located “in the front lawn of a residence[.]” He sustained significant
injuries from the impact. Moreover, Trooper Chapman testified that he observed “an obvious odor
of alcoholic beverage” on the Appellant and the Appellant admitted to drinking three beers. This
proof is sufficient to permit a rational fact finder to conclude beyond a reasonable doubt, based upon
circumstantial evidence, that the Appellant was driving under the influence. See State v. Vasser, 870
S.W.2d 543, 544 (Tenn. Crim. App. 1993); State v. Corder, 854 S.W.2d 653, 654 (Tenn. Crim. App.
1992). Thus, in this case were we to agree with the Appellant and suppress the test results, this
ruling would not dispose of the case as there is evidence independent of the test which would support
a conviction. Accordingly, we conclude that the issue of whether the results of the blood alcohol test
should have been suppressed is not dispositive of the case. As such, this court has no jurisdiction
to entertain this appeal. Tenn. R. Crim. P. 37(b)(2)(i). Accordingly, the appeal is dismissed.

        Notwithstanding our dismissal of the case, we would agree with the Appellant that a patient’s
right to privacy in the contents of his or her medical records in a licensed health care facility is
statutorily recognized by Tennessee Code Annotated section 68-11-11502 (2001). See also Tenn.
Code Ann. § 68-11-304(c) (2001). The Appellant’s medical records in this case were obtained
through the issue of a subpoena duces tecum at the request of the assistant district attorney, as
authorized by Tennessee Code Annotated section 68-11-402(a) (2001). Moreover, it is clear that
hospital records may be subpoenaed for use in a criminal proceeding. Tenn. Code Ann. § 68-11-
404(a)(3) (2001); State v. Tammy Hart, No. E2003-00053-CCA-R3-CD (Tenn. Crim. App. at
Knoxville, Nov. 7, 2003), perm. to appeal denied, (Tenn. 2004); Op. Tenn. Att’y Gen. No. 01-138
(Sept. 4, 2001).

         We would acknowledge, as argued by the Appellant, that various procedural safeguards were
not followed in this case. First, we find no authority which would permit a patient’s confidential
medical records to be “opened and examined by a member of the District Attorney’s Staff.” The
provisions of Tennessee Code Annotated section 68-11-404 require that the records be sealed and
remained sealed until opened, as pertinent to this case, by the foreperson of the grand jury. Tenn.
Code Ann. § 68-11-404(a). Additionally, Tennessee Code Annotated section 68-11-402(b) requires
that the subpoenaing party provide notice within ten days to the affected party that his or her medical


         2
          The Appellant pled guilty to driving under the influence as charged in count one. Had the Appellant pled guilty
under count two, driving while his alcohol content was .10 percent or more in violation of Tennessee Code Annotated
section 55-10-401(a)(2) (1998), the issue of the admissibility of the blood alcohol test would have been dispositive of
the case.

                                                          -4-
records have been subpoenaed. While these and other procedural requirements were not followed,
these deficiencies do not alter the fact that the certified question is not dispositive or that the
obtaining of a patient’s medical records by the District Attorney General in a criminal proceeding
does not encroach upon any constitutional right.

                                         CONCLUSION

       Based upon the foregoing, we conclude that the certified question before us is not dispositive
of the Appellant’s case. Thus, because the question of law is not properly before this court, we
dismiss for lack of jurisdiction.




                                                      ___________________________________
                                                      DAVID G. HAYES, JUDGE




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