STATE v MAGNUSON

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NO. 83-162 IN THE SUPREME COURT OF THE STATE OF MONTANA 1984 STATE OF MONTANA, Plaintiff and Appellant, -vs- ARTHUR LEROY IJIAGNUSON, Defendant and Respondent. APPEAL FROM: District Court of the Fourteenth Judicial District, In and for the County of Musselshell, The Honorable Roy Rodeghiero, Judge presiding. COUNSEL OF RECORD: For Appellant: Hon. Mike Greely, Attorney General, Helena, Montana Mary Kay Wheeler, 3rd Yr. Law Student, introduced by James McLean, Asst. Atty. General, argued for the State John L. Pratt, County Attorney, Roundup, Montana For Respondent : Kathryn R. Baylis argued, Roundup, Plontana Submitted: March 2, 1984 Decided: Filed: June 12, 1984 AN 12 1984 Clerk - Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court. The State of Montana appeals from an order of the District Court, Fourteenth Judicial District, Musselshell County, dismissing a charge of operating a motor vehicle while under the in£luence of intoxicating liquor against the defendant, Arthur Leroy Magnuson. We reverse. On the afternoon of July 29, 1982, Magnuson became intoxicated and drove away from the Kee Angus in Musselshell County in his blue Ford Bronco. Ranch Before he left he had been confronted by Mary Kee, a friend, who knew he had been drinking. Mary Kee had attempted to persuade Magnuson not to drive and had taken the keys to his Bronco. Magnuson found another set of keys and left the ranch. Kee, concerned that Magnuson was driving while intoxicated, called the Sheriff's Office, hoping to speak with Sheriff Brian Neidhardt, a friend of ~ e e g . As Sheriff Neidhardt was not there Kee called the Alcoholics Anonymous number listed in the local newspaper. House, the director Alcohol Program. of Kee spoke with Mac the Musselshell County Drug and Kee did not know that Magnuson was in treatment with Mac House at that time and had never spoken with Mac House prior to the phone call. Kee told House about the problem and the two of them agreed to let matters take their course. After receiving Keels phone call, House discussed the situation with Undersheriff Floyd Ray Fisher. House advised Undersheriff Fisher that Magnuson was intoxicated and was driving his Bronco. Undersheriff Fisher later testified that he had seen the vehicle around town at a few of the d i f f e r e n t bars, to him, he and t h a t a f t e r House d e s c r i b e d t h e v e h i c l e remembered the vehicle. House advised Undersheriff Fisher T r a c y ' s Bar. U n d e r s h e r i f f F i s h e r a s k e d House i f h e w a n t e d to accompany him t h a t Magnusons's also and the two of u s u a l h a n g o u t was them got into Fisher's vehicle. A s F i s h e r drove toward T r a c y ' s Magnuson's Highway vehicle coming Fisher 87. in later the Bar, h e and House saw opposite testified direction that on Magnuson had " a p p r o x i m a t e l y a q u a r t e r t o a l m o s t h a l f o f h i s v e h i c l e i n my l a n e of t r a f f i c . " his r i g h t hand F i s h e r f o l l o w e d Magnuson, As blinker "he t u r n e d on t o make a r i g h t hand t u r n , t h e n made a l e f t hand t u r n . " and A f t e r F i s h e r s t o p p e d Magnuson h e a p p r o a c h e d t h e v e h i c l e and when Magnuson opened t h e d o o r of h i s v e h i c l e , Fisher odor of a l c o h o l . " of "could s m e l l a l c o h o l , a very s t r o n g t h e v e h i c l e Magnuson keep from Magnuson t o s t e p o u t When F i s h e r a s k e d falling to "had t o t a k e h o l d of the ground." When t h e door Fisher to asked Magnuson t o s a y t h e a l p h a b e t h e c o u l d o n l y make i t a s f a r a s G. When F i s h e r a s k e d Magnuson i f h e c o u l d walk a s t r a i g h t line, heel to toe, Magnuson "had to s i d e w a y s t o k e e p from f a l l i n g down." take several steps Fisher then arrested Magnuson a n d a d v i s e d him o f h i s M i r a n d a r i g h t s . Based upon t h e a f f i d a v i t o f District Court information granted against S e c t i o n 61-8-401, intoxicating indicated that motion Magnuson MCA, liquor. a a the county attorney, for charging leave him to with file the an violating d r i v i n g w h i l e under t h e i n f l u e n c e of The teletype county attorney's r e p o r t o n Magnuson affidavit showed four p r i o r c o n v i c t i o n s f o r d r i v i n g w h i l e under t h e i n f l u e n c e i n Iowa between January 17, 1980 and May 26, 1981. The issue to be resolved by this Court concerns the effect of federal statutes and regulations upon a state criminal prosecution for driving under the influence. federal statutes and The regulations require that patient records maintained in connection with the performance of any program or activity remain related confidential. to The alcohol State abuse treatment concedes Musselshell County Drug and Alcohol Program that the is federally funded and the record shows that Magnuson had been attending counseling sessions with Mac House for approximately six weeks before he was arrested. On motion of the defendant to dismiss, the District Court found "that the information provided by House to . . . Fisher. . . prohibition" of Title 42 U.S.C.A. and 42 C.F.R. Section 2.11(0). was tainted . . . within Mac the Sections 4582(a) and (c) As a result, the District Court dismissed the driving while intoxicated charge against Magnuson and the State appealed. The first issue is whether Title 42 U.S.C.A. Section 4582 applies to the information House provided Undersher if f Fisher concerning the fact that Magnuson was driving while intoxicated. The federal statutes involved in this case are as follows: "Records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any program or activity relating to alcoholism or alcohol abuse education, training, treatment, rehabilitation, or research, which is conducted, regulated, or directly or indirectly assisted by any department or agency of the United States shall, except as provided in subsection (e) be confidential and be disclosed only for the purposes and under the circumstances expressly authorized under subsection (b) of this section. 42 U.S.C.A. Section 4582 (a). "Except as authorized by a court order granted under subsection (b)(2)(c) of this section, no record referred to in subsection (a) of this section may be used to initiate or substantiate anv criminal charges against a patient or to conduct any investigation of a patient." 42 U.S.C.A. Section 4582(c) (Emphasis added). The applicable federal regulations in this case are these: "Records. The term records' includes any information, whether recorded or not, relating to a patient, received or acquired in connection with the ............................... performance of any alcohol abuse or drug abuse prevention function, whether such receipt or acquisition is by a program, a qualified service organization, or any other person. 42 C.F.R. Section 2.11(0). (Emphasis added.) "Except as provided in paragraph (b) of this section, this part applies to records of the identity, diagnosis, prognosis, or treatment of any patient which are maintained in connection with the performance of any alcohol abuse or drug abuse prevention functions. 42 C.F.R. Section 2.12 "(3) Which is assisted by funds supplied by any department or agency of the United States, whether directly through a grant, contract or otherwise, or indirectly by funds supplied to a State or local government unit through the medium of contracts, grants of any description, general or special revenue sharing, or otherwise 42 C.F.R. Section 21.12(a)(3). . . . "The term 'alcohol abuse or drug abuse prevention function' means any program or activity relating to alcohol abuse or drug abuse education, training, treatment, rehabilitation, or research " 42 C.F.R. Section 211(k). .. . Resolution of the first issue in this case depends upon whether the information House communicated to Fisher was within the definition of "records" as that term is defined in 42 C.F.R. Section 2.1(0). That determination depends on whether House was performing an "alcohol abuse or drug abuse prevention function" as defined in 42 C.F.R. Section 2.11(k) at the time he received the information. The information conveyed from House to Fisher was that Magnuson was intoxicated;that he was driving a Bronco; that House wanted Fisher to Magnuson's usual hangout. watch out for Magnuson; and Respondent asserts that part of the information conveyed from House to Fisher--information about the kind of car Magnuson would be driving, as well as his usual hangout--came relationship. from the client-counselor However, Undersheriff Fisher testified that after House described Magnuson's vehicle he remembered it because he had observed it at some of the local bars on prior occasions. If the information was within the prohibition of the federal legislation it must be ". . . received or acquired in connection with the performance of any alcohol abuse or drug abuse prevention function." Alcohol abuse prevention ". . . any program or activity abuse . . . education, training, function means alcohol rehabilitation, or research." relating to treatment, The issue thus becomes: was House involved in a program or activity related to alcohol abuse education, training, treatment, rehabilitation or research at the time he received the information from Mary Ree? Clearly he was not, and the information does not fall within the scope of the federal legislation. I n addition, t h e federal l e g i s l a t i o n does not apply i n t h i s case because the i n f o r m a t i o n r e c e i v e d by U n d e r s h e r i f f F i s h e r f r o m House was n o t u s e d t o " i n i t i a t e o r s u b s t a n t i a t e any criminal charges" Section 4582(c). against Magnuson. See 42 U.S.C.A. The a r r e s t i n g o f f i c e r t e s t i f i e d t h a t t h e b a s i s f o r Magnuson's a r r e s t was n o t t h e i n f o r m a t i o n r e c e i v e d f r o m House b u t , r a t h e r , h i s o b s e r v a t i o n s o f Magnuson w e a v i n g down t h e h i g h w a y , e x i t i n g the car with d i f f i c u l t y , smelling o f a l c o h o l and f a i l i n g b a s i c s o b r i e t y t e s t s . Next, the State argues that suppression of the e v i d e n c e was a n e r r o n e o u s remedy f o r v i o l a t i n g t h e f e d e r a l s t a t u t e because t h e proper remedy u n d e r T i t l e 42 U.S.C.A. S e c t i o n 4582 i s a f i n e . person who regulation violates " [alny Section 4582(f), provides: T i t l e 42 U.S.C.A. any p r o v i s i o n issued pursuant of to this this section or s e c t i o n s h a l l be n o t more t h a n $500 i n t h e c a s e o f a f i r s t o f f e n s e , any fined and n o t more t h a n $ 5 , 0 0 0 i n t h e c a s e o f e a c h s u b s e q u e n t o f f e n s e . " I n making i t s d e c i s i o n , t h e D i s t r i c t C o u r t s t a t e d . by ". . from t h e e v i d e n c e p r e s e n t e d t h a t t h e i n f o r m a t i o n p r o v i d e d alcohol Sheriff and drug Floyd Defendant, was leading tainted within for a provisions is 4582(f). Rules a the it is c l e a r violation fine of l e g i s l a t i o n must be legislative to Mac House the prohibition intent. as of its provided in 42 statutory of the [the S e c t i o n 4582 confidentiality U.S.C.A. construction r e a d a s a whole Wynia v . of t h a t t h e remedy C o n g r e s s one of t o Deputy arrest However, when 42 U.S.C.A. a s a whole, intended counselor Fisher, federal statutes]." is read abuse Section dictate that i n order t o ascertain C i t y of G r e a t F a l l s (1979), 183 Mont. 458, 600 P.2d provided in the 802. legislation The fact that a remedy is indicates that Congress considered the possibility of a violation and determined the appropriate remedy for that violation. If Congress had intended that suppression and dismissal were the appropriate remedies for a violation of a confidentiality it would have so provided. Since the issues previously discussed are dispositive of the case we need not consider the other issue raised by the State. Reversed and remanded for further proceedings in accordance with this opinion. We concur: Chief Justice Justices - . Mr. Justice John C. Sheehy, dissenting: The facts recited further elaboration. in the majority opinion require After the telephone conversation with Mary Kee, Mac House went out and searched for Undersheriff Floyd Fisher, whom he found at the Cattlemen's Restaurant, having his dinner at 8:30 Fisher that he had p.m. House advised Undersheriff information that Arthur Magnuson was intoxicated and was driving his Ford Bronco. questions Magnuson In response to from Fisher, House described the vehicle that was driving, and from the description Fisher remembered the vehicle as he had seen it parked outside of bars in the vicinity. House also advised the undersheriff that Magnuson's usual hangout was Tracy's Bar. When he had finished his dinner, the undersheriff asked House if he would "like to take a ride" and the two of them got into Fisher's vehicle. As they Magnuson's vehicle drove coming toward in the Tracy's Bar, opposite they direction saw on Fisher observed that Magnuson ' s vehicle crossed Highway 87. the centerline several times and exhibited other signs of erratic driving. The State concedes that the Musselshell County Drug and Alcohol Program is federally funded, and the record shows that Magnuson had been attending counseling sessions with Mac House for six weeks to two months before the driving charge occurred. The State first contends that the information received by House from Fisher was not the kind of patient information which Congress intended to protect. 42 C.F. R. 5j 2.11 (0), which The State has pointed to defines records as including information "received or acquired in connection with the performance of any alcohol or drug abuse prevention function." The term "record" is very broadly defined in the federal regulation. It is not limited to information received from the patient alone, but includes "any information" recorded or unrecorded, "relating to a patient." When Mary Kee used the telephone here looking for help, the number that she called was answered by Mac House, from the Musselshell Drug and Alcohol office. which she patient. " relayed to him about Magnuson The information "related to a That information, and the further information about Magnuson's usual hangout which apparently Mac House also knew, were relayed by him to Undersheriff Fisher. I determine that such information is included within the term "record" the relaying of which is prohibited by the federal regulation. It is a close question whether the information conveyed by House to Fisher was used to initiate criminal charges against Magnuson. It does appear clear from the record that while Fisher was investigating Magnuson in the presence and with the cooperation of House that the criminal charges were initiated, based upon the observations that Fisher made during the investigation. The State contended and the majority apparently agrees that Congress did not intend to create a "sanctuary" for a patient from prosecution for its criminal acts. Whatever that may mean, it is fully clear that Congress did intend that no information regarding a patient should be imparted by one who obtained the program to initiate or information in a federally-funded substantiate any criminal charges against the patient or to conduct any investigation of a patient. Here Arthur Magnuson was a patient, and Mac House, who was treating him under a federally-funded program used confidential information gained through such program to cause an investigation to be made of Magnuson. As to whether information under the the prohibition against release federally-funded program of should be balanced with state policy against drunk driving, the line of demarcation is obviously hard to draw. Certainly there will be instances where the severity of the crime or the danger to society will be of such gravity as to require a prosecution even though information from such a federal-ly-funded program was obtained. What is overweighing in this case, however, is not only that Mac House supplied the informa-tion,but then he actively participated in the investigation by accompanying the deputy to a place where Magnuson could be found. doing, he abused all the principles of the confidential relationship in which he was a paid participant. Congress did not In so anticipate that kind of use Certainly of its statutorily-protected information. Finally I disagree with the majority that the remedy provided in Title 42 U.S.C.A. S 4582 is sufficient to enforce the provisions of the confidentiality of information under the federal provisions. provided in the The majority finds that the remedy federal act is enough for the Congress intended no more. The answer to that contention is found in reviewing the Congressional. reasons for establishj-ng the federally-funded project. The object is to attract patients, free from stigma and criminal prosecution from what may be revealed by them in the course of their treatment. A mere fine against the violator of such confidence does not protect the patient whose confidence has been abused. It is more by assuring the confidentiality of such information in this instance than in fining Mac House, that these objectives will be achieved. In fact the record is hare in this case that any retributive action has been brought against Mac House for his obvious violation of the confidential relationship. I would determine that the federal statute, with its obvious objectives, makes it imperative that we do not enforce criminal prosecutions based on information received from persons who seek federally-funded projects. help from alcoholism in I expressly dissent. Mr. Justice Daniel J. Shea dissents, and will file a written dissent later.

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