District Court, City and County of Denver, Colorado Court Address: 1437 Bannock Street, Denver, CO 80202

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1 District Court, City and County of Denver, Colorado Court Address: 1437 Bannock Street, Denver, CO THE PEOPLE OF THE ST ATE OF COLORADO Plaintiff v. 0 COURT USE ONLY D DANIEL Accused Douglas K. Wilson, Colorado State Public Defender William Drexler, Reg.# Deputy Public Defender Denver Trial Office th Street, Suite 1300, Denver, CO Phone: (303) Fax: (303) Case Number: 09CR3172 Division: 13 MOTION TO RECONSIDER RULING DENYING DEFENSE ABILITY TO OBTAIN DETOX RECORDS RELATED TO COMPLAINING WITNESS, OR IN THE ALTERNATIVE TO DECLARE C.R.S UNCONSTITUTIONALLY OVERBROAD Mr. under his federal and state constitutional rights of due process, a fair trial, confrontation, to compel testimony, and to have effective representation, moves this Court to reconsider the ruling of January 8, 2010, denying the defense's ability to obtain Denver Cares detox records related to the complaining witness, and states the following in support: 1. This case involves the accusation by the complaining witness, Darwin that on May 3, 2009, Mr. punched him, causing serious bodily injury in the form of an orbital bone fracture. This occurred at a house for parolees as both Mr. and Mr. were on felony parole. 2. Though Denver Police Officers comment in their reports that Mr. appeared to them to be intoxicated, they make no mention of Mr. also being intoxicated, or that indeed they transported him to the Denver Cares detox facility following the incident. That fact was discovered only when Mr. testified at the preliminary hearing.

2 3. At that preliminary hearing, however, Mr. also minimized his alcohol consumption, stating, "I only had a couple of shots." (Preliminary Hearing, August 19, 2009, page 6, line 25). The prosecution objected to, and the Court sustained, further inquiry into the matter. 4. Mr. further indicated at the preliminary hearing that the reason the police took him to detox was merely to diffuse the situation at the house, removing him because people there were upset about the altercation (Preliminary Hearing, August 19, 2009, page 15, line 5). 5. At a motions hearing on October 23, 2009, Officer Dan Andrews testified under cross examination that while there was no investigation into the intoxication issues related to either party, he took Mr. to detox because of his observations that Mr. was intoxicated. (Motions Hearing, page 23, line 2). But then under redirect examination by the prosecutor, indicated that another reason he took Mr. to detox was for Mr. own safety due to statements made by others at the house, which he interpreted to be threats towards Mr. (Motions Hearing, Page 26, line 24). 6. The actual level of Mr. level of intoxication is crucial to the defense for several reasons, including impeachment of him and the officers, and to show that his testimony is unreliable and incredible. These issues may be the most important in the entire case, as the prosecution's case appears to rely entirely on as to what occurred the night at issue. Mr. the statements made by Mr. is the prosecution's only witness to what occurred, and it is well understood that alcohol intoxication has several affects on a person's ability to perceive what occurred. 7. The defense subpoenaed the records from Denver Cares detox to a hearing on January 8, To that hearing, the defense also requested, and a writ was issued, to have Mr. brought from custody in the Arapahoe County Jail, to this Court in the event the issue of the physician - patient privilege and/or waiver of such arose. 8. When Mr. was brought to Court, he was asked if wanted to waive his physician - patient privilege and he affirmatively stated that he wanted to assert the privilege and did not want to waive it. 9. The defense made several requests during this hearing, such as that the Court make determinations on whether the physician - patient privilege even applied under these circumstances, as case law is clear that the privilege does not apply to all situations. 10. The physician-patient privilege attaches only when the information acquired by the physician is necessary for the physician to "act or prescribe for the patient." People v. Covington, 19 P.3d 15 (Colo. 2001). 2

3 11. At the beginning of the hearing, the defense clarified that the records it sought were limited to the blood - alcohol content test (BAC) obtained from Mr. when he was brought to the detox facility on the evening in question. 12. The defense argued that case law supports the idea that BAC tests, in particular, are the sort of record treated differently with respect to the physician - patient privilege. The Colorado Supreme Court wrote: In Hanlon v. Woodhouse, 113 Colo. 504, 510, 160 P.2d 998, 1001 (1945), this court refused to apply the physician-patient privilege to the testimony of a physician derived from a blood sample taken at the request of a public official conducting an inquiry into the intoxication of the defendant. The court ruled that testimony by the doctor concerning the blood sample was not privileged because the doctor did not need the information to prescribe or act. Id. at , 160 P.2d at 1001 (noting that the prosecution presented no evidence indicating necessity and, "the record affirmatively show[ ed] that the test was procured by the physician because of, and in obedience to, a request from a public officer"). People v. Covington, 19 P.3d 15, (Colo. 2001). 13. The purpose of the physician-patient privilege is to enhance the effective diagnosis and treatment of illness by protecting the patient from the embarrassment and humiliation that might be caused by the physician's disclosure of information imparted to him by the patient during the course of a consultation for purposes of medical treatment. Clark v. District Court,, 668 P.2d 3 (Colo. 1983) (internal cites omitted). 14. The defense asserts that the physician-patient privilege does not apply here because this was not a situation where a patient sought treatment for a medical condition. Here, the police took Mr. to detox because he was apparently intoxicated, or perhaps because they thought he would be safer there than at his own home. It is unknown ifthere was any sort of treatment or any communication with any sort of treatment provider related to acting or prescribing treatment for the patient. Under those circumstances, it is, at best, entirely unknown if the rationale of the physician-patient privilege is implicated, meaning that this Court, at a minimum, must made a finding by taking competent testimony that the privilege does apply. 15. In addition to whether the privilege even applies, there are multiple issues related to whether the privilege was waived. The defense argued that because police officers took Mr. to the detox facility, and because other non-treatment related persons may certainly have been present at that time as well, there likely exists an implied waiver of the physician-patient privilege based on the presence of third parties. 3

4 16. Another waiver issue is whether two existing releases to Denver Health Medical Center signed by Mr. concerning his orbital bone fracture, extends to the Denver Cares detox information. Denver Cares is part of Denver Heath Medical Center, and because Mr. has already waived his privilege concerning information related to his physical condition on the night at issue, the defense asserts that he has also waived his privilege as to any other physical condition information, namely his level of intoxication, especially since that information is held by the same treatment facility, and relates to the same time frame and incident/injury at issue. 17. This Court, on January 8, 2010, found that Mr. physician-patient privilege applied to the detox records, and thus quashed the defense's subpoena for those records. 18. Without Mr. detox records (which are needed to know who might give testimony) or testimony from those medical providers, and without even an incamera review of the records (and the defense did ask for at least an in-camera review), the Court is not able to make a finding that the physician-patient privilege applies in this situation; nor can the Court make any findings as to an expressed waiver, or implied waivers of the privilege either based on the presence of third parties, or on some other independent basis. 19. If the Court maintains it's denial of the defense's ability to obtain the detox records of Mr. Mr. then asks this Court to find that C.R.S is overbroad facially and as applied here. 20. The defense sought a ruling form the Court as to what authority was being applied to support the denial of the defense's ability to obtain the detox records. The defense argued that the Health Insurance Portability and Accountability Act (HIP AA) and the federal law governing drug and alcohol treatment records, U.S.C. Title 42, Chapter 6A, Subchapter III-A, Part D, Section 290dd-2 (Confidentiality of Records) both have provisions for court ordered disclosure of treatment records for purposes of court litigation, after a balancing of the need for the information against the need for the patient's privacy. This Court indicated it was relying on the Colorado authority provided in the motion to quash. 21. The motion to quash filed by Denver Health and Hospital Authority primarily relies on C.R.S and corresponding state case law. C.R.S lacks any balancing provision such as is present in the federal statutes. Cases such as Clark v. District Court, 668 P.2d 3 (Colo. 1983), a civil case, and People v. District Court, 719 P.2d 722 (Colo. 1986), a criminal case, hold that the only basis for authorizing a disclosure of such medical records is an express or implied waiver. As the privilege was asserted here, and the Court found no waiver, the Court granted the motion to quash. 4

5 22. As noted above, the defense asserts that the Court has made no actual determination of whether the privilege applies, or as to whether there was an express or implied wavier because the Court would hear no evidence upon which such determinations could be made. The defense also asserts that there must be some balancing concerning the need of the defense to discover the truth of whether Mr. the prosecution's primary witness, and the prosecution's police witnesses, are biased, unreliable, or incredible, against Mr. need for privacy, especially given the completely unknown values of whether the rationale of Mr. physician-patient privilege applies and whether Mr. waived the privilege. 23. Because the Court did not accept the Denver Cares records, heard no testimony, and did no in-camera review, it could not have determined whether one set of needs outweighed the other. 24. Because the Court has found that C.R.S , even in a criminal case, creates an absolute physician-patient privilege not subject to any balancing test, and that the Court therefore had no authority to conduct a balancing test or make any other finding as to the defense's need for the information, Mr. moves this Court to find that C.R.S is unconstitutionally overbroad facially and when applied to the circumstances in this case because it fundamentally violates his federal and state due process rights to a fair trial, to compel witness testimony, to confront and cross examine witness, and to have effective representation of counsel. 25. A governmental purpose to control or prevent certain activities, which may be constitutionally subject to state or municipal regulation under the police power, may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms... Even though the governmental purpose may be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. City of Lakewood v. Pillow, 501 P.2d 744 (Colo. 1972) (internal cites omitted). 26. The overbreadth doctrine is used primarily as a means to challenge statutes that threaten the exercise of fundamental or express constitutional rights. See People v. Rowerdink, 756 P.2d 986, 990 (Colo.1988); People v. Garcia, 197 Colo. 550, 552, 595 P.2d 228, 230 (1979). A statute is facially overbroad if, in addition to proscribing conduct that is not constitutionally protected, its proscriptions sweep in a substantial amount of activity that is constitutionally protected. See Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); People v. Baer, 973 P.2d 1225, 1231 (Colo.1999); Ferguson v. People, 824 P.2d 803, 807 (Colo.1992). 5

6 27. If such facial overbreadth is established, the statute will be struck down unless the state can demonstrate that the statute is necessary to promote a compelling governmental interest. People v. Shepard, 983 P.2d 1 (Colo. 1999). 28. The defense considers this BAC test to be crucial evidence for the reasons cited in this motion above. A statute that extends to create an absolute preclusion to the defense's ability to obtain this evidence with no provision to weigh a possibly tenuous rationale of the statute (both generally, and in this particular case) against Mr. ' s federal and state constitutional rights in a criminal trial, is overbroad. Based on all of the above, Mr. moves this Court to reconsider the ruling denying the defense access to Mr. detox records. If this Court finds that C.R.S creates an absolute bar to Mr. ability to obtain this information, based only on whether a waiver exists, then Mr. moves this Court to declare C.R.S unconstitutionally overbroad facially and as applied in this case. DOUGLAS K. WILSON COLORADO ST ATE PUBLIC DEFENDER William Drexler Deputy State Public Defender Certificate of Service I certify that on, I served the foregoing document by delivering mailing faxing same to all opposing counsel. 6

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