AGO 1968 No. 35 - Nov 20 1968
OFFICES AND OFFICERS - COUNTY - CORONER - AUTOPSIES - SUBMISSION OF BLOOD SAMPLES TO STATE TOXICOLOGIST BY CORONERS IN CASE OF ALL TRAFFIC FATALITIES.
A county coroner may take a blood sample from a person killed in a traffic accident and submit this sample to the state toxicologist for examination without violating RCW 68.08.105, relating to the confidentiality of reports and records of autopsies or post mortems; however, the state toxicologist has no authority to require any such blood sample to be submitted to him.
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November 20, 1968
Honorable Charles O. Carroll
King County Court House
Seattle, Washington 98104
Cite as: AGO 1968 No. 35
By letter previously acknowledged, you have requested an opinion of this office on a question which we paraphrase as follows:
May a county coroner take a blood sample from a person killed in a traffic accident and submit this sample to the state toxicologist for examination without violating RCW 68.08.105, relating to the confidentiality of reports and records of autopsies or post mortems?
It is our opinion, for the reasons set forth in the following analysis, that submission of such a blood sample to the state toxicologist for examination would not violate the statute you have cited; however, the state toxicologist has no authority to require any such blood sample to be submitted to him.
As we understand it, your question has arisen by reason of a recent letter from the state toxicologist to your county coroner requesting his cooperation in an effort to evaluate the role of alcohol and related drugs in automobile casualties in the state of Washington.1/ The essence of your question is [[Orig. Op. Page 2]] whether the coroner may comply with this request without violating RCW 68.08.105, which reads as follows:
"Reports and records of autopsies or post mortems shall be confidential, except to the prosecuting attorney or law enforcement agencies having jurisdiction, or to the department of labor and industries in cases in which it has requested the autopsy."
In the case ofZenith Transport v. Bellingham Nat. Bank, 64 Wn.2d 967, 395 P.2d 498 (1964), a contention was made that because of this statute, a blood sample taken from a victim of a fatal traffic accident could not be used as the basis for evidence as to the extent of the victim's intoxication in a civil proceeding in court. The trial judge had rejected this contention, and had thereupon admitted the evidence. Upon review, the supreme court expressed "complete accord" with the memorandum decision of the trial judge on this point, stating:
"The trial judge, intrigued by the questions here presented, as to the right to take a blood sample from a dead person and as to the use that could be made of the results of such a test, wrote a memorandum opinion in which he made a most thorough and scholarly examination of the cases in that area; and we find ourselves in complete accord with his conclusions, i.e.,
"A. That this is not an autopsy or postmortem situation, but is governed by RCW 68.08.106 which relates to blood and other body specimens taken by the coroner for analysis and states that the coroner may, either in his discretion or upon lawful request, retain such specimens as may be 'needed or desired for evidence to be presented in court.' This section does not limit such use to criminal cases."
For purposes of comparison with RCW 68.08.105, supra, the full text of RCW 68.08.106, which was thus held by the court to be applicable, reads as follows:
"In any case in which an autopsy or post mortem is performed, the coroner, upon his [[Orig. Op. Page 3]] own authority or upon the request of the prosecuting attorney or other law enforcement agency having jurisdiction, may make or cause to be made an analysis of the stomach contents, blood, or organs, or tissues of a deceased person and secure professional opinions thereon and retain any specimens or organs of the deceased which in his discretion are desirable or needful for anatomic, bacteriological, chemical or toxicological examination or upon lawful request are needed or desired for evidence to be presented in court. Costs shall be borne by the county."
The point, as we view it, is that the court in the Zenith case drew a distinction between an autopsy or post mortem report, with which RCW 68.08.105 is concerned, and a blood sample or analysis, with which RCW 68.08.106 is concerned. This same distinction was made again inHoffman v. Tracy, 67 Wn.2d 31, 406 P.2d 323 (1965), in which it was specifically argued that a county coroner lacked the authority to analyze a blood sample taken from a traffic victim, and that even if he had such authority the results of the test were confidential. The supreme court's answer to this argument, as stated in 67 Wn.2d 31, 35, was as follows:
". . . But such authority is found in RCW 68.08.106, which relates to blood and other body specimens taken by the coroner for analysis, and states that the coroner may, either in his discretion or upon lawful request retain such specimens as may be 'needed or desired for evidence to be presented in court.' Zenith Transport v. Bellingham Nat'l Bank, 64 Wn.2d 967, 395 P.2d 498."
In addition to their use as ". . . evidence to be presented in court . . ." RCW 68.08.106 authorizes the taking and retention of blood samples from a deceased person by a county coroner ". . . in his discretion . . ." where they ". . . are desirable or needful for anatomic, bacteriological, chemical or toxicological examination . . ." The submission of such materials to the state toxicologist for examination and analysis is then provided for by the next section of the [[Orig. Op. Page 4]] statute, RCW 68.08.107, which provides:
"There shall be established at the University of Washington Medical School a state toxicological laboratory under the direction of a competent toxicologistwhose duty it will be to perform all necessary toxicologic procedures requested by all coroners and prosecuting attorneys. The facilities of the police school of the Washington State College and the services of its professional staff shall be made available to the coroners and the prosecuting attorneys in their investigations under this chapter. This laboratory shall be deemed to be within the meaning of medical and biological research as defined in RCW 43.66.080, and funds for this purpose not to exceed twenty-five thousand dollars shall be provided for setting up such laboratory and an additional amount not to exceed fifty thousand dollars per biennium may be provided for salaries for staff of said laboratory, and the funds so provided may take priority over disbursements of any other sums from said medical and biological research fund." (Emphasis supplied.)
Reading these statutes together, and giving effect to the rulings made by the court inZenith andHoffman regarding the nonapplicability of RCW 68.08.105 (confidentiality of autopsy reports) to situations covered by RCW 68.08.106, it follows that your specific question may be answered in the affirmative; i.e., a county coroner may take a blood sample from a person killed in a traffic accident and submit this sample to the state toxicologist for examination without violating the confidentiality provision of RCW 68.08.105. However, lest there by any misunderstanding as to the meaning of this answer in terms of the legal relationship between the various county coroners and the state toxicologist, we would add that since RCW 68.08.106 makes the taking of such blood samples, as well as the retention for toxicological examination, discretionary with the county coroner, and since RCW 68.08.107 merely authorizes, but does not require, the various county coroners or prosecuting attorneys to utilize the services of the toxicologist, it must also be concluded that the toxicologist [[Orig. Op. Page 5]] has no authority to require (as distinguished from the mere request for cooperation contained in his letter of May 3, 1968) any such blood samples to be taken and submitted to him for any purpose.
We trust that the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
RICHARD A. MATTSEN
Assistant Attorney General
*** FOOTNOTES ***
1/See letter dated May 3, 1968, to King County Coroner Leo M. Sowers, copy enclosed.