Can the Prosecutor Subpoena My Medical Records in a DUI Investigation?

What if the prosecutor wants to see your medical records during a DUI investigation? In many of these cases, the prosecutor with the State Attorney’s Office will mail you a letter that puts you on notice that the prosecutor intends to subpoena your medical records from the hospital or medical facility where you receive emergency treatment after a crash. If you don’t object, then the hospital or medical facility will readily send your medical records to the State Attorney’s Office.

If the records show your BAC was over .08 or that you have any controlled substance in your blood then the prosecutor might decide to formally charge you with DUI which will trigger a subpoena for your arrest and a court date in front of the court.

This article explains why you should OBJECT to the subpoena immediately or retain an attorney to file the objection on their behalf. It is also a good idea to notify the hospital or medical facility of the objection. You should also obtain your own copy of your medical records including a copy of any request by a law enforcement agency (or State Attorney’s Office) for those records.

The subpoena for medical records usually occurs after a crash that sends you to the hospital. Most of these cases involve DUI with property damage or DUI with personal injury or serious bodily injury.

The subpoena is often broadly worded to include all of your medical records on the day of the suspected DUI or it might be limited to information about your “hospital blood” or “medical blood” test results.

In misdemeanor cases, the subpoena is often requested when the prosecutor doesn’t have a breath test reading or legal blood taken by a law enforcement officer. In some cases, the prosecutor will seek the medical records because of a fear that the legal blood might be suppressed or excluded.

The subpoena for medical records is also routinely requested in felony DUI cases such as DUI with serious bodily injury or DUI manslaughter, even when you also submitted to a legal blood draw at the officer’s request. The legal blood draw is used to obtain a sample so that a crime lab can determine whether your blood contains alcohol or controlled substances.

Object to the Subpoena for Medical Records

If you receive notice that the prosecutor is trying to get your medical records, you should hire an attorney to contest the issuance of the subpoena. In many of these cases, the request is worded too broadly. In other cases, the prosecutor doesn’t have sufficient evidence to even make the request in the first place and is just counting on the fact that you won’t object.

A prosecutor often has a difficult time showing a judge that the requested subpoena is proper. An objection to the subpoena might prevent a criminal arrest or prosecution from ever taking place.

In your objection explain that the subpoena is worded too broadly to seek only information relevant to the investigation, that the subpoena is not narrowly tailored to obtain only records related to the blood test, and that no cause exists to support any allegation of DUI. Then the objection must be served in the manner required in the notice. Send a copy to the hospital by registered mail.

Sometimes, the prosecutor or the officer has already illegally obtained the medical records. If the prosecutor already has the records, then the prosecutor might try to overcome that problem by using a subpoena in order to “legally” obtain the record. If you don’t object to the issuance of the subpoena, you might be effectively waiving this important issue.

The Rules for the Subpoena for Medical Records

“A patient’s medical records enjoy a confidential status by virtue of the right to privacy contained in the Florida Constitution, and any attempt on the part of the government to obtain such records must first meet constitutional muster.” State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Depending on the circumstances, “[t]he right to privacy is not absolute and will yield to compelling governmental interests.” Id.

Section 395.3025(4), provides exceptions to the general rule requiring patient confidentiality. Pertinent to this case is subsection (4)(d), which states as follows:

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent….

(d) In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice by the party seeking such records to the patient or his or her legal representative.

At a hearing to contest the issuance of the subpoena, the State must present evidence that the State is conducting a criminal investigation, that the information subject to the subpoena is relevant to that investigation, that the subpoena is narrowly tailored, and that the State has probable cause to obtain the results, including blood test results.

The prosecutor must present witnesses to make that showing at the so-called “Hunter Hearing” after you object to the subpoena.

How will I know if the prosecutor is going to subpoena the medical records?

In many cases, the State Attorney’s Office, including the State Attorney’s Office for the Thirteenth Judicial Circuit in Tampa, Hillsborough County, FL, will send you a letter advising you that the office is investigating the case. The letter is necessary before the prosecutor can issue the subpoena.

The letter will notify you that the office will issue a subpoena in fifteen (15) days from the date of the letter to a specific hospital or medical facility for your medical records specifically including, but not limited to, any and all tests made to determine the blood alcohol content of your blood.

The subpoena is issued pursuant to Florida Statute 395.3025(4)(d) and must comply with 45 CFR 164.501, the Federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

HIPAA, by its own language, exempts disclosure of individually identifiable medical information “for law enforcement purposes … [p]ursuant to process and as otherwise required by law.” 45 C.F.R. Section 164.512(f)(1) (emphasis added).

Can an Attorney Object to the Issuance of the Subpoena for my Medical Records?

If you have an objection to the issuance of a subpoena for your medical records, you must file a written objection or response that must be provided to the Assistant State Attorney referenced in the letter prior to the expiration of the 15 day notice period provided in the letter. For some cases in Tampa, the letter will list the following address in the notice: State Attorney’s Office, 419 North Pierce Street, 2nd Floor, Tampa, FL 33602.

If you are represented by a DUI attorney in Florida, your attorney may file a written objection or response on your behalf. If the letter references a pending case, a copy of the letter will be sent to your counsel of record, if any, and any written objection or response to the issuance of a subpoena for your medical records should be filed with the clerk of court (if the case is already pending) and provided to the Assistant State Attorney prior to the expiration of the 15 day notice period provided in this letter.

What Might the Subpoena Require?

The subpoena usually requires the hospital to produce the following requested information to the STATE OF FLORIDA:

  1. The results of any and all blood test in reference to blood alcohol content and/or the presence of drugs or narcotics performed upon the person under investigation for DUI.
  2. The name of the person who drew the patient’s blood.
  3. The name of the person who analyzed the blood samples.

The subpoena provides that the information is requested pursuant to a matter pending and undetermined in which the office of the State Attorney is conducting an investigation. The subpoena provides that the hospital or medical facility may provide this requested information INSTANTER, in person or by mail at the address provided. The subpoena provides that failure to comply with the subpoena may subject “you to penalty by the court.”

In Polk County, for instance, the prosecutor will usually serve by mail a notice of issuance of the subpoena for medical records for “Toxicology Records” with a reference to Section 395.3025 and 401.30, Florida Statutes. Attached to the notice is the State Attorney’s Investigative Subpoena for Medical Records which demands that the hospital or medical facility furnish the prosecutor with “all information concerning blood chemical analysis and/or urine chemical testing to include Doctor’s / Nurse’s Summary Page(s) pertaining to the treatment of: _[name]__[DOB]_and ____[date of treatment]___. The subpoena will contain a “Satisfactory Assurance of Notice” saying:

Notice of this subpoena has been given to the patient or the patient’s representative (see attachment) with an opportunity to object, as required by section 395.3025, 401.30 or 456.057, Florida Statutes and HIPPA 45 CFR 164.512, and the time to object has elapsed and no objections were filed.

The attorneys at the Sammis Law Firm are familiar with the procedures used by the State Attorney’s Offices throughout Hillsborough County and each of the surrounding counties including Hernando County, Pasco County, Pinellas County, Manatee County and Polk County, FL.

Attorneys in Tampa for DUI Blood Test Cases

If you need to speak to an attorney about a DUI investigation that involves medical records from treatment immediately after the DUI investigation or crash, then contact an experienced criminal defense attorney at the Sammis Law Firm to discuss the case.

The DUI attorneys in Tampa that work at the Sammis Law Firm are experienced in filing motions to contest the issuance of the subpoena in a DUI blood test case. Even if the subpoena is granted after a hearing, we are experienced in fighting to keep the “hospital blood” results excluded from the trial.

We represent clients in DUI blood test cases throughout the courtrooms in Tampa and Plant City in Hillsborough County, Brooksville in Hernando County, St. Petersburg and Clearwater in Pinellas County, Bartow and Winter Haven in Polk County, New Port Richey and Dade City in Pasco County and Bradenton in Manatee County, FL.

Call us at 813-250-0500 today to discuss your case.

This article was last updated on Friday, August 11, 2017.

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