in a blood test “burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure.”
Requests to Subpoena Medical Records of a Blood Test
After a typical crash police will sometimes attempt to assign blame. The police may suspect alcohol or drug use and attempt to obtain dui blood tests or medical records for people treated in a crash. This is true, even though the driver may have been the only person injured in a one-car crash. Nevertheless, police must jump through a lot of hoops to get your medical records. Sometimes the police jump the gun and make mistakes. If they do, a competent defense attorney can have the medical records and results of a possibly incriminating blood test thrown out by the court.
What is the process for obtaining the medical records of a driver in a crash?
The prosecutor will receive a copy of the crash report from the investigating DUI officer. If done correctly, the prosecutor will send a registered letter to the driver notifying them of the prosecutor’s efforts to obtain confidential medical records. The letter typically will give the driver a certain number of days to subject to the disclosure of the medical records. If the defendant’s lawyer files and an appropriate objection, there will be a hearing in front of a judge who will decide what if any medical records should be available to the prosecutor by subpoena. In the case we have discussed below, the judge ruled that there was not enough information for the confidential medical records of the driver to be disclosed.
Medical Records in DUI Prosecutions, Blood Test Subpoenas and Medical Records
As one commentator has noted in this case the “State failed to establish there was reasonable founded suspicion to believe defendant was driving while impaired by alcohol or controlled substances so as to overcome defendant’s right to privacy in her medical records and therefore failed to establish that medical records contained information relevant to ongoing criminal investigation.”
Complete Text of Order Denying Request for Blood Results in a DUI Case
STATE OF FLORIDA, Plaintiff, v. DEBRA COOPER, Defendant. County Court, 7th Judicial Circuit in and for Volusia County. Case No. 2017-308515MMDB. November 18, 2017. Belle B. Schumann, Judge. Counsel: Susan Bexley, Assistant State Attorney, for Plaintiff. John S. Hager, for Defendant.
ORDER DENYING STATE’S REQUEST TO SUBPOENA “MEDICAL” BLOOD
This case comes before the Court on the State’s Notice of Intent to Subpoena Medical Records of the Defendant, filed November 16, 2017, and the Defense’s Objection thereto, which was filed that same date. A hearing was held on the State’s request on January 17, 2018. Upon due consideration of the facts as proved and the applicable law, the Court hereby DENIES the State’s request to subpoena the Defendant’s medical records. The State failed to establish there was a reasonable founded suspicion to believe that the Defendant was driving while impaired by alcohol or controlled substances to overcome the Defendant’s right to privacy in her medical records, and therefore failed to establish that these records contain information relevant to an ongoing criminal investigation.
Previously, on November 6, 2017, there was a hearing on a motion to suppress in this case, and an order entered by the Court as a result of that hearing. This order, docket number 27 in this case, is incorporated herein [25 Fla. L. Weekly D1019a]. The facts found are as follows:
At the hearing, Assistant State Attorney Tara Libby established that on December 17, 2016, Joshua Wilson of the Ormond Beach Police Department responded to a “crash” within his city. No further explanation of this event was given. No description of the condition of the vehicles, no result of investigation into any driving pattern, no suggestion what may have caused the crash, not even the time of day or weather conditions were elicited by the State. The only further testimony about this “crash” established by the State was the conclusion by the officer that the Defendant was “at fault.” No explanation for this conclusory statement was provided, nor any of the facts that led the officer to this conclusion. There was no evidence that anyone was injured in this “crash” or even that there was any physical damage to any property.
When Officer Wilson spoke to the Defendant, he testified that he noticed she “spoke slowly” and was “lethargic,” again without any further elaboration. The State asked if in the accident report, he “noted alcohol was involved” and he replied, “yes.” The officer agreed with the conclusory question that he believed he had probable cause for DUI. No elucidation of the basis for this conclusion was provided.
On cross examination, the officer testified that he could not recall if he smelled alcohol on or about the Defendant, and conceded that his report did not indicate that he detected the odor of alcohol, or any other evidence of alcohol use. There was no mention of controlled substances.
In this prior order, the Court granted the Motion to Suppress, finding that,
The evidence presented by the State in this case falls woefully short of establishing probable cause to believe that the Defendant was driving while impaired by alcohol or a controlled substance to lawfully request breath, blood or urine. §316.1932, Fla. Stat. (2016). Although not at issue here, it seems unlikely that the State’s proof in this case would even rise to the level of a reasonable suspicion to require field sobriety exercises. The State’s offer of proof was completely inadequate. . . .
In this case, the State failed to establish any facts that would lead a reasonable person to conclude that Debra Cooper was driving under the influence of alcohol or a controlled substance on the date in question. Bare conclusory assertions cannot sustain the State’s burden of proof. Had the State presented any evidence concerning the crash to establish some sort of driving pattern, more observations of the officer, or some scintilla of evidence of impairment by alcohol, the result may have been different. (emphasis added)
Now the State seeks to subpoena the Defendant’s medical records after she was taken to the hospital as a result of the crash. The only evidence presented at the Hunter hearing was the accident report. This report is not an affidavit, and it is unsworn. It also contains statements from the Defendant which all parties agree are privileged and which cannot be used to establish the State’s burden of proof.
Assuming without deciding that an unsworn accident report is acceptable proof and not hearsay, the only evidence of impairment contained in this report is again that the Defendant appeared “lethargic and spoke slowly” after the crash that sent her to the hospital. There is the fact that the crash occurred when the vehicle driven by the Defendant drifted partially into a turn lane and struck the other vehicle from behind. The State makes no argument that the driving pattern or the crash provides evidence of impairment.
Before the State can employ its investigatory subpoena power and compel disclosure of medical records without the consent of the patient, the State “…has the obligation and the burden to show the relevancy of the records requested.” Hunter v. State, 639 So. 3d 72, 74 (Fla. 5th DCA 1994); §395.3025(4), Fla. Stat. (2016). The State’s burden arises from the Constitutional right to privacy in one’s medical records, which requires the State to demonstrate a compelling interest in the disclosure. Art. 1, §23, Fla. Const. “Such [a compelling state] interest exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation.” State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1512a]. See also, State v. Rutherford, 707 So. 2d 1129, 1131 (Fla. 4th DCA 1997) [22 Fla. L. Weekly D2387b] [disapproved on other grounds in State v. Johnson, 814 So. 2d 390 (Fla. 2002) [27 Fla. L. Weekly S250a]] (“Where a right to privacy attaches, the State may vindicate an encroachment on that right…(when it) is established by a showing that the police have a reasonable founded suspicion that the protected materials contain information relevant to an ongoing criminal investigation.”)
In support of their position, the Defense relies on the case of Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1087a]. They point out that “crash plus death” or “crash plus injury” does not always make the blood relevant as the State argues; that is not the law. The Defense is entirely correct. Absent some scintilla of evidence that the Defendant was impaired by alcohol or a controlled substance, the State has again fallen woefully short of its burden to demonstrate a compelling interest which exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation to overcome the Defendant’s right to privacy in her medical records.
WHEREFORE, based on the argument and authority presented, the State’s Notice of Intent to Subpoena Medical Records is hereby DENIED.
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Source: Online Reference: FLWSUPP 2512COOP