How to Object to a Subpoena for Your Medical Records and Blood Test
Did you receive a letter concerning a subpoena for your medical records from Andrew H. Warren, State Attorney for the 13th Judicial Circuit?
If you were involved in a crash and DUI investigation, even if you were NOT arrested, the investigation might trigger such a letter regarding how to object to the issuance of the subpoena of your medical records. Attached to the letter is the prosecutor’s proposed “Instanter Subpoena for Medical Records – Blood” form.
If you hire an attorney to object to the issuance of the subpoena, it might ultimately prevent the State Attorney’s Office from securing a warrant for your arrest for DUI or filing formal charges.
The four attorneys at Sammis Law Firm understand how to file an objection, respond to the State’s Motion to Compel Disclosure of Medical Records for Blood, and represent your interests during a Hunter Hearing in the courtroom.
Contact us to speak with an experienced DUI defense attorney about your rights.
Call 813-250-0500.
Filing a Written Objection to a Subpoena for Medical Records – Blood
The letter tells you how to object to the issuance of the subpoena. An attorney can help you file the objection and protect your rights. The letter provides:
Dear ____,
Please be advised that this office is investigating an incident occurring on [date] in which you were involved. This letter is to notify you that fifteen (15) days from the date of this letter, we will have issued a subpoena, a copy of which is attached, to [[name of hospital]] for your medical records, and specifically for the test results of any and all tests made to determine the blood alcohol content of your blood.
This subpoena is issued pursuant to Florida Statute 395.3025(4)(d) and in compliance with 45 CFR 164.501, and federal regulations implementing HIPAA.
If you object to the issuance of a subpoena for your medical records, a written objection or response must be provided to the undersigned Assistant State Attorney prior to the expiration of the 15 day notice period provided in this letter, at the following address:
State Attorney’s Office
419 N. Piece St, 2nd floor
Tampa, FL 33602
If you are represented by an attorney, your attorney may file a written objection or response on your behalf. If this letter references a pending case, a copy of this 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 the court and a copy provided to the undersigned Assistant State Attorney prior to the expiration of the 15 day notice period provided in this letter.
The contact number for the undersigned Assistant State Attorney is ______.
Instanter Subpoena for Medical Records – Blood
Attached to the letter is the proposed “Instanter Subpoena for Medical Records – Blood” form which usually provides:
This subpoena is issued pursuant to Florida Statute Section 92.605. A response is due within 20 business days of receipt of this subpoena unless a longer time period is stated herein. By service of this subpoena, you are ordered to produce the following requested information to the State of Florida.
- The results of any and all blood test in reference to blood alcohol content and/or the presence of drugs and narcotics performed upon [name], on or about [date].
- The name of the person who drew the patient’s blood.
- The name of the person who analyzed the blood sample.
- To also include a certified copy of Business Records Affidavit.
This information is requested pursuant to a matter pending and undermined, wherein the State of Florida is Plaintiff and the above named is the defendant.
Please provide the requested information to ______ Assistant State Attorney, 419 N. Pierce St., Tampa, FL 33602-4022, or to an authorized representative of the State Attorney’s Office. Failure to comply with this subpoena may subject you to penalty of the court.
State’s Motion to Compel Disclosure of Medical Records for Blood
If your attorney files a proper and timely motion objecting to the issuance of the subpoena for medical records, then the State might then file a State’s Motion to Compel Disclosure of Medical Records for Blood. The case number uses the following format: 21-AF-00xxxx.
The clerk will create a file with the designation “21 ADMINISTRATIVE FILE OPENED.”
Pursuant to Administrative Order S-2006-146 (signed September 22, 2006), the Clerk of the Circuit Court is required to open an Administrative File. Furthermore, the administrative order requires:
- The Clerk shall assign an alpha-numeric designation to the Clerk’s administrative file that is unique and different from all other types of court file numbers.
- The Clerk shall index the Clerk’s administrative file as required by law.
- Every court-related document received or generated by the Clerk, including any resulting order issued by the court, that is not associated with an existing court case file shall be docketed and filed in the Clerk’s administrative file for the calendar year when it is received or generated.
- If any document filed in the Clerk’s administrative file can thereafter be associated with a court case file, such document shall be transferred to the associated court file with a docket entry noting the transfer and the court case file identification.
State’s Motion to Compel Disclosure of Medical Records
After your attorney objects to the subpoena, the prosecutor will usually file a pleading called the “State’s Motion to Compel Disclosure of Medical Records. The legal argument portion of the motion provides:
The State is investigating Defendant for the crime of Driving Under the Influence, pursuant to§ 316.193(1), Fla. Stat. (2021). The State is seeking the medical records to include only:
- any lab results (including any results of blood or urine for alcohol/drugs);
- the name of the nurse who drew the blood/urine sample; and
- the name of the laboratory technician who analyzed the blood or urine sample for Defendant;
- to also include a certified copy of business records affidavit, excluding any reference to HIV results or mental health diagnosis or any other sensitive information in the records to which our office is not entitled.
Pursuant to recognized case law, the State served a certified letter to Defendant on [date], notifying him of its intent to subpoena his medical records as specified above.
Defendant, through attorney Leslie Sammis, Esq., timely notified the State of his objection to the State obtaining his medical records on [date].
Florida law permits a state attorney to use an investigative subpoena to compel disclosure of a patient’s medical records, so long as the patient is first given notice before the subpoena is issued. Hunter v. State, 639 So.2d 72, 74 (Fla. 5th DCA 1994).
The Hunter court further held that
“[i]f the patient objects, the state has the obligation and the burden to show the relevancy of the records requested; before the subpoena for the patient’s medical records is allowed to issue.”
Id.
Hunter and its progeny properly place great emphasis on the protections afforded to a patient’s privacy rights. See id. (“Florida’s constitution has a very strict prohibition against government intrusion into the private lives of its citizens and, by implication, their medical records.”) (internal citation omitted); see also Tyson v. State, 114 So. 3d 443,445 (Fla. 5th DCA 2013) (“The State’s burden arises from [the Defendant’s] constitutional right to privacy in his medical information.”).
However, the State may overcome this inherent right “by the showing of a compelling state interest. Such an 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) (emphasis added).
To support this assertion of relevancy, “the court can rely on the State’s argument and the accident report or probable cause affidavit to establish relevance.” Guardodo v. State, 61 So. 3d 1210, 1213 (Fla. 4th DCA 2011) (citing McAlevy v. State, 947 So. 2d 525, 529 (Fla. 4th DCA 2006)).
“Relevancy and relevant evidence have been determined by Florida courts to be ‘evidence tending to prove or disprove a material fact. “‘ Hunter, 639 So.2d at 74. (citing Charles W. Ehrhardt, Florida Evidence § 90.401).
The facts giving rise to Rivers are nearly analogous to this case. The defendant in Rivers was charged with driving under the influence, causing serious bodily injury. Rivers, 787 So. 2d at 953.
“The State contended that the records and reports would indicate whether Rivers was under the influence of drugs or alcohol at the time of the crash.” Id.
In granting the petition for writ of certiorari, quashing the order denying the State’s motion, and remanding to authorize the State to issue its subpoena, the Rivers court concluded:
The emergency room and toxicology records and reports sought by the State were directly related to the incident which led to the charges against Rivers and to the ongoing criminal investigation.
The State thus met its burden of establishing relevancy and a compelling state interest. The fact that the State had other incriminating evidence against Rivers was not a proper basis to prevent execution and issuance of the investigative subpoena.
Id. at 953-54 (emphasis added).
Similarly, to Rivers, the medical records sought by the State in the instant case tend to prove the blood alcohol level in defendant’s blood on [date], a material fact in the ongoing Driving Under the Influence investigation.
Moreover, the request contained in the State’s proposed subpoena, as provided above, is narrowly tailored to records pertaining to the incident under investigation.
Lastly, [name of officer] authored an Affidavit in Support of Subpoena, attached as Exhibit “A,” establishing that the medical records are relevant to this criminal investigation.
This direct relationship of the defendant’s medical records to proving or disproving a material fact, in this case, establish the relevancy sufficient to overcome Defendant’s privacy rights in his medical records.
WHEREFORE, the State of Florida respectfully moves this Honorable Court to issue an Order for Disclosure of Medical Records allowing the State of Florida to issue a subpoena for medical records to [name of] Hospital relating to defendant’s lab results (including any results of blood or urine for alcohol/drugs) for medical purposes on [date].
This blog article was last updated on Thursday, September 30, 2021.
