Subpoena for Medical Records of BAC

Can the State Attorney’s Office subpoena a person’s medical records to determine the blood alcohol content of their blood? A person’s first indication that the State Attorney’s Office is seeking their medical records might be as a result of receiving the following documents in the mail:

• a HIPAA 15-day letter for Blood Alcohol Content; and
• a Notice of Issuance of an Investigative Subpoena for Medical Records.

You have a fundamental right to privacy that normally protects the confidentiality of your hospital and medical records. When the state tries to circumvent that right to privacy, the state faces a heavy burden of demonstrating the need for the records at a hearing.

But the Hunter Hearing to challenge the subpoena of the medical records is only required if you file a written objection with the State Attorney’s Office after you receive notice of their intention to seek the records through a subpoena duces tecum.

By contesting the subpoena and filing a written objection, you might convince the court to prohibit the State Attorney’s Office from issuing the subpoena. Not being able to issue the subpoena for medical records might be the best way to terminate the investigation, avoid an arrest, and avoid prosecution for a DUI-related crime.

Attorney to Contest the Subpoena for Medical Records in Florida

If you received such a letter from the Office of the State Attorney, Andrew Warren, in Tampa, FL, or one of the surrounding areas in Florida, then contact an experienced DUI attorney for Hillsborough County at Sammis Law Firm.

Our DUI defense attorneys represent clients in serious DUI cases with property damage, non-serious injury, serious bodily injury, or even death throughout the greater Tampa Bay area.

We fight cases being prosecuted in the courtrooms in Tampa and Plant City (in Hillsborough County), St. Petersburg and Clearwater (in Pinellas County), New Port Richey or Dade City (in Pasco County), or Bartow, Lakeland, or Winter Haven (in Polk County).

Let us put our experience to work for you. Contact us today to discuss your case.

Call (813) 250-0500.

Sample Letter Seeking the Subpoena for Medical Records

We recently received a copy of one of these letters which stated:

RE: STATE OF FLORIDA VS. [NAME]

INVESTIGATION NUMBER: 2018-CT-00XXXX

Dear [Mr./Ms. Name],

Please be advised that the Office of the State Attorney, Andrew Warren, for the Thirteenth (13th) Judicial Circuit in Tampa, Hillsborough County, FL, 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 your hospital] for your medical records, and specifically for these test results of any and all tests made to determine the blood alcohol content of your blood.

This subpoena will be issued pursuant to Florida Statute 395.3025(4)(d) and in compliance with 45 CFR 164.501, and the Federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (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 provided in this letter, at the following address:

State Attorney’s Office

Andrew Warren

419 North Pierce Street, 2nd Floor

Tampa, FL 33602

If you are represented by a criminal defense attorney in Tampa, FL, 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 criminal defense attorney (“attorney of record”), if any.

Any written objection or response to the issuance of a subpoena for your medical records should be filed with the clerk of court and a copy provided to the undersigned Assistant State Attorney prior to the expiration of the 15 day period provided in this letter.

The contact number for the undersigned Assistant State Attorney is 813-XXX-XXXX.

Sincerely,

Assistant State Attorney

Attachment

HIPAA 15 Day Letter

Blood Alcohol Content for DUI

How to Respond to the Notice of Issuance of a Subpoena for Medical Records

If you receive a 15-day letter giving you notice of the intention by the State Attorney’s Office to issue a subpoena for your medical records to determine your blood alcohol concentration or the presence of any controlled substances in your blood, then contact an experienced criminal defense attorney in Tampa, FL.

If you retain us to represent you, we can file an “Objection to the Issuance of a Subpoena” for medical records with the Clerk of Court and serve a copy of the motion on the prosecutor with the State Attorney’s Office who must then schedule a hearing and present witnesses to show the basis for the request for the issuance of the subpoena.

We also serve a copy of our objections on the medical facility and determine whether the medical facility improperly sent those records to any law enforcement officer or prosecutor without the patient’s knowledge or consent.

Filing the objection triggers a “Hunter Hearing.” According to Administrative Order S-2020-007, signed on January 13, 2020, in the Thirteenth Judicial Circuit in and for Hillsborough County, FL, the Criminal Division “O” deals with preliminary proceedings including matters relating to investigative subpoenas issued by the state attorney until such time as any related criminal case is assigned to a division.

All proceedings in Criminal Division “O” will be conducted via audiovisual devices and be electronically recorded.

Reasons for Winning the “Hunter Hearing” in Florida

We have won many of these motions for a wide variety of different reasons. We object to the issuance of the subpoena on any of the following grounds:

• the notice was insufficient;
• the request is not narrowly tailored;
• the subpoena is overly broad;
• there are no legal grounds for the investigation;
• the procedure of the State Attorney’s Office announced in the letter does not comply with basic due process requirements;
• the procedures announced in the notice do not comply with Florida Statute 395.3025(4)(d);
• the procedures announced in the notice do not comply with 45 CFR 164.501, and the Federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA);
• no probable cause (or other sufficient grounds) exists to show that the incident involved DUI of alcohol or controlled substances;
• the proposed subpoena was not attached to the notice;
• there are no witnesses to show that the defendant was driving or in actual physical control of the vehicle; and
• the records would result in the disclosure of embarrassing information which would violate the patient’s right to privacy.

The State Attorney’s Form for the “Subpoena for Medical Records”

The letter from the State Attorney’s Office will also include the proposed “Subpoena for Records.” This type of subpoena often provides:

Subpoena for Medical Records

[[name of hospital]]

By service of this subpoena you are ordered to produce the following requested information to the State of Florida:

MEDICAL RECORDS TO INCLUDE ONLY: EMERGENCY ROOM RECORDS, LAB RECORDS, NURSES’ NOTES TRAUMA FLOW SHEET AND PHYSICIANS CONSULTATIONS FOR [name of patient, date of birth, date of treatment] SEEN ON OR ABOUT [date] TO INCLUDE ANY AND ALL TEST RESULTS OF ANY AND ALL TESTS MADE TO DETERMINE THE BLOOD ALCOHOL AND/OR CONTROLLED SUBSTANCE CONTENT IN THE BLOOD, THE PERSON WHO DREW THE BLOOD AND THE PERSON WHO ANALYZED THE BLOOD TO ALSO INCLUDE A CERTIFIED COPY OF THE BUSINESS RECORDS AFFIDAVIT EXCLUDING ANY REFERENCE TO H.I.V. RESULTS OR MENTAL HEALTH DIAGNOSIS OR ANY OTHER SENSITIVE INFORMATION IN THE RECORD TO WHICH OUR OFFICE IS NOT ENTITLED.

This information is requested pursuant to a matter pending and undetermined in which the office of ANDREW H. WARREN, STATE ATTORNEY, 13th Judicial Circuit, is conducting an investigation. Completion of the attached certification of business records, or similar affidavit used by your institution, is also required.

Pursuant to 45 CFR 164.512(f), the Federal regulations implementing the Health Insurance Portability and Accountability of 1996 (HIPAA), we are seeking the requested information for law enforcement purposes. This information is relevant and material to a pending criminal investigation, and is being sought pursuant to a lawfully issued subpoena which has been issued by the Office of the State Attorney, 13th Judicial Circuit.

The request is specific and limited in scope to the purpose for which the information is being sought, and specifically excludes the results of any HIV test or mental health diagnosis.

De-identified information cannot reasonably be used in these circumstances, as we are seeking evidence of criminal activity committed by [name].

In addition, [name] has been provided with notice of our intent to seek this information, a copy of the subpoena detailing exactly what information is being sought, and was given a time limit to make any objection to the release of those records.

That time period has expired and [name] has made no objection.

You may provide this requested information INSTANTER in person or by mail on or before ____ day of ________, 20__, to BP, Assistant State Attorney, 2nd Floor, 419 N. Pierce St., Tampa, FL, 33602.

Failure to comply with this subpoena may subject you to a penalty imposed by the Court.

Dated this ___ day of _____, 2017.

Andrew Warren

State Attorney

13th Judicial Circuit

_____________________________

Return Information

[ ] Individual served on named person

[ ] Substitute Service by serving _______________

[ ] Non-service by the following reason: _________

Deputy Process Server: ____________________________ Date: ______________ Time:_____________

Requested Service: Mail

Read more about the letters from the State Attorney’s Office in the Tenth Judicial Circuit regarding a Subpoena for Medical Records in a DUI Investigation in Bartow or Polk County, FL.

The article also discusses the sample form for the Notice of Issuance of Subpoena Duces Tecum for Medical Records and a sample of the Investigative Subpoena currently being used by the Unit Supervisor for County Court in Polk County, FL.

State’s Motion to Compel Disclosure of Medical Records

If your criminal defense attorney objects to the disclosure of the medical records within 15 days of the notice, then the State Attorney’s Office in Hillsborough County, FL, will file a “State’s Motion to Compel Disclosure of Medical Records” in Division “O.”

Division “O” is a criminal justice division of County Court in and for Hillsborough County. The case will then be listed on the Clerk of Court website with a case number.

“This file has been created pursuant to Administrative Order S-2006-146 (signed September 22, 2006) which directs the Clerk of the Circuit Court to open an Administrative File and thereafter to open a new Clerk’s administrative file.”

This approach is problematic because then the facts of the case become a public record even when no criminal charges are actually filed. Other counties file these cases under “John Doe” without using the suspect’s name.

As grounds for the State’s Motion to Compel Disclosure of Medical Records, the State Attorney’s Office will explain the facts of the case. The typical scenario involves the following facts:

1. law enforcement officers in Hillsborough County responded to a car accident or crash;
2. during the investigation, law enforcement officers gained information that the suspect was driving at the time of the crash and caused or contributed to the crash;
3. after the suspect was removed from the vehicle, he or she was transported to a local hospital;
4. a law enforcement officer went to the hospital in an attempt to speak with the suspect;
5. the officer might allege that he or she asked the patient for a voluntary blood draw;
6. the officer reported observing the distinct odor of alcohol coming from the suspect’s breath as well as slurred speech and bloodshot watery eyes;
7. the officer might report talking to witnesses or a fellow officer to confirm that the driver of the vehicle was the suspect after searching the license plate of the vehicle and viewing the suspect’s DHSMV photo;
8. the officer might allege that medical staff at the hospital advised the officer of the suspect’s blood-alcohol level which was reportedly over the legal limit of .08 or noted the presence of controlled substances.

The Assistant State Attorney in the State’s Motion to Compel Disclosure of Medical Records will then argue that the state is investigating the suspect for the crime of Driving Under the Influence with Property Damage, pursuant to § 316.193(3)(c)(1), Fla. Stat. The motion will allege that the state is seeking the medical records to include only:

emergency room records, lab results, nurses’ notes, trauma flow sheet and physician consultations for the suspect, _______ (DOB _____) seen on or about ________, to include any and all test results of any and all tests made to determine the blood alcohol and/or controlled substance content in the blood, the person who drew the blood and the person who analyzed the blood, 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 will explain that it sent a certified letter to the suspect on a specific date in order to notify the suspect of its intent to subpoena his medical records as specified above.

After that, the motion will explain that the suspect’s counsel timely notified the state via certified mail and email of his objection to the state obtaining his medical records.

The state will argue:

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. State v. Rivers, 787 So. 2d 952, 953 (Fla. 2d DCA 2001). Such an interest exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation.” Id. (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 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.

Similarly to Rivers, the medical records sought by the State in the instant case tend to prove the blood alcohol level in the suspect’s blood is a material fact in the ongoing Driving Under the Influence with Property Damage 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.

The sworn affidavit establishes 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 the hospital, for the suspect’s blood samples taken for medical purposes on _____.

Ex Parte Search Warrant for Medical Records

Fla. Stat. § 27.04 vests Florida prosecutors with a vast “one-man grand jury” power to subpoena witnesses and records. In order to provide some measure of protection for hospital and medical records — documents that routinely reflect profoundly personal and sensitive data — the legislature sought to limit the exercise of the § 27.04 power with respect to such records.

Fla. Stat. §§ 395.3025(4)(d) and 456.057(7)(a)3 provide that, before exercising the one-man grand jury power to obtain such records, a Florida prosecutor must give notice to the real party in interest as to the records, and afford him a chance to seek a hearing.

Keep in mind, however, that Florida law also provides that prosecutors can simply seek a search warrant on an ex parte basis for the hospital or medical records at issue.

This option was discussed in a line of cases beginning with Farrall v. State, 902 So. 2d 820 (Fla. 4th DCA 2004) [29 Fla. L. Weekly D2605b] and State v. Rattray, 903 So. 2d 1015 (Fla. 4th DCA 2005) [30 Fla. L. Weekly D1513a].

In these cases, the courts have held that the procedures set forth in the statutes are not exclusive. In other words, the courts have held that prosecutors may, alternatively to employing the statutorily-provided procedures, simply seek a search warrant on an ex parte basis for the hospital or medical records.

Subpoena for the Medical Records of the Alleged Victim

The prosecutor might also send a subpoena for the medical records of the alleged victim in a DUI case involving death or serious bodily injury. The subpoena form provides:

The subpoena is requested pursuant to a matter pending and undetermined, wherein the State of Florida is the Plaintiff and the above named is the defendant.

Please provide the requested information to the Assistant State Attorney named below 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.

This type of SAO-issued subpoena is not sent to COURTNOTIFY.

In these cases, the alleged victim will sign an authorization for the release of health information and permit testimony based upon health information. The form is sometimes called the “HIPAA AUTHORIZATION TO RELEASE MEDICAL INFORMATION.

The purpose of the release is to allow the hospital or medical facility to release information concerning admission and discharge records, medical and billing records, progress notes, flow sheets, medication records, test results, physician orders, consultation records, diagnostic test results, and any other information contained in a designated record set, and to discuss, provide opinions, conduct conferences and/or provide a deposition, trial or other testimony related to the medical treatment of the patient to the Office of the State Attorney who is prosecuting a criminal case.

Fighting the State’s Request for Medical Records in a DUI Investigation

Our attorneys represent clients charged with DUI cases when the person is not arrested because of an injury that requires a hospital visit, especially after a car accident or crash.

Call our experienced criminal defense attorneys at Sammis Law Firm in Tampa, FL, to discuss your case. Our attorneys represent clients charged with DUI, DUI with a high BAC over .15, DUI with property damage, felony DUI with serious bodily injury and DUI manslaughter.

Our attorneys represent clients charged with DUI, DUI with a high BAC over .15, DUI with property damage, felony DUI with serious bodily injury, and DUI manslaughter.

We fight cases involving medical blood readings taken during a DUI investigation throughout the greater Tampa Bay area including all of Hillsborough County and the surrounding counties of Hernando County (at the courthouse in Brooksville), Pasco County (at the courthouse in New Port Richey or Dade City), Pinellas County (at the courthouse in Clearwater or St. Petersburg), and Polk County (at the courthouse in Bartow or Winter Haven).

Call (813) 250-0500.

This article was last updated on Tuesday, July 5, 2022.