Subpoena for Hospital Records in a DUI Case
Can your medical records be used against you after a crash to show that you were impaired by alcohol or drugs? Yes, during a criminal investigation into the crash, the investigating officer might ask the State Attorney’s Office in Pinellas County, FL, to send a subpoena duces tecum to the hospital if you received medical treatment after the traffic crash or car accident.
The medical records will often show the presence of alcohol or any controlled substances in the blood. Those records can be used to obtain a warrant for your arrest for DUI.
Before the subpoena can be issued, the State Attorney’s Office of the Sixth Judicial Circuit of Florida must send you a letter telling you about their intention to issue the subpoena.
If you get a notice from the State Attorney’s Office in Pinellas County that they want your medical records, contact an experienced DUI defense attorney who can explain why you should ALWAYS have an attorney immediately file a written objection to the issuance of the subpoena.
You need an attorney to help you fight to prevent the issuance of the subpoena. If you win the hearing and the court prevents the prosecutor from getting your medical records, then you greatly decrease the chance that you will be charged or convicted of driving under the influence or any DUI-related offense.
Attorney for Medical Record DUI Cases in Pinellas County, FL
If you receive a letter from the State Attorney’s Office for the Sixth Judicial Circuit for Pinellas County, then contact an experienced DUI defense attorney. We can help you understand your right to object to the subpoena for your medical records.
We can also represent you at the hearing on the prosecutor’s “Motion to Request Subpoena Duces Tecum for Medical Records.”
If you hire an attorney to contest the issuance of the subpoena for medical records, the court might issue an order that prohibits the prosecutor from getting your medical records.
You might win the hearing if there is not sufficient evidence that you were driving or under the influence of alcohol or drugs. The court might prohibit the subpoena because the proposed language is too broadly worded or fails to protect your privacy.
Additionally, the State Attorney’s Office often obtains medical records illegally without first providing the proper notice.
Then after this mistake is made, the prosecutor with the State Attorney’s Office in Pinellas County makes a second request without telling you about their mistake.
An experienced attorney for DUI cases in Pinellas County, FL, can help you determine whether any mistakes were made in your case that might prohibit the prosecutor from using your medical records at trial.
The main office of Sammis Law Firm is located in downtown Tampa, FL. We recently opened an office in Clearwater near the CJC Courthouse. Our office is located at 14010 Roosevelt Blvd Suite 701, Clearwater, FL 33762-3820.
Call 727-210-7004.
Notice of the Subpoena for Hospital Records in the Sixth Judicial Circuit
In DUI cases in Pinellas, the Office of the State Attorney for the Sixth Judicial Circuit in Pinellas County, FL, might send you a letter from Bruce Bartlett, State Attorney, that provides:
According to Florida Statute Section 395.3025 and/or 456.057(7)(a), you are hereby notified that your medical records will be disclosed to this office for examination pursuant to a court subpoena.
Attached is a copy of the subpoena we will be sent to the medical provider. This copy of the subpoena duces tecum is for your records.
You have the right to be heard by a judge as to this disclosure. The subpoena will be issued ten days after the day of this notice if no action is taken.
If you have any questions, please contact the State Attorney’s Office, Criminal Investigation Division (CID) at 727-464-6760.
Read more about the procedures and policies for a DUI blood test at the hospital.
Reasons to Object to the Issuance of the Subpoena for Medical Records
In order to preserve your rights, you should hire an experienced DUI Defense Attorney for Pinellas County, FL, to send an objection to the issuance of the subpoena duces tecum.
Your attorney will file an objection to the subpoena with the State Attorney’s Office in Clearwater, FL.
Your DUI defense attorney should also send a copy of the objection to the custodian of records who has the medical records so they make sure not to release the records until your objection has been resolved.
What Does the Subpoena Duces Tecum for the Blood Analysis Say?
The subpoena duces tecum is sent to the custodian of medical records at the hospital. It requires the custodian of those medical records to comply INSTANTER by providing the documents by U.S. Mail, a common carrier such as UPS or FedEx, or electronically to saosubpoenarequest@co.pinellas.fl.us.
The Subpoena Duces Tecum provides:
You are subpoenaed by Bruce Bartlett, State Attorney, to comply INSTANTER…
To testify in the above-styled cause and to bring the following described items, to wit:
abstract version of medical records of diagnosis and treatment of a particular patient for a particular period of treatment to include, but not be limited to blood analysis, toxicology analysis, names of all physicians and nurses, and observations and notes of all treating physicians and nurses.
The custodian of the medical records is also asked to complete a certification of business records.
The subpoena duces tecum will state that it is issued in accordance with HIPAA, 164.512(f)(1)(ii)(A) and is seeking the minimum information necessary for this criminal investigation.
The State Attorney’s Office must also state that a notice of the request for the subpoena duces tecum was provided to the patient’s last known address and no object has been made within the time allowed as required by F.S. 395.3025(4)(d) and F.S. 456.057(7)(a).
The request must not include any HIV test records governed by F.S. 381, substance abuse records governed by F.S. 397, and clinical records of a mental health facility governed by F.S. 394.4615.
Notice has been provided as required by F.S. 395.3025(4)(d) and F.S. 456.057(7)(a).
Florida Law on the Confidentiality of Patient Medical Records
F.S. 395.3025(4) provides:
Patient records are confidential and must not be disclosed without the consent of the patient or his or her legal representative, but appropriate disclosure may be made without such consent to:
(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.
F.S. 456.057(7)(a) provides:
Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient, the patient’s legal representative, or other health care practitioners and providers involved in the patient’s care or treatment, except upon written authorization from the patient. However, such records may be furnished without written authorization under the following circumstances:….
3. 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 to the patient or the patient’s legal representative by the party seeking such records…..
Motion to Request Subpoena Deuces Tecum for Medical Records
After your DUI defense attorney objects to the prosecutor getting your medical records, the prosecutor with the State Attorney’s Office in Pinellas County is supposed to file the following motion and set it for a hearing.
IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FL
IN RE Investigation of Case No.: ___________
_____________/ Subponea No.: _______
MOTION TO REQUEST SUBPOENA DECUES TECUM
FOR MEDICAL RECORDS
COMES NOW, Bernie McCabe, State Attorney for the Sixth Judicial Circuit, by and throughout the undersigned Assistant State Attorney, and moves this Honorable Court to issue a Subpoena Deuces Tecum to the following doctors and hospital to provide medical records of _____________.
In support of the motion, the State Attorney shows the following:
- Florida Statutes section 395.3025(4)(d) and 456.057(7)(a) provide that a patient’s medical records enjoy a confidential status but appropriate disclosure may be made in any criminal action upon the issuance of a subpoena from a court of competent jurisdiction.
- If a patient objects to the State’s subpoena of his medical records, a hearing must be held to determine if the records are relevant to a criminal investigation. The right of privacy in a patient’s medical records under the Florida Constitution may be overcome by the showing of a compelling State interest.
- Such an interest exists where there is a reasonable founded suspicion that the material contains information relevant to an ongoing criminal investigation. See State v. Johnson, 814 So. 2d 390 (Fla. 2002); State v. Rivers, 787 So. 2d 952 (Fla. 2d DCA 2001).
- The burden is upon the State to show the nexus between the medical records sought and a pending criminal investigation. McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006).
- Moreover, courts have held that a search warrant (or court order) issued by a judge can substitute for the subpoena requirement. See State v. Rattray, 903 So. 2d 1015 (Fla. 4th DCA 2005); Limbaugh v. State, 887 So. 2d 387 (Fla. 4th DCA 2004).
- It is apparent from the above-cited case law that the State must show that the medical records requested from the patient’s provider are relevant to a criminal investigation. If relevancy is shown, the court must order that the State be allowed to issue the subpoena.
- The State Attorney’s Office has notified [[___the patient___]] that a subpoena for his medical records to [[___name of the hospital or medical facility____]] would be issued unless he objected. The patient objected to the issuance of the subpoena. A hearing must be scheduled.
- If necessary, the officer of the law enforcement agency in Pinellas County will be called to testify that the patient’s medical records are relevant to the criminal investigation.
Wherefore, the state respectfully requests this Court schedule a hearing on the medical records subpoena and order that the State be allowed to issue the subpoena.
Respectfully submitted,
BERNIE MCCABE, STATE ATTORNEY
_______________
Assistant State Attorney
Clearwater, FL
COUNSEL FOR THE STATE
Request from Law Enforcement for Release of Protected Health Information
The “Request from Law Enforcement for Release of Protected Health Information (PHI)” form requests the following information:
- Patient’s Name (if known):
- Date:
- Requestor’s Name:
- Requestor’s Title:
- Agency Name:
- Phone Number:
- Agency Address: (assigned agency case #, warrant #, or related incident report #)
- Requested Information Related to an Active Law Enforcement Investigation:
- Signature of Requestor/Officer:
The LEO PHI form requires the selection of one of the following appropriate legal exceptions that will allow the requested information to be released:
- Suspect, Fugitive, Material Witness, or Missing Person.
- I certify that the information about the above named patient is needed to assist in attempting to identify or locate a suspect, fugitive, material witness, or missing person.
- I understand that the information I can obtain is limited under federal law. (45 CFR §§ 164.512(f)(2).)
- Injury by Violence.
- The information sought concerns a person suffering from a wound or injury inflicted by means of violence that must be reported to law enforcement under Tennessee law, and is limited to the name, residence and employer of the person, the person’s whereabouts, the place the injury occurred, and the character and extent of the injuries.
- Child or Elder Abuse.
- The information is sought pursuant to an investigation of suspected child brutality, abuse, neglect or child sexual abuse, or abuse, neglect or exploitation of an adult who is unable to protect themselves without assistance from others because of a mental or physical dysfunction or advanced age (as set forth in TCA §§ 71-6-102 et seq.).
- Victim of a Crime.
- The information sought concerns a possible victim of a crime in a situation not otherwise covered by other categories on this form. Either the suspected victim’s written agreement to the disclosure is attached to this form, or I request that appropriate personnel seek the victim’s agreement to the disclosure.
- If the victim’s agreement cannot be obtained due to incapacity or other emergency circumstance, I certify that the information is needed to determine whether a violation of law by someone other than the victim has occurred, that the information is not intended to be used against the victim, and that the investigation would be materially and adversely affected by waiting until the patient is able to agree to the disclosure.
- I understand that the disclosure is subject to a determination of what is in the best interests of the patient in the exercise of professional judgment by medical professionals.
- Legal Process.
- A court order, judicial subpoena, warrant, summons, grand jury subpoena or other legal process seeking the requested information has been issued and is attached to this form. (45 CFR §§ 164.512(f)(1)(ii)(A) and (B).)
- Crime on Premises.
- The information sought constitutes evidence of possible criminal conduct occurring on the premises of _________.
- Patient Authorization.
- I have received written authorization from the patient for the release of medical information. A copy of the dated release with patient signature is attached.
- Patient in Custody.
- I certify that the above-named patient is in lawful custody of the correctional facility or agency listed above, and the requested information is needed for the healthcare of the patient, the safety of the patient, other inmates, officers of the facility or transporting the patient, or for the administration of the safety, security, and order of the facility as allowed under 45 CFR §§ 164.512(k)(5)(i).
- Motor Vehicle Accident Injury or Death.
- I certify I have probable cause to believe that the driver of a motor vehicle involved in an accident resulting in the death or injury of another has committed a violation of TCA 55-10-401, 39-13-213(a)(2), or 39-13-218.
- Therefore, in accordance with __________, I shall cause the driver to be tested for the purpose of determining the alcohol and/or drug content of such driver’s blood.
- Other:
- If no category on this form describes your request, please describe here: ___________________
Additional Resources
Can Police Get Your Medical Records in a DUI Case in Hillsborough County – Find out why the Office of the State Attorney, Andrew Warren, in Tampa, FL, might send you a HIPAA 15-day letter for Blood Alcohol Content or a Notice of Issuance of an Investigative Subpoena for Medical Records. Learn more about the best way to respond to a request to subpoena your medical records to determine the presence of alcoholic or controlled substances in your blood.
Notice of Subpoena for Medical Records in a DUI in Polk County – Find out why the state attorney’s office in Polk County in Bartow, FL, might send you a letter putting you on notice of their intention to issue a subpoena duces tecum. The goal of the subpoena is to get your hospital and medical records to find out whether you had drugs or alcohol in your system that could have caused impairment at the time of the crash or while you were driving.
Finding an Attorney to Protect Your Medical Records in a DUI Investigation
The attorneys at Sammis Law Firm can also help you fight the DUI case if charges are filed.
Our attorneys understand the problems in DUI blood test cases, including problems showing the chain of custody, inaccurate or unreliable serum blood test results, and problems with blood draw procedures.
We have offices in downtown Tampa in Hillsborough County, FL. We also have offices in New Port Richey in Pasco County across from the West Pasco Judicial Center.
Call 727-210-7004.
This article was last updated on Monday, June 5, 2023.
