By Mark A. Ober
Traditionally, evidence of a crime is collected by law enforcement during the normal course of their investigation, but there are situations where it becomes necessary for my office to assist law enforcement in obtaining evidence needed to investigate a crime.
In some cases of driving under the influence, the defendant has sought and obtained medical treatment. That treatment may have precluded law enforcement from obtaining a lawful sample from the defendant to test for alcohol or impairing drugs. During the course of treatment, medical personnel may have obtained a blood sample for diagnostic purposes. This sample may contain important evidence that could be used to determine whether a driver was impaired.
This medical blood is not obtained at the direction of law enforcement. Although the blood sample and subsequent results are not a seizure by the government or its agents, they are subject to heightened privacy protections. Not only are medical records subject to protection under federal law, 45 C.F.R. § 164.501., but section 395.3025, Florida Statutes, provides that “[p]atient records are confidential and must not be disclosed without the consent of the patient.” § 395.3025(4), Fla. Stat. Section 319.1932(1)(f)(2)(b), Florida Statutes, does allow medical personnel to notify law enforcement of a blood alcohol level over the legal level, but that information can only be used for limited purposes. Those results may be obtained by subpoena, but our office must provide notice to the defendant before issuing that subpoena. § 395.3025(4)(d), Fla. Stat.
To satisfy the requirements imposed by that statute and by the federal regulations implementing the Health Insurance Portability and Accountability Act of 1996 (HIPAA), our office notifies the defendant of our intent to obtain the defendant’s medical records and of the opportunity to object to the issuance of the subpoena.
If a defendant provides timely objection to the subpoena, our office must set the case for a hearing. At the hearing, the state carries the burden of showing that those records would be relevant to a criminal investigation. See Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994). The state must “show the nexus between the medical records sought and a pending criminal investigation.” Id. at 74. This burden can be met through the presentation of live testimony or by reliance upon a probable cause affidavit or sworn statement. See McAlevy v. State, 947 So. 2d 525 (Fla. 4th DCA 2006).
If there has been no objection, or after hearing, a subpoena may be issued to the hospital to provide the results of any blood test showing the alcohol level of the defendant. The information that my office is able to obtain is limited to information that would be relevant to the crime being investigated; it would not include all of the defendant’s medical records.
As state attorney, it is my duty to assist law enforcement in lawfully obtaining evidence of criminal acts. Lawfully obtained evidence allows my prosecutors to secure convictions that help keep our community safe.
