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Subpoena for Medical Records

Subpoena for Medical Records in a DUI Investigation

What should you do if you receive a letter in the mail putting you on notice that a prosecutor with the State Attorney's Office in Hillsborough County wants to subpoena your medical records during a pending DUI investigation?

You might get this kind of letter if you were involved in a traffic accident that resulted in a trip to the hospital. During your medical treatment after the car crash, a nurse at the hospital likely took your blood. Your medical records show your blood alcohol concentration and the presence of any controlled substances.

An officer might have questioned you at the hospital. The officer might have asked you to submit to a legal blood draw so that the sample could be sent to the crime lab for analysis. Even if you didn't submit to the legal blood draw, the nurse might have told the officer that your medical records showed your blood alcohol concentration (BAC) was over the legal limit of .08. Based on that information, the officer might turn the case over to the State Attorney's Office to get your medical records and initiate crime charges.

If the prosecutor does not have a legal blood sample that is submitted to the crime lab, then the next best thing is that notation in your medical records. The prosecutor can try and get that notation in the medical records as evidence that you were driving under the influence (DUI) of alcohol or drugs. Many of these cases involve an additional allegation that your driving caused or contributed to a crash causing property damage, non-serious personal injury, serious bodily injury or even death. 

Hospital and medical records are documents that routinely reflect profoundly personal and sensitive data. Your medical records are confidential. For this reason, any instrusion into your privacy by obtaining your medical records can only meet constitutional muster when the state can demonstrate a "compelling state interest."

If you were served with a Notice of Issuance of Subpoena Duces Tecum for Medical Records or the proposed Investigative Subpoena, then act quickly to file an objection within the 15 day period. If you miss that 15 day deadline, then the state will have a much easier time getting you medical or hospital records and using them against you.

Seek out the services of an experienced criminal defense attorney who can help you fight the 15 day objection. An attorney can help you file the objection within the 15 day deadline and raise all of the appropriate substantive and procedural issues. Once the objection is received by the prosecutor with the State Attorney's Office in Hillsborough County, FL, the prosecutor will schedule an evidenciary hearing in front of the judge (often called the "Hunter Hearing"). An attorney can also represent you at this hearing with the goal of getting the judge to deny the prosecutor's request for the subpoena.

Attorney to Fight the Request for a Medical Records Subpoena in Tampa, FL

If you received a "Notice of Issuance of an Investigative Subpoena for Medical Records" or a "HIPAA 15 day letter for Blood Alcohol Content" then contact an experienced DUI defense attorney in Tampa, FL, at the Sammis Law Firm.

We can help you file an objection to the suboena showing all the reasons why the prosecutor's request should be denied. We can also represent you at a "Hunter Hearing" or any appeal taken by the state if the judge denies their request. If the judge grants the request after the hearing, we can also help you appeal that decision to a higher court.

Over the years, we have represented clients successfully in many "Hunter Hearings" throughout Hillsborough County, FL, and the surrounding areas including Hernando County, Pasco County, Pinellas County and Polk County. We have also represented clients when the state appealed the trial court's decision to deny the request for a subpoena.

Winning the Hunter Hearing is an important step toward preventing the prosecutor from being able to file criminal charges against you. Depending on the facts of the case, those criminal charges might include a misdemeanor DUI, DUI with property damage, felony DUI with serious bodily injury, or even DUI manslaughter. If you received a notice, act quickly.

Our DUI defense attorneys in Tampa, FL, are particularly experienced in fighting these types of DUI cases involving a blood test reading showing the presense of alcohol or controlled substances in the body.

Call 813-250-0500 today.


Objections to the Prosecutor's Subpoena for Hospital or 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 require 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 give the patient a chance t to demand a hearing to contest the request.

We can help you file an objection to the "Notice of Issuance of Subpoena Duces Tecum for Hospital Records" showing all the reasons why the request should be denied including:

  • the request violates your fundamental right to privacy contained in Article I, Section 23 of the Floirda Constitution; 
  • the state has no compelling governmenal interest in the medical records because the records are not relevant to their investigation; 
  • the requestis made in violation of Fla. Statute Section 395.3025; 
  • the request is based on evidence taken in violation of your Fourth Amendment right to be free from unreasoanble searches and seizures;
  • a due process violation has occurred since the notice is insufficient to explain why the request is being made, the time, date, or place of the incident giving rise to the investigation, the nature of the criminal allegation; which medical records are being sought to be disclosed;
  • the notice is legally insufficient to comply with section 395.3025(4)(d), section 401.30(4)(f), and section 456.057(5);
  • the state has not complied with Florida Rule of Civil Procedure 1.351(b) becaue the proposed subpoena was not attached to the notice, the notice did not state the time, place or method for production of the documents, the notice doesn't state the name of the person who is to produce the documents; and the notice does not state a general discription of the items to be produce;
  • the state has no compelling governmental interest in the medical records; and
  • the proposed subpoena is overly broad and too vague.

We also file a motion to suppress or exclude any mention of any statement by a nurse or doctor that the suspect's blood alcohol concentration (BAC) was over the legal limit. Florida Statute Section 316.1933(2)(a)(1) allos the health care provider to notify an law enforcement officer of agency that the patient's blood alcohol level is over the legal limit, but that notice SHALL only be used for the purpose of providing the law enforcement officer with reasonable cause to request the withdrawl of a blood sample pursuant to this section. 

In other words, the court must suppress or exclude any mention of that notice from the health care provider during the Hunter Hearing. But you must raise that issue and make the proper objection at the hearing in order to preserve that issue for appeal. 


Sample Letter for Request for a Subpoena for Hospital Records in a Criminal Investigation

RE: STATE OF FLORIDA VS. [NAME]

INVESTIGATION NUMBER: 2018-CT-00XXXX

Dear [Mr./Ms. Name of Patient],

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 a traffic crash that occurred on [date]. It is alleged that you were driving at the time of the accident and contributed to the crash.

 

This letter is to notify you that fifteen (15) days from the date of this letter, the Assistant State Attorney listed below will issue a subpoena 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 or presence of controlled substances in your blood. A copy of the proposed subpoena for your hospital records is attached to this notice.

This subpoena is 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 in Tampa, FL, 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, 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


Sample Form for the Subpoena for Hospital Records

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


Other Ways the Prosecutor Can Get Your Medical Records

You should also be aware of other ways that the prosecutor with the State Attorney's Office can attempt to get a copy of your medical records (or even the vials of your blood being stored at the hospital). Although the law is not well-settled in this area, the prosecutor might 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 those cases, the court noted 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.


Finding a Lawyer to Contest a Subpoena for Medical Records in Florida

If you are under a criminal investigation for causing a traffic crash while driving under the influence of drugs or alcohol, then contact an experienced DUI defense attorney in Tampa, FL, at Sammis Law Firm. Our main office is conveniently located in downtown Tampa, just a few blocks from the courthouse. We also have a second office in New Port Richey across from the West Pasco Judicial Center.

At the Sammis Law Firm, we are experienced fighting a variety of serious DUI cases including misdemeanor DUI with property damage or felony DUI cases involving serious bodily injury or death.

We fight DUI cases in Tampa, FL, and the surrounding areas including in Brooksville in Hernando County, in New Port Richey and Dade City in Pasco County, in St. Petersburg and Clearwater in Pinellas County, and in Winter Haven and Bartow in Polk County, FL.

Call 813-250-0500.


This article was last updated on Friday, March 8, 2019.