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 includes:
- a HIPAA 15 day letter for Blood Alcohol Content; or
- a Notice of Issuance of an Investigative Subpoena for Medical Records.
If you received such a letter from the Office of the State Attorney, Andrew Warren, in Tampa, FL, then contact an experienced DUI attorney for Hillsborough County at the 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.
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, they face a heavy burden and most comply with strict due process requirements during an evidenciary hearing, but only if the proper objections are raised.
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
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.
Assistant State Attorney
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 State Attorney Office’s intention 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.
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 is 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 does not comply with Florida Statute 395.3025(4)(d;
- the procedures announced in the notice does 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 exists to believe the incident involved DUI of alcohol or controlled substances (or any other serious criminal offense);
- 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.
13th Judicial Circuit
[ ] 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.
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.
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 the 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, October 16, 2018.