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Subpoena for Medical Records in Hernando County, FL

Can the State Attorney’s Office in Hernando County, FL, subpoena a person’s medical records to determine the blood alcohol content of their blood or the presence of any controlled substance? A person’s first indication that the State Attorney’s Office is seeking their medical records occurs when the person receives a notice in the mail requesting the issuance of an investigative subpoena for medical records or a HIPAA 15 day letter for Blood Alcohol Content.

The prosecutor with the State Attorney’s Office in Hernando County, FL, might also seek medical records for other types of investigations into traffic crimes such as DUI, DUI manslaughter, leaving the scene of an accident, hit and run with property damage or serious bodily injury, fleeing to elude, reckless driving, vehicular homicide or vehicular manslaughter.

For DUI investigations in Hernando County, FL, the request for the subpoena might be sent to the Regional Medical Center Oak Hill in Weeki Wachee, the Oak Hill Hospital in Brooksville, or the Brooksville Regional Hospital in Brooksville.

As a patient, 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.

Attorney to Fight Subpoena for Hospital Records in Brooksville, FL

If you received such a letter from the Office of the State Attorney, in Hernando County, FL, then contact an experienced DUI attorney at the Sammis Law Firm. Our DUI defense lawyers represent clients in serious DUI cases with property damage, non-serious injury, serious bodily injury or even death (often called DUI manslaughter) throughout the greater Tampa Bay area.

We fight cases being prosecuted in the courtrooms in Brooksville, Hernando County, FL, for driving under the influence (DUI) and other serious criminal offenses involving a impaired driving with property damage, non-serious injury, serious bodily injury or death. Let us put our experience to work for you. Contact us today to discuss your case.

Call (813) 250-0500.


Example of Hernando County Subpoena for Medical Records

IN THE CIRCUIT COURT FOR THE FIFTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR HERNANDO COUNTY

CRIMINAL INVESTIGATION

SYSTEM ID NO. H-2018-XXXXX

AGENCY NO. FHP2 FHPC18OFFXXXXX

NOTICE OF SUBPOENA DUCES TECUM AND/OR 

ORDER FOR PRODUCTION OF MEDICAL AND/OR BLOOD RECORDS

TO: [Name and Address of Driver/Patient]

YOU ARE HEREBY NOTIFIED pursuant to Florida Statute 395.3025, 456.017, or 456.017 that the Office of the State Attorney in Brooksville, Hernando County, FL, intends to obtain a Subpoena Duces Tecum and/or Order for the Production of Medical Records on [name of driver/patient] from [name of hospital or medical facility] fifteen days after the date of this Notice. Any objection thereto must be raise before that time.

Please be advised that the Office of the State Attorney in Brooksville in Hernando 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

Assistant State Attorney

Office of the State Attorney in the Fifth Judicial Circuit for Hernando County

20 N. MAIN ST, ROOM 400

BROOKSVILLE, FL 34601

352-754-4255

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 XXX-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 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 Brooksville, 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.

Over the years, we have won at several of these motion hearings for a wide variety of different reasons. We object to the issuance of the subpoena on any of the following grounds:

  • the records would result in the disclosure of embarrassing information which would violate the patient’s right to privacy;
  • there are no witnesses to show that the defendant was driving or in actual physical control of the vehicle;
  • the proposed subpoena was not attached to the notice;
  • no probable cause exists to believe the incident involved DUI of alcohol or controlled substances (or any other serious criminal offense);
  • 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);
  • the procedures announced in the notice does not comply with Florida Statute 395.3025(4)(d);
  • the procedure of the State Attorney’s Office announced in the letter does not comply with basic due process requirements;
  • there is no legal grounds for the investigation;
  • the subpoena is overly broad;
  • the request is not narrowly tailored; and
  • the notice was insufficient.

Additionally, Rule 1.351(b), Florida Rules of Civil Procedure, requires notice, including a copy of the purposed subpoena, to be served at least ten days prior to the issuance of the subpoena.


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 or medical facility in Hernando County]]

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 Assistant State Attorney Office of the State Attorney in Hernando County, FL 20 N. MAIN ST, ROOM 400 BROOKSVILLE, FL 34601 352-754-4255, 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 Assistant State Attorney Office of the State Attorney in Hernando County, 20 N. MAIN ST, ROOM 400, BROOKSVILLE, FL 34601.

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

Dated this ___ day of _____, 2018.

State Attorney_____________________________

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


Ex Parte Search Warrant for Medical Records

As explained in Fla. Stat. § 27.04, the prosecutors in Florida have a tremendous “one-man grand jury” power to subpoena witnesses and records. The Florida legislature, however, decided to put important limits on the exercise of this power when it came to the protection for hospital and medical records. For instance, the Florida legislature in Section 395.3025(4)(d) and 456.057(7)(a)3, Florida Statute, requires that 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 in court,

The prosecutor often decides whether to set the case for a hearing in the county court or the circuit court. Different counties have different procedures for how judges are assigned to these cases set for a hearing.

The law also provides a second way for a prosecutor to obtain medical records to determine a blood alcohol concetration (BAC) in a Felony DUI investigation. In a felony case, the prosecutor can seek a search warrant on an ex parte basis for the hospital or medical records at issue. See Farrall v. State, 902 So. 2d 820 (Fla. 4th DCA 2004) and State v. Rattray, 903 So. 2d 1015 (Fla. 4th DCA 2005).

In the Farrall case a felony prosecution for DUI/ Manslaughter, two counts of DUBAL/ Manslaughter, and two counts of vehicular homicide. The state initially sought the driver’s blood samples by way of a subpoena, but later obtained a search warrant to seize the same evidence. In that case, the court noted:

Obtaining a search warrant, however, requires a higher threshold of proof. The state must show probable cause that the records are relevant to the commission of a crime. See § 933.02(3), Fla. Stat. (2000). As a result, no notice or adversarial hearing is required. See Limbaugh v. State, 887 So.2d 387, 398 (Fla. 4th DCA 2004) (holding that “the constitutional right of privacy in medical records is not implicated by the State’s seizure and review of medical records under a valid search warrant without prior notice or hearing”).

Farrall, 903 at 821.


This article was last updated on Tuesday, October 16, 2018.