Unfortunately, the offense of Driving Under the Influence is a regular occurrence on the streets of Florida. Even more unfortunate is when a DUI leads to serious bodily injuries or death to the anyone involved in that accident. When a driver involved in such an accident is injured and is transported to a hospital, the medical professionals will typically draw that person’s blood and have it analyzed to determine whether the person was under the influence of alcohol and/or controlled substances. Fortunately for the person so suspected, privacy laws prevent law enforcement from simply asking for and obtaining those records. But there are two ways they can be obtained.
Obtaining Blood Alcohol Content Records by Subpoena
The first path available to the State is to obtain the records by investigative subpoena. The State has broad subpoena powers granted to it. However, patients also have a right to have their medical records kept confidential pursuant to Fla. Stat. 395.3025(4). But, that same statute, in section (d), provides that the records may be released upon the issuance of a valid subpoena and proper notice to the person whose records are being subpoenaed.
Typically, the Notice will give the patient 15 days to object to the issuance of the subpoena to the medical provider (typically a hospital). If the patient object to its issuance, a hearing will be held to determine whether the subpoena should issue. The patient can argue, amongst other things, that the Notice was insufficient, there is insufficient probable cause, the subpoena is overly broad, etc.
If no objection is made, the subpoena will issue and the State will obtain the requested records. If you win the hearing, no records will be given to the State. However, that may not be the end of the battle because….
Obtaining Blood Alcohol Content Records by Search Warrant
…the State can still seek a search warrant to obtain the medical records. See Dinkins v. State, 278 So.3d 828 (Fla. 5th DCA 2019).
A search warrant can be obtained by submitting an application for a warrant to a judge. This application will contain an affidavit, typically from the law enforcement officer responsible for investigating the crime, that must contain probable cause that a felony was committed and that the records requested will contain evidence of that crime. This procedure can be done without notice to the patient.
While this seems unfair, and it is, the use of the records at trial can still be challenged. If the Affidavit contained insufficient evidence of the alleged crime to support probable cause, omitted relevant evidence, or used improperly obtained evidence, a suppression motion could successfully cause the State to lose the ability to use the records at trial. It’s not an easy task to get one judge to say another judge improperly issued a search warrant, but it can be done.
Fighting the State’s Request for Medical Records
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 Valrico Law Group in Valrico, 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 (Plant City and Tampa courthouses) and Polk County (Bartow, Lakeland, and Winter Haven courthouses).
Call (813) 416.7965.