Defendant’s Medical Records Cannot Be Subpoenaed for Ohio DUI/OVI Cases

HIPAA-Authorization-300x200As Dominy Law Firm attorney Bryan Hawkins was preparing to litigate this issue in Franklin County, Ohio, an appeals court settled it.  The issue is whether, in a DUI case (called ‘OVI’ in Ohio), a law enforcement officer can obtain the medical records of a suspect with a subpoena and without a search warrant.  In the case of State v. Rogers, the Tenth District Court of Appeals held law enforcement’s procurement of an OVI suspect’s medical records without a search warrant violates the suspect’s Fourth Amendment right to be free from unreasonable searches and seizures.

Confidentiality of Medical Records
As medical records contain confidential health information, the federal Health Insurance Portability and Accountability Act (HIPAA) prohibits medical providers from disclosing those records without the patient’s written authorization.  Ohio Administrative Code section 3701-83-11 contains a similar prohibition.  There are, however, exceptions to this prohibition.  Under one exception, a medical provider can disclose records to a law enforcement official pursuant to a subpoena.  Consistent with that exception, Ohio Revised Code section 2317.02 authorizes health care providers to provide law enforcement officers with records pertaining to alcohol/drug tests in the context of criminal investigations.

Constitutional Privacy Interests in Medical Records
If person has a reasonable expectation of privacy in something, that something cannot be searched or seized by the government without a search warrant or a recognized exception to the search warrant requirement.  In Ferguson v. City of Charleston, the Un States Supreme Court held patients have a reasonable expectation of privacy in medical records.

What if a state law authorizes law enforcement to seize and search medical records, but the patient has a reasonable expectation of privacy in those records?  That issue was recently raised by Bryan Hawkins and answered in State v. Rogers.

Hawkins Challenges Admissibility of Medical Records

In Bryan Hawkins’ case, our client was hospitalized following an automobile accident.  A law enforcement officer served a subpoena on the hospital and obtained our client’s medical records.  Hawkins anticipated the prosecution would seek to use the medical records at trial to prove our client’s blood alcohol concentration.  Hawkins filed a motion to suppress the records (exclude the records from evidence at trial), and the case was scheduled for a hearing on the motion to suppress.  Before the hearing was held, the Court of Appeals issued the decision in State v. Rogers.

State v. Rogers
In the Rogers case, an officer subpoenaed and obtained the defendant’s medical records, defense counsel filed a motion to suppress the records, and the judge granted the motion.  The prosecution appealed the judge’s ruling to the Tenth District Court of Appeals.

The Court of Appeals affirmed the judge’s decision to suppress the medical records.  The Court found the defendant had a reasonable expectation of privacy in the medical records, even though the defendant’s medical records were in the possession of a third party (the hospital).  Therefore, a search warrant was required to obtain the defendant’s medical records.  As there was no search warrant issued, obtaining the medical records violated the defendant’s Constitutional rights.  Because the records were obtained in violation of the federal and state constitutions, the records were inadmissible at trial.

Good Faith Reliance
In Rogers, the prosecution argued the medical records should not be excluded from trial because the officer objectively and reasonably relied on Ohio Revised Code section 2317.02.  The appeals court observed that section 2317.02 does not permit obtaining medical records if doing so is “specifically prohibited by any law of this state or of the United States”.  Doing so is specifically prohibited by Carpenter v. United States, in which the United States Supreme Court held a warrant is required when a person has a legitimate privacy interest in records held by a third party.  Therefore, the officer in Rogers was not acting in good faith reliance on the Ohio statute.  Accordingly, the medical records were inadmissible at trial.

This Should Settle the Issue
Before the decision in Rogers, the law on this issue was unsettled.  The decision in Rogers finally clarifies a search warrant is necessary to obtain the medical records of a suspect in an Ohio OVI case.

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