If you were involved in a car accident, transported to a hospital, and later received a notice from the State Attorney’s Office advising that prosecutors intend to subpoena your medical records, you should not ignore it. This type of notice can be an important development in a potential DUI investigation, particularly when law enforcement was unable to obtain a breath or blood sample at the scene.
Hospital records can contain information that prosecutors may consider relevant to a DUI investigation, including laboratory results, statements made during treatment, observations by medical personnel, medications administered at the hospital, and other information concerning a patient’s condition. In some cases, the State may seek these records even though the person was never arrested for DUI or no criminal charge has yet been filed.
Florida law provides a procedure through which prosecutors can seek certain medical records. At the same time, Florida law recognizes the confidential nature of those records and provides the patient with important procedural protections. In Pinellas County, a person who timely objects to an investigative subpoena for medical records may have the opportunity to place the issue before a judge before the records are disclosed.
Medical-record subpoenas frequently arise in DUI investigations following motor vehicle accidents. A driver may be injured in a crash and transported to Morton Plant Hospital, Mease Countryside Hospital, Orlando Health Bayfront Hospital, Mease Dunedin Hospital, HCA Northside Hospital or another local medical facility before an officer can complete a traditional DUI investigation.
In that situation, the investigating officer may never obtain a breath sample or administer field sobriety exercises. The driver’s injuries may also limit the officer’s ability to make the types of observations that ordinarily form part of a DUI investigation. When that occurs, law enforcement or the State Attorney’s Office may attempt to obtain hospital records to determine whether medical testing revealed the presence or concentration of alcohol or other substances.
For that reason, a medical-record subpoena can become an important part of a DUI investigation even before a formal criminal case exists. In some circumstances, the information the State hopes to obtain from the hospital may play a role in determining whether prosecutors ultimately file DUI charges.
Generally, medical records are confidential. Florida Statute § 395.3025 establishes protections for patient records maintained by licensed medical facilities while also identifying circumstances under which those records may lawfully be disclosed.
One of those circumstances involves a subpoena issued in connection with a civil or criminal proceeding. The statute requires an appropriate subpoena and proper notice to the patient or the patient’s legal representative. The notice is important because it provides an opportunity to determine whether there is a legal basis to object before potentially sensitive medical information is provided to the government.
Receiving notice that the State intends to subpoena medical records is therefore different from a judge having already determined that the State is entitled to obtain them. A person who receives such a notice should carefully review both the records being requested and any deadline for asserting an objection.
Challenges to investigative subpoenas for medical records are commonly referred to in Florida as “Hunter hearings,” based upon the decision in Hunter v. State, 639 So. 2d 72 (Fla. 5th DCA 1994). A Hunter hearing provides a mechanism for judicial review when the State seeks private medical information as part of a criminal investigation.
This can be particularly important in a DUI case because medical records are not ordinary investigative documents. They were generally created for diagnosis and treatment, not for use as evidence in a criminal prosecution, and they may contain substantial information having nothing to do with the conduct being investigated. The fact that prosecutors believe some portion of a person’s medical records could assist an investigation does not necessarily mean that every aspect of the person’s medical history should become available to the government.
Whether an objection should be made depends upon the circumstances of the particular case, including what records are being requested, why the State claims those records are relevant, and the facts known to law enforcement at the time the subpoena is sought.
The Sixth Judicial Circuit has established a specific procedure for handling these disputes in Pinellas County. Under Administrative Order No. 2024-006 PI-CTY, when an individual or the individual’s attorney serves a written objection to a Notice of Issuance of an Investigative Subpoena for Medical Records pursuant to Florida Statute § 395.3025(4)(d), a Hunter hearing must take place.
When there is no existing criminal case, the State Attorney’s Office files a Notice of Hunter Hearing with the Pinellas County Clerk of the Circuit Court and Comptroller. The Clerk creates a separate, non-reportable case number, and the County Administrative Judge then determines whether to conduct the hearing or reassign the matter to another judge.
The Administrative Order is particularly significant because it expressly provides a procedure for these disputes before a criminal case has been filed. If prosecutors later file criminal charges following the Hunter hearing, the medical-record proceeding remains separate from the newly filed criminal case. When a criminal case already exists at the time the subpoena is issued, however, the objection is handled within that existing case by the judge assigned to it.
For someone who has received one of these notices, this procedure means that the absence of a pending DUI charge should not be interpreted as evidence that nothing is happening. To the contrary, receiving a medical records subpoena is affirmative proof that the State Attorney’s Office is contemplating filing a criminal charge against the recipient.
Consider an accident investigation in which the driver is transported directly from the crash scene to the hospital. Police may have no breath test, no field sobriety exercises, and only limited observations of the driver before medical personnel assume responsibility for the patient’s care. If prosecutors believe hospital testing may provide evidence concerning alcohol or drugs, obtaining those records could substantially change the evidence available to the State.
This is one reason our office believes medical-record subpoenas should not be treated as a procedural formality. In the appropriate case, the subpoena may represent one of the earliest meaningful legal issues in the DUI investigation. Addressing that issue before records are disclosed may be considerably different from attempting to address the evidence after the State has already obtained it.
No. There is an important distinction between blood drawn by medical personnel for diagnosis and treatment and a blood sample obtained at the request of law enforcement for use in a criminal investigation. For example, an emergency-room physician may order laboratory testing because the physician needs to determine what is happening medically and how the patient should be treated. That blood draw was not necessarily performed at the request of police and was not necessarily collected using the same procedures applicable to a law-enforcement blood draw in a DUI investigation.
The fact that a hospital performed blood testing also does not automatically resolve whether prosecutors are entitled to obtain those results or whether the results will ultimately be admissible in a criminal prosecution. Those are separate legal questions that can depend upon the circumstances surrounding the accident, the investigation, the subpoena, the collection and testing of the sample, and the manner in which the State ultimately attempts to introduce the evidence.
The most important thing is not to ignore the notice. These notices may contain deadlines, and allowing the objection period to expire can eliminate an opportunity to have a judge review the State’s request before the records are produced. Keep the notice, the envelope in which it arrived, and every document that accompanied it.
It is also generally unwise to contact the prosecutor or hospital in an effort to explain the accident or convince someone that the records are harmless. A person attempting to clear up a misunderstanding may unintentionally provide additional information about the incident. Instead, an attorney can review the notice, determine precisely what the State is seeking, examine the circumstances that led to the request, and determine whether an objection and Hunter hearing are appropriate.
Timing can be particularly important because the goal is not simply to argue about medical evidence after prosecutors already possess it. When a valid basis for an objection exists, the purpose of the process is to obtain judicial review before the records are disclosed.
A person who has not been charged may understandably wonder why an attorney is necessary. In some cases, however, that is precisely when early representation can be most valuable. A medical-record subpoena may indicate that prosecutors are still gathering evidence to determine whether a DUI charge should be filed. The State may be attempting to fill a gap in the investigation created by the absence of a breath test, field sobriety exercises, or another piece of evidence normally associated with a DUI arrest. The fact that no criminal case appears in the court system does not necessarily mean the investigation has concluded.
Early involvement also allows a defense attorney to evaluate the investigation as it develops rather than beginning the analysis only after the State has collected the evidence and made a charging decision. Depending upon the circumstances, that can include evaluating the proposed medical-record subpoena, preserving favorable evidence, reviewing crash or body-camera evidence, and identifying legal issues that may affect the State’s decision whether to prosecute.
Our law firm focuses extensively on DUI and criminal defense throughout Clearwater, St. Petersburg, and Pinellas County. Our attorneys regularly handle DUI cases involving accidents, blood and breath testing, administrative driver’s-license proceedings, and other evidentiary issues that can arise before and after a DUI charge is filed.
Attorneys Timothy Sullivan and CJ Bauer are former Pinellas County Assistant State Attorneys who previously supervised prosecutors handling traffic and DUI matters. Our defense team draws upon that experience when evaluating not only the evidence that already exists in a DUI case, but also the evidence prosecutors may still be attempting to obtain.
If you received a Notice of Issuance of an Investigative Subpoena for Medical Records following an accident or potential DUI investigation in Pinellas County, do not assume that the notice is merely paperwork or that disclosure of the records is inevitable. There may be a limited period in which to object and request judicial review through a Hunter hearing.
Contact our office at 727-855-3847 promptly so that our attorneys can review the notice, determine the applicable deadline, and discuss whether the proposed subpoena should be challenged.
