I need help with a question for upcoming DWI trial. An attorney filed a Motion to Suppress the medical records that I obtained through a Grand Jury subpoena. I had to present this DWI 1st case to the grand jury for indictment since the Sheriff refused to investigate his own officer who had a wreck and was intoxicated. The motion to suppress argues the following:

"All evidence from the Defendant's medical records, including blood alcohol tests and analysis was obtained illegally and also in violation of Art. 38.23(a) V.A.C.C.P. The Grand Jury subpoena issued solely by an Assistant District Attorney did not conform to the requirements of State law because the Grand Jury
subpoena was a sham. There was no application made in the District Court and there was no proper return. Article 24.01 TCCP states that the Grand Jury subpoena must be signed by the court or clerk and indicate the date on which it was issued. In order for a document to actually be a Grand Jury subpoena,there had to have been an actual Grand Jury investigation in this case. The document issued by the Assistant District Attorney was solely for the purpose of
discovery. The medical records were in effect at the Lavaca Medical Center by admission date of March 18, 2006 whereas the so-called Grand Jury subpoena was purportedly signed by the Assistant District Attorney on March 31, 2006."

Whenever we have a DWI case with an accident, we always request a Grand Jury subpoena through our District Attorney's office to get the records regarding BAC. We have never been challenged before on this matter. I called the Assistant District Attorney who issued the subpoena and she also stated her form and methods have never been challenged. Can someone help me with an effective argument?

I also requested a doctor and the records custodian to bring another copy of these medical records for their review at trial in case they questioned the documents that we have in our possession. I provided notice to the attorney for the defendant through my application for subpoenas but he is now arguing that I violated HIPPA. I don't believe I did.

In the beginning, this case revolved around whether I could place the defendant behind the wheel. I can. Now the defense is doing everything in its power to keep out the medical records with the blood result. Any help would be appreciated.

Tapp v. State, 108 S.W.3d 459, 461 (Tex.App.-Houston [14 Dist.],2003, pet ref'd) ("because a defendant does not have any constitutional or statutory reasonable expectation of privacy in blood-alcohol test results obtained for medical purposes following an accident, he does not have standing to complain of any defects in the grand jury subpoena process.").

Of course, even if it were a proper motion (which it isn't), the solution would be to issue another grand jury subpoena. The records still exist back at the hospital. Sort of shows the pointlessness of the motion.

Go get 'em!

"In issue two, appellant contends the trial court ruled in error that medical records obtained by an ordinary subpoena following a prior allegedly illegal seizure based on a grand jury subpoena were admissible under the "independent source doctrine." Appellant argues that this doctrine is not an exception under Article 38.23 of the Texas Code of Criminal Procedure. In issue three, appellant contends the trial court erred when it failed to rule that the allegedly illegal grand jury subpoena violated her rights under the federal and state constitutions. The law is clear that because appellant has no constitutional or statutory reasonable expectation of privacy with respect to blood-alcohol test results obtained for medical purposes following an accident, she has no standing to complain of any alleged defects in the subpoena process. Tapp, 108 S.W.3d at 461; Garcia, 95 S.W.3d at 526-27; Hardy, 963 S.W.2d at 527; Dickerson v. State, 965 S.W.2d 30, 31 (Tex. App.--Houston [1st Dist.] 1998), pet. dism'd, improvidently granted, 986 S.W.2d 618 (Tex. Crim. App. 1999). We therefore overrule appellant's second and third issues."

Ramos v. State, 124 SW3d 326, pet. refused.

So, you also could just issue a court subpoena, rather than a grand jury subpoena.

I had a hospital lawyer throw a statute at me one time that I didn't like. When I explained that I had probable cause to get a warrant for my records, they suddenly found the GJ subpoena much more palatable. It is tucked away in the Occupations Code or some other similar place that regulates doctors and hospitals.

What about Article 20.10, CCP?

Janette A

Art. 20.10. ATTORNEY OR FOREMAN MAY ISSUE PROCESS.
The attorney representing the state, or the foreman, in term time or vacation, may issue a summons or attachment for any witness in the county where they are sitting; which summons or attachment may require the witness to appear before them at a time fixed, or forthwith, without stating the matter under investigation.

What about the case law that requires a showing of a sufficient causal relationship between the violation and the procurement of evidence? A bad subpoena return should have nothing to do with the actual procurement of the evidence, right? Bell v. State, 169 S.W.3d 384 (Tex. App.--Fort Worth 2005, pet. ref'd)(rejecting a claim that a violation of statutes requiring that person arrested on a warrant outside the county where the warrant is issued must first be taken to a magistrate within the county of arrest). Obviously, standing your best argument, but this theory be useful if you want to have something to argue on the merits.

Hippa still condfuses the heck out of me. I got the impression, I'm sure it's wrong, that a Hippa objection would be filed against the hospital that provided the documents. The hippa violation is done when records are provided, if provided, not in requesting them.
My problem with this theory is that this basically throws the hospital, that is acting in good faith, to the wolves, but how is my coming into possession of medical records violating Hippa?

Health and Human Services has an excellent site on HIPAA which includes a large number of interpretations of the various provisions including the application of HIPAA to law enforcement seeking medical information. Here is a link:
US H & HS website for HIPAA information

Janette A

TDCAA has a book on HIPPA as well. Bottom line, it is not a HIPPA violation to release medical records pursuant to a criminal subpoena.

And now you have another case to support your subpoena for medical records. To read the opinion, click here.

<I>the solution would be to issue another grand jury subpoena</I>
<p>
Be careful. There is some Federal case law that if a case has already been indicted, and is not before the Grand Jury, then it is abuse of process to use a Grand Jury subpoena to obtain records.

OK, so issue a court subpoena. The point is that messing up a subpoena is not fatal because the original records are still back in the custody of the hospital. It's not like a search warrant, where you have taken the objects without probable cause and can't put them back to get a new, proper search warrant.

Although, if the search warrant was for something that still exists (like blood in the defendant's body), you could write a new search warrant, assuming probable cause existed and you just didn't express it correctly in the warrant.

All interesting. But, HIPAA requires that the subpoena, in all respects, be consistent with its own limitations and requirements. For example, if the subpoena required certain people to sign or serve, before the hospital can comply those conditions have to be met, or at least facially verifiable. If there is noncompliance in the law enforcement context, then there could be issues about using unlawful means to secure evidence.

The document issued by the Assistant District Attorney was solely for the purpose of discovery

Of course it was!! What other purpose would it be?

Some similar "allegations":

"That prosecutor just wanted to get a conviction!"

"This investigation was performed against the wishes of local law enforcement."

"DPS wants to take this guy's license....and probably his peace officer's certificate, too!"

If you say these with inflection on the right words, they all sound very devious.

And HIPAA still confounds us!?

JB, you mentioned above that if the first subpoena is wrong, just go back and get another crack at the evidence. Are there any exclusionary rule issues possible here?

An intox assault defendant was taken to the hospital and the officers who were there were given a copy of the medical records including the BAC without even really asking for them, just handed them by the nurse. The case was originally given to CA as DWI and she filed a subpoena for the records that she already had, knowing that HIPAA requires a subpoena.

The defense argues that the nurse violated HIPAA. My questions: 1. Does the case law that says there is no right to argue about the faulty subpoenas apply to the lack of a subpoena or late subpoena? 2. If the nurse violated federal law, does that make an exclusionary rule situation?

I told the defense the same thing JB said above, well the subpoena done correctly would get the records anyway, but he is saying that the nurse's "wrongful" behavior would exclude our evidence....fruit of poisonous tree type of thought.

And this one might be a stretch, but why are the medical field not required to tell law enforcement when they know someone has been the driver of a vehicle and they see a BAC of above .08? Similar to knowing that someone is a gunshot victim and being required to alert the authorities?

The exclusionary rule only says that you must exclude evidence when it has been obtained illegally. In Texas, that applies to members of the public, too.

So, I suppose if a nurse illegally disclosed evidence of intoxication that came from medical records, those particular copies of the records could arguably be suppressed.

But, there are still original medical records that exist at the hospital. And there is still a legal way to obtain them -- through a properly issued and executed subpoena. You would then have a new, fresh copy of the medical records in your hand that were not obtained illegally.

Those new records are obtained independent of the original illegality. The nurse was no longer involved. (No more fruit.) So, there should be no suppression issue.

Furthermore, the suppression of any records does nothing to prevent the prosecutor from presenting in court the contents of those records, namely, the evidence of the defendant's intoxication as observed by medical personnel and someone that ran the actual test. Remember, the records are just summaries of the results, not the actual evidence of intoxication.

The defense attorney is getting you to focus on form over substance.

quote:

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Originally posted by suzannejost:
And this one might be a stretch, but why are the medical field not required to tell law enforcement when they know someone has been the driver of a vehicle and they see a BAC of above .08?

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Money.

Isn't that always the answer?

Insurance companies won't cover most health care costs incurred by a voluntarily intoxicated person. Therefore, hospitals purposely avoid trying to "notice" that an injured person is intoxicated so that they can get paid for their services. On the flip side, legislative attempts to repeal the state statute that permits insurance companies to refuse coverage for intoxication-related injuries have been scuttled by ... you guessed it, the insurance companies, who don't want to pay for them.

Is this a wonderful country, or what?