Florida Criminal Defense and DUI Defense Blog

20Oct, 11

Patient medical records are protected against Governmental Snooping under Florida’s constitutional right to privacy. Article I, section 23, declares,

Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

Florida Criminal Defense Your Medical FilesBut what if the government, meaning the police and/or the prosecutors, suspect that your medical records might contain proof that you have committed some crime? They are out of luck, right? Private means private, right? Not exactly.

Chapter 395.3025(4)(d), Florida Statutes, is the legislature’s attempt to strike a balance between the government’s legitimate interest in investigating crime, and apprehending and prosecuting criminals, and individuals’ right to keep their medical records private. This statute provides,

(4) Patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent…

(d) in and civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice seeking such records to the patient or his or her legal representative.

This means that the prosecutors can issue a subpoena for your medical records, but they must first notify you, in writing, and provide you an opportunity to notify them that you object.

If you do so, a judge must hold a hearing to determine whether the prosecution and/or police have a compelling interest in your medical records. To do so, the government must prove, with lawfully-obtained evidence, that your records are relevant to a criminal investigation.

In other words, the government must have, and when challenged, produce, other evidence showing that there is an on-going criminal investigation, together with evidence showing that something in your medical records is relevant to that on-going investigation.

Prosecutors have frequently tried to convince judges of their “compelling need” by claiming that “a crash plus a death always makes medical records relevant.”

As recently as this spring, the Fourth District Court of Appeal flatly rejected that claim, in a DUI manslaughter case against a man named Guardado, arising in Martin County. The court overturned a trial judge’s ruling that had allowed prosecutors to use Mr. Guardado’s medical records that they obtained by use of this kind of subpoena.

Download the PDF file for Guardado v. State on the Florida Fourth District Court of Appeals Website.

The key to remember is that the Government cannot use a subpoena to seize and pry into your private medical records without warning you first.

If you get such a warning, get thee to a qualified criminal defense lawyer, and have your lawyer tell the Government that YOU OBJECT to this invasion of your privacy.

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Attorney Mike Kessler
Written by: Attorney Mike Kessler

Attorney Kessler has been practicing criminal law in Florida for 30 years. He is recognized as is a leading authority on drunk-driving defense as well as a founding member of the Saint Lucie County Association of Criminal Defense Lawyers and co-author of The DUI Book: Florida Edition, the definitive resource on DUI in Florida.

To speak with Mike, call 772-466-4900 or click here for a free consultation.

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