Florida Criminal Defense and DUI Defense Blog

15Jan, 21

People frequently come to me for help after someone else has told them, “This case can’t be won.”

I like to talk about “cases that can’t be won” that we’ve won.

A typical case of that kind is when the State wants to get a driver’s medical records. A driver’s been in an accident, taken to the hospital. There may have been blood testing done. Or not. The person may have been arrested for DUI. Or not.

But the State wants to take a look at medical records to see if that can help them build and prosecute a case.

This is a classic fishing expedition.

The prosecutor wants to see if there a blood test that shows how much alcohol or something else might have been in a driver’s blood. They want to see if any nurse or doctor or anybody else put in the medical records that this person appears to have been intoxicated. Did the driver/patient make any statements about alcohol consumption or drug consumption?

It’s clearly a fishing expedition as the prosecutors don’t have any idea what’s in medical records.

Now, we as Floridians have a right to keep our medical records private. You’ve probably heard of HIPAA. That’s what HIPAA’s all about. It’s about the privacy of your medical records.

But at the same time, the government has an interest in investigating and prosecuting crime.

So here’s the rules:

If the prosecutor wants your medical records, they have to send you a letter giving you at least ten days’ notice that they intend to issue a subpoena for your medical records unless you object.

Let me say that again, Unless. You. Object.

The time to object is during those ten days before the subpoena’s gone out and before they have your medical records. Your objection could be a phone call, but it ought to be in writing and you ought to keep a copy.

Now, if you object, that’s not the end of the road. The prosecutor can schedule a hearing and send you notice so you can attend and be heard. And then a judge has to decide, based on the facts presented, if the State’s interest in investigating and prosecuting crime outweigh your interest in keeping your medical records private.

This is the kind of case that people tell me “can’t be won” because all the prosecutor has to show is a likelihood that the medical records contain some evidence that’s relevant to a criminal investigation.

I had a hearing on one such case in Broward County recently (yes, that’s away from home – I take cases all over Florida). This is a case I’m defending, a DUI case, in Broward.

So, my client notified me that she got a letter from the prosecutor’s office wanting her medical record. We filed an objection and they set it for a hearing.

The judge’s office called and asked me how much time we thought we needed for the hearing, and I think I told him half an hour or so for my part, and we got a notice that the hearing is set. Because of the times we’re in, the hearing was being conducted by video conference, by Zoom.

I have learned over the years in doing these hearings that prosecutors want to make this as easy for themselves as possible. The law allows prosecutors to do this by simply introducing as evidence the sworn police report. They don’t even need a live witness.

I want to use this to learn as well as to block, so I subpoena the police officer. That’s right, I subpoena the State’s police officer because I want the option of putting the officer on the stand and asking questions to try to that there’s no real connection between the police investigation and anything that might have happened at the hospital.

Some people say, “That can’t be won. That’s folly.” Well, I’m not too concerned with what people say about me. I want to do my job and I want to do it well.

So here we are, set for this hearing, and the judge is prepared to start the hearing, and I ask, “Is Trooper So-And-So in attendance, because I’ve subpoenaed him?”

At this point, the judge starts to try to push me around because I’m the out of town lawyer. He says, for starters, “I wasn’t told that you were going to call a witness.”

I said, “I wasn’t asked if I was going to call a witness, I was asked how much time I needed for this hearing.”

Then the judge said, “You haven’t listed this witness as a witness in Discovery.”

I said, “No, I haven’t, Judge, but the prosecutor has, and this is a one-witness, one-cop case, and the prosecutor’s offering into evidence this trooper’s sworn police report. They can’t claim that they didn’t know that this guy was a witness.”

At this point, the judge turned to the prosecutor and then back to me and said, “Okay, let’s go forward.”

I see at this point that the trooper has logged in to the Zoom hearing, and I say on the record, “The trooper is present.”

The prosecutor then tells the judge that I ought to go first. Well, I don’t have to go first. All I had to do was object. The burden of proof is now on the prosecutor to convince the judge that there’s relevance to these medical records.

So, she starts in. She asks the judge to take judicial notice, which means to take as evidence, the sworn police report. And then she starts to testify, or argue, what’s in it and what does it mean.

And I sit quietly and wait until she finishes. Then I ask the judge, and I’m trying to be diplomatic because again I’m the out of town lawyer, “Judge, I don’t want to offend anybody, but I need to ask, was that her opening statement, that going to be followed by evidence, or was that her closing argument on the merits?”

The judge said, “I think you can take that as her argument on the merits.”

Because I didn’t think the argument on the merits was detailed enough, and because, more importantly, because the police report wasn’t detailed enough, I made the tactical decision not to call the trooper as a witness at this point, and I went into my argument.

I pointed out to the judge that there was no evidence in this case that my client, the driver, had been injured in any way. There was no evidence in the police report, or otherwise presented, that my client had been treated by anybody, either at the scene or at the hospital.

I pointed out to the judge that there’s no indication in the police report, or any other evidence presented, that my client was examined or diagnosed or treated. There’s no evidence that there was a blood test or any other kind of chemical or non-chemical test. There was no indication of any sort of evaluation. In fact, there was no evidence that my client was even medically cleared.

At this point, the judge started to sum up the evidence to make his ruling, and he noted that the standard is incredibly low. All the State has to do to get this permission to issue this subpoena for medical records is show that there’s some relevance.

Then, the judge started repeating the arguments I had made.

There’s no evidence that the prosecutor presented that my client was injured in any way, treated in any way, examined in any way, diagnosed in any way, tested in any way. In fact, the judge reminded the prosecutor that the police report said my client was taken to the hospital to be medically cleared, and the report doesn’t say if she was medically cleared.

So, despite this being a “case that can’t be won” and the standard being so incredibly low and my being an out of town lawyer that the judge didn’t know, I won the hearing anyway, and I protected my client’s privacy rights.

Here at the Kessler Law Firm, we don’t think any case “can’t’ be won”. It’s just a matter of our figuring out a way to do it.

If somebody’s told you that your case can’t be won and you want another opinion, come see us. You can call us at 772-466-4900. I look forward to talking with you.

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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