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Cameron v. State7/18/2001
While driving his boat at a high rate of speed defendant collided with another boat and killed six people. After the accident, defendant was rushed to the hospital where, the odor of alcohol from his breath being apparent to hospital personnel, police asked the attending nurse to draw a blood sample and test it for alcohol. The nurse responded that she would provide a blood sample but could not get to it until later as defendant was going into emergency surgery. The following day, a prosecutor obtained a court order for release of the promised blood sample pursuant to the implied consent statutes, and the hospital turned over to police a sample of defendant's blood. To be sure, the actual sample had been drawn upon defendant's arrival at the hospital, i.e. before the police request. Later testing of the sample showed that defendant's blood alcohol level was .21 at approximately 45 minutes after the collision.
Defendant was charged with six counts of manslaughter while operating the vessel (boating) under the influence of alcohol (BUI), six counts of manslaughter with an unlawful blood alcohol level (UBAL), one count of BUI injury, one count of UBAL injury, one count of BUI property damage, and one count of UBAL property damage. The jury found defendant guilty on all counts.
Before trial, defendant filed a motion to suppress his blood alcohol level test results. He argued that because the sample was not actually drawn directly in response to a police request the implied consent law did not apply. He further argued that because the state was then seeking nothing less than part of his hospital medical records the state was required first to give notice to him of the request under State v. Rutherford, 707 So. 2d 1129 (Fla. 4th DCA 1997). The trial court denied the motion, holding that the sample was obtainable under the implied consent law and without notice to defendant. We agree.
In Rutherford, the prosecutor had sought a patient's medical file in addition to the sample of blood drawn pursuant to an officer's request. It served an investigative subpoena duces tecum on the hospital but did not give notice to the defendant. We affirmed the suppression of the medical records because of noncompliance with section 395.3025(4), which creates a general right of privacy in a patient's hospital records. We reasoned that under section 395.3025(4):
"a patient's medical records protected under Florida's right to privacy.... Where a right to privacy attaches, the state may vindicate an encroachment on that right if it demonstrates that the intrusion is justified by a compelling state interest and that the state has used the least intrusive means to accomplish its goal." 707 So. 2d at 1131.
To acquire such records, the prosecutor should have provided notice to the defendant of the subpoena and, if defendant objected, obtained court permission upon a showing that the records were relevant to a criminal investigation. See also Hunter v. State, 639 So. 2d 72, 74 (Fla. 5th DCA), review denied, 649 So. 2d 233 (Fla. 1994).
This case is distinguishable. Here rather than a patient's hospital records, the police simply asked the hospital staff for a vessel operator's blood sample, as they are clearly allowed to do under section 327.352(3). That statute provides that:
"Notwithstanding any provision of law pertaining to the confidentiality of hospital records or other medical records, information relating to the alcoholic content of the blood or breath or the presence of chemical substances or controlled substances in the blood obtained pursuant to this section shall be released to a court, prosecuting attorney, defense attorney, or law enforcem
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