Medical Blood Samples

In some cases, a driver will be transported to the hospital after a crash. Officers will later begin a DWI investigation and send an officer to the hospital to request a blood sample that can be analyzed by the crime lab. If the officer cannot obtain the blood sample or if the blood sample is later excluded from evidence by the trial court judge, then the prosecutor might try and use a blood alcohol concentration (BAC) test used by the hospital on the medical blood sample. 

The results of BAC testing on a medical blood sample can be far less reliable. The hospital sample bust be drawn under standard medical procedures to help diagnose or treat a patient. The prosecutor must establish call all of the witnesses needed to properly establish the chain of custody.

In many of these cases, the law enforcement officer was not involved in the decision to draw the blood sample. For this reason, Transportation Code Section 724.012 are not applicable. Additionally, the defense is usually prevented from bringing a motion to suppress the seizure of the blood under the constitutional prohibitions against unreasonable searches and seizures since no police officer was involved in the decision to take the blood.

In many of these cases, prosecutors will use a grand jury subpoena to obtain the records from the hospital records showing any testing of the blood alcohol concentration (BAC) even when they also intend to admit the mandatory sample into evidence.


Attorney for DWI Cases with Medical Blood Testing

If your DWI case involves a blood sample taken at the hospital for medical purposes, then contact an experienced criminal defense attorney to learn more about protecting your privacy during the investigation. The prosecutor might seek to obtain your medical records, medical examiner's report, medical examiner's investigator notes and photographs. 

A good DWI defense attorney for a DWI case with medical blood testing will attack the was evidence was collected, the qualifications of the individuals collecting the blood, the equipment used to collect it, sanitary conditions, how the sample was labeled and stored, and problems with the chain of custody.

For any DWI case in Tarrant County or Fort Worth, TX, involving medical records or a blood alcohol concentration test conducted for medical purposes, call an attorney at Law Offices of Richard C. McConathy.

Call (817) 422-5350 today to discuss your case.


Documentation in the Hospital Blood Test DWI Case

The prosecutor has a heavy burden when seeking to obtain the defendant's medical records and then use those medical records at a trial. For medical records used to prove a hospital blood test result, the prosecutor must also show a proper chain of custody and that the blood test was the same blood taken from the defendant. 

In most cases, the result are inadmissible unless the prosecutor is able to call the person who drew the blood, every person who handled the sample, and the person who analyzed the sample. Expert testimony is also needed to explain the conversation between the hospital blood serum alcohol concentration as an indicator of what the alcohol concentration of whole blood would have been. 


Converting the Hospital Blood Serum BAC Reading

The BAC levels in hospital blood serum are always greater than what the BAC level would have been if the whole blood was tested. The legal limit of .08 in Texas is determined using only whole blood. For this reason, the prosecutor will often present expert testimony to estimate what the BAC level of whole blood would have been using the results of alcohol concentration testing on the hospital blood serum.


Privacy Issues in Obtaining Test Results of the Blood-Alcohol Concentration

Medical records are generally confidential. Very limited exceptions apply to this rule. Even if an exception applies, the prosecutor has limited procedural means to secure any portion of your medical records. An criminal defense attorney at Law Offices of Richard C. McConathy can help you protect your right to privacy against an overly broad request.

In Texas, the defendant does not necessarily have a legitimate expectation of privacy in medical records containing blood-alcohol test results taken by health-care professionals solely for medical purposes. For instance, the courts in Texas have held that there is no reasonable expectation of privacy under the Fourth Amendment that protects the records of the blood test results of an injured motorist from being given to law enforcement officers pursuant to a grand jury subpoena. For example, in Tapp v. State, 108 S.W.3d 459 (Tex. App. - Houston (14th Dist.) 2003, pet. ref'd), the court found that HIPPA does not pre-empt the findings that there is no reasonable expectation of privacy that protects blood-alcohol results from tests taken by hospital personnel solely for medical purposes after a traffic accident).

The courts in Texas have reasoned that even if HIPPA imposes a new statutory right to privacy, that right is trumped by the prosecutor's power to issue a grand jury subpoena in a criminal investigation to obtain medical records. Instead, the courts have found that under HIPAA, these medical records can be obtained without the defendant's permission when the information is disclosed for law enforcement purposes and obtained with a grand jury subpoena under 45 C.F.R. Section 164.512(f)(1(ii)(B).


Ways Prosecutors Obtain Medical Information

Prosecutors have numerous ways to attempt to obtain a person's medical records for the purposes of a criminal investigation. An experienced criminal defense attorney must know the ways to fight each of these attempts including: 

  • consent under 45 C.F.R. Section 164.506(b) - the consent must be in writing except in certain emergencies when consent would impede treatment, when a communication barrier makes it impossible but consent can otherwise be inferred; or in circumstances in which the provider is obligated to treat but cannot obtain prior consent.
  • non-court ordered request or subpoena under 45 C.F.R. Section 164.512(e)(1)(ii)(A) - this provision requires satisfactory assurance in writing that demonstrates the party requesting the information has made a good faith attempt to provide written notice to the patient; 
  • administrative subpoena under 45 C.F.R. Section 164.512(f)(1)(ii)(C) - the information sought must be relevant and material to a legitimate law enforcement inquiry, the request must be specific and limited in scope to the extent reasonably practicable in light of the purpose for which the information is sought and the agency could not have reasonably used de-identified health information; 
  • grand jury subpoena under 45 C.F.R. Section 164.512(f)(1)(ii)(B) - the requirements for a grand jury subpoena for medical records are the same requirements as other types of records under CCP Art. 18.02; 
  • court order, summons by a judicial officer, warrant or subpoena under 45 C.F.R. Section 164.512(f)(1)(ii)(A) - the same requirements for medical records apply as for other types of records needed for an evidentiary warrant as set out in CCP Art. 18.02; 
  • authorization under 45 C.F.R. Section 164.508 -
    • the description of the PHI must be used or disclosed;
    • the names or other information about the person or class of persons authorized to make the request use or disclosure;
    • the name or other information about the person or class of persons who may use the PHI or to whom the covered entity may make the requested disclosure; 
    • a description of each purpose for the requested use or disclosure; 
    • authorized expiration date; 
    • signature of the individual and date.

This article was last updated on Friday, April 28, 2017.