The goal of this article is to aid in determining whether a DUI Phoenix case contains HIPAA issues as well as address the difficulties of utilizing a HIPAA violation. The Health Insurance Portability and Accountability Act of 1996 (see: what is HIPAA?) is the primary federal law providing privacy protection for a person’s medical information. While there are a couple of cases addressing the application of HIPAA regulations to issues arising in DUI Phoenix and criminal cases, interest has increased since the regulatory compliance date of April 14, 2003.
Hypothetical Case Scenario
Imagine that you have a client that has been charged with a DUI in Phoenix with injury after causing a collision that resulted in injuries to both drivers. While being cared for by an EMS your client made incriminating statements regarding the DUI Phoenix and tested positively for alcohol and high levels of benzodiazepines and this information was documented. You explain to your client that their case will be difficult to defend if the prosecutor obtains the report of the EMS or the results of the blood analysis.
Your client would most likely respond that their medical records are private and they would not have signed the release of information form to get treatment if they knew others could access that information freely. You may now decide that it is time to delve into the complex regulations constituting the HIPAA Privacy Rule. You have your client sign a HIPAA compliant release of information form for your information as well as letters revoking any prior authorized releases. You notify both the hospital and the EMS provider that your client explicitly forbids the release of any information.
Does HIPAA Apply?
The first thing that must be determined regarding this DUI Phoenix case is whether the person or institution in possession of the medical information is covered by HIPAA. The HIPAA only governs the activities of “covered entities.” The second threshold question regarding this DUI Phoenix case that must be covered is whether the information at issue constitutes protected health information (PHI) under the regulations of the HIPAA. Covered enteritis are only allowed to release PHI under certain exceptions provided in the HIPAA. PHI includes all individually identifiable health information transmitted or maintained in any form of media, electronic or otherwise including paper records that have never been transmitted electronically.
At this point in the DUI Phoenix scenario it appears as if the statements of the client as well as the diagnostic tests constitute PHI in the possession of covered entities. However, it is not clear whether the vial of sealed blood handed to the arresting officer securing evidence under the state’s implied consent law falls under the Act’s protections. Two recent state court decisions have held that samples of blood obtained solely for law enforcement purposes do not fall under the HIPAA because the samples were not taken for the purpose of obtaining diagnosis, health care or medical advice instead they were used to prosecute a DUI Phoenix.
The blood draws in these cases were not obtained for medical purposes, however, it should be argued that there is no limitation within the definition of “health information” relating to a health care provider’s purpose in obtaining information. Information is PHI as long as the information relates to the mental or physical health condition of the person and was created or received by the health care provider. The chances of establishing that a blood draw constitutes PHI is certainly greater when such samples are taking for medical purposes.
If you are successful in establishing and HIPAA violation in this case the standard response to such violations of the law would be a motion to quash the subpoena and to suppress the improperly obtained evidence in this DUI Phoenix case.
About the Author
David Michael Cantor is an AV rated (the highest possible rating) lawyer and a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization. For more information about a Phoenix DUI, visit our site.
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