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DUI defendant protects hospital records

A Norfolk Circuit Court has denied a prosecutor’s request for a DUI defendant’s hospital records from the night he was arrested at the hospital where he was taken after a traffic accident.

In a case of apparent first impression, Norfolk Circuit Judge Mary Jane Hall in Commonwealth v. Parks quashed the commonwealth’s subpoena duces tecum issued to Sentara Norfolk General for records on defendant Ashley Parks.

Virginia’s Health Privacy statute, Va. Code § 32.1-127.1:03(D), allows a provider to disclose records in response to a court order, the judge said, but when a defendant objects, the requesting party has to show good cause.

The defendant cited Code § 19.2-187.02(B), arguing that this statute’s specific carve-out for blood alcohol tests from privacy provisions meant, by implication, that the defendant’s other medical records were protected by Virginia privacy laws. Defendant Parks had no blood drawn that night.

Norfolk lawyer George Neskis, who represents the defendant, said an earlier charge against Parks of refusal to submit to testing had been dropped.

The judge acknowledged the commonwealth’s suggestion at oral argument “that it can and does routinely secure search warrants for such records.”

But the judge said that before a search warrant may issue, a judicial officer has to find probable cause exists for the search. In this case, when faced with the defendant’s objection, the commonwealth did not proffer “any particular reason for the compulsory production of defendant’s medical records,” the judge said.

When there’s no articulated basis for a records request, it amounts to a “fishing expedition,” Neskis said.
By Deborah Elkins

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