Often during an arrest the police will transport the suspect to a medical facility for treatment. These situations occur because of injury and intoxication.
The police officer has a legal duty to protect any person in custody. The police department does not want to be sued, so if there is any reason to believe the person arrested needs medical care, he will be admitted to an emergency room.
All medical facilities operate on a protocol. Just like the police have a legal duty towards the person arrested, the law says that nurses, physician assistants, and doctors all must practice a standard of care with the patient. Failure to follow protocol may be considered negligent and cause the hospital to be civilly liable for medical malpractice.
One of the first priorities of medical treatment is the analysis of blood and urine. Protocol requires the hospital to check for alcohol and drugs, and also any medical conditions that need to be addressed.
If the person was arrested for driving under the influence, then the results of this testing may legally be disclosed to police, despite privacy laws concerning health care.
Section 11-501.4 of the Illinois Vehicle Code provides that the results of blood or urine testing conducted at the emergency room may be disclosed to law enforcement, and are admissible in evidence in a prosecution for DUI.
Most people believe that all their medical records are protected from disclosure by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Federal law concerning medical records says that health information is not protected if it relates to a person who is in lawful custody of law enforcement. Click here to read a summary of HIPPA from the US Department of Health and Human Services.
Covered entities may disclose protected health information to law enforcement officials for law enforcement purposes under the following six circumstances, and subject to specified conditions:
- as required by law (including court orders, court-ordered warrants, subpoenas) and administrative requests;
- to identify or locate a suspect, fugitive, material witness, or missing person;
- in response to a law enforcement official’s request for information about a victim or suspected victim of a crime;
- to alert law enforcement of a person’s death, if the covered entity suspects that criminal activity caused the death;
- when a covered entity believes that protected health information is evidence of a crime that occurred on its premises; and
- by a covered health care provider in a medical emergency not occurring on its premises, when necessary to inform law enforcement about the commission and nature of a crime, the location of the crime or crime victims, and the perpetrator of the crime.
See 45 C.F.R. Section 164.512(f).
This does not mean, however, that the results of blood or urine testing from the emergency room are admissible in every case.
First, the statute applies to evidence used in the prosecution of a violation of 11-501. Violation of section 11-501 is the criminal offense of DUI. The law does not allow the use of such evidence in a hearing concerning a statutory summary suspension. A hearing on a petition to rescind a summary suspension is a civil matter, not a criminal prosecution.
Second, the law says that the evidence would not be admissible for the prosecution of any other criminal offense. The statute says the results are admissible in the prosecution of only DUI and reckless homicide. The results of blood or urine testing cannot be used to prosecute an offense such as leaving the scene of an accident involving personal injury or death, or consumption of alcohol by a minor.
Finally, the prosecution must establish that the blood or urine testing was conducted in the regular course of providing emergency medical treatment, and not at the request of law enforcement. If the police were the reason the testing was performed, then it is not admissible. The police would not be allowed to circumvent the law for chemical testing by taking a person to the emergency room.
The law has its problems, too. It says the evidence is to be admitted by the records from the hospital as long as the laboratory where the testing took place was regularly used by the hospital. This may vi0late the right of the accused to confront the witnesses against him. Arguably, the Confrontation Clause of the US Constitution requires the person who tested the blood or urine to appear in court and testify. Allowing the records to be used against the defendant may be hearsay.
The law also does not define what a hospital emergency room is. The facility may be a Level 1, 2 or 3 trauma center, but not all medical facilities are equal, and the medical facility may not qualify as an emergency room.