Judges: MIKE BEEBE, Attorney General
Filed Date: 1/31/2003
Status: Precedential
Modified Date: 7/5/2016
Mr. David L. Gibbons Prosecuting Attorney Fifth Judicial District Post Office Box 3080 Russellville, AR 72811
Dear Mr. Gibbons:
You have presented the following questions for my opinion:
(1) Does a city attorney have the power to issue subpoenas for medical records in relation to criminal cases, including tests determinative of a criminal defendant's blood alcohol concentration?
(2) Does a city attorney have the power to issue subpoenas for telephone records in relation to criminal cases?
(3) Does a city attorney have the power to issue subpoenas for any type of record which could be used in a criminal trial if such record was a relevant piece of evidence in a criminal case that he was prosecuting?
Response
Question 1 — Does a city attorney have the power to issue subpoenas formedical records in relation to criminal cases, including testsdeterminative of a criminal defendant's blood alcohol concentration?
It is my opinion, as explained more fully below, that the answer to this question will depend upon various factors concerning the medical records for which the city attorney issues a subpoena.
As an initial matter, I note that one of my predecessors opined that in connection with the prosecution of cases involving misdemeanor violations of state law within a city's limits, city attorneys have all of the same prosecutorial powers held by prosecuting attorneys, regardless of whether they have been "deputized" by the prosecuting attorney. See Op. Att'y Gen. No.
Because I concur in the view that city attorneys have all of the same prosecutorial powers held by prosecuting attorneys in connection with the prosecution of cases involving misdemeanor violations of state law within a city's limits, the question thus becomes whether prosecuting attorneys may issue subpoenas for the types of medical records that you have described.
Prosecuting attorneys are granted the authority to issue subpoenas in A.C.A. §
However, the prosecutor's subpoena power is limited. First, it can only be used in aid of a prosecution — not as a tool for a police investigation,1 id. — and the court will reverse a conviction that was based upon evidence procured through a prosecutor's misuse of this subpoena power. See State v. Hamzy,
The Hospital Records Act, A.C.A. §
Unless the sealed envelope or wrapper is returned to the custodian who is to appear personally, the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge, court, officer, body, or tribunal conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at such trial, deposition, or hearing. Before directing that the inner envelope or wrapper be opened, the judge, court, officer, body, or tribunal shall first ascertain that either:
(1) The records have been subpoenaed at the instance of the patient involved or his counsel of record; or
(2) The patient involved or someone authorized in his behalf to do so for him has consented thereto and waived any privilege of confidentiality involved.
Records which are not introduced in evidence or required as part of the record shall be returned to the person or entity from whom received.
A.C.A. §
The above-quoted restrictions apply in the context of a criminal proceeding. See McVay v. State,
(2)(A) "Records" means hospital records or medical records and includes an admitting form, discharge summary, history and physical, progress notes, physicians' orders, reports of operations, recovery room records, lab reports, consultation reports, medication records, nurses' notes, and other reports catalogued and maintained by the hospital's medical record department.
(B) However, "records" shall not mean and include X-rays, electrocardiograms, and similar graphic matter.
A.C.A. §
I interpret the above-quoted limiting definition of "records" to mean that records not falling within the definition are not subject to the Act's sealing restrictions. Thus, medical records that do not fall within this definition (and that are not otherwise restricted) are generally subject to subpoena, free from the sealing restriction of the Medical Records Act. The Arkansas Supreme Court has specifically held that records reflecting the results of blood tests do not fall within the Act's definition of "records," and are therefore admissible even if the requirements of the Act have not been complied with. McVay, supra; Oxfordv. Hamilton,
Based upon the above-discussed principles, I conclude that the question of whether prosecutors and city attorneys can subpoena medical records will depend upon several factors, including the specific type of record in question (i.e., whether the record is a blood test, an x-ray, a progress report, etc.), and whether such records are maintained in a hospital's medical record department, or elsewhere. If the records in question fall within the Hospital Records Act's definition of "records," they are not accessible through the prosecutor's subpoena power without the consent of the defendant. If, however, the records in question do not fall within the Act's definition of "records," and are not otherwise restricted from disclosure, they are subject to the prosecutor's (and thus the city attorney's) subpoena power.3
Question 2 — Does a city attorney have the power to issue subpoenas fortelephone records in relation to criminal cases?
It is my opinion that a city attorney does have the power to issue subpoenas for telephone records in relation to the investigation of criminal cases. As discussed in response to Question 1, above, city attorneys have the same subpoena power as prosecuting attorneys in connection with the prosecution of misdemeanor violations of state law that occur within city limits. As also previously noted, this subpoena power can be used only as a prosecutorial tool. See State v. Hamzy,
Question 3 — Does a city attorney have the power to issue subpoenas forany type of record which could be used in a criminal trial if such recordwas a relevant piece of evidence in a criminal case that he wasprosecuting?
As indicated in response to the previous two questions, the power of city attorneys to issue subpoenas for records depends largely upon the types of records for which the subpoena is issued. As a general matter, however, city attorneys do have the power, pursuant to A.C.A. §
Assistant Attorney General Suzanne Antley prepared the foregoing opinion, which I hereby approve.
Sincerely,
MIKE BEEBE Attorney General