STATE OF FLORIDA v. ROBERT THOMAS TAVENESE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Petitioner,
v.
ROBERT THOMAS TAVENESE,
Respondent.
No. 4D21-57
[May 26, 2021]
Petition for writ of certiorari from the County Court for the Fifteenth
Judicial Circuit, Palm Beach County; Leonard Hanser, Judge; L.T. Case
Nos. 2020-AP-000089-AXXX-MB and 2020-CT-004180-AXXX-SB.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Picard,
Assistant Attorney General, West Palm Beach, for petitioner.
Carman John Leon, Jr., Deerfield Beach, for respondent.
PER CURIAM.
The State petitions for certiorari review of the denial of its motion for
authorization to execute a subpoena to obtain emergency room records
and toxicology reports. Because the State met its burden to obtain an
investigative subpoena, we grant this petition.
Background
Respondent Robert Tavenese was charged with driving under the
influence, causing damage or injury (enhanced). The probable cause
affidavit alleged Respondent’s vehicle crashed into a concrete pole after
colliding with another vehicle. Shortly after the accident, Respondent
admitted to an officer of the Delray Beach Fire Department that he had
consumed alcohol earlier that evening. Respondent exhibited signs of
intoxication and required assistance from Delray Beach Fire Department
personnel to keep from falling as he walked to the ambulance.
Respondent sustained a head injury as a result of the collision, so
Delray Beach Fire Department transported him to Delray Medical Center.
Once there, Respondent consented to a blood draw, which was collected
using a law enforcement blood draw kit. The Palm Beach County Crime
Laboratory Toxicology Unit tested the blood, which indicated Respondent’s
blood alcohol level at the time of the draw was 0.16 grams of alcohol per
100 milliliters of blood.
The State subsequently sought authorization from the trial court to
execute an investigative subpoena for medical records from Delray Beach
Fire Department and Delray Medical Center, including: (1) any toxicology
reports; (2) any records containing Respondent’s admissions to
consumption of alcohol, controlled substances, and/or chemical
substances; and (3) any records containing descriptions of Respondent’s
physical appearance and/or impaired physical/mental state.
The trial court held a hearing on the motion. Defense counsel objected
to the subpoena on the basis that the records were protected under the
Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).
Defense counsel also claimed the State was on a “fishing expedition.”
Following the hearing, the trial court entered two orders. One order
granted the State’s motion as to Delray Beach Fire Department records.
The other order denied the State’s motion as to Delray Medical Center
records, finding that, “based on the fact that the State has legal blood
results, the State is precluded from obtaining Hospital Records from
Delray Medical Center.” The State petitions for review of this order.
Analysis
“To be entitled to a writ of certiorari, a party must demonstrate both
material injury that cannot be remedied on plenary appeal (irreparable
harm) and a departure from the essential requirements of law.” Sovereign
Healthcare of Port St. Lucie, LLC v. Fernandes, 132 So. 3d 855, 857 (Fla.
4th DCA 2013). “A departure from the essential requirements of law is
more than mere legal error; it is ‘a violation of a clearly established
principle of law resulting in a miscarriage of justice.’” Broward Cnty.
Sheriff’s Office v. Hamby, 300 So. 3d 213, 215 (Fla. 4th DCA 2020) (quoting
Haines City Cmty. Dev. v. Heggs, 658 So. 2d 523, 529 (Fla. 1995)). The
State may seek certiorari review of pretrial orders that substantially impair
its ability to prosecute its case. State v. Pettis, 520 So. 2d 250, 253 (Fla.
1988).
The State argues that it is entitled to the medical records and that State
v. Rivers, 787 So. 2d 952 (Fla. 2d DCA 2001), is directly on point.
Respondent relies on Guardado v. State, 61 So. 3d 1210 (Fla. 4th DCA
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2011), and Cerroni v. State, 823 So. 2d 150 (Fla. 5th DCA 2002), as support
for his response that the State failed to establish the necessary nexus
between the medical records sought and the pending criminal
investigation.
While a patient’s medical records are protected under Florida’s
constitutional right to privacy, Art. I, § 23, Fla. Const., that right to privacy
may be overcome by the showing of a compelling state interest. Rivers,
787 So. 2d at 953. “Such an interest exists where there is a reasonable
founded suspicion that the materials contain information relevant to an
ongoing criminal investigation.” Id. (citing Hunter v. State, 639 So. 2d 72,
74 (Fla. 5th DCA 1994); State v. Rutherford, 707 So. 2d 1129, 1131 (Fla.
4th DCA 1997)).
In Rivers, the defendant was charged with driving under the influence,
causing serious bodily injury. 787 So. 2d at 953. “The State sought
authorization from the trial court to execute an investigative subpoena for
emergency room medical records and toxicology reports.” Id. The State
contended the records and reports would indicate whether the defendant
was under the influence at the time of the crash. Id.The defendant “argued against the discovery and noted that the State
already had blood draw evidence.” Id. The State replied that “the blood
draw evidence may be suppressed or excluded at trial.” Id. “The trial court
denied the State’s motion without prejudice, reasoning that because the
State already had the results of a legal blood draw, discovery of [] other
medical records and reports was” unnecessary. Id. “The trial court left
open the possibility that the State could renew its request when ‘the
medical blood related evidence becomes more relevant.’” Id.On appeal, the Second District held that the State met its burden and
demonstrated that the emergency room records and toxicology reports
were directly related to the incident that led to the criminal charges and
ongoing criminal investigation. Id. at 953–54. The Second District noted,
“[t]he fact that the State had other incriminating evidence against [the
defendant] was not a proper basis to prevent execution and issuance of
the investigative subpoena.” Id. at 954.
As it did in Rivers, the State in the instant case sought authorization to
execute an investigative subpoena for hospital records following
Respondent being charged with driving under the influence. Also as in
Rivers, the State met its burden of showing a compelling State interest by
demonstrating a reasonable founded suspicion that the medical records
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contained information relevant to the ongoing criminal investigation,
contrary to Respondent’s assertion.
Moreover, “[w]hen the State seeks a subpoena for medical records, the
court can rely on the State’s argument and the accident report or probable
cause affidavit to establish relevance.” Guardado, 61 So. 3d at 1213); see
also McAlevy v. State, 947 So. 2d 525, 530 (Fla. 4th DCA 2006) (holding
that, in determining whether the State had shown a nexus between the
medical records and a pending criminal investigation, the court could “rely
upon the [S]tate’s argument and the probable cause affidavit”).
For example, in Hunter, the State sought a subpoena for medical
records related to the defendant’s blood alcohol level after he was involved
in a car accident that resulted in injury and death. 630 So. 2d at 73. The
State, however, never argued to the trial court the relevancy of the patient
records to the criminal investigation. Id.
The Fifth District nevertheless held that the accident report, coupled
with the fact the driver of the car the defendant collided with died as a
result of the accident, made the relevancy of the documents obvious,
despite the lack of State argument. Id. Thus, the Fifth District held that
record evidence showed both a compelling state interest and that the
medical records sought were relevant to the criminal investigation. See id.
at 73–74.
Respondent argues the only evidence the State relied on to establish
the relevancy of the medical records to the ongoing criminal investigation
was the fact he crashed his car and his blood alcohol level at the time of
the blood draw was 0.16 grams of alcohol per 100 milliliters of blood.
Additionally, while Respondent concedes the State can properly rely on the
probable cause affidavit, he argues no evidence in the record demonstrates
the State did so at the hearing.
At the hearing, the State immediately began by relying on the probable
cause affidavit to recite the allegations to the trial court. The State then
argued the relevancy of the medical records by stating:
The State is entitled to any of the potentially relevant
toxicology reports, observations.
And it’s not just that there was blood, but if there’s other
witnesses that may be useful to the defense or the State, Fire
Rescue personnel, all of the observations that they made on
scene and they transported him to the medical center; at the
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medical center, if there was (sic) any toxicology reports that
are made there and observations by any nurses. We’ll be able
to get any other – any other witnesses from both of those.
Thus, we reject Respondent’s contention that there is no evidence in
the record demonstrating the State actually relied on the probable cause
affidavit at the hearing. Even if this assertion were true, the Hunter court
did not specify the State must rely on the probable cause affidavit at the
hearing to demonstrate the records are relevant to the ongoing criminal
investigation.
As in Hunter (which involved an accident report), the probable cause
affidavit in the instant case—which stated Respondent admitted to
consuming alcohol earlier in the evening of the crash, demonstrated signs
of intoxication, and required assistance to walk to the ambulance—
coupled with the fact that he collided with another car before crashing into
a concrete pole, made the relevancy of the records obvious. Thus, the
State not only argued the relevancy of the hospital medical records at the
hearing but also demonstrated through the probable cause affidavit that
they were relevant to the ongoing criminal investigation.
We also reject Respondent’s assertion that Guardado and Cerroni
support the trial court precluding the State from subpoenaing the hospital
medical records. Both cases are factually distinguishable because, unlike
here, the State in those cases failed to present any legally obtained
evidence of impairment to establish relevancy. Guardado, 61 So. 3d at1213–14; Cerroni, 823 So. 2d at 151–52.
Finally, we note HIPAA does not prevent the State from subpoenaing
relevant medical records in a criminal proceeding, contrary to
Respondent’s argument at the hearing. See United States v. Wilk, 572 F.3d
1229, 1236 (11th Cir. 2009).
Conclusion
Because the State met its burden, we grant the petition for writ of
certiorari, quash the order that precluded the State from obtaining the
hospital medical records, and direct the trial court to authorize the State
to issue the subpoena.
Petition granted.
GROSS, CIKLIN and FORST, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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