Is BAC in hospital records private?

You might think that physician-patient privilege means your nurse won’t tell the police your hospital blood draw results. You could even think that HIPAA (the Health Insurance Portability and Accountability Act of 1996) protects your privacy as a patient.

HIPAA and Oregon law require hospital staff to notify police when they develop evidence a crime may have been committed. If you’re brought to the hospital after driving, and your hospital blood draw is above .08% BAC, expect a police officer to arrive in the emergency room to charge you with a crime.

ORS 676.260(1) imposes a mandatory reporting duty on health care facilities under certain circumstances. A health care facility “shall notify” a law enforcement officer present at the facility investigating a motor vehicle accident if, immediately after the accident, the facility treats “a person reasonably believed to be the operator of a motor vehicle involved in the accident” and, in the course of treatment, tests the person’s blood and discovers that the person’s blood alcohol level exceeds.08 percent or that the blood contains a controlled substance.

The Oregon Court of Appeals addressed this issue in State v. Miller, 303 Or App 165, vac’d 362 Or. 300 (2017), State v. Fincher, 303 Or App 165 (2020), rev’d on other grounds 368 Or 560 (2021), and State v. Hoffman, 321 Or App 330 (2022). In each of those cases, the court held that Oregonians do not enjoy a reasonable expectation of privacy in their hospital records related to BAC.

The law is in a state of flux, and there remain arguments about whether police get to use your hospital blood evidence against you at trial. Because ORS 676.260 and HIPAA require disclosure to police, the hospital blood draw appears to be a constitutionally significant search. See State v. Tucker, 330 Or 85, 90 (2000) (“[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer’s request, then Article I, section 9, will govern the search.”); see also Skinner v. Railway Labor Executives Ass’n, 489 US 602, 614 (1989) (the Fourth “Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government”).

In Riley v. California, 573 US 373, 397 (2014), the US Supreme Court explained that even though cell phone data is often stored on remote servers instead of on individual users’ devices, this fact “generally makes little difference.” Since Carpenter v. United States, 138 S Ct 2206 (2018), courts have included health records within the scope of materials that can be held by a third party without destroying the subject’s privacy interest. See, e.g., State v. Eads, 154 NE3d 538, 547 (Ohio Ct App 2020). In short, the law about admissibility of hospital blood evidence appears to be capable of change.

The court in Hoffman narrowed it down to a question of whether Oregon’s law permitting nurses to tell police your BAC reflects “the legislature’s assumption that there was no privacy interest in that information.” It is a difficult piece of logic: we are attacking the statute for permitting a constitutional privacy violation, pointing out that a statute cannot overwhelm our constitutional rights to privacy, but the statute itself is being used to suggest such privacy does not exist.

When hospital draws are admitted, this can be confusing as a matter of forensic science, as hospitals are not testing blood for use in court. They are testing blood to get a ballpark idea of what substances are on-board, so they can make good palliative and treatment decisions. The hospital lab will generally test serum or plasma, rather than whole blood. BAC will thus always be about 20% higher than a true forensic blood draw.

Finally, the state must prove chain-of-custody for your blood sample. Forensic blood draws are often scrupulously documented, since they are created to be used in court. Hospital blood draws are not. Sometimes hospital draws even specify, “[s]pecimen analysis was performed without chain of custody.” See State v. Martin, 307 Or App 396, 404 (2020) (state failed to lay chain-of-custody for hospital blood sample); State v. Hoffman, 321 Or App 330 (2022) (same).

If you find yourself arrested or cited at the hospital after a car wreck, be sure to get a DUII attorney quickly. Important time limitations apply, and your attorney can help you fight any proposed Implied Consent license suspension related to chemical tests.