HIPAA Waiver

A HIPAA waiver is an agreement to release your confidential medical information. You can revoke the right to release this information, and potentially prevent your information from being given to prosecutors—or used in court—in a DUI.

HIPAA stands for the Health Insurance Portability and Accountability Act of 1996. This is the main federal law ensuring that your medical information is private. In general, any information gathered by medical professionals in the course of treating you must be kept completely confidential unless you say otherwise. This can be vital in a California DUI case where medical information could be used against you. Unfortunately, some hospitals and other providers ask all patients to sign a release form which may, among other things, allow them to release your information to law enforcement.

Under the law, you have the right to file:

  • A HIPAA waiver that allows your information to be released, and/or
  • A document revoking the right of a medical provider to share your information

How does HIPAA work?

Medical information is sensitive for many reasons, and the law gives you the right to control who has access to yours. By default your medical information can only be used internally by the medical provider who collected it, or shared with others if you specifically direct them to do so (such as requesting that your documents be sent to a new doctor, or allowing a family member access to your records).

This protection applies to only certain kinds of information:

  • Information is only protected when it is gathered by, or involves, “covered entities.” This applies to virtually all healthcare providers such as doctors, EMTs, hospitals, physical therapists, etc. It also applies to many companies who contract with them, such as a data storage company.
  • Information is only protected if it is “protected health information” (PHI). This includes all individually identifiable health information in any form—written, electronic or otherwise. In other words, the hospital can include your case in statistics they release (without any identifying information) but cannot share any details of your individual situation.

These distinctions matter if you are treated by medical professionals after a DUI accident. The information you gave them should be protected by HIPAA in most cases.

What is an example of a DUI where HIPAA matters?

Imagine that you get into a serious car accident and are taken to the hospital in an ambulance. During the ambulance ride the EMT who is treating you asks if you are on any medication or drugs. You tell the EMT that you were using amphetamines. This information is passed to the hospital when you’re admitted, and you are treated accordingly. During treatment, the hospital also takes a blood draw to run tests on your blood. You remain at the hospital overnight, and go home the next day.

Your healthcare providers now have two pieces of evidence that could be relevant to your DUI case:

  • Your verbal admission that you were on amphetamines while driving
  • The physical evidence of a blood sample which could potentially be tested for alcohol and drugs

Normally this information would be confidential—including what you verbally told the EMT, because you were answering questions that were relevant to your treatment. Both pieces of evidence count as PHI and are protected.

Unfortunately, however, you were probably asked to sign paperwork to be admitted for treatment, and this paperwork may have included a HIPAA release form that could allow the hospital to release information to law enforcement. And, whether you signed this paperwork or not, the EMT may not understand that your verbal confession to using drugs counts as protected information. If the police interview the EMT as a witness, the EMT could tell them what you said.

How do I take control of my HIPAA information after a DUI?

There are three steps to controlling your protected health information in a DUI case:

  1. Your DUI lawyer will ask you to sign a new HIPAA waiver giving them access to your confidential information. This will allow them to find out whether you signed any previous releases, and also to look at your information to see if there’s anything incriminating.
  2. Your lawyer will then help you file official documents with your healthcare provider(s) that revoke any permission you gave them previously. This will prevent the providers from turning over evidence to the prosecutor.
  3. If needed, your lawyer can also file a motion to suppress the evidence. This motion will argue to the judge that any medical information the prosecutor got from your medical provider is protected and was gathered improperly. If the judge agrees, the prosecutor cannot use that information as evidence, which makes their case weaker.

Not every DUI will involve medical information or a HIPAA waiver. But if you received medical treatment after a DUI accident, your lawyer will want to act quickly to secure your information.

Does HIPAA protect me from a DUI blood test sample?

It depends. Normally, a DUI blood draw is taken by a technician who works for law enforcement as part of your arrest. This sample is evidence and is not protected by HIPAA. However, if you were hospitalized after your accident the blood sample may have been drawn at the hospital. This calls into question whether it is criminal evidence or private medical information.

Under these circumstances, a good DUI lawyer will make a case to the judge that your DUI blood sample is PHI, and that you did not agree to release it to law enforcement. This is still a gray area under the law and the judge’s decision will likely depend on the exact circumstances of the blood draw.

Have you been charged with DUI? We can connect you with an experienced Los Angeles DUI lawyer and get you a FREE consultation. Fill out the form to the right or call (310) 862-0199 and get your free consultation today. 

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