Some DUI incidents involve the defendant being transported to the hospital for medical treatment. While information generated as a result of the hospital visit and medical care is generally considered protected healthcare information under HIPPA and hospital confidentiality rules, this information could be revealed pursuant to a search warrant. It is a generally accepted practice for a hospital in treating patients, particularly in an emergency situation involving a car crash to take a blood sample and test it for medical purposes for, among other things, the presence of alcohol. As explained below, the prosecution in a Massachusetts drunk driving case can take advantage of this testing to incriminate the DUI defendant.
In Massachusetts DUI cases and, especially cases where the defendant is charged with Causing Serious Bodily Injury While Driving Under the Influence of Liquor or Drugs in violation of G.L. c. 90, § 24L along with Operating so as to Endanger, G.L. c. 90, § 24(2)(a), it is possible for the police officer investigating the drunk driving case to apply for a search warrant for certain incriminating evidence, such as the results of any blood alcohol, serum alcohol, or toxicology tests performed on her blood, notations of her physical condition and mental awareness, and statements made to medical personnel.

It is common practice for the police or the District Attorney’s Office to issue a “preservation letter” to the hospital’s laboratory supervisor wherein it is requested that the clothing and any blood and/or urine sample taken from the OUI suspect be preserved pending the execution of a search warrant for these items and the results of any lab testing.

Mass. DUI lawyers should be aware of this practice of seeking search warrants for incriminating evidence such as reports containing blood alcohol content (BAC) information. It is likely that said reports will be admitted despite any Melendez-Diaz Challenge, as they are likely “business records” which were not prepared specifically for the DUI case.