My client was driving home from work. Yes, she stopped off for two beers with co-workers, when her little Ford Escape was rear-ended by a huge Suburban totaling both vehicles. The driver of the suburban was charged with OUI/DUI and taken to jail. My client was put into a neck brace and transported to a hospital in Boston. At the scene while being attended to by the EMS, administering a neck color and IV, the State Trooper attempted to ask her questions. She was able to give her license and tell them it all happened so fast she was not sure what happened!
She was taken to the hospital and evaluated. The State Trooper waited outside the room listening in on what the doctor and nurses were discussing with their patient and then went in and began to ask her questions.
Who thinks this is a violation of HIPPA I do!!!
He never once asked if she was okay or if she felt like she could answer any question he just began asking questions. No Miranda warnings were given. She passed the alphabet test saying each letter and was understood by the Trooper, but did go past the letter she was asked to stop at, yet being nervous, sore and in shock she was thinking clearly, a sign of having her mental capacities intact and not under the influence of alcohol. She had the smell of alcohol on her breath along with blood shot and glassy eyes but she was just in a serious accident. The Trooper charged her with OUI/DUI on this evidence.
After all of this the hospital decided to take blood. Was this urged by the trooper or suggested by him? We did not have to litigate it, as Gregory Oberhauser, Esq., opposed the R. 17 Motion filed by the Commonwealth, (to obtain the medical records) and prevailed on not once but three separate occasions that the Commonwealth attempted.
Not going away the Commonwealth hunted down for a sympathetic judge to re-hear the R.17 motion and prevailed, left with nothing else I asked for a firm date in which the records needed to be to my office. The Commonwealth missed this deadline and the hospital records were not allowed into evidence at trial. Let’s face it, no good evidence existed in the medical records for my client!
The upside of this is if you’re charged with an OUI/DUI and you are taken to a hospital you need to contact www.Oberhauserlaw.com immediately. Letters will be sent to preserve your rights within the hospital and at trial, as was done above.
We can help— this client received a Not Guilty after trial in Woburn District Court.
The Commonwealth needs to play by the rules and if not they should be punished. A warrant is necessary to obtain one’s blood if done for other than medical reasons. But as in the case above, it seemed that there was no reason to draw blood but for the insistence by the State Trooper, this is not allowed, if you have this type of case other remedies exist that we at Oberhauser Law can handle, please give us a call immediately at 978-452-1116.