Your BAC in Hospital Records is Not 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. It does not, if you’re brought to the hospital following a motor vehicle accident in which you were the driver.

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.

In State v. Miller, 284 Or App 818 (2017), the Court of Appeals explained: “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 court held that you have no protected privacy interest in your above .08% BAC from the hospital lab.

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, rather than whole blood. It will always be about 20% higher than a true forensic blood draw.

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.