TX1: A subpoena may be used to obtain blood test results obtained for medical purposes even though used in a DWI case

The state may obtain defendant’s blood draw for medical purposes by subpoena. Ferguson v. City of Charleston does not create a reasonable expectation of privacy from a subpoena, a form of legal process, for obtaining the results. Rodriguez v. State, 2015 Tex. App. LEXIS 6507 (Tex.App.–Houston (1st Dist.) June 25, 2015):

Legally, according to Rodriguez, Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001), recognizes a reasonable expectation of privacy for “those who undergo diagnostic tests in hospitals that—absent other considerations not present here (like a legal duty to disclose)—the results of their tests will not be shared with non-medical third parties.” We do not read Ferguson so broadly. There, the public hospital performed diagnostic tests at the State’s behest to obtain evidence of a patient’s criminal conduct for law-enforcement purposes without first obtaining the patient’s consent. See id. at 84-85, 121 S. Ct. at 1291-92. Here, the blood draw and blood-alcohol content test results were performed for medical treatment. This distinction renders Ferguson inapposite. See Murray v. State, 245 S.W.3d 37, 42 (Tex. App.—Austin 2007, pet. ref’d); see also State v. Villarreal, No. PD-0306-14, 2014 Tex. Crim. App. LEXIS 1898, 2014 WL 6734178, at *15 (Tex. Crim. App. 2014) (explaining that drug-testing policy was invalidated in Ferguson because immediate objective of searches was to generate evidence for law enforcement purposes); Garcia v. State, 95 S.W.3d 522, 526-27 n.1 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (following Hardy post-Ferguson and applying Hardy to appellant’s challenge under Texas Constitution). Ferguson does not support Rodriguez’s contention that the Fourth Amendment protects his expectation of privacy in the medical records containing the blood-test results.