OR: No REP in medical records that include BAC results

There is no reasonable expectation of privacy in medical records including the results of defendant’s BAC test. State v. Hoffman, 321 Or. App. 330 (Aug. 10, 2022):

In Carpenter, the Court “decline[d] to extend Smith and Miller” and the third-party doctrine to cover 127 days’ worth of an individual’s cell-site location information (CSLI) retrieved from his cellphone company. Carpenter, 585 U.S. at __, 138 S Ct at 2217. The Court recognized that the government’s warrantless request for CSLI records implicated two lines of cases regarding the privacy interest at issue. Id. at 2214-15. First, the Court drew upon its long line of cases addressing a person’s expectation of privacy in his physical location and movements. Id. at 2215. Second, the Court explained that the request for CSLI also implicated the third-party doctrine, under which it reiterated that “the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections.” Id. at 2216. Analyzing the defendant’s privacy interest in his CSLI data at the intersection of those two lines of cases, the Court held that given the uniquely personal nature of the location information revealed through CSLI, the fact that the information was held by a third party did not negate the defendant’s privacy interest in that data. Id. at 2217. The Court established that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured by CSLI, and that CSLI represented the “rare case where the suspect has a legitimate privacy interest in records held by a third party.” Id. at 2222.

Defendant argues that, as in Carpenter, his privacy interest in the results of the medical blood draw was not subject to the third-party doctrine due to the “deeply revealing nature” of the information disclosed by the medical blood draw.

Carpenter is distinguishable. Defendant draws upon the emphasis on CSLI’s underlying nature in Carpenter, arguing that his medical records reveal information of the same intensely personal nature as CSLI. Carpenter’s emphasis on the underlying nature of CSLI, however, was done in an intentionally “narrow” manner so as to “not disturb the application of Smith or Miller.” 585 U.S. at __, 138 S Ct at 2220. Carpenter did not purport to revolutionize the third-party doctrine, but instead relied on a line of precedent establishing a right to privacy in an individual’s physical movements to establish a specific instance where an individual retained a privacy interest in GPS information maintained by a third party.

There is no such line of precedent supporting an expectation of privacy in the results of defendant’s medical blood draw. Defendant’s medical blood draw instead implicates case law establishing that an individual’s right to privacy in medical records is not absolute. Ferguson, 532 U.S. at 84 n 24; Miller, 284 Ore. App. at 831-32; see also Whalen v. Roe, 429 U.S. 589, 602, 97 S Ct 869, 51 L Ed 2d 64 (1977) (explaining that “disclosures of private medical information to doctors, to hospital personnel, to insurance companies, and to public health agencies are often an essential part of modern medical practice even when the disclosure may reflect unfavorably on the character of the patient”). In addition to being unsupported by precedent, the specific disclosure of a BAC test result contemplated by ORS 676.260 is limited in nature and circumstance and differs significantly from months of GPS data revealing an individual’s every physical movement. Information disclosed pursuant to that reporting requirement is limited to a specific test result in circumstances where the patient is believed to have been drinking and driving. Where the underlying nature of the relevant information and implicated precedent do not suggest that Carpenter’s “narrow” ruling encompasses a privacy interest in the information subject to mandatory reporting at issue here, Carpenter does not affect our analysis in Miller.

Third, defendant asserts that his arguments are distinct from those made by the defendants in Miller and Fincher because defendant argues that ORS 676.260, as a state statute, cannot act as a limitation on a privacy right protected by the Fourth Amendment. Although defendant is correct that, generally, state laws cannot negate a recognized privacy interest under the Fourth Amendment, that argument does not address whether the existence of ORS 676.260 helps reflect society’s understanding that such an expectation of privacy is unreasonable in the first instance. See Miller, 425 U.S. at 442-43 (explaining that legislation (the Bank Secrecy Act) can reflect the legislature’s assumption that there was no privacy interest in that information). The defendant’s arguments in Miller left that question unaddressed, as do defendant’s arguments here. Miller, 284 Ore. App. at 831-32. Defendant’s invocation of the general principle that state law cannot supplant constitutional standards therefore does not affect the controlling nature of Miller on this case.

Thus, as we concluded in Miller, defendant did not have a reasonable expectation of privacy in the results of his medical blood draw under the limited circumstances addressed by ORS 676.260, and the trial court did not err in denying his motion to suppress the medical blood draw.