Hippa issue

Every now and then hospital personnel or a defense attorney claims a blood test or medical record can't be used in a DUI case due to Hippa. Know Hippa and learn that is absolutely wrong.

The Health Insurance Portability and Accountability Act (HIPAA) is not violated by either the State requesting the results of a defendant's medical BAC results, nor by a medical facility providing them to the State. The United States Code of Federal Regulations, 45 CFR §164.502(b)(2)(v), states that HIPAA does not apply to "uses or disclosures that are required by law as described by 45 CFR §164.512(a)". CFR §164.512(a)(1) states: "A covered entity may use or disclose protected health insurance information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law."
CFR §164.512(f)(1)(C) permits a covered entity to disclose protected health information for a law enforcement purpose to a law enforcement official if an administrative request, administrative subpoena, summons, authorized investigative demand, or similar process authorized under law has been made, provided that: the information sought is relevant and material to a legitimate law enforcement inquiry; the request is specific and limited in scope to the extent reasonably practicable in light of the purpose for which information is sought; and de-identified information could not reasonably be used.
Moreover, even assuming a violation of HIPPA, suppression is not the remedy. Remedies for violations of HIPAA are specifically provided for by the statute: violations are remedied by civil and/or criminal sanctions against the individuals who inappropriately disclose information. 42 USC §1320d-5, §1320d-6. HIPAA was not meant to apply to purported police misconduct and does not contain an exclusionary rule as a remedy in the statute.

Legislature

Whew, it is all over. It has been an honor to work with the General Assembly this year on DUI legislation. We had great sponsors, great ideas and very nice results. More will be posted Monday. We did a lot to fix some long time problems that delayed the resolution of DUI cases like counting prior convictions based on the conviction date of the current arrest, delay in taking the license of the offender, repeated dangerous driving on bond and after multiple convictions and the lack of of a DUI definition that included substances and drugs of different types. The public chapters of new legislation will be posted on our website Monday.
It doesn't hurt that the Legislature this year left the statutory pay adjustment in place and didn't cut pay this time around.

Senate passes bill to change method of determining prior convictions

The Senate has passed SB 0844 as amended to override the Conway and Bowen cases and change the method for counting prior DUI offenses.
Beginning July 1, 2010, if an offender is arrested and is a fourth offender, he will be a fourth offender when he is tried and convicted no matter how long it takes.
The amended language tells us to claculate times from the time of the present violation (arrest) and look back 10 years for other violations (arrests) that resulted in a conviction. The 20 year look back period then comes into play.
If the prior arrest occurred 11 years ago and the conviction for the arrest happened 9 years ago, that prior will not count!
However if the prior arrest happened 9 years ago and the current conviction occurs 11years later, that will count!
This eliminates the incentive to delay cases to have priors fall off the record.
The House has already passed this bill. It is expected they will conform to the Senate amendment today and the bill will be sent to the Governor for his signature.
Read the amended bill at: http://www.capitol.tn.gov/Bills/106/Amend/SA1538.pdf

You can watch the video for clarification of the intent of the Senate at:
http://tnga.granicus.com/MediaPlayer.php?view_id=63&clip_id=3155
Scroll down to SB 0844

Johnson City tragedy

In Johnson City, police believe a Gate City man under the influence failed to stop for a red light and killed a fellow humam being.
Perhaps the best thing about red light cameras is the fear drivers have of getting a ticket for running a light. Would that fear have stopped this impaired driver? Maybe or not. In the red light camera debate, do the debaters think about it?

Highway Fatalities through May

Preliminary reports for the Department of Safety indicate that 383 persons have died on our roadways so far this year. That's 13 fewer than last year at this time.

Most (301) were in passenger cars. Most (242) were drivers of passenger cars.Most of the drivers (132) did not wear seat belts.
Some (49) were on motorcycles. Most(42) wore helmets.
Fewer (26) were in medium & heavy trucks.

There has been in increase of 12 to 47 fatalities on Interstates.

New Miranda decision

Please find below a brief summary of the Berghuis v. Thompkins case, from Michigan Attorney General Eric Restuccia, who argued the case before the United States Supreme Court.

"The United States Supreme Court reversed the Sixth Circuit in a 5-to-4 decision today, reinstating a murder conviction out of Oakland County.
The Court's decision was written by Justice Kennedy. He wrote in broad terms, establishing three significant principles. First, the police need not obtain a waiver before interrogating a suspect but need only inform the suspect of his rights under Miranda and may begin questioning once the suspect acknowledges his rights. Second, a suspect waives his rights under Miranda once he voluntarily answers questions knowing that he need not do so. Third, a suspect must unambiguously invoke his right to remain silent if he wishes to invoke his right to cut off questioning -- he cannot do so through ambiguous conduct or by merely remaining silent."

See the opinion, briefs and more on the U.S. Supreme Court website at:

http://www.scotuswiki.com/index.php?title=Berghuis_v._Thompkins

NEW DUI CCA opinion

Judge Kelly Thomas has and the Court of Criminal Appeals has issued a new decision concerning the use of prior convictions.
It is a must read item with three key points:

1)If a prior is not signed by a Judge, you can’t use it.
2)If the judgment document does not show a defense lawyer or waiver, that does not mean the judgment cannot be used.
3)If the judgment document does not show the name of the Court, other documents can be used to prove what Court had jurisdiction.
Read it at:
http://www.tsc.state.tn.us/OPINIONS/CURRENT/State%20v%20Jason%20A%20Albright.pdf