CLARK v. STATE (1998)

ON MOTION FOR REHEARING AND/OR CERTIFICATION OF CONFLICT AND/OR QUESTION OF GREAT PUBLIC IMPORTANCE AND/OR FOR STAY

We grant appellee's motion for rehearing and/or for certification of conflict and/or question of great public importance and/or for stay only to the extent that we clarify a factual error in our December 3, 1997, slip opinion.   The following is substituted for that opinion, and in all other respects, appellee's motion is denied:

Warren Clark appeals an order of the trial court granting the state's motion to issue a second subpoena for hospital records containing the results of blood tests of appellant, pursuant to section 395.3025(4)(d), Florida Statutes (1995), for use in a pending DUI prosecution.   The first subpoena, and any records obtained thereby, were quashed because of the state's failure to obtain a court order, as is required by the statute.

This court's recent en banc decision in State v. Rutherford, 22 Fla. L. Weekly D2387 (Fla. 4th DCA Oct. 15, 1997) prohibits the issuance of a second subpoena under these circumstances.   Accordingly, we reverse and remand for further proceedings consistent with this opinion and Rutherford.

But for the court's opinion in Rutherford, I would dissent, for the same reasons I expressed in my dissent, as well as those in Judge Farmer's dissent, in Rutherford.   I would also grant the appellee's motion to certify the following question as being of great public importance:

WHERE THE STATE, IN THE COURSE OF A CRIMINAL INVESTIGATION, HAS OBTAINED A PATIENT'S MEDICAL RECORDS WITHOUT COMPLYING WITH THE NOTICE REQUIREMENTS OF SUBSECTION 395.3025(4)(d), FLORIDA STATUTES, MAY THE STATE BE PERMITTED TO AGAIN SUBPOENA THOSE MEDICAL RECORDS AFTER SHOWING A COMPELLING INTEREST IN THE RECORDS AND AFTER SHOWING THAT THE RECORDS ARE RELEVANT TO A CRIMINAL INVESTIGATION?

PER CURIAM.

STONE, C.J., and WARNER, J., concur. POLEN, J., concurs specially with opinion.