Filed 10/31/08                 NO. 4-08-0200

                       IN THE APPELLATE COURT

                                OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )    Appeal from
          Plaintiff-Appellant,          )    Circuit Court of
          v.                            )    Logan County
DENNIS M. POPECK,                       )    No. 07DT104
          Defendant-Appellee.           )
                                        )    Honorable
                                        )    Thomas M. Harris,
                                        )    Judge Presiding.
_________________________________________________________________

            JUSTICE COOK delivered the opinion of the court:

            Defendant, Dennis M. Popeck, was charged with driving

under the influence (DUI) (625 ILCS 5/11-501(a)(2) (West 2006)).

The State filed a motion for leave to issue a subpoena duces

tecum to a hospital for his medical records for November 27,

2007, the day defendant was charged with the DUI and the day he

was involved in a motor vehicle accident and treated at the

hospital.    Defendant filed a response contesting the State's

motion.    The trial court denied the State's request for a sub-

poena.    The State appeals.    We reverse and remand.

                               I. BACKGROUND

            On November 27, 2007, defendant was charged by citation

with DUI.    On December 4, 2007, the State filed a motion for

leave to issue a subpoena duces tecum and for the entry of a

Health Insurance Portability and Accountability Act (HIPAA) (42

U.S.C. §201 (1996)) qualified protective order.      On February 4,
2008, defendant filed an answer objecting to the release of all

of his medical records for November 27, 2007, arguing that only

the results of chemical tests may be released.

          On February 7, 2008, the State filed an amended motion

and an attached subpoena duces tecum.    In the motion, the State

alleged that defendant was involved in a motor vehicle accident

on November 27, 2007, and was taken to a hospital for treatment.

The same day, defendant was arrested for DUI.    The State sought

medical records "for treatment that occurred on November 27,

2007."

          On February 15, 2008, the trial court conducted a

hearing on the State's amended motion.   At the hearing, defendant

argued the State's request involved a "fishing expedition" and

was overly broad.   The State indicated that hospital medical

personnel, who treated defendant, would be able to testify as to

defendant's physical and mental condition when he was treated.

Specifically, (1) a paramedic told the investigating officer that

defendant appeared to be very intoxicated; (2) defendant acknowl-

edged to the officer that he had been drinking and the officer

noted the odor of alcohol in the ambulance and in defendant's

vehicle; (3) the victim stated she was struck twice by defen-

dant's vehicle when she was sitting at a red light; and (4) a

nurse gave the investigating officer a bottle of vodka when he

went to the hospital.   Both the State and defense counsel admit-


                               - 2 -
ted they were unable to find any cases dealing with a subpoena

for a defendant's entire medical record.    The trial court indi-

cated that HIPAA allowed for disclosure of medical information

upon order of the court.

            On February 29, 2008, the trial court issued a written

decision.    In the decision, the court noted that the issue is

"whether or not a subpoena 'for all the defendant's medical

records' is unreasonable, oppressive[,] or overbroad pursuant to

People ex rel. Fisher v. Carey, 77 Ill. 2d 259, 270 (1979)."      The

court noted a lack of Illinois case law regarding subpoenaing a

defendant's entire medical record but noted the Nohren case as

instructive.     People v. Nohren, 283 Ill. App. 3d 753, 670 N.E.2d

1208 (1996).    In Nohren, this court stated "[w]e cannot agree

that the subpoena here, which requested defendant's blood tests

and specified the time period October 7 through October 9, 1995,

was overbroad.    The State did not request all of defendant's

medical records."    (Emphasis added.)   Nohren, 283 Ill. App. 3d at

763-64, 670 N.E.2d at 1215.    The court determined that the quote

from Nohren suggested that a request for all of defendant's

medical records, even for just one day, would be considered

overbroad and denied the State's motion.

            This appeal followed.

                             II. ANALYSIS

            The State argues that the trial court erred in denying


                                 - 3 -
its request for a subpoena duces tecum.    The State argues that

the court's reliance on Nohren was misplaced as the issue in

Nohren was whether a subpoena for a defendant's blood test that

specified a time period was overbroad and this court did not

address the issue posed in this case.   Further, the State relies

on People v. Mitchell, 297 Ill. App. 3d 206, 209, 696 N.E.2d 849,

852 (1998), wherein the court found that a defendant's request

for a subpoena for police records limited to the day of defen-

dant's traffic stop was not overbroad as it did not overburden

the State and was not oppressive or unreasonable.    Finally, the

State cites a recent Indiana case, State v. Eichhorst, 879 N.E.2d

1144, 1154 (Ind. App. 2008), that concluded the State's request

for a subpoena for all of a defendant's medical records for the

date she was treated for her injuries acquired in a traffic

accident wherein she may have been intoxicated was "sufficiently

limited in scope and specific in directive."

          Defendant counters that Illinois statutes only allow

release of chemical tests.   Section 8-802 of the Code of Civil

Procedure (Code) states that "[n]o physician or surgeon shall be

permitted to disclose any information he or she may have acquired

in attending any patient in a professional character, necessary

to enable him or her professionally to serve the patient."    735

ILCS 5/8-802 (West 2006).    Defendant claims only one exception to

this general rule applies and it includes disclosure of chemical


                                - 4 -
tests "in prosecutions where written results of blood[-]alcohol

tests are admissible pursuant to [s]ection 11-501.4 of the

Illinois Vehicle Code."   735 ILCS 5/8-802(9) (West 2006).

Section 11-501.4(b) establishes the foundational elements of

admitting chemical tests in a prosecution for a DUI.    625 ILCS

5/11-501.4(b) (West 2006).   Section 11-501.4 also states the

following:

               "The confidentiality provisions of law

          pertaining to medical records and medical

          treatment shall not be applicable with re-

          gard to chemical tests performed upon an

          individual's blood under the provisions of

          this [s]ection in prosecutions as specified

          in subsection (a) of this [s]ection."   625

          ILCS 5/11-501.4(b) (West 2006).

Defendant also cites section 11-501.4-1 (625 ILCS 5/11-501.4-1

(West 2006)), which further delineates the method of disclosure

of results of chemical tests in DUI prosecutions, and argues that

this section does not authorize the release of the entire medical

record of the patient, only the results of chemical tests.    De-

fendant argues these statutes prohibit disclosure of any other

medical record information outside the results of chemical tests.

          Alternatively, defendant argues that even if release of

medical information other than written results of blood-alcohol


                               - 5 -
tests is proper, the subject of the State's subpoena was overly

broad and would allow the State to embark on a "fishing expedi-

tion."

          While section 8-802 prohibits disclosure of medical

records unless an exception applies, it is not true that only the

exception of section 8-802(9) applies to this case.   Defendant

dismisses as not applicable the exception of section 8-802(4),

which creates an exception "in all actions brought by or against

the patient, his or her personal representative, a beneficiary

under a policy of insurance, or the executor or administrator of

his or her estate wherein the patient's physical or mental

condition is an issue."   735 ILCS 5/8-802(4) (West 2006).   This

court has already recognized in Nohren that an exception identi-

cal to subsection (4), then referred to as subsection (4.1),

applied to the State's motion to view a defendant's blood tests,

reasoning that "a DUI is an 'action[] brought against the pa-

tient' in which the patient's physical or mental condition is an

element of the offense and therefore at issue."   Nohren, 283 Ill.

App. 3d at 762, 670 N.E.2d at 1214, quoting 735 ILCS 5/8-802

(4.1), (9) (West Supp. 1995).   Section 8-802(4), therefore,

allows release of medical information other than written results

of blood-alcohol test.

          The only issue is whether the State's request for all

of defendant's medical records for the day he was treated for


                                - 6 -
injuries acquired in the accident was overly broad.    As both the

parties and the trial court determined, no Illinois case ad-

dresses such a request.   In finding the request overbroad, the

trial court relies on dicta in Nohren opining that a request for

all of a defendant's medical records would be overbroad.    The

hypothetical request in Nohren is broader, though, than the

request in this case as the request in this case is limited to

medical records only for the day of the accident.    Clearly, the

State can request the results of chemical tests (735 ILCS 5/8-

802(9) (West 2006)), and few would disagree that a request for

all medical records is overbroad.    This case, though, falls in

the middle.

           An Indiana court found itself in a similar quandary

when a prosecutor in a DUI case subpoenaed "[a]ny and all medical

records (including test for blood[-]alcohol level and drug

screen) on Ali Eichhorst *** treated on or about April 15, 2006."

Eichhorst, 879 N.E.2d at 1154.    The Indiana court concluded that

the prosecutor's request for medical records that related to the

date of the accident would "naturally contain the medical staff's

observations of Eichhorst, which could be relevant in determining

whether she was intoxicated at the time of the accident" and

found the subpoena "sufficiently limited in scope *** and direc-

tive."   Eichhorst, 879 N.E.2d at 1154.

           In this case, the State argued to the trial court that


                                 - 7 -
it had evidence that a nurse and physicians who treated defendant

on the day of the accident are potential witnesses and their

observations and opinions are relevant and not protected under

the patient-physician privilege.

          We agree that the medical staff's observations of

defendant on the date of the accident are relevant in determining

whether defendant was intoxicated.    The State had evidence that

medical staff may have observed defendant's state of intoxication

as a paramedic told an investigating officer that defendant

appeared intoxicated and a nurse gave an investigating officer a

bottle of vodka after defendant was admitted to the hospital.

          We further note that the State argued to the trial

court that under the subpoena, the hospital would return the

medical records to the court in a sealed condition and the court

could "make any sort of in camera inspection if it was required."

In Mitchell, the court affirmed a defendant's subpoena for all of

the police records relating to defendant's arrest on the date of

the arrest and noted that "built-in safeguards for the review and

release of information under a subpoena will adequately protect

the State from unreasonable requests."    Mitchell, 297 Ill. App.

3d at 209-10, 696 N.E.2d at 852.   Release of defendant's medical

records for the date of his alleged DUI to the court is not

without safeguards and is not unreasonable.

          Because access to defendant's medical records solely


                              - 8 -
for the date of the accident is relevant, material, and not

privileged, the subpoena was sufficiently limited in scope and

should have been granted.

                            III. CONCLUSION

          For the reasons stated, we reverse the trial court's

judgment and remand for further proceedings.

          Reversed and remanded.

          MYERSCOUGH, J., concurs.

          APPLETON, P.J., dissents.




                                 - 9 -
           PRESIDING JUSTICE APPLETON, dissenting:

           I respectfully dissent from the majority's decision.

While I would agree that a subpoena properly would lie for the

production of the mere fact of treatment and the identity of

treating professionals, I believe the subpoena here was overbroa-

d.   The information sought should be received by testimony from

the persons who treated defendant or with whom he otherwise had

contact at the hospital.   The nature of the information sought,

i.e., defendant's state of intoxication, would not be privileged

medical information subject to HIPAA.   What was sought by the

State would entitle it to know private medical information

irrelevant to the charges lodged against defendant.




                              - 10 -
