Proposed New Rule R. 7:5-4—Motion to Suppress Medical Records Obtained Pursuant to Rule 7:7-8(d)
The member of the Committee who proposed that R. 7:5-2 should be amended to authorize municipal court judges to hear certain motions to suppress evidence obtained from a search warrant also proposed a corresponding new rule, R. 7:5-4. The new rule would provide that the procedures set forth in R. 7:5-2, as proposed (See Section IA of this report, supra), for motions to suppress evidence under a warrant would also apply to the results of certain medical tests relating to intoxication obtained under a subpoena issued pursuant to R. 7:7-8(d), commonly called a Dyal subpoena.
In State v. Dyal, 97 N.J. 229 (1984), the Supreme Court held that in an investigation of a DWI case, a law enforcement officer may obtain the results of a blood alcohol test covered by the patient- physician privilege by applying for a subpoena before a judicial officer, usually a municipal court judge having territorial jurisdiction. In order to obtain the subpoena, the officer must “establish a reasonable basis to believe that the operator was intoxicated, a showing that may be established by objective facts known at the time of the event or discovered within a reasonable time thereafter.” State v. Dyal, supra, 97 N.J. at 241. The Court said that such a subpoena should be treated “as the functional equivalent of a search warrant.” The Court further stated that the records obtained from such a subpoena would be subject to a motion to suppress, as provided in R. 3:3-7, Motion to Suppress Evidence. Ibid. 7
Subsequently, the Court amended the Part VII court rule on subpoenas1 to provide for the issuance of a subpoena for medical records when the operator is suspected of being intoxicated:
1 Formerly R. 7:3-3, now R.7:7-8
Investigative Subpoenas in Operating While Under the Influence Cases. When the State demonstrates to the court through sworn testimony and/or supporting documentation that there is a reasonable basis to believe that a person has operated a motor vehicle in violation of N.J.S.A. 39:4-50 or N.J.S.A. 39:3-10.13, a vessel in violation of N.J.S.A. 12:7-46, or an aircraft in violation of N.J.S.A. 6:1-18, a municipal court judge with jurisdiction over the municipality where the alleged offense occurred may issue an investigative subpoena directing an authorized agent of a medical facility located in New Jersey to produce medical records related to the presence of alcohol, narcotics, hallucinogens, habit-producing drugs or chemical inhalants in the operator's body. If no case is pending, the subpoena may be captioned "In the Matter" under investigation.
This rule, although it provides a procedure for law enforcement to use in applying for a Dyal subpoena, it does not provide for a procedure for suppressing evidence obtained under the subpoena.
The Committee viewed the absence of a court rule that explicitly sets forth a procedure for motion to suppress evidence obtained from a Dyal subpoena as an oversight that could be remedied through adoption of the proposed new rule. The Committee noted that the procedure for suppression of evidence obtained under a Dyal subpoena should mirror the procedure for suppression of evidence obtained through a search warrant, because the Court in Dyal indicated that the processes should be the same. See Dyal, supra, 97 N.J. at 241 (stating that a subpoena for 8
medical records was the functional equivalent of a warrant). Hence, the Committee unanimously voted to recommend a new rule, R. 7:5-4, Motion to Suppress Medical Records Obtained Pursuant to Rule 7:7-8(d), which states that the procedures set forth in Rule 7:5-2 (as proposed), shall apply to motions to suppress a Dyal subpoena. The full text of proposed R. 7:5-4 is set forth below.
The Committee realized that its recommended new rule, R. 7:5-4, would impact the Part III Court Rule on motions to suppress, R. 3:5-7. As a result, on February 18, 2014 Judge McGeady, Chair of the Committee, forwarded to Judge Lawson, then-Chair of the Criminal Practice Committee, the Committee’s proposal for its consideration.
Rule 7:5-4 (new). Motion to suppress medical records obtained pursuant to Rule 7:7-8(d)
The procedures set forth in Rule 7:5-2 shall apply to a motion to suppress records obtained pursuant to a subpoena issued under Rule 7:7-8(d) to produce medical records related to the presence of alcohol, narcotics, hallucinogens, habit-producing drugs or chemical inhalants in the body of an operator of a vehicle or vessel, in matters within the trial jurisdiction of the municipal court. In matters beyond the jurisdiction of the municipal court, the motion shall be made and heard in the Superior Cour