Posted on 04/28/2005 8:01:01 AM PDT by SoFloFreeper
"Oh, how about all cops that aren't narcs ... how do you feel about them ?
Well, I just posted the percentage of pencil pushing bureaucrat CHP Chiefs that retire on disability. Which makes is a statistical certainty that the vast majority of them are felony frauds."
Correct, you did NOT say how you feel about all cops and did not even say if you don't like ones who are felony frauds. Some people even like people who do drugs...
"IOW, 395 says get a subpoena when you obtain medical records without consent. Why would the prosecutor not be bound by this law?"
Because 395 gives A method that the records can be obtained, but it is not the EXCLUSIVE method.
Roy Black has taken Rush for a lot of money attempting the same argument. I wonder what his next move will be ?
"They went looking in his medical records to see if they COULD find something to charge him with. It could happen to you, too. Florida today, the other states tomorrow. "
Gee, when did law enforcement officials start investigating possible crimes given probable cause ?
What a concept !
actually the ironic point is that FL's privacy amendment was put in place in anticipation of a day when Roe vs. Wade would be undone and abortion returned to the states.
With this ruling, all previous rulings which upheld medical privacy have been set aside and now legally there are two methods to gain access to medical records.
It is inevitable that prosecutors will always select the one which gives them a freer reign to do a fishing expedition before objections will be filed. Forgivness vs Permission.
Wow, glad I was sitting down when I read this. What a shock! (sarcasm).
Actually fishing expeditions have never involved probable cause.
As you know from your previous rushbashing, the prosecution is trying desperatly to get around the maid whose story is tained with lies (useless witness), the fact that her immunity deal allowed her to sell her story in contradiciton to FL's son of sam law, her Friend of Clintons Lawyer shopping the story, and the obvious effort to try the case in public opinion in contradition to ethics rules.
This is not an issue of probably cause, this is mere suspicion. If the prosecutor was really going to treat Rush the same as anyone else, they would have place him in the diversion program the same as Jeb Bush's own daughter or the South Florida State legislator. The painful truth you continually refuse to see is that Rush IS being treated differently than ANY other potential defendant. That is irrefutable.
Because 395 gives A method that the records can be obtained, but it is not the EXCLUSIVE method.
In order for that to be the intent of the law, medical records must not have been obtainable by subpoena prior to the passage of 395. (Why pass a law giving them a method they already had?) Were medical records indeed not obtainable by subpoena before 395?
Roy Black has taken Rush for a lot of money attempting the same argument. I wonder what his next move will be ?
I'm not a lawyer, but I'd say Roy Black should find an example where medical records were obtained by subpoena under 395, then go to Federal Court with an Equal Protection Clause case.
Pay cash and use a false name.
So you agree that they've always been obtainable via search warrant? Often times a legislature will codify a court rule. They've probably always been obtainable via subpoena according to court rule. The law is just a codification of rules promulgated by the judiciary.
"As you know from your previous rushbashing, the prosecution is trying desperatly to get around the maid whose story is tained with lies (useless witness), ...."
???? As you SHOULD know, the maid would have no knowledge whatsoever about the Doctor-shopping, which happened years after she stopped working for, and possibly supplying drugs to Rush.
So just what is it the prosecution is trying to get around ?
Are you expecting the defence to call them ?
"I'm not a lawyer, but I'd say Roy Black should find an example where medical records were obtained by subpoena under 395, then go to Federal Court with an Equal Protection Clause case."
If that were valid it would seem to follow that EVERY case where a subpeona COULD have been used, but a search warrant WAS used, would be open to review ... and since that would seem to apply to EVERY case in which a search warrant was used, ALL of them would need to be reopened.
Prior to 395, yes. I think 395 meant to do away with search warrants as a way to obtain medical records.
Often times a legislature will codify a court rule. They've probably always been obtainable via subpoena according to court rule. The law is just a codification of rules promulgated by the judiciary.
The subpoena clause of 395 was part of a larger statute devoted to medical privacy.
I believe it was intended to further protect privacy by giving the patient a chance to contest the release. A search warrant negates that opportunity.
The debate seems to be whether or not the prosecutor is required to follow Statute 395. It is a fact that he did not abide by it, agreed?
If that were valid it would seem to follow that EVERY case where a subpeona COULD have been used, but a search warrant WAS used, would be open to review ... and since that would seem to apply to EVERY case in which a search warrant was used, ALL of them would need to be reopened.
Agreed. Now, how many cases of medical record seizure by search warrant have there been since Statute 395 went into effect?
IIRC, there was one other case mentioned on these threads. I think we're talking about a small number here.
Of course you realize that I did not limit it to medical records, EVERY case where a search warrant was used ANYWHERE in the country would have to be re-opened.
... and all of this is based on the acnowledgement that the seizure by search warrant was valid to begin with, as the 4th Amendment states.
You lost me there. This case is based on a violation of Statute 395, which only applies to medical records. Why would it apply beyond that?
... and all of this is based on the acnowledgement that the seizure by search warrant was valid to begin with, as the 4th Amendment states.
Yes, it met the criteria for the Fourth. However, the Fourth Amendment does not delegate any power to the government. It sets requirements that the government must meet before search and seizure can take place.
There is nothing in the Fourth Amendment that prevents a State from adding on more protection. In this case, the Legislature set restrictions on how the Executive in FL would obtain medical records.
"You lost me there. This case is based on a violation of Statute 395, which only applies to medical records. Why would it apply beyond that? "
If you could prove that 395 applied and was violated, you would not need equal protection. State courts agree that it was not.
You are considering using the equal protection argument, if the argument were valid, financial records seized via search warrant instead of subpeona would seem to be equally protected.
"In this case, the Legislature set restrictions on how the Executive in FL would obtain medical records."
So you return to the losing " search warrant not valid" argument ...
Agreed.
You are considering using the equal protection argument, if the argument were valid, financial records seized via search warrant instead of subpeona would seem to be equally protected.
Only if there were a statute similar to 395 specifiying such a procedure for financial records. Right?
So you return to the losing " search warrant not valid" argument ...
In general, I'd think it would be more likely you'd appeal a case you lose, rather than one you win.
And, there is a precedent from Dec. 2000 for overturning FL courts on the basis of an Equal Protection violation.
The good guys always lose in the Florida Supreme Court. Interesting.
I'll take the great and beautiful sub-tropical state of FL over your inbred West Virginia any day. And hey, get off your sister!
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