U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Prescription Records Available Without Warrant

In a line of cases that has subtly flown under the radar, you might be surprised to find out that your prescription drug records are not that confidential. In fact, in many states, law enforcement officers have access to a Prescription Drug Monitoring Database, often referred to as a PDMP database (Prescription Drug Monitoring Program).

A recent Tenth Circuit Court of Appeal opinion confirming the dismissal of two distinct cases alleging Fourth Amendment violations stemming from the warrantless search of a PDMP database explains the procedural problem the litigants faced more so than the actual problem with warrantless PDMP searches.

Case Details

Both cases were dismissed on Rule 12 motions. In one of the cases, because the plaintiff failed to tender the claim to the state's attorney general, the municipal liability claims were dismissed. And the other municipal claim was dismissed based on a failure to state a plausible claim on its face. In both cases, the individual defendants were dismissed on a qualified immunity theory. The appellate court refused disturb the lower court's judgment in either case.

The Rx Narc Database

While initially designed to help state medical boards, doctors and pharmacists combat prescription drug dealers and abusers, the PDMP databases have been regularly accessed by state and federal law enforcement officers. Accessing the database to confirm individualized suspicions after getting a court order, or warrant, based upon probable cause, or even a gut feeling, might be an easier pill to swallow. However, the reality is that the DEA and law enforcement officers in several states don't even need a warrant, or gut feeling.

Despite how shocking this may all be to learn, fighting this invasion of privacy might be more challenging due to the current major problem with prescription drugs, particularly opioids. The support for allowing such broad access is bolstered by the current opioid crisis. Additionally, a recent California case illustrates how the privacy right interplays with the obligations and duties medical boards and governments have to the public at large.

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