Utah Questions Police Access to Controlled Substances Database

The Utah State Senate on a 27-0 vote has passed legislation to require law enforcement agencies to obtain a warrant before accessing the state’s controlled substance database.

Sen. Todd Weiler, sponsor of the legislation, tells Health Data Management that police search the database up to 11,000 times a year in what he believes are “fishing expeditions” to find individuals to prosecute, and they should have to show probable cause to access the database.

The legislation also enables an individual whose prescription records are in the database to obtain a list of persons who have had access to the records unless the records are subject to an investigation.

The Utah Department of Commerce operates the database that collects a dozen data elements for each controlled substance prescribed in the state. These include names of the prescriber, patient, pharmacist and pharmacy; name, quantity, strength and frequency of the prescribed drug; and date of prescription and date of the prescription filled, among other information.

The bill now moves to the State House where it will pass, Weiler says, but he expects attempts to “water down” some language, such as changing “probable cause” to “reasonable suspicion,” which requires a lower threshold to demonstrate why access is needed. Weiler can accept the changes because either way, a warrant still would be required.

To Weiler, unfettered police access to the database violates the Fourth Amendment in the U.S. Constitution covering search and seizure. And he’s not entirely pleased with tactics to change his mind and not push for a warrant. “Police said people will die and I said, ‘That may be true but that’s a problem caused by the Founding Fathers, not me.’”

Having no controls on police access invites abuse, Weiler says. “If a neighbor goes missing and you live next door, right now a cop can run your prescriptions; there’s no threshold.” Further, abuses have occurred, he contends. One police department searched the prescription records of 500 firefighters after morphine was missing from an ambulance, and two of those firefighters were prosecuted for other crimes based on their records, and acquitted.

The Utah Chiefs of Police Association does not support the legislation in its current form, says Frank Budd, executive director.

Weiler acknowledges that police chiefs are not supportive of the bill, but told the Salt Lake Tribune, “I will not apologize that the Fourth Amendment is inconvenient for law enforcement.”

Budd of the police chiefs association says law enforcement agencies are respectful of the Fourth Amendment and they use the database for pre-employment background checks, to get the drug histories of persons arrested for drug offenses, and to aid investigations into doc-shopping for prescriptions. Having to get a warrant to access the database would be cumbersome and ineffective, he adds.

The association has offered to support controls against abuse, such as needing an active case number to access the database and having a tracking mechanism to determine if access is proper. Weiler refused to drop the requirement for a warrant, and that resulted in a move to change the burden of proof to “reasonable suspicion,” according to Budd.

A fiscal note from Senate analysts estimates the bill if enacted would cost the state Commerce Department $16,700 in one-time costs in 2016 for database enhancements and programming, and $17,200 starting in 2016 and ongoing in future years for staff time related to execution of law enforcement warrants.

In the Utah State House, Rep. Brad Daw (R) will be the floor sponsor for the legislation. A marked-up version of the bill, which amends an existing law, is available here.