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The U.S. Drug Enforcement Administration may take the state of Utah to court over a law that took effect earlier this year aimed at protecting the privacy of information in the state's controlled-substance database.
After discovering that law enforcement had abused the database, Sen. Todd Weiler, R-Woods Cross, sponsored the bill that required police agencies to get a warrant from a judge before searching the registry.
But the DEA contends that it should be able to access the records with a simple administrative subpoena essentially a demand for information that the law enforcement agency can issue itself, without judicial review.
On June 17, DEA investigator Robert Churchwell sent a subpoena for information to Marvin Sims, administrator of the state database, demanding he provide contact information and a full prescription history for the target of a DEA investigation.
Assistant Attorney General David Wolf refused the request, arguing that Sims could not comply with the subpoena without violating state law.
''The DEA has not provided a valid search warrant accompanying its subpoena,'' Wolf wrote in response. For Sims to provide information without such a warrant would be a third-degree felony.
''Accordingly, Sims is unable to comply with the subpoena without violating Utah law and subjecting himself to criminal penalties,'' Wolf wrote in a letter The Tribune obtained through an open-records request.
Now the department is anticipating a legal challenge from the federal govern∆1
ment over the state's attempts to restrict access to the data.
Melodie Rydalch, a spokeswoman with the U.S. Attorney's Office in Utah, said that the federal government is ''evaluating the legal avenues for DEA to obtain the information it is seeking from the State of Utah.''
Weiler isn't happy about the pushback.
''I think it's very disappointing that the federal government thinks they're somehow exempt from the 4th Amendment,'' Weiler said, referring to the constitutional amendment protecting citizens' rights against unreasonable searches.
''I mean the 4th Amendment was designed to keep the government out of people's private business unless they can show probable cause,'' he said. ''I think it's disgusting that this is what it's come to, that the federal government thinks they have a right to see whatever they want and the 4th Amendment means nothing.''
Nicki Hollmann, assistant supervising agent in charge of the Salt Lake City office of the DEA, said requiring investigators to get a warrant from a judge ''will significantly hamper our mission and is contrary to the authorities we have from the [U.S.] Attorney General.''
Hollmann said Utah is ranked fifth in the nation for drug overdoses, something her agency is focused on addressing.
''We are steadfast in our commitment to conducting criminal investigations and regulatory investigations under our authorities and mission,'' she said. ''This is a significant problem in the state of Utah and we're committed to addressing what we consider a public-health epidemic.''
Weiler said he doesn't believe getting a warrant burdens law enforcement, since a state judge can issue warrants electronically in just a few hours.
The Legislature created the state's Controlled Substance Database in 1995 to track prescriptions issued by doctors to identify potential cases of misuse or over-prescribing and track the dissemination of controlled substances across the state.
''It is a little bit offensive. We created this database under state law,'' Weiler said. ''This database only exists because the Legislature created it, and for the DEA to come in and now say, 'We don't have to follow any of your rules or the 4th Amendment to access the database you created,' is ludicrous.''
It's not the first time federal law enforcement has clashed with a state that sought to limit access to its drug database. Last year, Oregon won a lawsuit against the DEA amid a similar dispute, after that state passed a law requiring a warrant to access the records. The DEA has appealed the ruling and it is still pending.
Weiler sponsored the change in the database law in response to abuse of the prescription inventory by the Cottonwood Heights Police Department.
After prescription drugs were disappearing from ambulances, a Cottonwood Heights officer investigating the disappearance ran searches on all 480 employees of the Unified Fire Authority. The investigator flagged assistant fire chief Marlon Jones, because he had received prescriptions from three doctors and Jones was eventually charged with 14 felonies.
They were all dismissed after his doctors testified he did not have a drug problem and, in April, Jones sued Cottonwood Heights. The lawsuit is pending.
In another case, two Vernal residents sued the city in federal court after a police officer used the database to identify prescriptions they had received and to steal pills from them. A federal judge dismissed that case.