96-181

 No. 96-181

 IN THE SUPREME COURT OF THE STATE OF MONTANA

 

1997

STATE OF MONTANA,

 Plaintiff and Respondent,

 v.

JAMES NELSON,

 Defendant and Appellant.

APPEAL FROM: District Court of the Seventh Judicial District,

 In and for the County of Dawson,

 The Honorable Dale Cox, Judge presiding.

COUNSEL OF RECORD:

 For Appellant:

 Marvin L. Howe (argued); Simonton, Howe & Schneider,

 Glendive, Montana

 For Respondent:

 Hon. Joe Mazurek, Attorney General; John Paulson, Assistant 

 Attorney General (argued), Helena, Montana

 Scott W. Herring, Deputy County Attorney, Glendive, Montana

 Submitted: May 1, 1997

 Decided: June 24, 1997

Filed:

 __________________________________________

 Clerk

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Justice W. William Leaphart delivered the Opinion of the Court.

 James Nelson (Nelson) appeals from the Seventh Judicial District Court's order

denying his motion to quash or to suppress the results of his blood alcohol test 

obtained

by means of an investigative subpoena. We affirm.

 The following facts are not in dispute. On December 7, 1994, near Glendive,

Montana, Nelson was involved in a motor vehicle accident on Interstate 94 when he

drifted off the highway and struck a guardrail. After Nelson received a ride from 

the

accident scene to a friend's residence, Nelson's friend, Mr. Stroh, drove him to the

Glendive Medical Center for treatment of facial injuries he sustained in the 

accident. 

Emergency room physician Dr. Arthur Fink treated Nelson for a broken jaw and,

concerned over Nelson's apparent lack of pain for the injury, ordered a blood test in

order to determine his blood alcohol concentration level (BAC).

 The following morning, Nelson reported the accident to the Montana Highway

Patrol. Highway Patrol Sergeant Jerry Mahlum (Sgt. Mahlum), a Certified Accident

Reconstructionist, conducted the investigation of the accident. Sgt. Mahlum viewed 

the

scene of the accident, determined the extent of damage to the guardrail, spoke with 

the

patrolman on duty the night of the accident and independently met with Nelson and Dr.

Fink. During Sgt. Mahlum's interview with Nelson, he learned that Nelson had broken

his jaw in the accident and that it had to be wired shut as a result. Nelson told 

Sgt.

Mahlum that prior to the accident he had consumed a couple of drinks at a local bar 

and

that he had no recollection of the accident itself. In addition, Sgt. Mahlum 

determined

that Nelson's vehicle had sustained extensive left front-end damage, the type of 

damage

consistent with striking the guardrail. Sgt. Mahlum's findings led him to believe 

that the

driver involved in the accident would have either fallen asleep at the wheel or 

would have

been under the influence of drugs or alcohol. 

 On December 12, 1994, Sgt. Mahlum met with Dr. Fink. During the interview,

and without divulging Nelson's BAC level, Dr. Fink told Sgt. Mahlum that Nelson's

BAC level the night of the accident would partly explain Nelson's lack of pain 

normally

associated with his type of injuries. 

 After Sgt. Mahlum compiled the findings of his investigation, Deputy County

Attorney Scott Herrin, reviewed Sgt. Mahlum's report and determined that sufficient 

facts

existed to suggest an "unlawful activity had occurred" and, on December 14, 1994, 

filed

a Motion for Investigative Subpoena Duces Tecum with the District Court. Setting 

forth

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the facts recited above, the motion requested that the District Court issue an 

investigative

subpoena to the records keeper at the Glendive Medical Center to require disclosure 

of

all medical records pertaining to Nelson's BAC taken December 7, 1994. On December

16, 1994, the District Court found that sufficient facts were present and granted the

motion to issue the Investigative Subpoena Duces Tecum. On January 3, 1995, the

medical reports on Nelson's blood test from December 7, 1994, were provided to the

deputy county attorney showing that, shortly after his accident, Nelson's BAC level 

was

.233.

 Nelson was charged by Complaint with the offense of driving under the influence

of alcohol, a misdemeanor, in violation of 61-8-401, MCA. Nelson entered a plea of

not guilty in Justice Court. Nelson then filed a motion to suppress evidence which 

was

denied by the Justice Court. Nelson then entered a plea of guilty reserving his 

right to

appeal the denial of the motion to suppress to the District Court. 

 Nelson then appealed to District Court where he filed a Motion to Quash the

Investigative Subpoena or, in the alternative, Motion to Suppress Evidence. After

entertaining oral argument on the motion, the District Court denied the motion with 

no

findings of fact or conclusions of law. Thereafter, Nelson entered a plea of not 

guilty

and judgment was entered sentencing him to ten days in the Dawson County jail and a

fine of $500. The sentence was stayed pending appeal to the Montana Supreme Court. 

Nelson appealed to this Court and we remanded to the District Court for further

proceedings on the question of whether the State had established a compelling state

interest justifying the discovery of the BAC test, as required under Article II, 

Section 10

of the Montana Constitution. Pursuant to this remand order, the District Court 

conducted

a hearing and filed Findings of Fact and Conclusions of Law and Judgment. 

 The District Court concluded that: (1) a health care provider may disclose 

health

information about a patient without the patientþs authorization if the disclosure is 

made

pursuant to 50-16-530, MCA, which allows for disclosure þto a law enforcement

officer about the general physical condition of a patient being treated in a health 

care

facility if the patient was injured on a public roadway or was injured by the 

possible

criminal act of another . . . . þ Section 50-16-530(4), MCA. Further, the court

recognized that health care information may be disclosed by a health care provider

pursuant to 50-16-535(1)(j), MCA, when "the health care information is requested

pursuant to an investigative subpoena issued under 46-4-301." 

 Section 46-4-301, MCA, provides the authority for the issuance of investigative

subpoenas, as follows:

 Whenever a prosecutor has a duty to investigate alleged unlawful activity,

 any justice of the supreme court or district court judge of this state may

 cause subpoenas to be issued commanding the persons to whom they are

 directed to appear before the prosecutor and give testimony and produce

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 books, records, papers, documents, and other objects as may be necessary

 and proper to the investigation. A subpoena may be issued only when it

 appears upon the affidavit of the prosecutor that the administration of justice

 requires it to be issued.

 In the instant case, the Dawson County Attorney, relying on Sgt. Mahlumþs

investigation, filed a motion for an investigative subpoena to the Glendive Medical 

Center

for release of reports of Nelson's blood alcohol level relative to the time of the 

accident. 

The District Court found that the "administration of justice" required the subpoena 

be

issued. Pursuant to the subpoena, the County Attorney received Nelsonþs blood 

alcohol

results from the Glendive Medical Center. 

 Questions Presented

 We phrase the issues on appeal as follows:

 1. Did the taking of a blood sample from Nelson violate his constitutional

rights to be free from unreasonable searches?

 2. Did the information provided to Sgt. Mahlum by Dr. Fink exceed the

provisions of 50-16-530(4), MCA? 

 3. Did release of the blood alcohol information pursuant to an investigative

subpoena violate Nelsonþs right of privacy under Article II, Section 10 of the 

Montana

Constitution? 

 Discussion

 We review a district courtþs denial of a motion to suppress to ascertain whether

the courtþs factual findings are clearly erroneous and whether the findings were 

correctly

applied as a matter of law. State v. Arthun (1995), 274 Mont. 82, 906 P.2d 216. 

 1. Did the taking of a blood sample from Nelson violate his constitutional 

rights

to be free from unreasonable searches?

 Nelson contends that, since his blood was drawn at the hospital at a time when 

law

enforcement was not involved, the implied consent law, 61-8-402(1), MCA, does not

apply. He contends, nonetheless, that since the blood was taken by a doctor without 

first

seeking Nelsonþs consent, that the taking constitutes an illegal search and the 

results must

be suppressed. He cites State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298, in

support of his contention. 

 In Kirkaldie, the investigating officer and the deputy coroner asked the 

defendant

to submit to a blood alcohol test and the defendant refused. The coroner then 

requested

the assistance of the attending physician who testified that he advised Kirkaldie 

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that he

did not have to give blood but that it was in his best interest that he do so. 

Kirkaldie,

587 P.2d at 1302. Kirkaldie eventually agreed to the drawing of his blood. He then

argued on appeal that his consent was the involuntary product of psychological 

coercion

by the State. Kirkaldie, 587 P.2d at 1302. We reviewed the voluntariness issue 

under

the þtotality of circumstancesþ test and found substantial evidence to support the 

trial

courtþs conclusion that the defendant was not coerced into consenting to the test. 

Kirkaldie, 587 P.2d at 1303.

 The instant case is clearly distinguishable from Kirkaldie. Here, in contrast 

to

Kirkaldie, there was no State involvement in the taking of the blood sample. The 

blood

was drawn by a doctor at the Glendive Medical Center. The exclusionary rule, which

Nelson seeks to invoke, does not apply to evidence resulting from the actions of 

private

individuals unless they are acting as agents of the State. State v. Christensen 

(1990), 244

Mont. 312, 797 P.2d 893; see also State v. Baker (1995), 272 Mont. 273, 283, 901 P.2d

54, 60. Here, there is no suggestion or argument that Dr. Fink, in drawing blood 

from

Nelson, was acting at the direction or request of the State. In the absence of any 

State

action or involvement, Nelsonþs contention that he did not voluntarily consent and 

that

the drawing of his blood constituted an illegal search under the Fourth Amendment to 

the

United States Constitution or Article II, Section 11 of the Montana Constitution, 

must

fail. 

 

 2. Did the information provided to Sgt. Mahlum by Dr. Fink exceed the

provisions of 50-16-530(4), MCA ? 

 Nelson contends that Dr. Finkþs comments to Sgt. Mahlum about Nelsonþs BAC

were in excess of the parameters of 50-16-530(4), MCA, which allows a health care

provider to disclose the þgeneral physical conditionþ of a patient to a law 

enforcement

officer if the patient were injured on a public roadway. Although there is no 

definition

of þgeneral physical condition,þ þgeneral health conditionþ is defined as the 

patientþs

health status described in terms of critical, poor, fair, good, excellent or terms 

denoting

similar conditions. Section 50-16-504(3), MCA. Given this narrow scope of 

authority,

Nelson contends that þthe only information that Officer Mahlum should have obtained

from Dr. Fink was Nelsonþs health status." He argues that any information which

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exceeded the parameters of the general descriptors of critical, poor, fair, good, 

excellent,

etc. must be suppressed. 

 Nelsonþs argument ignores the fact that the restrictions imposed by 50-16-530

(4),

MCA, are directed not at law enforcement but at health care providers. If, as 

Nelsonþs

posits, Dr. Finkþs gratuitous comments to Sgt. Mahlum about Nelson lack of pain

exceeded the scope of 50-16-530(4), MCA, then Nelsonþs remedy lies with the health

care provider, not through a motion to suppress. A motion to suppress must be 

premised

upon illegal conduct by state officials. Section 50-16-530(4), MCA, does not 

provide a

basis for suppressing evidence and, thus, the District Court did not error in denying

Nelsonþs motion in that regard. 

 3. Did release of the blood alcohol information pursuant to an investigative

subpoena violate Nelsonþs right of privacy under Article II, Section 10 of the 

Montana

Constitution? 

 Nelson's next prong of attack is aimed at the fact that the State obtained the 

results

of his BAC test through the use of an investigative subpoena. Since an investigative

subpoena involves state action, this presents a different issue than Dr. Fink's 

gratuitous

statement to Sgt. Mahlum about Nelson's lack of pain.

 In the context of this case, the investigative subpoena finds its roots in a 

series of

statutes starting with 50-16-530(6), MCA, which provides that the health care 

provider

may disclose information pursuant to compulsory process in accordance with 50-16-

535, MCA. Section 50-16-535, MCA provides, in relevant part, as follows:

 Health care information may not be disclosed by a health care provider

 pursuant to compulsory legal process or discovery in any judicial,

 legislative, or administrative proceeding unless:

 . . . 

 (c) the patient is a party to the proceeding and has placed his

 physical or mental condition in issue;

 . . . 

 (i) a court has determined that particular health care information is

 subject to compulsory legal process or discovery because the party seeking

 the information has demonstrated that there is a compelling state interest

 that outweighs the patient's privacy interest; or

 (j) the health care information is requested pursuant to an

 investigative subpoena issued under 46-4-301.

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 In the present case, the County Attorney filed a motion for investigative 

subpoena

thereby invoking subsection (j) of 50-16-535(1), MCA, which provides for release of

health care information pursuant to such a subpoena. The motion recited that the

"administration of justice" required the issuance of the subpoena. Further, in 

issuing the

order for the subpoena, the court specifically stated that the "administration of 

justice"

requires that the subpoena be issued. Thus, it is clear that the court employed the

"administration of justice" standard of 46-4-301, MCA, under subsection (j) and 

that

the compelling state interest test of subsection (i) was not at issue. 

 Nelson contends that the investigative subpoena for release of his health care

information violated his right of privacy under Article II, Section 10 of the Montana

Constitution. He points out that 50-16-535(2), MCA, provides that "[n]othing in 

this

part authorizes the disclosure of health care information by compulsory legal 

process or

discovery in any judicial, legislative, or administrative proceeding where 

disclosure is

otherwise prohibited by law." The question presented is whether Nelson's health care

information is protected under the constitutional right of privacy and, if so, what 

effect

does this protected status have on the issuance of investigative subpoenas?

 We begin our discussion by reviewing our holdings in State v. Burns (1992), 253

Mont. 37, 830 P.2d 1318 and in State v. Henning (1993), 258 Mont. 488, 853 P.2d

1223. 

 In Burns, the defendant was charged with deviate sexual conduct. He had

provided a list of some fifteen character witnesses. The State, in order to rebut 

and

cross-examine these character witnesses, sought an investigative subpoena to obtain

Burns' personnel files from the Catholic Diocese. After conducting an in camera 

review

of the records, the district court barred discovery of the records. Burns, 830 P.2d 

at

1319. On appeal, we reiterated the two-part test from State ex rel. Great Falls 

Tribune

Co. v. Eighth Judicial District Court (1989), 238 Mont. 310, 318, 777 P.2d 345, 350,

for determining whether privacy interests are protected under Article II, Section 10 

of the

Montana Constitution. Burns, 830 P.2d at 1321. The two prongs of that test are as

follows:

 1) Whether the person involved had a subjective or actual expectation of

 privacy; and,

 2) Whether society is willing to recognize that expectation as reasonable. 

We held in Burns that it was apparent that the above test had been satisfied.

 When discovery of documents such as personnel records are at issue,

 privacy rights are undoubtedly at stake. Montana adheres to one of the

 most stringent protection of its citizens' right to privacy in the country.

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 Mont. Const. Art. II, Sec. 10. Montana's treatment of privacy rights is

 more strict than that offered by the Federal Constitution. Montana Human

 Rights Division v. City of Billings (1982), 199 Mont. 434, 439, 649 P.2d

 1283, 1286. It is against this constitutional backdrop that we view the case

 at bar. 

Burns, 830 P.2d at 1320 (citations omitted). 

 We affirmed the district court's holding that, under the circumstances of the 

case,

the State could not show a compelling interest to gain access to Burns' personnel 

files. 

Burns, 830 P.2d at 1322. But see Montana Human Rights Div., 649 P.2d 1283 (granting

Commission access to employment records to investigate possible violations of

discrimination) and Great Falls Tribune v. Sheriff (1989), 238 Mont. 103, 775 P.2d 

1267

(holding that the privacy interests of the employee police officers did not exceed 

the

public's right to know). 

 In Henning, the defendant was arrested for DUI and refused a breathalyser test. 

Instead of submitting to the breathalyser test, he asked the officer to take him to 

the

hospital so that a blood test could be administered at his expense. Accordingly, a 

blood

sample was taken by a registered nurse. The results of the test were obtained by the

State pursuant to an investigative subpoena. Henning, 853 P.2d at 1226 (Trieweiler, 

J.,

concurring). Henning was convicted in justice court and appealed to district court 

where

he filed a motion in limine asking the court to suppress the results of the blood 

test as

being inadmissible. The district court determined that, pursuant to 50-16-535(1)

(i),

MCA, the State had demonstrated a compelling interest which outweighed Henning's

privacy interests and therefore the test results were admissible under 50-16-535(1)

(i),

MCA. Henning, 853 P.2d at 1224. Henning, relying on 50-16-535, MCA, and not

on Article II, Section 10 of the Montana Constitution (Right of Privacy), argued 

that his

medical records were privileged and that the State had not satisfied the statutory

"compelling state interest" burden under 50-16-535(1)(i), MCA. On appeal, we held

that 50-16-535, MCA, pertains to the discovery of health care information but does 

not

control the admissibility of that information as evidence at trial. Henning, 853 

P.2d at

1225. Since Henning had not challenged the discovery of the test results, we 

focused on

the question of admissibility. We determined that since the blood was drawn with

Henning's consent, the result of the blood sample was admissible in evidence. 

Kirkaldie,

587 P.2d at 1302. "Once the evidence was discovered, it was no longer privileged

information and the State was entitled to move for its admission at trial." 

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Henning, 853

P.2d at 1225. 

 Nelson's appeal differs from Henningþs in that Nelson does contend that the

medical information was not constitutionally discoverable under Article II, Section 

10 of

the Montana Constitution which provides: þThe right of individual privacy is 

essential to

the well-being of a free society and shall not be infringed without the showing of a

compelling state interest.þ

 Nelson's claim of privacy in medical records satisfies the two-part test set 

forth

above in our discussion of Burns. That is, Nelson had a subjective or actual 

expectation

of privacy in his medical records and, society is willing to recognize that 

expectation as

reasonable.

 As the California Supreme Court stated in interpreting that state's 

constitutional

guarantee of privacy, Article I, Section 1 of the California Constitution:

 Legally recognized privacy interests are generally of two classes: (1)

 interests in precluding the dissemination or misuse of sensitive and

 confidential information ("informational privacy"); and (2) interests in

 making intimate personal decisions or conducting personal activities without

 observation, intrusion, or interference ("autonomy privacy").

Hill v. National Collegiate Athletic Ass'n (Cal. 1994), 865 P.2d 633, 654. 

 We agree with the California court that informational privacy is a core value

furthered by state constitutional guarantees of privacy and that the zone of privacy 

created

by those provisions extends to the details of a patient's medical and psychiatric 

history. 

Cutter v. Brownbridge (1986), 228 Cal.Rptr. 545, 549. In Cutter, the California 

court

explained:

 [T]he right to control circulation of personal information is fundamental. 

 This right reaches beyond the interests protected by the common law right

 of privacy, and may be protected from infringement by either the state or

 by any individual. The "zones of privacy" created by article 1, section 1,

 extend to the details of one's medical history. And, an "individual's right

 to privacy encompasses not only the state of his mind, but also his viscera,

 detailed complaints of physical ills, and their emotional overtones."

Cutter, 228 Cal.Rptr. at 549 (citations omitted). See also Dr. K v. State Bd. of 

Physician

Quality Assur. (Md. Ct. Spec. App. 1993), 632 A.2d 453, 457 (holding that every 

citizen

has a constitutional right of privacy in his or her medical records).

 Although medical records have not been historically protected by the Fourth

Amendment's prohibition against unreasonable searches and seizures, see Whalen v. Roe

(1977), 429 U.S. 589, 604 n.32, 97 S.Ct. 869, 878 n.32, 51 L.Ed.2d 64, 76 n.32,

Montana's separate constitutional guarantee of privacy expands the breadth of privacy

beyond traditional search and seizure principles derived from the Fourth Amendment 

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and

Article II, Section 11 of the Montana Constitution. See State v. Siegal (Mont. 

1997), 934

P.2d 176, 191, 54 St.Rep. 158, 163-64, and State v. Bullock (1995), 272 Mont. 361,

384, 901 P.2d 61, 72 (both decisions holding that Montana's constitutional right of

privacy is broader than the right of privacy under the Federal Constitution). We now

hold that Article II, Section 10's guarantee of privacy encompasses not only 

"autonomy

privacy" but confidential "informational privacy" as well.

 We hold further that, if the right of informational privacy is to have any 

meaning

it must, at a minimum, encompass the sanctity of oneþs medical records. In contrast 

to

telephone company billing records, for which there is no reasonable expectation of

privacy, Hastetter v. Behan (1982), 196 Mont. 280, 283, 639 P.2d 510, 511, medical

records fall within the zone of privacy protected by Article II, Section 10 of the 

Montana

Constitution. As the Montana Legislature has recognized, "health care information is

personal and sensitive information that if improperly used or released may do 

significant

harm to a patient's interests in privacy and health care or other interests." 

Section 50-16-

502(1), MCA. Medical records are quintessentially þprivateþ and deserve the utmost

constitutional protection.

 Nelsonþs medical records were discovered via an investigative subpoena under 

46-4-301, MCA. This statute allows an investigative subpoena to be issued if the

administration of justice so requires. Although the administration of justice 

threshold had

not been defined, it is safe to conclude that it is considerably less exacting than 

the

þcompelling state interestþ test demanded by Article II, Section 10's guarantee of 

privacy. 

State v. Baldwin (1990), 242 Mont. 176, 182, 789 P.2d 1215, 1220 (the prerequisites 

for

obtaining a search warrant are more stringent than those for acquiring an 

investigative

subpoena). We hold that, as applied to the discovery of constitutionally protected

materials such as medical records, the þadministration of justiceþ standard is

unconstitutional. Medical records may be discovered through an investigative 

subpoena

only upon a showing of a compelling state interest under Article II, Section 10 of 

the

Montana Constitution. Since this is an issue of first impression in Montana, we must

define a test for determining whether a compelling state interest exists. 

 We note that under similar circumstances, a Pennsylvania court employed a

probable cause standard. In Commonwealth of Pennsylvania v. Moore (Pa. Super Ct.

1993), 635 A.2d 625, the police sought a subpoena for defendant's medical records. 

Based upon observations and information given by witnesses to the fatal accident, 

police

were aware that the defendant had been involved in a serious accident in which his

vehicle had crossed into the lane for oncoming traffic and that alcohol had been 

detected

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on his breath. "This constituted probable cause to believe that a criminal offense 

had

been committed." Moore, 635 A.2d at 627. The court concluded:

 Under these circumstances, we conclude, as did the trial court, that the

 police use of a subpoena to compel the production of appellant's medical

 records for the preliminary hearing did not violate any constitutionally

 protected right of privacy which appellant possessed in his medical records.

Moore, 635 A.2d at 627 (citation omitted). 

 As we set forth above, Article II, Section 10 of the Montana Constitution 

expands

the breadth of privacy beyond that recognized under Article II, Section 11 of the 

Montana

Constitution. In requiring a "compelling state interest" it does not, however, 

establish

a new or heightened level of protection for any particular privacy interest. The 

home,

for example, has always been afforded protection under Article II, Section 11 of the

Montana Constitution and the Fourth Amendment to the United States Constitution. 

Although the home likewise comes under the privacy protection of Article II, Section 

10,

it does not, by virtue of Article II, Section 10 have any "more" protection than it 

had

under Article II, Section 11. Rather, Article II, Section 10 is broader in the 

sense that

it encompasses information and activities in addition to places and persons. 

Nonetheless,

privacy rights, whether under Article II, Section 11 of the Montana Constitution or 

under

Article II, Section 10 of the Montana Constitution are not absolute. State v. Pastos

(1994), 269 Mont. 43, 47, 887 P.2d 199, 202. They must yield to the State's interest 

in

conducting reasonable searches upon a showing of probable cause. 

 When an investigative subpoena seeks discovery of protected medical records or

information, the subpoena can be likened to a search warrant which must satisfy the

strictures of the Fourth Amendment and Article II, Section 11 of the Montana

Constitution. A search warrant can only issue upon a showing of þprobable cause.þ 

In

the context of search and seizure law, probable cause exists when facts and 

circumstances

presented to a magistrate would warrant an honest belief in the mind of a reasonable 

and

prudent person that an offense has been, or is being, committed and that property (or

information) sought exists at the place designated. Section 46-5-221, MCA; Siegal, 

934

P.2d at 193. We hold that in order to establish that there is a compelling state 

interest

for the issuance of an investigative subpoena for the discovery of medical records, 

the

State must show probable cause to believe that an offense has been committed and

medical information relative to the commission of that offense is in the possession 

of the

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person or institution to whom the subpoena is directed. 

 We turn then to the question of whether, under the facts in this case, there was

probable cause to believe that an offense had been committed and that Nelsonþs 

medical

records contained evidence of the offense. The motion for investigative subpoena was

based upon Sgt. Mahlumþs report that Nelson was involved in an unreported automobile

accident in which Nelsonþs vehicle was traveling west, drifted left and struck a 

guardrail

and Nelson received injuries; that a Mr. Stroh transported Nelson to the Glendive

Medical Center where Nelson received emergency room treatment; and that when

interviewed by Sgt. Mahlum, Nelson indicated that he had consumed a couple of drinks

prior to the accident. Even if we disregard Dr. Fink's thinly veiled comment to Sgt.

Mahlum as to the reason for Nelson's lack of pain, the balance of the information 

known

to law enforcement was sufficient to establish probable cause. That is, that Nelson 

had

consumed a couple of drinks before the accident; that the road was bare and dry; 

that he

ran into a guardrail; that he suffered a broken jaw; and that he had received medical

treatment at the Glendive Medical Center.

 We reiterate our holding as follows: Medical records and medical information are

protected under Article II, Section 10's guarantee of privacy. When an investigative

subpoena seeks discovery of medical records, the subpoena can issue only upon a

showing of a compelling state interest. In order to establish the existence of a 

compelling

state interest to justify the issuance of an investigative subpoena, the State must

demonstrate þprobable causeþ just as it would if it were seeking issuance of a search

warrant under Article II, Section 11 of the Montana Constitution and the Fourth

Amendment to the United States Constitution. 

 The order denying the motion to quash the investigative subpoena, or in the

alternative to suppress the evidence is affirmed. 

 /S/ W. WILLIAM LEAPHART

We concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

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